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C2006/370, Transcript of Proceedings [2007] AIRCTrans 3 (3 January 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16368-1

COMMISSIONER SMITH

C2006/370

HEALTH SERVICES UNION
AND
AUSTIN HEALTH
s.170LW -prereform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/370)

MELBOURNE

2.14PM, THURSDAY, 21 DECEMBER 2006

Adjourned sine die

PN1

MS S BINGHAM: I seek leave to appear on behalf of the Health Services Union, and Dr Philip Paull in these proceedings today.

PN2

MR R DALTON: I seek leave to appear on behalf of the Austin Hospital. With me is MR J RICHARDSON and MR R CANTANZARI.

PN3

THE COMMISSIONER: Thanks. I assume neither of you object to each other, in relation to leave that is. Leave is granted on both sides. Yes, Ms Bingham?

PN4

MS BINGHAM: Thank you, Commissioner. Commissioner, we've asked to list this matter for the purpose of directions and preliminary matters today. You would have seen an interchange of correspondence over the last couple of days.

PN5

THE COMMISSIONER: Yes.

PN6

MS BINGHAM: I understand that my friend has a jurisdictional matter, which we believe the jurisdiction issues should be dealt with before we proceed any further in this matter.

PN7

THE COMMISSIONER: Sure, all right. Mr Dalton?

PN8

MR DALTON: Thanks, Commissioner. The union seeks the exercise by the Commission of private arbitration powers. It's the submission of Austin Hospital that the dispute's not one that's over the application of the certified agreement, and that this means the Commission has no jurisdiction to exercise those private arbitration powers that the union seeks it to exercise, and so the dispute notification must be dismissed.

PN9

Commissioner, you will have received a fax from Austin Hospital dated
19 December, which flagged the hospital's intention to make this argument and, as Ms Bingham flagged, I think there was some correspondence from the union which accepted that this argument ought be dealt with now.

PN10

THE COMMISSIONER: Yes.

PN11

MR DALTON: Commissioner, could I hand you a folder of some authorities?

PN12

THE COMMISSIONER: Let me see if I can guess. Qantas, a private arbitration case.

PN13

MR DALTON: I think that's so well quoted I don't need to kill further trees on that. But the first - - -

PN14

THE COMMISSIONER: So you haven't got Qantas? I'm sorry.

PN15

MR DALTON: I have a Qantas decision.

PN16

THE COMMISSIONER: Yes, there it is, I'm sorry.

PN17

MR DALTON: Commissioner, tab 1, I've copied a decision that's convenient because it's one - I think it's the most recent if not - or one of the more recent decisions of a Full Bench of this Commission which deals with this issue about whether a dispute is one that properly characterises a dispute over the application of the agreement. Paragraphs 9 and 10 set out the principles in a convenient fashion.

PN18

THE COMMISSIONER: Yes.

PN19

MR DALTON: That picks up the CFMEU private arbitration case, and also the Qantas case that I think you're referring to, and they're footnoted at the bottom. Then at paragraphs 11 and 12 the quotes from decisions that again, Commissioner, no doubt are familiar to you, the Holden decision and the Australian Plant Services decision. If I could refer in particular to the quoted part of the decision of Senior Deputy President Lacy in Australian Plant Services at paragraph 12 of the MFB case. It's clear of course that the Commission is authorised by parliament to exercise powers under the agreement to settle disputes over the application of the agreement, and accordingly its powers are limited to disputes of that kind.

PN20

Then his Honour goes to say, well, firstly the Commission has to properly characterise what's in dispute, and then determine whether that matter is a dispute over the application of the agreement. Commissioner, it might be convenient at this stage to refer you to the disputes settlement procedure in the agreement itself. My instructor has a spare of the certified agreement.

PN21

THE COMMISSIONER: That's all right, I have one.

PN22

MR DALTON: And also the award, which you will need to refer to because
the - - -

PN23

THE COMMISSIONER: Yes, all right, the award.

PN24

MR DALTON: A copy of the award, yes.

PN25

THE COMMISSIONER: Yes, thank you.

PN26

MR DALTON: Three pages in, clause 10, grievance and dispute resolution. 10.1 is a preamble. Perhaps if the Commissioner could read that to himself. The last part of that preamble you will note says:

PN27

These procedures should be applied in all circumstances where individual grievances or disputes between the parties to the agreement arise over the application of the agreement.

PN28

In my submission the parties, the empowerment of the Commission under this clause is consistent with the statutory power, that is, it's confined to disputes over the application of the agreement. The reference to parties to the agreement is the Health Services Union of Australia and Austin Health. So it covers both individual grievances and also disputes between the union and the employer provided they're disputes or grievances that arise over the application of the agreement.

PN29

10.2 sets out the procedures. 10.3 sets out the specific powers conferred on the Commission, which are conciliation in the first instance or, where necessary, arbitration. Then at 10.4 there's a reference to the grievance procedure in the award. While it says for the avoidance of doubt, and I'm not sure that it necessarily achieves that, but it will - - -

PN30

THE COMMISSIONER: A well trodden legislative approach.

PN31

MR DALTON: Yes. And it says that it's the intention of the parties that employees shall retain access to clause 10 of the award. Now, my submission on that is brief. Whatever might be the effect of that sentence, it doesn't give the Commission powers that go beyond disputes over the application of the agreement. To the extent that it might be put that clause 10 of the award in referring to grievances and disputes is not limited to grievances or disputes over the application of a certified agreement, that's not going to be sufficient to empower the Commission on grievances or disputes that are not grievances or disputes over the application of the agreement.

PN32

THE COMMISSIONER: So you don't take issue with a proposition that clause 10 of the award might be incorporated in its terms in the agreement. You do take issue to the extent that that purports to extend the power beyond what you say are the statutory constraints, it can't do so?

PN33

MR DALTON: I just meet it there because it's convenient to state that because that's clearly established by the cases, and so we don't need to get into arguments about whether the particular clause in the certified agreement incorporates the provisions of the award, or whether the award in terms has a broader effect or is intended in the context of clause 10 of the agreement when you look at it overall. I'm just simply cutting to the end point and saying, well, that argument can never get to where it wants to be because it doesn't empower the Commission to act as private arbitration on disputes.

PN34

So again we come back to the question as to whether the dispute properly characterised can be said to be a dispute over the application of the agreement.

PN35

THE COMMISSIONER: Yes.

PN36

MR DALTON: Commissioner, in that regard could I hand you a bundle of correspondence. I think I've got all of the correspondence in chronological order.

PN37

MS BINGHAM: I would like to have a look at it before it - - -

PN38

MR DALTON: Yes.

PN39

THE COMMISSIONER: Yes, Ms Bingham?

PN40

MS BINGHAM: Commissioner, I object to the material going in at this point. It's my intention to call evidence of Dr Kelly. If my friend wants to put material before the Commission he can do so in the proper manner, and not just hand it up. This is a stream of correspondence which is going to be used as on an evidential basis.

PN41

THE COMMISSIONER: Yes, Mr Dalton?

PN42

MR DALTON: Well, the Commission regularly receives correspondence. It's not bound by rules of evidence. I'd be surprised if any of this correspondence or the existence of that correspondence having been exchanged is going to be disputed. And it's up to the Commission how it receives this type of material. I simply wish to refer to the correspondence because it's evidence of what's actually in dispute.

PN43

THE COMMISSIONER: Is there anything there of a confidential nature, Ms Bingham? Take time to have a look if you wish.

PN44

MS BINGHAM: Thank you. My friend has got his client here. There is a document that I do take objection to without - being tendered to you without it being tested and in the substantive proceedings, and Mr Richardson is the author o fit. If my friend wants to put that particular document on he can put it through Mr Richardson.

PN45

MR DALTON: Mr Richardson is here. I mean, it seems to me to be unnecessary. Perhaps I might be able to short cut this, depending on what my learned friend's response is to this. We say that the dispute properly characterised is a dispute over the appointment of Dr Crinis to the position of - Mr Crinis to the position of the director of pathology, and hand in hand with that, Commissioner, is it's also a dispute over the decision of Austin Hospital not to appoint Dr Paull to that position, again, hand in hand with that, a decision not to promote Dr Paull to that position because Dr Paull was an existing employee of Austin Hospital at the time the hospital made the decision to fill the director of pathology position with Mr Crinis.

PN46

MS BINGHAM: Your Honour - sorry, Commissioner, I'm reluctant to interrupt my friend, but he's not correctly characterising the claim by the union. The nature of the relief was set out in the correspondence to - - -

PN47

THE COMMISSIONER: Of 19 December.

PN48

MS BINGHAM: That's correct.

PN49

THE COMMISSIONER: From Dr Kelly, yes.

PN50

MS BINGHAM: Exactly. It is with respect to the - mainly in respect to the failure to accord Dr Paull the right to the review of the decision not to appoint him, which is substantially different to what my friend is putting. (a) the decision of Austin Hospital not to appoint be reviewed in accordance with statutory and regulatory requirements, that process and procedures that should apply to any review, having regard to the statutory and regulatory requirements be determined by the Commission, and that an independent reviewer be appointed by the Commission. That's the nature of the dispute that's before you. Its very, very plain on the correspondence.

PN51

THE COMMISSIONER: Well, that's the characterisation you give to it.

PN52

MS BINGHAM: Well, yes, Commissioner. It's our notification.

PN53

THE COMMISSIONER: I understand. Well, I think Mr Dalton can put what he thinks you're saying, and then you can put what you're saying.

PN54

MR DALTON: I'm content to proceed on that basis. Obviously what is sought is not necessarily what's in dispute. We say that the dispute concerns the union's dissatisfaction with the decision to appoint one person in favour of Dr Paull, and that's why they want a review of that decision. But I'm content to leave it as last stated by the union in its correspondence of 19 December, because the point is still there.

PN55

There is no provision in the certified agreement that touches upon this subject matter. There is no obligation on the employer to conduct any review of any appointment or promotion. Commissioner, in a nutshell, what we have here is a desire by Dr Paull, or Mr Paull and the union - - -

PN56

MS BINGHAM: It's Dr Paull.

PN57

MR DALTON: Thank you. And the union to use the public service processes of review. Commissioner, you may be familiar with the Public Administration Act and regulations and the processes for review of various actions, which include decisions to appoint or promote, decisions not to appoint and not to promote, and you may also be aware that those processes are non coercive and non compulsory. What is sought to be achieved here is to piggy back those processes onto coercive and compulsory powers by using the 170LW procedures.

PN58

Now, that's possible provided you can point to those review procedures being encapsulated in the certified agreement and imposing an obligation on the employer. Then it can be said that there might be a dispute over how those procedures, or as to how the appointments or promotions provisions are to be applied in the case of Dr Paull. We don't have any of those provisions here. On any view, in my submission, this is not a matter that the Commission has jurisdiction to determine.

PN59

Commissioner, I don't need to take you to the detail of the other cases that I've included in the materials, but just to point out that there are a number of decisions where these types of disputes have come before the Commission. When I say these types of disputes, they're disputes, but they're not disputes over the application of any particular provision in the agreement that imposes any obligations on the employer or establishes rights for employees.

PN60

The starting point is the decision of Vice President Ross in the Ansett Australia case, which involved a dispute with the Ansett Pilots Association. That decision was upheld by the Full Bench on appeal, and that's in the next tabbed case after the decision of Vice President Ross. They're short decisions, Commissioner. The next case is the Broome Port Authority, to the same effect. That actually involved a dispute concerning a promotion.

PN61

The next case is Australian Nursing Federation, Western Australia Branch v Minister for Health, Western Australia. There's another Qantas decision, another decision of Commissioner Raffaelli, and a decision of Senior Deputy President Kaufman, Victoria University. They all bear out the point that while you may have a dispute you've still got to point to some provision in the agreement that imposes some operative rights or obligations, such that can be said that there's a dispute before the Commission as to how that particular provision is to apply in the circumstances of the case before the Commission. And that's not the matter that we're dealing with here. If the Commission pleases.

PN62

THE COMMISSIONER: Thank you, Mr Dalton. Ms Bingham?

PN63

MS BINGHAM: Thank you, Commissioner. Commissioner, if I understand my friend's submission regarding clause 10.4 of the certified agreement, he does not challenge, on a question from him, does not challenge that the award clause is incorporated by reference.

PN64

THE COMMISSIONER: I don't think he went quite that far. I don't think he - well, I don't think he conceded the point.

PN65

MS BINGHAM: No, I would accept that. He said it's unnecessary for that to be. Well, we say quite the opposite, as you can imagine, Commissioner. We say the incorporation of the clause, the grievance procedure of the award into the certified agreement is actually intrinsic in the position that the union puts and Dr Paull puts before you today, in granting you jurisdiction to deal with the relief that will be eventually sought in the substantive proceedings.

PN66

The grievance procedure deals with the employees grievances outside the application of a certified agreement. It goes beyond. It deals with all grievances. And in that regard Austin Hospital has its own policy and procedure manual which incorporates that exact grievance process, which then ends up:

PN67

If the grievance still exists the matter shall be referred to the Australian Industrial Relations Commission for decision.

PN68

Now, Dr Paull provided this to us this afternoon. It's from the Austin Health Policy and Procedure Manual. So it starts off following - - -

PN69

THE COMMISSIONER: Is the policy and procedure manual incorporated in your submission in any way?

PN70

MS BINGHAM: It's not incorporated into the certified agreement. I do that by - I bring your attention to the policy and procedure manual as a way of showing you the intention of the parties with respect to the grievance procedure contained in the certified agreement, that it does go beyond the application, the true LW situation that my friend's submissions relate to.

PN71

THE COMMISSIONER: Yes.

PN72

MS BINGHAM: Now, we may be taken to task over the way we notified the dispute and the form we used, but I'm not aware that there are alternative forms or that whether this dispute should have just been notified by way of a letter. The form in some regards doesn't bind us. What we are putting to you today is that this - and this has been made very clear on the two other occasions that this matter has been before the Commission, although in conciliation - that this is a grievance brought by the union on behalf of Dr Paull. It's his personal grievance. And we say that the application of the strict LW principals in the circumstances of the grievance procedure do not apply.

PN73

Further to that, an information bulletin, again provided to us today from Dr Paull, signed off by - an email signed off by Mr Richardson, provided to all staff, a staff notice, whereby he says that:

PN74

To be clear, Austin has no plans to unilaterally vary existing enterprise bargaining agreements and award entitlements to staff.

PN75

Now, this is with respect to the foreshadowed Work Choices legislation. Now, one of the entitlements with respect to staff was the large ambit grievance process under the award. So it is submitted, Commissioner, that the whole nature of that grievance process is to deal with exactly the problems that Dr Paull is facing in these circumstances. You might think the relief that we are seeking is somewhat unusual in the circumstances.

PN76

THE COMMISSIONER: No, I'm not too concerned about the issue of relief, because once having properly characterised the dispute as a matter arising out of the proper application of the agreement, the question of relief is a completely different matter and it can be dealt with separately. But I have to get to that first stage don't I, to go back to the old maxim that the stream can't rise higher than the source?

PN77

MS BINGHAM: No. Agreed. Agreed. But the nature of the grievance procedure, providing that it's incorporated, and we say that it's incorporated by way of a reference and the law with respect to incorporation by reference, is associated with. As long as there is no inconsistency between the written documents that you're incorporating there is no difficulty in the incorporation. Now, we say there isn't any inconsistency because this part of the dispute resolution procedure prior to 10.4 deals with matters with respect to LW claims, the application of the certified agreement to the union and the employees.

PN78

The grievance procedure takes the matter a step further. The grievance procedure is substantially different. If you like, it gives you a right of - it gives the Commission a right of arbitration, a private arbitration to deal with the matters which cannot be resolved between the parties.

PN79

THE COMMISSIONER: Well, isn't that the gravamen of the point? Can you - I mean, you can now under the honey pot, you can do that. It's not confined to the proper application of the agreement. You can actually provide someone, anybody, the Commission or somebody else under the Act, with a power to determine any matter arising in the employment relationship. And the question that's been put is, does the Commission in a coercive sense - and this is what we're here for - even if the parties did agree that, even if they did, even if they said you can dispute, you can have any grievance you like arbitrated by the Commission.

PN80

The first someone stands up and says, actually, that's nice, but you haven't got the power to do that and we're now contesting that, then the duty falls upon the Commission to determine it's own jurisdiction doesn't it, irrespective of the conduct of the parties?

PN81

MS BINGHAM: Yes, I accept what you're saying, Commissioner. And what we are saying is that the clause empowers you - - -

PN82

THE COMMISSIONER: I understand, yes.

PN83

MS BINGHAM: - - - to enact the jurisdiction by way of private arbitration that's been pre agreed. The nature of the clause does have its origins in the award specifically incorporated, it gives it effect now as a right in a certified agreement. I must bring your attention to the Public Administration Act 2004. It's a Victorian statute. And the Austin Hospital under that statute is what's known as a public entity, it's defined as a public entity. There is public sector, which includes public entity and public service and specially identified bodies.

PN84

The public sector is actually then bound by section 7 of section 8 of Part II of the Public Administration Act. And Part II is public sector values and employment principles. Section 8 says that:

PN85

Public sector body heads must establish employment processes that will ensure that (a) employment decisions are based on merit; and (b) public sector employees are treated fairly and reasonable; and the employment opportunity, equal opportunities are provided; and public sector employees have a reasonable avenue of redress against unfair or unreasonable treatment, and in the case of public service bodies the development of a career public service is fostered.

PN86

Now, the last one doesn't apply to us because we're not a public service, we're a public entity. Under this Act under  section 66  the Public Sector Standards Commissioner may issue guidelines. The guidelines are in fact binding - sorry, the standards and guidelines.

PN87

THE COMMISSIONER: Yes.

PN88

MS BINGHAM: The standards are in fact binding. The guidelines are - the best way I can describe it is explanatory document about how you should apply the standard. Again, the standard includes a reasonable avenue of redress:

PN89

The standards prescribed in relation to the fair and reasonable treatment principle also apply in relation to the reasonable avenue of redress principle. In addition the following standards also apply ...(reads)... principles of natural justice and procedural fairness are to be applied throughout a review process.

PN90

THE COMMISSIONER: Is there a state merit and review authority?

PN91

MS BINGHAM: The Public Sector Standards Commissioner only has the power to review the decisions associated with the public service.

PN92

THE COMMISSIONER: I see, not entities?

PN93

MS BINGHAM: Not entities. If that was the case we probably wouldn't be here annoying you.

PN94

THE COMMISSIONER: There's no annoyance.

PN95

MS BINGHAM: So it's our submission that the grievance procedure meets those requirements.

PN96

THE COMMISSIONER: Yes.

PN97

MS BINGHAM: So not only do we have an intention expressed by the parties in their own documentation, incorporation into the certified agreement, but we also have a binding legislative standard to meet. And in those circumstances, Commissioner, I understand my friend's points with respect to the LW issues, the application of the agreement. The grievance procedure sits outside that, and that's the submission of the union and Dr Paull in that regard.

PN98

If it's a requirement of the Commission will attend to the necessary documentation to enliven the jurisdiction in a more effective manner, but in the - - -

PN99

THE COMMISSIONER: What do you mean, by the necessary document that deals with the matters you've just been raising?

PN100

MS BINGHAM: Exactly, yes.

PN101

THE COMMISSIONER: I follow.

PN102

MS BINGHAM: You know, provide to you the grievance procedure that enlivens your jurisdiction rather than have, if you like, an LW application on foot.

PN103

THE COMMISSIONER: Well, how do you say that that enlivens the jurisdiction apart from the jurisdiction - I'm sorry, let me rephrase that. Do you say that enlivens the jurisdiction of the Commission in a manner other than the LW?

PN104

MS BINGHAM: Yes, it does.

PN105

THE COMMISSIONER: How?

PN106

MS BINGHAM: By the conference of the power by the parties in contemplation of you dealing with grievances that may arise, or the Commission dealing with grievances that may arise.

PN107

THE COMMISSIONER: Under Work Choices?

PN108

MS BINGHAM: It can be done under Work Choices and there's certain steps one has to take to get to that point, around the model dispute resolution clause I believe.

PN109

THE COMMISSIONER: Yes.

PN110

MS BINGHAM: Our primary submission is that you don't - - -

PN111

THE COMMISSIONER: Section 704. No.

PN112

MS BINGHAM: Yes.

PN113

THE COMMISSIONER: We will turn quickly to the section no doubt. 698 I think it is, isn't it, 699?

PN114

MS BINGHAM: Yes.

PN115

THE COMMISSIONER: So you say there's a factual base, if I'm not persuaded by the LW there's a factual base for a consent arbitration under 699?

PN116

MS BINGHAM: Yes. Well, you've got a policy and procedure that gives you the power. It's actually a policy of Austin Hospital to give you the power.

PN117

THE COMMISSIONER: Yes.

PN118

MS BINGHAM: It is incorporated into the certified agreement, and it's a legislative standard.

PN119

THE COMMISSIONER: Well, you don't take it that far do you?

PN120

MS BINGHAM: No, you don't. But their policy does go that far.

PN121

THE COMMISSIONER: Yes, I follow.

PN122

MS BINGHAM: And it's been a policy that's circulated on the Intranet, it meets the requirements of people knowing what their rights and remedies are. There is an issue - there would have to be an issue as to whether, if Austin Hospital unilaterally withdrew that right, whether they were not according the proper procedural fairness in the circumstances.

PN123

THE COMMISSIONER: Well, they wouldn't be withdrawing it against Dr Paull, they'd be withdrawing it against all of their staff.

PN124

MS BINGHAM: Exactly. Exactly. They can't pick and choose.

PN125

THE COMMISSIONER: No.

PN126

MS BINGHAM: Unless I can assist the Commission further, that's the position the union takes with respect to this matter.

PN127

THE COMMISSIONER: Thanks, Ms Bingham.

PN128

MS BINGHAM: Thank you.

PN129

THE COMMISSIONER: Mr Dalton, I don't need to hear you on the LW point, but I'd like to hear you on the other point.

PN130

MR DALTON: Can I'd take five minutes?

PN131

THE COMMISSIONER: Of course.

PN132

MR DALTON: Because that's just been put on me.

PN133

THE COMMISSIONER: Yes. No, I understand, and it's quite an important issues.

PN134

MR DALTON: Yes, all right.

PN135

THE COMMISSIONER: I'll adjourn for 10 minutes.

<SHORT ADJOURNMENT [2.52PM]
<RESUMED [3.13PM]

PN136

THE COMMISSIONER: Yes, Mr Dalton?

PN137

MR DALTON: It's nice to be kept on your toes with fresh arguments, Commissioner. Thank you for the time to allow me to consider what is now put. Commissioner, could I hand you a copy of that flowchart that my learned friend referred you to?

PN138

THE COMMISSIONER: Sure.

EXHIBIT #D1 FLOW CHART

PN139

MR DALTON: Commissioner, I've had the opportunity to get some instructions in relation to it. I don't have a copy of it with me. My copy is now with you. You will see in the top box it says:

PN140

Employee identifies area of concern, notifies immediate manager/NUM.

PN141

Now, NUM is nursing unit manager as I am instructed, and I'm instructed that this is a flowchart that applies in respect of all nursing staff at the hospital. It is not a flowchart that applies in respect of other staff. My instructions are there is no such flowchart in the - well, no such flowchart. So that is not a document that assists my learned friend, as I'm instructed.

PN142

Could I go to the certified agreement. Commissioner, of course when I addressed you earlier I was dealing with this in the context of 170LW, and so I didn't think it was necessary to deal with construction issues about the effect of clause 10.4, because I could simply say that water doesn't rise higher than its source. It now appears that I need to do that. If you look at the definitions section which is on the second page of the print, do you a definition of award?

PN143

THE COMMISSIONER: Sorry.

PN144

MR DALTON: In a certified agreement.

PN145

THE COMMISSIONER: Yes, in the certified agreement.

PN146

MR DALTON: Yes. Do you see there's a definition of award?

PN147

THE COMMISSIONER: Yes.

PN148

MR DALTON: Just bear with me a moment, my learned friend is just drawing something to my attention.

PN149

THE COMMISSIONER: Sure.

PN150

MR DALTON: Yes, my learned friend has just referred me to a variation which I perhaps should clarify for your benefit, Commissioner. The point I was going to make is that definitions refer to award as amended from time to time in the definition. My learned friend has handed me what appears to be an order by consent which varies the certified agreement.

PN151

THE COMMISSIONER: To remove ambiguity and uncertainty.

PN152

MS BINGHAM: Yes, that's it.

PN153

THE COMMISSIONER: Yes, I recall it.

PN154

MR DALTON: Yes, deleting as varied from time to time and inserting as at
23 December 2005.

PN155

THE COMMISSIONER: I think my signature is on one of those only, probably not on the one you've got.

PN156

MS BINGHAM: No.

PN157

THE COMMISSIONER: The parties agreed that there was some ambiguity in the language that led to the variation.

PN158

MR DALTON: Well, Commissioner, dealing with clause 10 itself of the certified agreement, it says that the procedure should be applied in all circumstances where individual grievances or disputes between the parties to the agreement arise over the application of the agreement, and that's in 10.1, the preamble. Now, in my respectful submission the clause is to be read on the basis that it is a dispute settlement provision that is to be applied in those circumstances that are set out in 10.1, that's the operative obligation.

PN159

10.4, the intention of the parties that the employees shall retain access to clause 10 of the award. In my respectful submission, firstly, those are not words of incorporation, it's simply a statement that it's the intention of the parties that the employees will retain access to that clause.

PN160

THE COMMISSIONER: But it wouldn't matter whether it was would it, from your submission?

PN161

MR DALTON: Not under the LW matter, no. I'm only addressing you in relation to - because, Commissioner, you said I didn't need to address you further on 170LW. So we're dealing now with the - - -

PN162

THE COMMISSIONER: 699.

PN163

MR DALTON: Yes, and whether there's some operative consent by Austin Hospital in the face of my instructions here today that they don't consent to the Commission exercising powers of arbitration. So perhaps it's worthwhile now just to cut to the chase on those provisions, Commissioner.

PN164

THE COMMISSIONER: Well, you don't need the operation of the agreement or the existence of the agreement for that. As I understood it you could either have a grievance procedure flowchart, which now you say applies to no one other than nursing staff, or the award standing alone as somehow providing consent in advance.

PN165

MR DALTON: Yes. The award doesn't stand on that clause any more. That clause doesn't exist any more.

PN166

THE COMMISSIONER: The grievance procedure in the award?

PN167

MR DALTON: Yes. Sorry, the dispute settlement procedure. So yes, it's not an allowable matter. So under section 525 it doesn't have effect any more.

PN168

THE COMMISSIONER: I see.

PN169

MR DALTON: Yes. So it is necessary for my learned friend to jump quite a few leaps, one of which is that the certified agreement actually incorporates the award provision in a way that's to be read trumping the opening words of 10.1 of the agreement, that imposes the obligation to imply that procedure in respect of disputes over the application of the agreement.

PN170

THE COMMISSIONER: Well, it no longer operates to the extent of - no, it just no longer operates.

PN171

MR DALTON: No, it doesn't operate, and nor, it's not allowable.

PN172

THE COMMISSIONER: No, not allowable.

PN173

MR DALTON: And that's in Part 10.

PN174

THE COMMISSIONER: Yes.

PN175

MR DALTON: Yes, 525. So, Commissioner, what you're left with is a submission that, well, all right, if we can't go under LW we'll rely on section 699. If I go to section 699:

PN176

A person may apply to the Commission to have an alternative dispute resolution process conducted by the Commission under this division in relation to a matter or matters in dispute if -

PN177

And then there's (a) and (b). (b) is clearly satisfied, that is, the parties haven't been able to resolve the dispute at the workplace level.

PN178

THE COMMISSIONER: And (a) is satisfied isn't it?

PN179

MR DALTON: I'm not sure that it is. It's difficult. In the time that I've had it's difficult to ascertain exactly what's meant by that. It's not - you see, the model dispute resolution process is a process that's outlined in section 694 to 697. The award doesn't outline that process. We're not dealing with a workplace determination. A workplace agreement is a workplace agreement under the post Work Choices provisions. The certified agreement we're dealing with is a pre reform certified agreement.

PN180

A provision of this Act, well, there's no provision of the Act. When you look back at the model dispute resolution process in 694 it refers to a number of provisions of the Act which say that the model dispute resolution clause is to apply. So we're not dealing with one of those provisions. And it says - - -

PN181

THE COMMISSIONER: Skip to the or otherwise.

PN182

MR DALTON: Yes, or otherwise. Or otherwise. Now, if it's or otherwise, effectively what is put is that there is an overriding consent to the Commission exercising powers of arbitration that were first prescribed on 27 March 2006, or first operative 27 March 2006, and that that overriding consent which depends upon the pre reform certified agreement is an operative consent that was made in circumstances well before 27 March 2006. A pretty extraordinary submission. It's saying that some five months before the Commission ever had those powers that Austin Hospital consented to the Commission exercising those powers into the future, that it would pick up in six months time or something.

PN183

We say that that is a fundamental problem with what is now being put. When you look at section 701, Commissioner, that in effect sets out the particular procedures in this alternative dispute resolution procedure. And subsection 4 says the Commission doesn't have the power to do certain things, one of which is to arbitrate the matter or matters.

PN184

THE COMMISSIONER: No. But go to 701(5).

PN185

MR DALTON: Exactly. Now, what (5) is saying there, is saying that - - -

PN186

THE COMMISSIONER: If you consent I can arbitrate.

PN187

MR DALTON: Correct. And they're saying - the consent they're relying on though is a consent that goes back - and I dispute that it's in fact a consent in terms based on the construction of the agreement. But even if the agreement incorporates in terms the provisions of the award such that it trumps that provision that I referred you to in 10.1 of the certified agreement, it is an enormous leap to say that that's an operative consent that trumps my instructions today in respect of Commission powers that didn't become operative until some six months after that certified agreement was signed.

PN188

THE COMMISSIONER: Yes.

PN189

MR DALTON: Commissioner, another matter which is more technical than substantive, but it's still there.

PN190

THE COMMISSIONER: I thought we were pretty technical up until now to be honest with you.

PN191

MR DALTON: More technical. It's section 700, Commissioner, (b). The matter is still subject to 170LW proceedings. That's obviously something that can be remedied through time, and also there is a number of formal requirements under section 699, but I rely on the less technical, more substantive submissions. If the Commission pleases.

PN192

THE COMMISSIONER: Thanks, Mr Dalton. Yes, Ms Bingham, you can have another - - -

PN193

MS BINGHAM: I'll just have another go.

PN194

THE COMMISSIONER: Yes, all right.

PN195

MS BINGHAM: Your Honour, on the consent - Commissioner, on the consent point, consent with respect to the award and the incorporation of those terms into the certified agreement was given on 17 March 2006.

PN196

THE COMMISSIONER: Yes.

PN197

MS BINGHAM: I also want to direct you to the preamble of 10.1, which actually states - and my friend has not read this out to you:

PN198

The parties recognise from time to time individual employees may have grievances that may need to be resolved in the interests of good relationships. It is also recognised that disputes may arise between the parties concerning the application of this agreement.

PN199

Two separate and distinct issues.

PN200

THE COMMISSIONER: Yes. But it's the same point isn't it, whether or not you can take it beyond a term of the agreement?

PN201

MS BINGHAM: Yes. And all I can do, Commissioner, is reiterate our position, that 10.4 incorporates by way of reference the grievance procedure from the award as it stood.

PN202

THE COMMISSIONER: All right. I'm going to adjourn for 15 minutes, and then I'll be in a position to announce my decision on this aspect of the matter. I'll adjourn for 15 minutes.

<SHORT ADJOURNMENT [3.29PM]
<RESUMED [3.54PM]

PN203

THE COMMISSIONER: I will ask that the transcript be produced quickly on this matter so that the parties can have a copy as quickly as possible. This is a matter which is first said to arise pursuant to section 170LW of the pre reform Workplace Relations Act over the proper operation of the Public Health Sector (Medical Scientists, Pharmacists and Psychologists) Austin Hospital Service Certified Agreement 2004-2007.

PN204

The Health Services Union of Australia and Dr Paull characterised the dispute as follows, and this is contained in a letter dated 19 December:

PN205

(a) that the decision of Austin Hospital not appoint Dr Paull to the position of director of pathology be reviewed in accordance with statutory and regulatory requirements and; (b) that the processes and procedures that should apply to any such review, having regard to statutory and regulatory requirements be determined by the Commission and; (c) that an independent reviewer be appointed by the Commission.

PN206

Austin Hospital raise a jurisdictional bar to this Commission dealing with the matter. In short, it is put that there is nothing in the agreement which deals specifically with the issues raised by the HSUA and Dr Paull. It is submitted that the Commission is not at large under section 170LW, but is constrained by the source of the power and not necessarily the expressions used by the parties.

PN207

The HSUA and Dr Paull submit that (1) there is a general recognition of the ability of the Commission to raise individual grievances in the agreement and; (2) the agreement incorporates the award which further strengthens the power of the Commission to deal with individual grievances. As to the first argument, it must fail. It is now well settled that the stream cannot rise higher than the source, and that the parties cannot purport to empower the Commission beyond the legislative constraints contained in the Act. The application to the extent it relies on section 170LW in the terms of the agreement is dismissed for want of jurisdiction.

PN208

The next argument arose during proceedings, and it goes to the operation of Division 3 of Part 13 of the Workplace Relations Act 1996. It is said that, firstly, the terms of the award is incorporated by the agreement, and secondly, the terms of the grievance procedure flowchart give consent sufficient to now raise the application of Division 3. In short it is put that consent has been given in advance to an alternative dispute resolution procedure.

PN209

Austin again submit that this is not so because, firstly, the award, if incorporated in the agreement, is constrained by section 170LW, secondly, the grievance procedure in the award is now a non allowable award matter pursuant to section 525 of the Act and regulations, and thirdly, the grievance mechanism in exhibit D1 only applies to nurses at the Austin Hospital. Clearly there is force in the argument of Austin.

PN210

This is not to say that some agreement in advance can't happen or that it can't be included in individual grievance mechanisms. But it's not the case here. For Dr Paull, whatever be the merit of his grievance, his employer does not want it resolved other than by its decision. This is not a criticism, it's a statement of fact. I find that neither section 170LW or section 698 can operate in the circumstances before me. The applications are struck out as no jurisdiction exists for the Commission to consider this grievance. The matter is adjourned sine die.

<ADJOURNED INDEFINITELY [3.59PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #D1 FLOW CHART PN138