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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052707
COMMISSIONER CRIBB
B2015/1204
s.238 - Application for a scope order
Application by Australian Nursing and Midwifery Federation
and
HammondCare
(B2015/1204)
Melbourne
10.38 AM, WEDNESDAY, 11 NOVEMBER 2015
Continued from 19/10/2015
PN1193
THE COMMISSIONER: Good morning everybody, please be seated. Now, I think we are in closing submissions territory, if my memory serves me correctly.
PN1194
MS KELLY: We are indeed.
PN1195
THE COMMISSIONER: Good.
PN1196
MS KELLY: Commissioner, I have to somewhat regrettably inform you that there has been an outbreak of written submissions. The contagion started with Mr Felman and infected my side of the Bar table. That has the advantage, I think, that this morning might be shorter than it otherwise might be because both parties intend to hand up written submissions in addition to the oral submissions that will be relied on. I think my learned friend said, in fact, he has already filed his with the Commission.
PN1197
THE COMMISSIONER: I do have two out of three. I don't have yours.
PN1198
MS KELLY: No, indeed.
PN1199
THE COMMISSIONER: But I have both respondent and - - -
PN1200
MS KELLY: We came down with the infection late, Commissioner.
PN1201
MR FELMAN: Overnight.
PN1202
MS KELLY: Overnight indeed. If I could hand up - - -
PN1203
THE COMMISSIONER: To be specific.
PN1204
MS KELLY: - - - my written submissions and ask that you mark them.
PN1205
THE COMMISSIONER: Ms Kelly, my apologies. I assume that a copy has been provided to Mr Felman and to Mr Sherriff.
PN1206
MS KELLY: It has been provided to Mr Felman. It has not been provided to Mr Sherriff, but I will do that now.
PN1207
THE COMMISSIONER: Excellent. Are there any objections to the applicant's closing submissions being marked as an exhibit?
PN1208
MR FELMAN: No, Commissioner.
PN1209
THE COMMISSIONER: Thank you, Mr Felman. I shall mark the applicant's closing submissions, dated 11 November 2015 as - I think it's exhibit A6.
PN1210
MS KELLY: I agree.
THE COMMISSIONER: Good, thank you.
EXHIBIT #A6 APPLICANT'S WRITTEN SUBMISSIONS
PN1212
THE COMMISSIONER: Ms Kelly.
PN1213
MS KELLY: Thank you, Commissioner. You may recall, Commissioner, that the parties are agreed that the jurisdictional requirements in this matter have been met. What is in issue are what I call the "synthesis requirements" found in section 238(4) of the Act and it is convenient to come immediately to those.
PN1214
The first is the requirement that my client have met or be meeting the good faith bargaining requirements. It's necessary, Commissioner, to make clear that that is a bifurcated requirement. We must have done one or the other. We say we have done both. We have both met them and we are presently meeting them, but in any event even were you only satisfied that we are presently meeting them, we satisfy the first of the criteria.
PN1215
The evidence that you heard on the last occasion we were here and which comes out clearly in the written statement is that the ANMF has sought to bargain with HammondCare since at least 2014. It has repeatedly sought that HammondCare do so. HammondCare, as is its right, stated its intention not to bargain until at least July 2015 and, in the event, did not commence bargaining until October 2015.
PN1216
In that context, we say that at the time the application was made, the ANMF had done everything it could possibly, reasonably be expected to do to engage with HammondCare. It had written letters that set out its position. It had attended meetings with relevant officers of HammondCare to discuss the course of bargaining and it had consistently reiterated its position over the course of eight or nine months.
PN1217
Now, we don't criticise HammondCare for not sitting down with this in that period; that was its right, but in that context, it is surprising to say the least that we find my learned friend making the submission that the ANMF should be criticised for not having sat down with HammondCare once prior to making its application to discuss the terms and conditions that might be included in a national agreement. Our friend makes that submission in the written submissions that are before the Tribunal.
PN1218
It's very curious, when we have the reality that it was HammondCare and not my client that didn't want to sit down. My client was happy to sit down to discuss an agreement. It certainly had a claim that the agreement would have a scope that covered only workers in Victoria, but nonetheless what it wanted to do was bargain and everything is on the table when we bargain. It was HammondCare that did not want to sit down at all. Not merely to discuss an agreement that had a scope covering Victoria, it didn't want to talk to us at all until late this year, and that is in fact what transpired.
PN1219
So it is a curious criticism and one that goes nowhere in the face of that evidence. There was clear evidence from Ms Gulczynski that it was HammondCare and not the ANMF that was the cause of the delay and, Commissioner, you will find that at paragraph numbers 1017 to 1018. The criticism my learned friend makes is also surprising in light of what very clearly came through in the evidence last we were before you that HammondCare is not and has never been prepared to consider a separate agreement for Victoria. I will develop that point later and take you Commissioner to the relevant paragraph numbers.
PN1220
It is not prepared to consider different terms and conditions between states and it has not agreed to a single one of the Victorian-based conditions that have been advanced by the ANMF. In that context, it is a surprising suggestion by allegedly not being prepared to sit down to discuss a national agreement, the ANMF has not met the good faith bargaining requirements.
PN1221
Even were that not to be accepted though, they're certainly meeting them now. What you will see, Commissioner, from the evidence is that the ANMF did the following things. It sat down with its members and generated a lot of claims for discussion. It has participated in, as the evidence stands before the Tribunal, two full-day negotiating meetings, which is all of the meetings that had been held as at the date this matter was heard. To do that, it flew two of its senior officials to Sydney for the purpose of engaging in those negotiations. It set out its claim clearly and communicated them clearly both in writing and by way of a presentation that took one hour and 40 minutes to the bargaining group of the claim. It listened and responded appropriately to the log of claims put by the other bargaining representatives. It actively engaged in a process imposed upon it by HammondCare, the clause-by-clause process that I will talk about some more in a moment, and then it indicated its intention to continue to participate in future meetings and also undertook to do some drafting and some research work prior to the next meeting take place.
PN1222
Now, all of that suggests - it does more than suggest in fact, it evidences that my client has bargained in good faith. Now, what is put against us is that we were simply going through the motions and that we hadn't kept an open mind. That contention is pressed against us in the written submissions filed by the respondent, but it's simply at odds with the evidence that came out at the last hearing.
PN1223
As I've indicated, the ANMF sent its two officials to Sydney. The first part of that day was taken up with two things, Commissioner. An introduction of all of the bargaining representatives to each other, my client participated in that; a presentation by bargaining representatives of logs of claims, my client certainly did that, it's presentation took one hour and 40 minutes, and was supported by a comprehensive written statement of the claims that were being made, and it also participated by listing to the claims made by other bargaining representatives.
PN1224
The balance of the first two days, so half of the first day and the whole of the second day was taken up with this process you heard about, Commissioner, of analysing clause-by-clause, one after the other, the two existing New South Wales agreements. Now, my client was critical of that process.
PN1225
Nonetheless, my client participated in that process, and that was very clear from the evidence of Ms Reeve that she attended and participated in that part of the negotiating process; she made comments on various clauses, she proposed wording changes to various clauses. She discussed the difference between a particular clause in the existing agreements and the claims being advanced by the ANMF, and you will find those references at paragraph numbers 429 to 448, and she was able to give in principle agreement to a number of matters, subject of course and appropriately to going back to the membership to seek their approval.
PN1226
One asks what more could the ANMF have been expected to do to meet the good faith bargaining requirements in the framework that was imposed upon them by HammondCare. Now there was a very curios attack launched on Ms Reeve during cross-examination. It was put to her that she did not make one single concession on the ANMF log, at paragraph 443.
PN1227
Ms Reeve explained in response that the ANMF had made its proposals, the vast majority of which were placed in what was being called by the bargaining parties "the car park" for later discussion and that as they work through the clause‑by‑clause process, when a clause came up that touched on the ANMF log, she discussed it. There was nothing more that Ms Reeve could have done, and no opportunity for her to be making concessions in circumstances where the parties did not get further than discussion of the claims and the differences.
PN1228
It was also suggested that Ms Reeve did nothing more than to simply repeat the claims made by the ANMF. Again, that criticism is unfair in circumstances where not all bargaining representatives had, in fact, put their log of claims on the table. This wasn't a process in which the parties were reaching agreement, making concessions, moving towards a resolution. It was, let's be frank, a tedious review, clause-by-clause of two existing agreements, rather than a full and frank negotiation. That criticism of Ms Reeve is entirely unfair and at odds with her very clear evidence of the role she played in that discussion process.
PN1229
Now, it's also contended that the ANMF is not bargaining in good faith, because it's not prepared to sit down and discuss a national agreement. Now, this proposition has to fail for two reasons. The first is that it allies the concepts of negotiation with the claim contained in bargaining. My client has always wanted to negotiate. It has been asking to negotiate for more than a year now, and now that bargaining has commenced it is negotiating.
PN1230
Its claim, a primary claim, a key claim for it is that it had an agreement that has a scope that covers only workers in Victoria. There is nothing wrong with that claim. There is nothing improper about it and there is absolutely nothing improper about the ANMF pressing it and pressing it vigorously. The fact that it is one of the claims pressed by the ANMF does not mean that the ANMF is not prepared to sit down and bargain.
PN1231
This is where my learned friend goes wrong with his submission. He says, "Well, unless you are prepared to shift your claim and agree to considering a national agreement, then you are not bargaining in good faith." Now what the scope cases that have gone before make very clear is that there is a difference between the process of commencing bargaining and the scope of the agreement that might eventuate.
PN1232
We do not commence bargaining for a particular scope, we commence bargaining and the parties put their claims for what the scope or to be. Now, that will be resolved by one of a number of mechanisms. Obviously, it might be resolved during the course of negotiation or alternatively it might be resolved through good faith bargaining orders or it might be resolved through a scope application of this kind, but they are two separate processes are they must not be run together.
PN1233
Firstly, we bargain; secondly, we determine scope through one of the mechanisms that I have described. And we can see very clearly from the evidence given by both Mr Hubbard and Ms Reeve that that is, in fact, what the ANMF did. When it was put to Ms Reeve that the ANMF was not prepared to sit down properly with HammondCare and talk to them about a national agreement, her evidence was, "I don't think that is true. I did sit down with HammondCare for two days and that has always been our intention to sit down and engage in negotiations with HammondCare." Commissioner, you will find that reference at paragraph number 281. As I said, we don't shy away from the position that one of our claims is a particular scope, but that has no bearing on whether or not we have, in fact, been bargaining in good faith.
PN1234
Commissioner, you will see in the written submissions at paragraph 23 and following that I have extracted the relevant cross-examination of Ms Reeve about those matters. They all clearly support the proposition that the ANMF is bargaining. It seeks to bargain for a scope that covers workers in Victoria. If it does not achieve that, it will still be covered by this proposed agreement and continues to intend bargaining for it.
PN1235
Now, Ms Reeve said that if it is the case that there is a national agreement that is to be negotiated; that is, if we lose this application and otherwise can't negotiate an alternative outcome, the ANMF will continue to participate and represent the views of its members, paragraph number PN506. That is a wholly orthodox approach by a default bargaining representative.
PN1236
Of course, Commissioner, the industrial reality - and my learned friend cross-examined Ms Reeve about this, the industrial reality is that the ANMF will want to be covered by this agreement, whether it covers Victoria or whether it covers Victoria and New South Wales. It would be inimical to its own interests and the interests of its members who are covered by it for it not to do the best job it could to negotiation then the best possible arrangement. There is been no suggestion that the ANMF wouldn't do that and, in fact, that is how it has been conducting itself and will continue to conduct itself.
PN1237
So what we see, Commissioner, is that the ANMF has sent two of its senior representatives to Sydney. They have fully participated in the bargaining process to date. They have consulted with their members and they have put in a written log of claims and they have comprehensively explained it and participated in a clause-by-clause process. They have made appropriate concession. They have undertaken the daft clauses and to research topics and to return them to the group. They have, in short, done everything that could be expected of them as a bargaining representative and the Commission can be well satisfied that they have bargained in good faith and are continuing to bargain in good faith.
PN1238
That then turns attention to whether or not the scope that would be sought will promote the fair and efficient conduct of bargaining. Commissioner, you will see at paragraph 31 of the submissions handed up this morning that there are a number of factors there that have emerged from the evidence about how bargaining is being conducted and they are, I think, largely uncontroversial propositions. Negotiations have taken place in Sydney. We had a late offer by HammondCare to consider paying for ANMF officials to fly to Sydney; the evidence didn't go any higher than that. It is something that will be considered only.
PN1239
Two days of bargaining have occurred; only one employee representative from Victoria was in attendance. HammondCare's position is that bargaining should proceed for the basis of conditions provided for under the modern award and, I should add, the two existing New South Wales agreements. Bargaining to date has been conducted primarily by the clause-by-clause process I have mentioned.
PN1240
Ms Reeve gave evidence that bargaining representatives from New South Wales had expressed frustration at the necessity to continually review the Victorian terms of agreements. She wasn't cross-examined about that evidence, and she also gave evidence that bargaining representatives from New South Wales were dismissive of the Victorian-specific claims. Again, she wasn't cross-examined about that evidence.
PN1241
In paragraph 32, Commissioner, you will see the ways in which we say bargaining will proceed more efficiently. At paragraph 33 you will see the ways in which we say it would also be fairer and I will develop those not at any great length, but there is a very important point I need to deal with first. It is pressed against us that we allied with the concepts of bargaining with the outcomes of bargaining. Mr Felman puts against us that the whole of Mr Hubbard's evidence was directed to the terms and conditions of employment in Victoria and that, in truth, what we are concerned about is an outcome from bargaining, rather than its process.
PN1242
That criticism can't be made good if one understands the reason why we call that evidence. We have called it because fairness has to be assessed in context. The authorities, some of which we have extracted, tell us that; most particularly, the Transport Workers Union case. We look at a range of factors. The interest of the workers, the history of industrial regulation are two. We do not assess fairness and deficiency in a vacuum.
PN1243
Mr Hubbard's evidence gives us the context in which we make the assessment about whether or not this bargaining process - - -
ANNOUNCEMENT RE REMEMBRANCE DAY [10.57 AM]
PN1244
MS KELLY: I'll work from the clock on the desk, if that's convenient Commissioner.
PN1245
THE COMMISSIONER: There will be another announcement. Yes, you won't have to wonder.
PN1246
MS KELLY: Excellent, thank you.
PN1247
Now, Mr Hubbard was cross-examined at some length about this and his evidence was very clear. He said that it was about the process of whether it is fair or not that Victorian employees with a particular history don't have that opportunity to at least try and bargain for that group of conditions. That is the fairness we are speaking to. Commissioner, you will find that reference at PN624.
PN1248
He then went on to expressly deny that the outcome was the only concern of the ANMF. He said, "I suppose the question here is not necessarily the outcome, because the outcome if it is done in Victoria could quite conceivably be slightly different to our normal agreement, given the low base of wages that HammondCare is coming from." But it is the fact then that it is then Victorian employees who would have that choice about that in the context of bargaining for a Victorian agreement, they lose that, being part of a national agreement because they are outnumbered by five or six to one, paragraph number 620.
PN1249
So that evidence goes to this framework in which we are asking the Commission to make its assessment of fairness. We have a set of terms and conditions that are uniquely Victorian. We have a history of industrial regulation that has resulted in several hundred agreements which largely reflect those terms and conditions. More than 95 per cent of providers in Victoria have an agreement that reflects these terms and conditions and, obviously, we have had a very active union that ensures that its members, by and large, across the state enjoy these conditions. That's the framework in which we are asking the Commission to make an assessment of whether or not this process is fair to those workers.
PN1250
Now, there are five ways in which the orders made in the terms we seek to promote the fair and efficient conduct of bargaining and, given the time, I won't start the first one.
REMEMBRANCE DAY ANNOUNCEMENT [11.00 AM]
PN1251
THE COMMISSIONER: Ms Kelly.
PN1252
MS KELLY: Thank you, Commissioner.
PN1253
As I was saying, there's five primary reasons why the orders we seek will promote the fair and efficient conduct of bargaining. The first is that the parties are at an impasse in relation to this issue. Ms Reeve gave evidence that there have been many occasions where the ANMF has said that it wants a Victorian agreement and HammondCare has said the opposite, paragraph PN209.
PN1254
She also gave evidence that it was her impression that a national agreement was a done deal and that HammondCare's mind is made up and that has been made very clear to us throughout all of the correspondence and certainly the meetings on 8 and 9 October didn't suggest any differently, PN504.
PN1255
Mr Hubbard gave evidence that that position had been communicated very clearly to the ANMF across an extended period of time. His evidence was that:
PN1256
So all along - and that was reiterated again on 4 August. So by the time I had to make my statement on 23 September I've had four pieces of correspondence and to meetings that have made that pretty clear what HammondCare's view is.
PN1257
PN 598.
PN1258
But we don't have to simply rely on the impression received by my client about HammondCare's intentions because Ms Gulczynski gave evidence about it. She said:
PN1259
HammondCare is not actively considering a Victorian agreement and is not actively considering differentials in wages and conditions between Victoria and New South Wales employees.
PN1260
So we have, very clearly, evidence that we have an impasse around this issue. Bargaining will necessarily then proceed more efficiently if the Tribunal steps in to resolve the impasse.
PN1261
Second, it will be inherently fairer if the order is made, because the Victorian workers will not be forced into this position where they are required to bargain from the benchmark of the terms and conditions contained in the New South Wales agreement. Instead, they will have the benefit of being able to bargain for their industry conditions in Victoria, free of the constraints that this process is imposing on them.
PN1262
It is incontrovertible that the Victorian conditions are different to those in New South Wales and that, in most cases, they are more beneficial. Mr Hubbard's evidence tells that and he was not shaken under cross-examination about that and I direct the Commission to paragraph numbers 548 to 549. Among other things, there are their substantial wages differential and the Commission will see that at PN555.
PN1263
Now, Ms Reeve gave some evidence about this. Under cross‑examination she said that she would expect a Victorian employer to agree to these conditions up front, PN279, because these conditions are very standard and, in fact, that's why they are on the list, she said, because they would be viewed generally in Victoria as uncontroversial for employees to have these conditions, that's at PN280.
PN1264
I have extracted at paragraph 46 a relatively lengthy passage from Mr Hubbard's evidence that demonstrates the problem. I won't read all of it out, but he concludes by saying:
PN1265
Being part of a national agreement they -
PN1266
being workers in Victoria,
PN1267
effectively have very little say because they are 20 per cent, if that, of the workforce.
PN1268
PN602.
PN1269
So it is inherently unfair, the current process, and let's be very clear about it, HammondCare's evidence was that it wanted to roll it's two existing New South Wales agreements into one national agreement and that that was the basis from which bargaining would commence and proceed. That is, in fact, what has happened at bargaining and HammondCare gave very clear evidence that it was not prepared to consider commencing from a different base.
PN1270
It was not prepared to consider commencing from the template agreement provided by the ANMF, nor was it prepared to commence bargaining from a blank sheet of paper. So a framework for bargaining has been imposed on the Victorian workforce by HammondCare and by virtue of the great difference between that framework and the terms and conditions enjoyed by Victorian workers in this sector, there is a real unfairness to those workers that is compounded by the minority that they make up of the workers who would be covered by the proposed national agreement scope.
PN1271
Now, I need to pause here to say that it is put against us that we want nothing more than to impose on HammondCare our standard terms and conditions. That is not true. Mr Hubbard's evidence on that point was very clear. He said:
PN1272
Well, part of the issue was about the fairness - the efficiency and fairness of the bargaining. That's where our scope application comes from. Even if we end up with something, an outcome that's different from what is standard in Victoria, at least the Victorian employees will have arrived at that.
PN1273
PN625.
PN1274
He expressly denied an allegation that the ANMF wanted to force on HammondCare the ANMF template and he then pointed at PN673 to arrange workplaces in which the ANMF has departed from the standard terms and conditions and has introduced terms and conditions into the agreement that are suited to a particular employer's model of care.
PN1275
Third, the clause-by-clause analysis process is unfair and inefficient. Ms Reeve gave evidence about that process. She said she was frustrated by it to some degree. She said that when it was raised as a feature, she raised her concerns about it and those concerns were that other bargaining representatives were not in a position to raise their claims, because we would then have to revisit those matters when those other people's claims were ready to go.
PN1276
She felt the focus was on the minutiae of an agreement, which we didn't feel was a benchmark or a baseline for negotiations, rather than substantive negotiating matters, which to her seemed like a logical place to start, being the bigger picture items about what the agreement should look like.
PN1277
She went on to say, under cross-examination by Mr Felman, that the clause-by-clause analysis in her view really restricted the ANMF's ability to engage in the substantive matters in those claims and to deal with those sorts of items, because the bulk of the time spent in the two meetings was doing the clause-by-clause analysis. You will find that at PN351. At the conclusion of two days of bargaining, the parties had reached clause 23 of the New South Wales agreements and there had been no substantive discussions of any matter in the ANMF log of claims.
PN1278
Now, all of those points demonstrate an inefficiency and unfairness in and of themselves, but they are really compounded by the minority interests of these Victorian employees being subjugated to the interests of the majority. That's a relevant factor in these cases and we see it very clearly here.
PN1279
Two Victorian workers nominated to be employee bargaining representatives. Only one of them was able to attend the negotiations and HammondCare's evidence was that it took no steps to try and encourage other members of its Victorian workforce to attend. No steps. In fact, Ms Gulczynski was happy to concede that the Victorian - the single, lone Victorian representative was substantially outweighed by her New South Wales counterparts. You will find that at PN 1041 and, again, I have mentioned the evidence of Mr Hubbard that being part of the national agreement, these workers effectively have very little say because they are 20 per cent, if that, of the workforce, PN602.
PN1280
Now, what compounds this, Commissioner, is Ms Reeve's unchallenged evidence - she wasn't cross-examined about this - that where there was disagreement between the bargaining representatives for New South Wales and Victoria, weight was given to the majority of votes in the room - that's at PN466 - and that that majority process affected the issues that went into the car park as well as the issues that were to be negotiated, that's at PN467.
PN1281
Now, that is the best evidence of the unfairness. These Victorian workers who come from a state that enjoys these more favourable terms and conditions will always be in a minority because of the way that the bargaining process has been constructed in the way that negotiations are in fact taking place.
PN1282
Now, HammondCare makes a submission that, in my view, is nothing short of heroic. It says "The differences can be worked out in bargaining." That's an extraordinary proposition. It's pressed in my learned friend's written submissions, but this is what HammondCare's evidence under cross-examination tells us. HammondCare's position remains that it wants a national agreement, PN991 and PN992.
PN1283
HammondCare is not actively considering a separate agreement for Victoria, PN1120. The New South Wales agreements are the base from which HammondCare is working, PN985 and PN8984. HammondCare wants to consolidate the existing two agreements into a single national agreement, PN985. HammondCare's intention, from the beginning, has been that the agreements consolidated together would form the basis for negotiations, PN987,
PN1284
HammondCare is not proposing to start from a blank sheet of paper, PN988 and HammondCare is not prepared to negotiate from the template provided by the ANMF, PN990. Now, all of that makes very clear that there is no scope within this bargaining framework for the ANMF's claims to be genuinely and fairly considered by HammondCare.
PN1285
That is reinforced by the evidence that was given by Ms Raguz about what she saw as fairness and equity in pay and condition between states. When cross-examined, she gave evidence that:
PN1286
HammondCare believes in a fair and equitable pay for people for the work and job that they have done and with our workforce we do believe that it is important that all people are treated equally.
PN1287
She was referring there to equally in relation to terms and conditions, and she accepted that consistency in terms and conditions was important to HammondCare at PN866.
PN1288
Now, Ms Gulczynski was initially very evasive when asked about differential rates of pay. She made a significant attempt to avoid answering the question in clear terms and said, referencing it back to motherhood statements about fairness and equity, but ultimately she was forced to concede that HammondCare does not want state-based differentials in pay and conditions.
PN1289
Now, it might be said that, well, my client might then be able to negotiate all of these Victorian terms and conditions in the national agreement. There is nothing stopping the national agreement from containing all of the things that we have asked for. That only needs to be said to be dismissed.
PN1290
We have a small workforce in Victoria and we have a very large workforce in New South Wales, and we have a concession by HammondCare that it has not costed our claims, either for the Victorian workforce or for the New South Wales workforce. Nor has it, despite having had our log of claims for many, many months looked into what these terms and conditions are that we are talking about in Victoria. You will find those references at PN1001 and PN1067 to PN1068.
PN1291
Now, we sought six key terms to be preserved. HammondCare conceded that not one of those had been the subject of an agreement about preservation as at the date of the hearing. That's at PN1032.
PN1292
So what emerges from all of that, Commissioner, if we look at it clearly HammondCare wants a national agreement. It's not prepared to consider a state-based agreement. It wants consistent terms and conditions across its workforce and that those terms and conditions are, in fact, the New South Wales terms and conditions, with whatever improvements can be bargained for from that base.
PN1293
If this process is allowed to continue, the unfairness that we feel is likely for the Victorian workers will, in fact, come to pass. It is necessary therefore that an order be made to improve both the fairness and efficiency of its bargaining. Finally, of course, a scope model will have the effect that bargaining is only conducted with persons employed in the state of Victoria. That will substantially increase the opportunity for Victorian employees to participate in the bargaining, not least because it will physically take place in Victoria which enhances access, but also because it will permit more people - more individuals from Victoria to actively attend and participate in the bargaining itself.
PN1294
Now, Commissioner, you need to be satisfied that the group is fairly chosen. The critical point to be made here is that there might be any number of groups that are fairly chosen in any particular workforce. We are not concerned with whether this is the fairest group. We are not concerned with whether there are other groups that are equally fair or more fair.
PN1295
The only inquiry that we are concerned with is whether or not this particular group is fairly chosen. It's clearly geographically distinct in that it's bounded by the state of Victoria, but more importantly it is a group that has the benefit of working in a state that enjoys the terms and conditions of employment that are set out in Mr Hubbard's statement and about which he gave evidence the last time we were here.
PN1296
It encompasses the whole of the classifications in the state of Victoria and it would recognise the distinct conditions of those workers and the particular industrial history that has led to those terms and conditions applying, as I said, to 95 per cent or more of workplaces in Victoria. That didn't happen by accident. It was a union that worked very hard to ensure that these terms and conditions are afforded to workers in the industry in Victoria.
PN1297
There has been no cogent argument put against why that grouping is not fairly chosen. As I said, we can put to one side questions of whether or not there are other groups that are equally fairly chosen or even more fairly chosen. We only need to satisfy the lower threshold.
PN1298
Now, if the Commission is satisfied of all of that, it still needs to be satisfied as a global level that it is reasonable in all of the circumstances to make this order. There are a number of reasons why that is so. The first I have already mentioned, Commissioner. We are at an impasse on this issue. It's been more than 12 months that the parties have been discussing the issue of scope. The parties are in trench on this element of their claim. My client doesn't resile from it, HammondCare's position is clearly that it is not considering a Victorian-based agreement and continues to press for its national agreement.
PN1299
It has been accepted many times before that in those circumstances it is appropriate for this Tribunal to resolve the impasse by making an order. HammondCare has not come and sought an order, Commissioner. There is only one party that is seeking an order of that is my client and if the Commission is satisfied that it is appropriate for an order to issue to end this impasse then it is appropriate that it issue in the terms sought by my client.
PN1300
Now, HammondCare puts a significant smokescreen up about its policy positioning around the contents of enterprise agreement. It's a smokescreen and distraction, and it really can be put to one side, but to ensure that we deal with it if we need to, HammondCare says a few things. First it says, "We have this national model of case and we need to ensure that we can have a consistent model of care state by state."
PN1301
We're on board, Commissioner. Every provider of this kind has a national model of care. Very few of them have national agreements. Mr Hubbard's evidence on this point is very clear. The standard practice in the industry is to have state by state agreements, even for very large national providers like Bupa, for example, or others of that kind.
PN1302
But critically, the evidence HammondCare gave was despite this being such a significant concern for it, the model of care is not built into the existing enterprise agreements. So there were a number of elements of the model of care. It involved the particular roster pattern from four days on, three days off; continual face-to-face care so that residents are see seeing a limited number of different faces; carers having a practice of cooking with residents so that we have something that feels like a home environment, rather than a facility and a particularly unique-built environment to facilitate all of that.
PN1303
We've got no issue with any of those things. We haven't said no to any of those things. We don't take issue with any of those practices. Not one of them finds expression in the enterprise agreements existing in New South Wales, not one of them. The highest it could be put is that there is a classification that refers to the practice of particular carers cooking with residents. It's a classification structure and there is absolutely no reasons that that can't be included in a Victorian-based agreement.
PN1304
So it is a complete distraction to say we need consistency of terms and conditions to facilitate this model of care, when the model of care doesn't presently find expression in the enterprise agreement and critically, HammondCare isn't asking it to. HammondCare's claims don't include that the model of care be rolled into the enterprise agreement. All of these things will continue to sit outside it. That can simply be put to one side.
PN1305
HammondCare conceded that the staffing model that's described in paragraph 28 of Ms Raguz's statement could be provided for in an agreement that only applies to the state of Victoria, and she also conceded that that shift pattern, as I said, isn't presently found inside the existing enterprise agreements. A similar concession was made about the multi-skilling and the practice of preparing food, and it was accepted by HammondCare that the ANMF has not said no to any of these things.
PN1306
It's put that to separate agreements are going to make it difficult for people to transfer between facilities. There were two concessions. Ms Raguz conceded that she is sure it's possible that there are ways to send people interstate with two agreements in place, that's PN864, and Ms Gulczynski made a similar concession.
PN1307
She also made a concession that HammondCare's real concern was that employees would discuss their differing terms and conditions and would lead to unrest in the workplace, at PN1073. That's a matter for workplace management. It's got nothing to do with bargaining and it shouldn't be allowed to distract from what is the real issue here, which is whether or not this proposed form of order will make bargaining fairer and more efficient. Potential unrest in the workplace at some unspecified and unknown point in the future certainly has no bearing on bargaining that's taking place today.
PN1308
HammondCare also relied on a series of benefits that it provides to its employees outside its current industrial arrangements, but HammondCare's evidence under cross-examination was that it has no intention of rolling those benefits into the enterprise agreement. One wonders why they were mentioned. HammondCare can continue to provide those terms and conditions to all of its employees outside the terms of the industrial framework as it does now. It's an irrelevancy and a distraction.
PN1309
The final point, Commissioner, is that all of the union bargaining representative support the making of this order. That's a very significant matter. The folk in New South Wales support the making of this order as do the two bargaining representatives for workers in Victoria. Those bargaining representatives representing stand in the place of their members and it can be taken therefore that the application has the support of the members of all of those organisations.
PN1310
When we look at all of those things together, Commissioner, it is clear that my client is doing everything that can be reasonably expected of it to participate in this bargaining process. There is a significant inefficiency in the way it is being conducted. There is a significant unfairness in the way it is being conducted and the order that we seek that the scope of the agreement be confined to persons employed in the State of Victoria will both enhance the efficiency and the fairness of bargaining for Victoria workers.
PN1311
Unless you have any questions, they are the submissions for the applicant.
PN1312
THE COMMISSIONER: Thank you, Ms Kelly.
PN1313
MS KELLY: Thank you, Commissioner.
PN1314
MR FELMAN: I just wonder if Mr Sherriff is going to - it's probably an appropriate time for him to close.
PN1315
THE COMMISSIONER: I was wondering that as well. I did look at him, but then he looked in your direction. Mr Sherriff.
PN1316
MR SHERRIFF: Thank you, Commissioner. We stand in support of all of the ANMF's submissions and, indeed, our own. There's been a lot of discussion in this matter about clause 238(4) and others, however we would simply like to say that's all addressed in the materials; all addressed in the submissions and in the hearing today.
PN1317
I would just like to submit for the very fact that there seems to be an impasse or, at the very least, a sticking point in the negotiations involving the scope of an eventual agreement leads one to a view that efficient bargaining is certainly assisted by breaking that. I think that's pretty certain.
PN1318
But I would also like to further submit that under subsection (d) that certainly given that impasse and given that the submissions by ourselves and the ANMF address quite fully, I would submit, the subsections (a) to (c), it's certainly reasonable in all the circumstances to make the order, given that the impasse has occurred, given that there are significant industrial differences between the two groups of employees, if we call them that, and that is pretty much our submission.
PN1319
THE COMMISSIONER: Mr Sherriff, thank you. Would you like the written outline of submissions on behalf of the HSU marked as an exhibit?
PN1320
MR SHERRIFF: Certainly, your Honour.
THE COMMISSIONER: Is there any objection? All right, thank you. I shall mark the Health Workers Union's outline of submissions
EXHIBIT #I1 HEALTH WORKERS UNION'S OUTLINE OF SUBMISSIONS DATED 27/10/2015
PN1322
THE COMMISSIONER: Mr Felman.
PN1323
MR FELMAN: Commissioner, I am going to spend the majority of the time, obviously, addressing the elements in section 238, but before I do, just to take a step back and say what is this case about? What you have here, Commissioner, is an organisation that operates facilities in New South Wales and has existing enterprise agreement which are based on terms and conditions that have historically been negotiated in New South Wales, with some changes and meet the BOOT under the modern award system.
PN1324
You then have this organisation wanting to open up a facility in Victoria, and it has, and you get the Victorian union come along and saying "We have got our own set of conditions in this state that we have fought for and won, and we aren't copping you taking them away from us in any national agreement." That's it, and they said that before we even sat down.
PN1325
Now I come to why all these allegations flying about scope is what prevented people from sitting down. Actually, the evidence was entirely to the contrary, but that's what this case is about. New South Wales has come along - Victoria has come along and said, "We are not giving up the terms and conditions that we have had in Victoria for" for however long and that are based on pre-modern awards and pre-reform agreement - awards.
PN1326
I mean the evidence is, Commissioner, that what the log and what they are, sort of, pro forma Victorian EBA is derived from is pre-reform Victorian awards. That's just a fact. I mean, what flows from that we will come to, but - - -
PN1327
THE COMMISSIONER: But I don't think that's - Ms Kelly might correct me. That isn't the way in which it has been characterised - it's been put by the other side. It may - - -
PN1328
MR FELMAN: What isn't, Commissioner?
PN1329
THE COMMISSIONER: It may - I mean, technically, there may be - I don't think I have heard anybody on the other side actually talk about a pre-reform award. What they have talked about is the fact, from their - from as they see it that 95 per cent - I think Ms Kelly said 95 per cent of workplaces have a particular set of terms and conditions so they are consistent across those workplaces and my understanding is that they are embodied in enterprise agreements.
PN1330
Now, where they came from I don't think - I don't recall the union actually dwelling on that bit, and so therefore the characterisation that you're making of what the union's arguments are, I don't think matches what I have heard.
PN1331
MR FELMAN: No, they're not saying it, Commissioner, for reasons that I will go into; it doesn't help their case, but that is the evidence. The evidence of Mr Hubbard was these conditions are derived from pre-reform awards. I can take your Honour to the paragraph. Now, the fact that my friend is not making much of it is because it doesn't help them, but that's - the way they characterise their argument is not necessarily what are the facts, Commissioner. That is the fact and I am going to come to - - -
PN1332
THE COMMISSIONER: But aren't they both facts, Mr Felman?
PN1333
MR FELMAN: What are both facts?
PN1334
THE COMMISSIONER: That isn't the current terms and conditions that apply to employees in this sector and Victoria are contained in enterprise agreements?
PN1335
MR FELMAN: Yes.
PN1336
THE COMMISSIONER: The historical genesis of the content of those agreements are the pre-reform awards.
PN1337
MR FELMAN: Yes.
PN1338
THE COMMISSIONER: All right. I'm just - - -
PN1339
MR FELMAN: All I am saying is that that's part of the background to this case. What flows from that, Commissioner - - -
PN1340
THE COMMISSIONER: Yes. No, I get that bit.
PN1341
MR FELMAN: Well, what is the Commissioner's concern then? I mean that - my submission is the evidence is they are where the Victorian conditions in Victorian EBAs are derived from.
PN1342
THE COMMISSIONER: Yes - - -
PN1343
MR FELMAN: And that they are unique to Victoria and the ANMF have come along and said, "Well, that's what we want and we are not copping any national agreement that doesn't embody those terms."
PN1344
THE COMMISSIONER: Yes, which at this point in time are in enterprise agreements that have been approved by the Commission.
PN1345
MR FELMAN: Correct. There's no criticism of the fact that they are enterprise agreements, but I'm just giving a background. For example, at paragraph 42 of Mr Hubbard's statement in Victoria, ANMF is a party to be covered - is a party to or covered by some 230 enterprise agreements. These agreements generally provide for the standard conditions contained in the pre-reform awards.
PN1346
THE COMMISSIONER: Yes.
PN1347
MR FELMAN: Which applied to Victorian employees. These pre-reform awards - this is paragraph 43 - were generally incorporated by express reference in enterprise agreements negotiated in the 2006 (indistinct) and again in 2009 and 2010. That's all I'm saying.
PN1348
THE COMMISSIONER: Yes.
PN1349
MR FELMAN: But it's important, Commissioner.
PN1350
THE COMMISSIONER: Tell me why.
PN1351
MR FELMAN: Well, it's going to be our reasonableness argument.
PN1352
THE COMMISSIONER: Yes.
PN1353
MR FELMAN: But it's also going to be - it goes to fairness and efficiency as well.
PN1354
THE COMMISSIONER: Yes.
PN1355
MR FELMAN: Two points, and I'll say this up front, but I want to develop it later. If Victoria ANMF says, "Well, we've got the standard conditions that are based on pre‑reform awards that we're going to hold onto," and HammondCare says, "Well, we want a national agreement and we've got terms and conditions in a New South Wales agreement and we might depart from some of them," and the ANMF says that they might depart from some of theirs, and even by the ANMF's own position the parties are entrenched, how is a scope order going to make a whit of difference? The same fight is going to be had bargaining just for a Victorian agreement as is having now.
PN1356
What the true complaint of the ANMF is is that we are going to be swamped. That's the complaint. The same bargaining will go on. In a bargaining, just for a Victorian-only agreement, both parties will come to the same view. In a sense, the ANMF are hoisted by their own petard. They say in paragraph 51 of their submissions, "Both parties are entrenched.
PN1357
They're not going to concede this. We are" - the evidence is that they want their Victorian-based terms and conditions. How is bargaining going to be more efficient by getting those parties to have the same fight in a room just on a Victorian EBA than it is to have them in this room? That was, in fact, the case in the Transport Workers Union case and Coles. The Transport Workers Union had the Transport Award in its mind and Coles had the Retail Award in its mind, and the argument was, "Nothing is going change." And that was accepted by - that was one of the factors.
PN1358
It needs to be thrashed out in bargaining, and if the parties aren't bargaining fairly, there are bargaining laws that can be obtained. That is what the remedy in this case would be. If the bargaining representatives aren't bargaining fairly, if they're not making concessions, if they're not genuinely considering proposals, not to simply split it up.
PN1359
THE COMMISSIONER: Mr Felman, I think you are - from my perspective - I think you are conflating the separate issues that I am hearing all of the parties have. The parties - there are two levels.
PN1360
MR FELMAN: Yes.
PN1361
THE COMMISSIONER: One is whether it's national or whether it is Victorian-only, okay? And that, it appears to me, is where the primary impacts is. That's the first impasse and from I can see, both parties are really passionate separately and equally about whether it's national or whether it's Victorian-only.
PN1362
Once you get past that, it is then a question of "Well, what does it looked like?"
PN1363
MR FELMAN: Yes.
PN1364
THE COMMISSIONER: What I am hearing is that the union is hear trying to break the impasse about whether it's national or whether it's Victorian, and once that's broken, then the parties have the capacity to sit down and say, "Right, what does it look like?"
PN1365
The arguments - with great respect to HammondCare, you are conflating the two, but I actually - to me, it is operating on those two different things. It's the first step and then there's the second.
PN1366
MR FELMAN: But in my submission, Commissioner, with respect to what you say, that is a mischaracterisation of what the impasse is. It is not about the scope, and that is why I said this earlier, it is about the terms and conditions.
PN1367
THE COMMISSIONER: I am not hearing that and I think I am just being open and transparent.
PN1368
MR FELMAN: No, no - and I appreciate you doing that, Commissioner, so I get the opportunity to address it. I am very happy to be doing this.
PN1369
THE COMMISSIONER: Yes.
PN1370
MR FELMAN: My job is obviously to try and persuade you of that.
PN1371
THE COMMISSIONER: Sure, and Mr Felman you will do that very well, I presume.
PN1372
MS KELLY: Not too well, I hope.
PN1373
THE COMMISSIONER: Ms Kelly, you equally well.
PN1374
MS KELLY: I appreciate that, Commissioner.
PN1375
MR FELMAN: But that was the point, Commissioner, that I made. Why the ANMF want a Victorian-only agreement is not because it wants a Victorian-only agreement for the sake of it, it's because it has fought for terms and conditions that are in that agreement and there are, obviously, largely pro forma is that it wants to hold on to. Not because there is something about Victorian employees or there is something about the Victorian operations. It's about - and I will take you, Commissioner, to this - it is about what is in that agreement. It's not the scope.
PN1376
THE COMMISSIONER: Hang on.
PN1377
MR FELMAN: And it's the applicant that is conflating the two.
PN1378
THE COMMISSIONER: It is not about what they want. It's about what they're seeking and they've come to the Commission asking for the Commission to make a determination, to exercise its discretion to make a determination about what the scope of the agreement can be - should be. That is what they are here for, as I understand.
PN1379
MR FELMAN: Yes, and that's what they are saying, but the true characterisation of what they are saying, and this is on the evidence is that, "The reason we want that is because we want to hold on to the terms and conditions in the Victorian enterprise - in our pro forma agreements."
PN1380
THE COMMISSIONER: As does HammondCare want to hold onto the New South Wales terms and conditions.
PN1381
MR FELMAN: Yes, exactly. That is exactly my point. This case is about terms and conditions, Commissioner.
PN1382
THE COMMISSIONER: Yes, that's - - -
PN1383
MR FELMAN: And the reason they're different is because they come from different scopes.
PN1384
THE COMMISSIONER: Yes, but you can't - the parties won't be able to - the first impasse is about whether it is Victoria or New South Wales and then what flows from that. It still comes back to that primary.
PN1385
MR FELMAN: Yes. Well, in my submission, the evidence - and I will take the Commissioner through this - it's not what the impasse is. It's not about scope and that it's about the parties not being able to agree at this stage - and there's only been, on the evidence, two meetings - not being able to agree to terms and conditions.
PN1386
THE COMMISSIONER: But it has been a threshold point for both parties about the scope. Both parties have had that as their threshold issue.
PN1387
MR FELMAN: Yes.
PN1388
THE COMMISSIONER: They have said you have and you say they have. Well, you both have, from what I can tell from the evidence and so that's why they're here.
PN1389
MR FELMAN: Yes, I understand, Commissioner, but at the end of the day, the point - and maybe this is being lost in the noise - is that breaking impasse is not one of the criteria in section 238(4). It might be a factor that goes to the mix of everything, but you have to be satisfied, Commissioner - - -
PN1390
THE COMMISSIONER: It's about more efficient bargaining, basically.
PN1391
MR FELMAN: Yes.
PN1392
THE COMMISSIONER: For me, from where I sit, the parties are stark and so the question is would bargaining be more efficient in that the parties would be unstuck - become unstuck if a scope order is made.
PN1393
MR FELMAN: But how, Commissioner? How would they become unstuck? They would still be fighting the same fight. Exactly the same fight.
PN1394
THE COMMISSIONER: I don't accept that.
PN1395
MR FELMAN: Well, can I come back?
PN1396
THE COMMISSIONER: Of course you can, absolutely.
PN1397
MR FELMAN: The first thing we say is that - and this is an onus that the applicant bears, Commissioner. This is not about whether the respondent is bargaining in good faith - - -
PN1398
THE COMMISSIONER: No, no. The applicant.
PN1399
MR FELMAN: No, no - the respondent is bargaining in good faith, because there has been a bit of noise about that as well. It is whether the applicant is bargaining in good faith.
PN1400
THE COMMISSIONER: Yes. I get that bit too.
PN1401
MR FELMAN: And you will see in Endeavour Coal, which is a decision about good faith in the Federal Court, that the party who is due bargaining in good faith in that case there was an allegation that it was the employer that hadn't - must approach bargaining with a genuine or good faith objective or intention of concluding an enterprise agreement if possible, and they must keep an open mind about the prospect of ultimately reaching an agreement.
PN1402
The fact is, and I'm going to take the Commissioner right through why this isn't it, at no stage has the ANMF kept an open mind about the prospect of reaching an agreement with HammondCare. It has been "Our Victorian-based terms and conditions or nothing." And the evidence will support that. They have not kept an open mind about what it might be that a national agreement, which they would be a party to, will look like and that is what they have to do.
PN1403
They may ultimately not wanted, and it may be eventually they don't have to agree to it; good faith bargaining doesn't require you to agree, I accept that, but they have never actually kept an open mind and said, "All right, what does it look like?" What does it look like? Listen, see what it looks like and negotiate, bargain. "You know what? We don't like it." But that has never happened.
PN1404
On each occasion that HammondCare communicated to the ANMF that it wished to negotiate a national enterprise agreement, the ANMF were either non-responsive or simply said, "But we only want a Victorian-only enterprise agreement." Good faith would require them to say, "What does that look like? What is that going to look like? Is it just going to be you reiterating the New South Wales conditions are you going to be genuinely interested in negotiating an enterprise agreement that covers employees in Victoria and New South Wales? What is that going to look like?" And that has never happened. All you've got is a response that says "No, we want a Victorian only enterprise agreement".
PN1405
There has never been a genuine consideration of what a national agreement would look like. There has just been an assumption, Commissioner, an assumption that it would just be rolling over the New South Wales agreements. It may be that after a number of bargaining meetings that was an assumption that would be well founded. That has not happened.
PN1406
THE COMMISSIONER: But wasn't the framework for the two-day negotiations which was provided by HammondCare for New South Wales agreements framework? It wasn't - - -
PN1407
MR FELMAN: It was a multi framework. It was "You present us with your log of claims". See, that's been lost. "You present us with your log of claims and we will tell you what we want". But there was never any - all you got to was the parties not even finishing going through the New South Wales enterprise agreements. The next step is "Where do we get to? You've got your log. This is what we are interested in. Where do you get to?" Presumably there would at some stage have to be a meeting of minds about whether ultimately that particular term and condition or clause is going to be agreed to, but we never got to that stage.
PN1408
THE COMMISSIONER: But why did HammondCare decide that the process for the negotiations would commence on the basis of the New South Wales agreements?
PN1409
MR FELMAN: It had every right to. That doesn't mean that the applicant is negotiating in good faith. As I said, the onus is not on the respondent. The respondent is entitled to say - and this was conceded by the ANMF - that it was a reasonable position to take. The criticism, it's not to the respondent. The respondent is entitled to say "This is the way we want to base our negotiations". It's the applicant who makes the scope order that has to meet the good faith bargaining requirements, and they have to genuinely consider that, and that has not been done. They may, after genuinely considering that, say "This isn't working and we're making our scope application".
PN1410
THE COMMISSIONER: Has there been a presentation to the union that would allow them to have consideration of what from HammondCare's perspective a national agreement looks like?
PN1411
MR FELMAN: Yes. That was done in the first two meetings. Now, yes, they based it on the New South Wales agreements. That doesn't mean that Victorian ANMF has to agree to that. It doesn't mean that is HammondCare's final position. It just says "Look, let's discuss the terms and conditions that we want", and at no stage do the ANMF say "All right, let's think about it".
PN1412
THE COMMISSIONER: But I thought the evidence was that there was - Ms Reeve's evidence, I think, was about the process of going through the New South Wales agreements and the part that the union played in that process.
PN1413
MR FELMAN: Yes, there was and - - -
PN1414
THE COMMISSIONER: Yes, and isn't that consideration of a national agreement?
PN1415
MR FELMAN: We would say - and I'm going to set out the basis upon which we say it now - that that was just going through the motions. There was no genuine interest in actually agreeing or considering what any of those terms - - -
PN1416
THE COMMISSIONER: Don't have to agree, it's consideration.
PN1417
MR FELMAN: Consideration of what that would look like in a national agreement, and here's the evidence, Commissioner. Prior to the meetings, so before the bargaining even starts - and this was not referred to by my friend at all and it's critical - on 7 October a resolution is sent over to HammondCare that says basically, "If we don't get our Victorian only agreement, we're going to take what we want to keep open the idea that we will take protected industrial action". That's sent, Commissioner, the day before the meetings start, and you'll see that's attachment JG33, exhibit R5. I'm just going to get that out, Commissioner, and refer to it.
PN1418
You've got here at paragraph 2 of that resolution that there's a request that:
PN1419
The ANMF pursue the following additional matters in negotiations with our employer. A Victorian agreement based on Victorian aged care industry standard terms and conditions. In the event that in the opinion of the ANMF a reasonable proposal is not provided by our employer in settlement of our claims, commit our support for an industrial campaign to achieve our claim.
PN1420
It is as clear as day, the day before the bargaining meeting starts, if you don't give us a Victorian only agreement we are going to embark on an industrial campaign. It's the day before, and Ms Reeve conceded in cross-examination - because you've got here a reasonable proposal - Ms Reeve conceded in cross-examination, Commissioner, that the only reasonable proposal for the ANMF was their log, paragraph 393. Ms Reeve admits that she regularly said on those two days, "We only want a Victorian only agreement". Paragraph 428. There was no concession at all in relation to the log of claims. Standing alone, Commissioner, that's at paragraph 444 to 445.
PN1421
THE COMMISSIONER: Were the negotiations at that point?
PN1422
MR FELMAN: That's the two days where they're talking about "Here's our log of claims". Here's New South Wales saying "These are the two agreements that we want to base it on".
PN1423
THE COMMISSIONER: But not all of the logs of claims were tabled at that meeting.
PN1424
MR FELMAN: Only the ANMF's, all that's all I'm saying. The ANMF didn't make a concession on its log of claims.
PN1425
THE COMMISSIONER: Right.
PN1426
MR FELMAN: Standing alone that might not be such an important factor because you don't have to make concessions but - - -
PN1427
THE COMMISSIONER: No.
PN1428
MR FELMAN: In the context of all of what I've just said, Commissioner, it's important. Then at paragraph 452 - and I want to read this out, Commissioner. This is a question that I've asked Ms Reeve:
PN1429
But given the resolution that you had sent to HammondCare the day before.
PN1430
And then a bit of extra:
PN1431
I put to you that in light of that correspondence and all the respondents earlier, you were in those meetings.
PN1432
That's the eighth and ninth:
PN1433
Not genuinely interested in negotiating an enterprise agreement that would cover Victorian and New South Wales employees.
PN1434
All you get in response to that is:
PN1435
We certainly sought a Victorian agreement.
PN1436
So Ms Reeve had every opportunity to say "Yes, we did", and she didn't. She just said, as the ANMF had said countless times before:
PN1437
We certainly sought a Victorian agreement.
PN1438
At paragraph 428 when it was put to Ms Reeve that regularly during the meeting:
PN1439
Regularly, during the meeting, made it clear or put it in a caveat to reserving your position that you wanted a Victorian-only agreement? Yes.
PN1440
THE COMMISSIONER: No, no, be clear. Be accurate:
PN1441
Made it clear or put it in a caveat that you wanted a Victorian-only agreement.
PN1442
MR FELMAN: That's what I thought I said. Yes, yes.
PN1443
THE COMMISSIONER: No, it wasn't what you said.
PN1444
MR FELMAN: I obviously have to go on what was - I've referred you to the paragraph, Commissioner.
PN1445
THE COMMISSIONER: Yes.
PN1446
MR FELMAN: "Whilst you may not have reserved your position on every term discussed, I put to you to that you regularly, during the meeting, made it clear or put it in a caveat that you wanted a Victorian-only agreement?" "Yes."
PN1447
What that shows is that there was no genuine consideration of anything other than that, and that's why we say in our submission that it was just going through the motions of a national agreement. They were waiting for the scope order application.
PN1448
The ANMF, Commissioner, has simply not kept an open mind about reaching an agreement with HammondCare in relation to an enterprise agreement covering employees in its residential care business in Victoria and New South Wales, and that's because it does not want to let go of its terms and conditions in Victorian EBAs. That's what this is about.
PN1449
If all the terms and conditions in the Victorian EBA that ANMF wants were just put holus bolus into an agreement that covered employees throughout Australia, there would be no problem. That's obviously not going to happen but the point is it's not about scope, Commissioner. It's about the terms and conditions.
PN1450
The concept, Commissioner - the ANMF says "You never sat down with us to bargain". The evidence from Ms Gulczynski is that they hadn't fully taken over the Victorian operations yet, and when that was done they were prepared to sit down and negotiate, and that's what happened.
PN1451
Ms Gulczynski also gave some evidence about wanting to wait until the expiry date of one of the two New South Wales agreements getting closer. That was a factor for her to consider, but again that's got nothing to do with - that's not HammondCare saying "We don't want to bargain with you because we want a national agreement and you want a Victorian agreement". That was going to have to be confronted at some stage and it was. They had quite separate reasons.
PN1452
If the ANMF had said "That's not good enough", what they could have made is an application for a good faith bargaining order. "We want you to sit down and talk to us. We don't care that you're waiting for the Victorian operations to kick start. You're there enough", and that might have been one of the arguments.
PN1453
The scope order was the wrong - just taking a step back. The Fair Work Act gives the Commission various tools to help the parties with bargaining, all right. The tool appropriate there was to make an application for a good faith bargaining order. Why? Because a scope order implies - and also if you look at the considerations - bargaining has started, because you're there, Commissioner, to help with the efficiency of the bargaining, not when parties are at odds about when they're going to sit down. That's a good faith bargaining order.
PN1454
The Act doesn't mandate when you can make different applications, but the point is it's not HammondCare, it's not about a scope order, it's not about whether HammondCare wanted a national or ANMF wanted a Victorian agreement that caused there to be a bit of a delay in the parties sitting down. That deflects from the real issue, has the ANMF met and are meeting the good faith bargaining obligations? It's not whether HammondCare is. It is whether - and I'm not saying that because I don't think you understand, I'm sure you do - but what my friend sought to do was confuse the issue and constantly was critical of the way HammondCare was bargaining. That's not the issue.
PN1455
THE COMMISSIONER: And you've now told me three times. I heard you the first time.
PN1456
MR FELMAN: I know. I won't say it again.
PN1457
The next point, your Honour, is the promotion of fair and efficient conduct. You have to be satisfied, Commissioner, that bargaining would be fairer and more efficient. That concept includes, Commissioner, an effective bargaining process for all the parties, not just for the ANMF.
PN1458
What effectively this scope application would do is require HammondCare to do the same thing twice, bargain from a base of its enterprise agreements with on one hand New South Wales and on another hand the ANMF, when that can be done together. That's what I meant, Commissioner, by the ANMF being hoisted by their own petard. If one looks at paragraph 57.
PN1459
THE COMMISSIONER: Of what?
PN1460
MR FELMAN: Of the - sorry, Commissioner.
PN1461
THE COMMISSIONER: I can't read your mind, Mr Felman.
PN1462
MR FELMAN: Of the applicant's closing submissions.
PN1463
THE COMMISSIONER: All right, yes.
PN1464
MR FELMAN: How is any of this going to change? So obviously A and B is just simply scope but C, D, E, F, G, a scope order is going to result in the exactly the same thing happening really for HammondCare twice. Either way there's going to have to be robust - I mean clearly, Commissioner, there's going to have to be robust bargaining between the ANMF and HammondCare. Where does the Victorian terms and conditions meld with what HammondCare says that is in its New South Wales agreement? There's going to have to be at some stage some sort of an agreement, or there won't be and what will flow from that will flow from that. But how is that going to change? That has to be done either way. There has to be some sort of reconciliation.
PN1465
THE COMMISSIONER: If the agreement - from HammondCare's perspective?
PN1466
MR FELMAN: Both, and the ANMF can't just say "Well, it's Victorian enterprise terms and conditions or nothing". There's going to have to be some - - -
PN1467
THE COMMISSIONER: Sorry, I thought you meant reconciliation in relation to a New South Wales agreement.
PN1468
MR FELMAN: Sorry, I meant there's going to have to be - - -
PN1469
THE COMMISSIONER: Between the two.
PN1470
MR FELMAN: A reconciliation between what the Victorian ANMF wants.
PN1471
THE COMMISSIONER: Yes.
PN1472
MR FELMAN: That is, the Victorian based standard terms and conditions.
PN1473
THE COMMISSIONER: Yes.
PN1474
MR FELMAN: And what HammondCare want, which is what it says are New South Wales based terms and conditions.
PN1475
THE COMMISSIONER: Yes, reconciliation - - -
PN1476
MR FELMAN: So when I say reconciliation, I mean of their positions.
PN1477
THE COMMISSIONER: Yes, I would have thought - - -
PN1478
MR FELMAN: There's going to have to be some meeting - - -
PN1479
THE COMMISSIONER: Of minds.
PN1480
MR FELMAN: Correct.
PN1481
THE COMMISSIONER: Yes and - - -
PN1482
MR FELMAN: Yes.
PN1483
THE COMMISSIONER: Yes, sorry - - -
PN1484
MR FELMAN: Not in the South African sort of apartheid sense, more in the - - -
PN1485
THE COMMISSIONER: It may require that, Mr Felman.
PN1486
MR FELMAN: Yes, it may. But the point I make is that's going to have to be done irrespective. It's exactly what happened in the TWU, and I've already said this so I won't repeat it.
PN1487
THE COMMISSIONER: Yes.
PN1488
MR FELMAN: The TWU v Coles case.
PN1489
THE COMMISSIONER: Yes. No, no. Yes, because you've only done that once before.
PN1490
MR FELMAN: Sometimes I repeat myself.
PN1491
THE COMMISSIONER: But I did hear the first time on that one. Correct me if I misunderstand the background, Mr Felman, the current situation in New South Wales for HammondCare is that there are two separate agreements.
PN1492
MR FELMAN: Correct.
PN1493
THE COMMISSIONER: And so what HammondCare would have had to have done in developing - in those being agreed, finalised, HammondCare would have gone through a process of having to do something twice to get where you are now. Yes?
PN1494
MR FELMAN: Well, it's not necessarily twice. They have to go through the process in bargaining.
PN1495
THE COMMISSIONER: Yes, that's what I mean.
PN1496
MR FELMAN: Of putting those two agreements together because there will be some overlapping terms.
PN1497
THE COMMISSIONER: No, no, no, but prior to this current round.
PN1498
MR FELMAN: Yes.
PN1499
THE COMMISSIONER: HammondCare would have been involved in two different sets of negotiations, because you've got two separate agreements in New South Wales?
PN1500
MR FELMAN: Yes. Yes.
PN1501
THE COMMISSIONER: All right.
PN1502
MR FELMAN: And if that scope order was made now there would be four. In relation to that set of arrangements that might have had to happen, you're just doubling the amount of times it would happen.
PN1503
THE COMMISSIONER: Not necessarily because there could be agreement reached in New South Wales that there will be one agreement.
PN1504
MR FELMAN: Yes.
PN1505
THE COMMISSIONER: And so therefore HammondCare is only doing it twice, negotiating twice.
PN1506
MR FELMAN: Yes. But in a way, Commissioner, it is what it is and what is in the past is in a way not relevant. What it is now is will the bargaining order make - sorry, will the scope order make bargaining more fair and efficient, and that has to be looked at from all parties' perspectives, and what I'm saying is that it will certainly not make bargaining more fair and efficient for HammondCare but it will basically have to go through the same process twice.
PN1507
There's no evidence, Commissioner, there is no evidence and it was never put to the witnesses that that would be easier if there was just going to be a Victorian only agreement. There's none. In fact - and that's my point - at paragraph 57 that's strongly suggested it will not be any easier. It will be the same fight again. The entrenchment of the parties is not going to be broken by splitting them up. It just has to be worked out in bargaining.
PN1508
THE COMMISSIONER: But it's whether it's fairer and more efficient. That's the issue.
PN1509
MR FELMAN: Yes, and in my submission it isn't because - - -
PN1510
THE COMMISSIONER: Yes, I got that bit.
PN1511
MR FELMAN: Yes. Now at paragraphs 24 to 30 of the closing submissions, Commissioner, we address what the real issue in dispute between HammondCare and the ANMF is and I think I've already addressed that. But you will see there, Commissioner, perhaps to assist our argument that there's a lot of evidence that that was in fact the case. If one looks at the Hubbard statement at 42 to 45 it talks about standard conditions form in pre-reform awards "It is the ANMF's policy to pursue those conditions" and they're doing that in this case through this scope application because they're worried, Commissioner, and they've said in their evidence that they'll be swamped by the New South Wales employees.
PN1512
There's a case that I want to take you to, Commissioner, that says that is not the purpose of a scope order. It's TWU v Chubb. It's not about protecting employees and being swamped, and in fact in the decision in the Transport Workers Union v Chubb Security Services Ltd, Commissioner Asbury - I'm not sure that we've handed up our folder of authorities. We'll hand it up now as an appropriate time.
PN1513
THE COMMISSIONER: And I would maybe take the opportunity, Mr Felman, to mark the written submissions, the written closing submissions.
PN1514
MR FELMAN: Yes.
PN1515
THE COMMISSIONER: I assume there's no objection from anybody? No?
PN1516
MS KELLY: No.
THE COMMISSIONER: Thank you. I shall mark the closing submissions on behalf of HammondCare dated 10 November 2015 as exhibit R6.
EXHIBIT #R6 CLOSING SUBMISSIONS ON BEHALF OF HAMMONDCARE DATED 10/11/2015
PN1518
MR FELMAN: Now in the Chubb Security case, Commissioner, there were what were called AVOs, armoured vehicle operators, working in two depots, Nerang and Moorooka, and they had separate - so there's a bit of a reverse situation. They had separate enterprise agreements and the employer wanted to negotiate a single one which is what - sorry, the Transport Workers Union wanted to negotiate a single, and the reason it did was because the Nerang AVOs had worse terms and conditions than the Moorooka AVOs and there were separate agreements, and the Commissioner found that the TWU in paragraph 60:
PN1519
It is apparent from the evidence that the TWU is seeking a scope order principally for the purpose of strengthening the bargaining position of the Nerang AVOs.
PN1520
And that's what this is here. The ANMF are worried that - and this is on the evidence that they will be swamped by the New South Wales employees, and you'll see at paragraphs 63 to 64:
PN1521
The fact that there are differences in wages and allowances between the current agreements covering Nerang and Moorooka does not establish that the conduct of bargaining for a new agreement for Nerang is unfair or inefficient.
PN1522
And the Commissioner goes on that:
PN1523
Their evidence in this case establishes that it is equally probable there are historical reasons for the differences.
PN1524
Which is what the evidence establishes in this case. You've got some agreements in Victorian based on pre‑reform Victoria, New South Wales agreements based on pre‑reform New South Wales. The TWU submits in paragraph 64 there that:
PN1525
The purpose of the scope order is to achieve wage rates for Nerang AVOs that are closer or equivalent to those paid to Moorooka. In my view this is not a sufficient basis for a scope order. A scope order is directed at the bargaining process rather than the outcome.
PN1526
THE COMMISSIONER: Yes, Mr Felman obviously I haven't had an opportunity to read this decision but is there detail about the relative size of the Nerang versus the Moorooka depot and - - -
PN1527
MR FELMAN: Yes, it's the same situation. In paragraph 30, paragraph 30 the second sentence:
PN1528
Witnesses for the TWU gave evidence that the numbers of AVOs in Nerang is significantly less than the number at Mooroooka.
PN1529
Much like here and, Commissioner, you'll see in TWU v Coles Supermarkets Commissioner Roberts said at paragraph 145, and this is at paragraph 36 of the submissions:
PN1530
It is commonplace that a particular minority group of employees within the scope of proposed agreements may feel that they are in danger of being swamped by the interests of the majority.
PN1531
And then there's a suggestion that that's how the NWU felt:
PN1532
However the weight that this should be given in determining whether or not a scope order will improve efficiency and fairness and whether it will be reasonable will depend on the circumstances. The extent of the special interests and potential disadvantage, the impact on the interests of other bargaining parties and the history of conduct in bargaining are all relevant matters.
PN1533
Now there's no evidence, Commissioner, of any special interests other than that historically there have been different terms and conditions. There is no history of bargaining between HammondCare and ANMF because they've hardly had any.
PN1534
THE COMMISSIONER: In Victoria no because - - -
PN1535
MR FELMAN: The ANMF, yes, that's right.
PN1536
THE COMMISSIONER: Yes.
PN1537
MR FELMAN: But even for the national agreement there has only been two meetings. One can't look at a history of bargaining and say "Look, this is what always happens".
PN1538
THE COMMISSIONER: I was looking at quite differently and going back to previous agreements' history - - -
PN1539
MR FELMAN: Yes. No, obviously there is for ANMF in Victoria but I mean as between ANMF and HammondCare.
PN1540
THE COMMISSIONER: Yes. No, there's not.
PN1541
MR FELMAN: That's my point.
PN1542
THE COMMISSIONER: Yes. Previously, no.
PN1543
MR FELMAN: Now the ANMF's concern is that they will be swamped. It's speculative. It hasn't happened yet. There has been no - it has been only two meetings, Commissioner. In fact there was evidence that the New South Wales union agreed with a number of things that the ANMF said.
PN1544
THE COMMISSIONER: There's also evidence to the contrary I think.
PN1545
MR FELMAN: Yes. But there's a presumption almost in this whole application that the Victorian employees' interests are going to be neglected or subjugated to New South Wales. But it's speculative. The ANMF, Commissioner, they themselves are uncertain - and this is important. They themselves are uncertain about the efficiency and fairness of bargaining. This is in paragraph 34 of the submissions, our submissions. In the scope order the ANMF say that:
PN1546
The primary reason that bargaining between the applicant and the respondent has not progressed sufficiently is because of the inappropriate scope of the employer's proposed national agreement.
PN1547
What they're saying is that "We don't like a national agreement and that's why bargaining is not proceeding efficiently or fairly". But then in cross‑examination Ms Reeve gave evidence that HammondCare were unwilling to negotiate or commence negotiations for an enterprise agreement until a set timeframe that they have in their minds. That has got nothing to do with scope. That's at paragraph 299. Later Ms Reeve says that HammondCare was waiting to get closer to the expiry dates of the New South Wales agreements. Again that has got nothing to do with scope.
PN1548
In truth ANMF's position is this, "If we get in a room and just negotiate about just in relation to Victorian employees we'll be in a much better position to get what we want, which is Victorian based", and they're entitled to have that view and it may well be right, but how is that more efficient and fair to all the parties? What it does is improve their bargaining position, and that's not the purpose of a scope order application. Now in terms of fairness and efficiency let's drill down on what the ANMF's concerns were, Commissioner, about the way in which HammondCare wanted to approach bargaining.
PN1549
At its highest Ms Reeve's concern was that a clause by clause analysis of the existing HammondCare enterprise agreements was and I quote, "Not helpful at the early stages of negotiations". Not helpful. "Or" and then says later "an appropriate baseline to commence negotiations for Victorian employees". That's the highest it was put but then - this is at paragraph 39 - Ms Reeve concedes that whether HammondCare wished to bargain for a national enterprise agreement with a clause by clause review of its existing agreement was a matter for it, and she wasn't saying that HammondCare weren't entitled to do that. So what's to stop HammondCare from doing that again when it's negotiating just with its Victorian employees?
PN1550
All the complaints that the ANMF have will be repeated, all the complaints will be the same. "Why are you starting from the national agreement" - "from the New South Wales agreement? We want to have Victoria on the agreement". You'll have the exact same fight and that's my point about is it more efficient and more fair. That's the point and the ANMF say a scope order would remove the prospect of parallel bargaining. It's not - I'm not exactly clear what the ANMF mean by parallel bargaining but what you'll end up having is you will have parallel bargaining if you do make the scope order because you'll have HammondCare - and I've said this already - HammondCare negotiating with Victoria from a base of its two enterprise agreements and doing it as well with New South Wales.
PN1551
Now the next point, Commissioner, is the employee group is fairly chosen. Because the ANMF's proposed scope order will not cover all of HammondCare's employees, one has to look at whether the group is geographically, operationally or organisationally distinct. That's section 238(4A). Now you'll see at paragraph 50 of our submissions, Commissioner, that in AWU v BHP Refinery the Full Bench said that:
PN1552
The weight to be attached to the distinctiveness of the group will be neutral unless there are particular features or circumstances associated with that distinctiveness that render the proposed group fairly chosen.
PN1553
Now obviously they are geographically distinct, Commissioner. We accept that.
PN1554
THE COMMISSIONER: I hope so.
PN1555
MR FELMAN: But what is distinctive about that geographical - - -
PN1556
THE COMMISSIONER: Historical.
PN1557
MR FELMAN: It's historical. The fact is that it's historical in a general sense but specific to HammondCare it's not. They perform the same jobs, the same tasks, the same facilities.
PN1558
THE COMMISSIONER: But it's also historical within the industry, aged care.
PN1559
MR FELMAN: Yes, and that is it, there are different historical terms.
PN1560
THE COMMISSIONER: Well, that's fairly comprehensive.
PN1561
MR FELMAN: Sorry?
PN1562
THE COMMISSIONER: That's fairly comprehensive.
PN1563
MR FELMAN: It is but it would almost always prejudice a national agreement. There's almost always going to be, given the history that Australian industrial relations has of State-based enterprise agreement - State-based awards, there's always going to be a difference. It can't of itself mean "We are fairly chosen for the purposes of a scope order", then it would be - - -
PN1564
THE COMMISSIONER: It depends on the industry.
PN1565
MR FELMAN: Yes.
PN1566
THE COMMISSIONER: I mean, there are national agreements in other industries.
PN1567
MR FELMAN: I accept that it would. Yes, I accept that. But balanced on the other hand are these things, Commissioner, that these employees perform the same duties in the same work environments. HammondCare have the same model of care. It's a Federally funded industry, which is important because if the funding which is Federal is the same for each - and the evidence was that that's a large part of the revenue - then that's an argument that a national agreement, a Federal agreement which governs the wage costs effectively of HammondCare ought to be consistent across different States. It's a factor. It doesn't of course mean and ergo you should never make the scope order.
PN1568
THE COMMISSIONER: No, you're right.
PN1569
MR FELMAN: But when one looks at the - - -
PN1570
THE COMMISSIONER: On that one.
PN1571
MR FELMAN: Correct. But when one looks at industry distinctiveness, yes, on one hand there's a historical difference which are going to have to be thrashed out in bargaining anyway. But there are other features of the industry that render it appropriate that it ought to be one that covers HammondCare employees nationally. Well, when we say nationally, Victoria and New South Wales. One of the - - -
PN1572
THE COMMISSIONER: Yes, I was about to say.
PN1573
MR FELMAN: Yes.
PN1574
THE COMMISSIONER: I'm a Queenslander. So nationally is not New South Wales and Victoria.
PN1575
MR FELMAN: Yes, and the other factor is it's specific to these employees. There isn't anything distinctive because they're doing the same job in the same types of facilities as for example supermarket employees in a Coles or a Woolworths who are pretty much doing the same jobs in the same supermarkets. The layouts might be a little bit different but - - -
PN1576
THE COMMISSIONER: And the products are probably different and the prices.
PN1577
MR FELMAN: They might be. But they're basically doing the same job. I'm not suggesting that just because there are national agreements covering supermarkets that there has to be one here, but that is a relevant consideration, that they're doing the same duties in the same environment.
PN1578
THE COMMISSIONER: Yes.
PN1579
MR FELMAN: And in Cimeco, you'll see at paragraph 54:
PN1580
It is appropriate to have regard to the interests of the employer as well as the interests of the employees in determining whether the group is fairly chosen.
PN1581
We're going to come back to the interests of the employees in a moment because in my submission, as your Honour pointed out, there's no evidence about what the employees think. That's different I suppose to what their interests are but there was evidence about HammondCare's business imperatives, which are legitimate, as to why they wanted a Victoria and New South Wales agreement. Again it's not the end of the matter but it's an important factor. Now the last point I wish to make, Commissioner, before I just deal with some of the points made by my friend in response to day is the question of reasonableness, and one of the important factors on reasonableness, Commissioner, is whether the coverage that flows from the scope order would replicate existing modern award coverage.
PN1582
That's the decision of the Full Bench in the Woolworths case which is at tab 3. It's a factor, and that's at paragraphs 186 to 190. What is interesting about this case and quite particular to it is that both parties are coming from the position that their terms and conditions in New South Wales and Victoria are based on pre‑reform agreements. Now the award modernisation process got rid of that, Commissioner, and said "Look, we don't do that anymore. What we're going to have now are national modern awards". And that pre‑reform State‑based award model has been replaced and, in accordance with the Minister's Award Modernisation Request, modern awards were not to disadvantage employees, and you'll see there this is at paragraphs 57 and 59.
PN1583
So modern awards when they're made aren't disadvantaging employees, and when those modern awards are made, when an enterprise agreement is approved, it has to pass the BOOT. Now those modern awards are nationally based and what you have here particular to this case is what the scope order is effectively directed to is, in my submission, a regression back to State-based terms and conditions; New South Wales based, Victorian based.
PN1584
THE COMMISSIONER: Can I just clarify something, Mr Felman?
PN1585
MR FELMAN: Yes, Commissioner.
PN1586
THE COMMISSIONER: I apologise because I'm interrupting your flow.
PN1587
MR FELMAN: Clarify all you like.
PN1588
THE COMMISSIONER: The Woolworths case, is that the one behind 3 in the folder that you've kindly given me?
PN1589
MR FELMAN: I hope it is.
PN1590
THE COMMISSIONER: No, I need to check and I'm being straight up about it because you just indicated Full Bench. I thought you said it was a Full Bench decision.
PN1591
MR FELMAN: Sorry, that's my mistake. It's Richards SDP.
PN1592
THE COMMISSIONER: Yes.
PN1593
MR FELMAN: That's my mistake, Commissioner, sorry.
PN1594
THE COMMISSIONER: Yes, all right.
PN1595
MR FELMAN: I just wanted to make sure now that I've got the right case, Commissioner. Yes, sorry, my mistake.
PN1596
THE COMMISSIONER: That's all right. No, no, no, I just wanted - - -
PN1597
MR FELMAN: I should have looked at the case before I told you.
PN1598
THE COMMISSIONER: No, that's okay.
PN1599
MR FELMAN: As in looked at it right now. I've read it a number of times.
PN1600
THE COMMISSIONER: Yes.
PN1601
MR FELMAN: But the important point I want to make here, Commissioner, is that the scope order will end up - the parties will go back to negotiating from a pre-New South Wales - on what the ANMF wants "New South Wales you go and negotiate under the New South Wales agreements which have got historical links to the New South Wales award system" - "State system, and we want to negotiate our enterprise agreement, our terms and conditions that we'd like" which from their own admission are based on the old pre‑reform Victorian awards. And peculiar to this case, because it happens to be that the enterprise agreements are based in that way, you've in a sense got a regression back away from our modern award system. It's a factor.
PN1602
THE COMMISSIONER: Yes, I'm just wondering how on point the Woolworths case is.
PN1603
MR FELMAN: No, the Woolworths only stands for that authority, Commissioner. I don't take it any further than that. That as part of the assessment of reasonableness one can have a look at the relationship between what the proposed scope order would look like as compared to modern award coverage.
PN1604
THE COMMISSIONER: But this is in the context of the General Retail Award 2010.
PN1605
MR FELMAN: Yes.
PN1606
THE COMMISSIONER: Including it being expressly extended to cover butchers.
PN1607
MR FELMAN: Meat, yes. I accept the facts are different, Commissioner.
PN1608
THE COMMISSIONER: Yes.
PN1609
MR FELMAN: Yes, what happened in that case was that historically the meat workers had their own enterprise agreement.
PN1610
THE COMMISSIONER: Yes.
PN1611
MR FELMAN: They wanted to continue that.
PN1612
THE COMMISSIONER: They had their own award.
PN1613
MR FELMAN: Correct.
PN1614
THE COMMISSIONER: Yes.
PN1615
MR FELMAN: And now that there's a retail award that covers them all, a national agreement, an agreement for Woolworths that included meat workers would have been more consistent with the modern award system. I accept that that's a different set of circumstances here.
PN1616
THE COMMISSIONER: It is, yes.
PN1617
MR FELMAN: But it's more the proposition that in reasonableness one can have regard to that.
PN1618
THE COMMISSIONER: Sure.
PN1619
MR FELMAN: Yes.
PN1620
THE COMMISSIONER: Yes.
PN1621
MR FELMAN: And what - at the risk of belabouring the point.
PN1622
THE COMMISSIONER: I'll bite my tongue, Mr Felman.
PN1623
MR FELMAN: This scope application results - what it's seeking to be directed to is "We want to be negotiating on a pre‑reform State award basis". Now just in terms very briefly, Commissioner, just dealing with some of the things in my friend's written submissions that were the closing submissions, it's not correct to say that in 31(b)two days of bargaining have occurred from a total of three allocated for bargaining. There was evidence by Ms Gulczynski that that is no longer the position and that they're prepared to - - -
PN1624
MS KELLY: I accept that, Commissioner. It's a legacy sentence from the earlier draft. We won't press that part of the sentence.
PN1625
THE COMMISSIONER: A legacy sentence, all right, fine.
PN1626
MR FELMAN: And then at paragraph 32:
PN1627
It can be seen that bargaining would proceed more efficiently if the scope order is made in that negotiations would not proceed from a clause by clause analysis of the conditions in the two New South Wales agreements and negotiations would not be constrained by HammondCare's insistence on a single set of terms and conditions.
PN1628
On what possible basis does the ANMF say that? Firstly there's no evidence about that and it's totally inconsistent - and this is the point I made earlier - with their paragraph 57 which suggests that HammondCare is insistent on A, B and C happening, including that the agreements consolidated together would form the basis for negotiations. How can you on one hand say it would be more efficient because then HammondCare would be freed - wouldn't be bargaining from a clause by clause analysis of conditions in the two New South Wales agreements, and on the other hand in another factor say HammondCare are insistent on doing that? That's the point. There's no evidence about that. Again at paragraph 42:
PN1629
Bargaining has not progressed across the nine months by reason of the impasse on the question of scope.
PN1630
That is simply not what the evidence was. I'm just going through the ones I've already addressed and skipping over them.
PN1631
THE COMMISSIONER: Yes. No, no, take your time.
PN1632
MR FELMAN: The last point I wanted to make is on reasonableness, Commissioner. Paragraph 93:
PN1633
The ANMF and the New South Wales Nurses Union representatives stand in the place of their members.
PN1634
And there's a reference to Burwood Cinemas which is in an entirely different context to this, where one looks at the views of the employees, and my understanding from the hearing of the evidence is that when my friends didn't want to provide the documents about how many members there actually were, there was a concession that there was no evidence about the views of the employees and I think you made observations about that, Commissioner. To now come along and say, having not addressed what occurred, "Well we stand in the place of our members, but we're not going to tell you how many we have in this workplace". It might be for example one. "This application has the support of those members". There's no evidence about that.
PN1635
THE COMMISSIONER: Yes, but that has been a proposition that the Commission has accepted, that - - -
PN1636
MR FELMAN: I'm not aware in this scope order - well, there's no authority put by Ms Kelly about whether - - -
PN1637
THE COMMISSIONER: That's because it's the first time, in my understanding, it has actually been raised. Because there has always been a presumption that the bargaining representatives represent truly their members, those they represent, all right?
PN1638
MR FELMAN: Yes, I understand that.
PN1639
THE COMMISSIONER: And my knowledge of the authorities and the scope orders that I've had the privilege of being involved in, it has never been an issue. That's why there are no authorities.
PN1640
MR FELMAN: Yes, but, with respect, we are making it - - -
PN1641
THE COMMISSIONER: I wouldn't say that, "with respect".
PN1642
MR FELMAN: Well, in the sense that I - no, no, the point is that I accept what you say, Commissioner, but I am saying this in response, that that is not what was said at the hearing where I think you made observations that there was no evidence about what employees thought.
PN1643
THE COMMISSIONER: Employees outside of those represented by the unions.
PN1644
MR FELMAN: And we don't know how many that is.
PN1645
THE COMMISSIONER: Yes, I understand that but - - -
PN1646
MR FELMAN: Yes, and that's all I'll say then. No weight can be put to that submission because there is simply no evidence about how many members there are. We wanted to agitate that by saying "Tell us how many" and in fact the fact that the union didn't want to, an inference could be drawn perhaps about how many. Now I'm not going to ask the Commission to make that inference but if they wanted to make good that submission they should have said "We have this many members". It might be a hundred, it might be one. That's all I'm going to say about that, and unless you have any further questions, Commissioner.
PN1647
THE COMMISSIONER: Mr Felman, I think I'm - - -
PN1648
MR FELMAN: I think you posed plenty to me, and I appreciate that.
PN1649
THE COMMISSIONER: Yes, and I do apologise.
PN1650
MR FELMAN: No, no, no.
PN1651
THE COMMISSIONER: Thank you. Ms Kelly?
PN1652
MS KELLY: Thank you, Commissioner. If I can pick up that last point first. I think the proposition is simply this. It's well accepted that the ANMF represents its members both - across the whole of Australia. The other bargaining representatives, it's uncontested that they also support the application. They too represent their members. The point that you just made, Commissioner, is correct. Outside of that the views of the employees aren't known. That is a neutral factor, but it's wrong to say that no weight should be given to the position of the default bargaining representatives. They do represent their members. They're here making the application. They're here supporting the application, and significant weight should be given to that.
PN1653
To come to some of the points my learned friend made I'm going to go back to the beginning. Does my client have concerns that bargaining isn't proceeding fairly or efficiently? Yes it does. What are those concerns? HammondCare has an entrenched position about scope from which it cannot be shifted. It has a position that it will commence from the existing New South Wales agreements who don't cover the employees that we're seeking to cover. Those agreements are applied to them by an administrative link but they don't cover them. They want to do it in Sydney.
PN1654
They want to do it with a whole bundle of employee representatives which has the effect of the Victorian workforce being significantly outnumbered. They want to adopt a process that involves a clause by clause analysis of the existing agreements, which shuts down the capacity for the Victorian employees to be genuinely heard about their issues and concerns. They are our concerns. Those concerns go squarely to the bargaining process. That is enough to dispose of the erroneous contention put by my learned friend that we are here concerned about outcomes. We're not concerned about outcomes. We are concerned about process.
PN1655
The second point that needs to be made there is my learned friend says "Well, this would be exactly the same fight. The Commission might make the scope order and then" the matters I've referred to in paragraph 57 of our written closing "would all still exist." HammondCare would still be entrenched in all those positions. But my learned friend also made the appropriate concession that there's no evidence of that. The evidence led at the hearing was led to what positions are in the current bargaining framework which involves 2700 employees from New South Wales who are covered by these existing agreements.
PN1656
The scope order that we seek the Commission to make radically changes the framework. It may well result in bargaining continuing for those New South Wales employees. We're concerned with the scope we seek, which would dramatically reduce the number of employees that are to be covered by the proposed agreement and it would have the effect that not one employee to be covered by the proposed agreement would be covered by the existing New South Wales agreements.
PN1657
The only thing underpinning their terms and conditions at the moment is the modern award. So we effectively start from the basis of the modern award and we work from there, and there's a log, I think it's in evidence, there's a draft agreement, I think that's in evidence. So the ANMF's position is clear, but we deal with a fundamental change to the basis of bargaining if the scope application is granted, and so what has gone before it cannot be assumed that any of what has gone before will continue if the scope application is made. What we can say is that for the reasons we have outlined the scope order will make things fairer and more efficient because it will have only Victorian employees dealing with Victorian issues.
PN1658
We will not have, in our submission, the inefficiency of the clause by clause process. We will not have the inefficiency of Ms Reeve having to explain at great length to New South Wales employees, who work under different terms and conditions, the prevailing standards in Victoria. We will not have an inefficient process where Victorians are required to fly to New South Wales and we will not have a process in which their voices are subjugated by a majority rules process of the kind that has been adopted in the negotiations to date. That's the beginning and the end of it.
PN1659
My learned friend suggested then I could stop, but I'm not going to, Commissioner.
PN1660
MR FELMAN: Well, it's the beginning and the end.
PN1661
MS KELLY: I was pausing for effect. Now my learned friend's submissions were all directed to the notion that this isn't really about scope, it's all about outcome. For the reasons I've just outlined, that can be absolutely dismissed. We didn't hear either of the witnesses for the ANMF say anything about outcome. What you heard them talk about was process and indeed to the extent that conditions were talked about, they were talked about in two contexts. One was to establish that fairness framework that I addressed you on earlier and the second was to highlight the way in which the process that is being adopted has shut down any real discussion of the ANMF issues and an engagement with them.
PN1662
The point was raised by my learned friend that the ANMF didn't make one concession on its log. Its log wasn't discussed. There was no engagement with the ANMF issues. They were put in the car park to be returned to at some point in the future. Now two things are interesting there. The first is that the negotiations didn't proceed with HammondCare putting a log on the table. All of the bargaining reps did. HammondCare put the two existing New South Wales agreements on the table and said "Let's work through these and take a look at them" and second is the evidence I took the Commission to earlier about the attitude of HammondCare to negotiating different terms and conditions for its two workforces.
PN1663
It has a philosophical opposition to doing so. That is a very relevant factor to whether or not bargaining with the Victorian representatives alone would be fairer and more efficient. It was effectively a concession that HammondCare is not prepared to engage in a meaningful with the claims of its Victorian workforce, and that flows from those propositions that I outline at 57, "We want one agreement. We want it to be based off our New South Wales terms and conditions. We haven't costed your proposals. We've had them for months but we haven't done any costing about what this would look if we adopted these proposals nor have we done any of our own investigation into what these Victorian claims mean for our organisation".
PN1664
There is a very strong inference that can be drawn from that about whether or not this bargaining process is fair for the Victorian workers who want to have their voice heard. When we make that assessment we keep in mind those factors I've just outlined. We're doing this in New South Wales. We are a tiny fraction of the workforce. We can't easily get to these meetings because it involves a plane ride and nights away from our homes and our families. They are all factors which go to the fairness and efficiency of the bargaining process, and it would be fairer and more efficient if the scope was resolved in a way that let us bargain in Victoria, bargain without people who are already bound by terms and conditions of employment that are substantially different to our own.
PN1665
So in that sense it is squarely about scope, and my learned friend's contention that it's about outcome can simply just be put to one side. Now it was suggested that the position of the ANMF is really that it's our Victorian conditions or nothing. That's absolutely not the case. I took the Commission to the evidence of Mr Hubbard earlier and the relevant paragraph numbers are set out in our written submissions. Mr Hubbard made clear that the ANMF is not insisting that every one of the clauses in its template agreement be adopted. That's its position. It will bargain.
PN1666
Mr Hubbard gives evidence about other agreements where various different arrangements have been entered into for things like classifications, and Ms Reeve under cross‑examination when it was put to her "In the context of this resolution that you've heard about, well a reasonable agreement is one that looks like the template agreement or nothing" she said "Well, I don't want to give things away" - that's fair. We're in bargaining - "but maybe not". We've got an organisation that wants to bargain, is prepared to make appropriate concessions, has already done so. The fact that it holds on to its position on scope doesn't mean that it's not engaging in bargaining.
PN1667
It's entitled to hold on to that till the very last minute and it will be the case that if it doesn't get the scope it's looking for it's going to bound by this agreement and so, as I said earlier, of course it is going to do the very best it can for its members in the eventuality that it isn't able to reach a position on scope and there ends up being a national agreement, and that is in fact what leads to this application. The union has said "Can we within the current bargaining framework do the best we can for our members?" and the answer is no, and the answer is no for the reasons I've outlined about the process by which this bargaining round is taking place. I apologise, Commissioner, I just have to find some documents in the increasing weight of paper.
PN1668
THE COMMISSIONER: I don't think there are any trees left in Gippsland. I think they're all in this Court.
PN1669
MS KELLY: And our good friends at the AWU who represent the pulp and paper workers are delighted. Now there was some criticism - and I don't want to reiterate the point, but to ensure that I've addressed it - there was criticism of the ANMF for not making a single concession and, Commissioner, you were directed to paragraph numbers 444 and 445 where that proposition was put to Ms Reeve. But her answer needs to be considered in context. She doesn't just say "No" she says:
PN1670
No, I know that we were making proposals so I was putting our log. That's right.
PN1671
What she's talking about is, having had the opportunity to put the log and then having this clause by clause process imposed upon the bargaining such that we had the circumstance where not everyone has put a log, HammondCare hasn't put a log, the ANMF has put a log and we're now discussing clause by clause to an earlier agreement. This criticism that they didn't make concessions is just absurd. It's absolutely absurd in the context of how bargaining was progressing. We then also see criticism made of Ms Reeve for her answer to the question that appears in paragraph 452, where it was put to her that the ANMF was not genuinely interested in negotiating an enterprise agreement that would cover Victoria and New South Wales employees. She answers, "We certainly sought a Victorian agreement." Now, it might well be said that it's not completely responsive to the question. It was, in Ms Reeve's defence, in response to a question that takes six lines of transcript to be asked, with a number of parentheses and qualifications, and it wasn't followed up.
PN1672
Mr Felman immediately moves on to a different subject, so that's a very unfair criticism to make, particularly in the context of paragraphs 449 to 451 which immediately precede it where Ms Reeves, in response to the same proposition referable to the meetings of 8 and 9 October says, "No, I don't accept that, because we were there to negotiate an agreement." So she has earlier expressly denied the proposition in response to a simple question. That's the answer to which weight should be given, not a slightly non‑responsive answer to a convoluted and lengthy question later on in cross‑examination.
PN1673
The criticism is unfair and, in my submission, it goes nowhere. The proposition was put that in assessing whether or not bargaining would be fairer and more efficient, the interests of all parties need to be taken into account. We accept that proposition, but it's the bargaining overall that has to be fairer and more efficient. It doesn't fail simply because there might be an element of something that is less fair or less efficient for one party to the bargaining in one minor respect. We assess this as a global assessment taking into account the relevant interests of all the parties.
PN1674
As high as my learned friend could put it was that it would duplicate a process for HammondCare. That is self‑evidently true. HammondCare already negotiate five agreements for their New South Wales staff. That might be reduced by one, but, in any event, it pales into insignificance compared to the substantial degree of efficiency that will be achieved if the scope order is granted and the substantial additional fairness that will accrue to the Victorian workers if the scope order in the form we seek has been granted. I have already set out the reasons why we say that and I won't repeat them.
PN1675
Now, some weight was placed on the decision in Chubb. We are miles away from that factual circumstance, Commissioner. What was happening in Chubb was that the TWU had two locations, one of which was substantially smaller than the other. It was Chubb that wanted them to bargain separately and it was the TWU that wanted them rolled in together. Critically, under cross‑examination, an officer of the TWU in response to a question about whether or not the purpose of the scope order was to be able to organise members to conduct industrial action and hold the company to a greater ransom in negotiations - the officer said, "That's correct."
PN1676
The purpose of the scope order in Chubb was, on the TWU's own admission, to gain greater bargaining power for its members and to enable them to conduct industrial action, and hold the company to greater ransom. It happened in the context of industrial action taken at the smaller depot, to which the company was able to take very effective and responsive action by simply staffing it with managers, so it meant that the industrial action was of absolutely no consequence, save that the workers didn't get paid. That's a fairly significant consequence of the workers when it achieved no industrial aim.
PN1677
We are miles away from that circumstance here. What you have heard my clients talk about consistently is a process of bargaining that is unfair and has nothing to do with the taking of industrial action or any particular outcome. Now, some reliance was also placed on TWU v Coles. Two things need to be said about that. The first is that Coles talks about:
PN1678
The weight to be placed on the interests of minority are to be assessed in all the circumstances of any given case.
PN1679
We have set out clearly what we say those circumstances are. History of industrial regulation is one of them and we've set out how it came to be that in Victoria we have a patchwork of enterprise agreements that covers 95 per cent of workplaces in Victoria. Also it stands for the proposition that a group of employees being swamped is something that the tribunal is entitled to take into account provided that it does so in all the circumstances of the case.
PN1680
It is not the case that the tribunal can never issue a scope order because a group of employees is being swamped by another. All the circumstances have to be taken into account. Those circumstances are as I have outlined and this is, because of the peculiarities of this case, a circumstance in which it is appropriate that the order be made having regard to those factors.
PN1681
Now, my learned friend said that the making of this scope order would be regressive because it covers one state, with reference to the notion of modern award coverage. This is a peculiar submission. Modern awards cover the whole of Australia. What that authority that my learned friend took you to is really talking about is classifications. Let's try not to split up classifications across agreements where the workers, as a homogeneous group, are all covered by one or more particular modern award.
PN1682
If my learned friend's proposition were to be accepted, it would tell against the making of a scope order in any circumstance where the scope narrowed from a national agreement to a state based agreement. If that is what the legislature had intended, that's what the legislature would have said. The proposition is not about geographic coverage. It is in fact about ensuring that we don't split up classifications across modern award coverage. They are the submissions in reply, Commissioner.
PN1683
THE COMMISSIONER: Thank you, Ms Kelly. Mr Sherriff?
PN1684
MR SHERRIFF: Nothing further, Commissioner.
PN1685
THE COMMISSIONER: All right, Mr Sherriff, thank you. I would like to thank everybody for so comprehensively and eloquently providing all the material that is currently before the Commission. I think Ms Kelly just said something to effect of this is not your usual scope order application and acknowledging the importance to all the parties of whatever decision the Commission makes, the Commission will be reserving its decision.
PN1686
I prefer not to do that, but I want to accord the same respect to all the parties in terms of the application that has been given to the Commission in the prosecution of the application. That is a long way of saying I'm going to reserve my decision, but full - and I mean full - written reasons for decision will be issued as soon as I humanly can do. On that basis, therefore, the Commission stands adjourned.
ADJOURNED INDEFINITELY [12.53 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #A6 APPLICANT'S WRITTEN SUBMISSIONS......................... PN1211
EXHIBIT #I1 HEALTH WORKERS UNION'S OUTLINE OF SUBMISSIONS DATED 27/10/2015............................................................................................................. PN1321
EXHIBIT #R6 CLOSING SUBMISSIONS ON BEHALF OF HAMMONDCARE DATED 10/11/2015............................................................................................................. PN1517
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