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BP2008/ 467 , Transcript of Proceedings [2008] AIRCTrans 155 (4 April 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18290-1

COMMISSIONER CRIBB

BP2008/ 467 

s.451(1) - Application for order for protected action ballot to be held
Health Services Union
and
Epworth Foundation
(BP2008/ 467 )

MELBOURNE

10.30AM, WEDNESDAY, 19 MARCH 2008

PN1

MS H BROWN: I appear on behalf of the Health Services Union.

PN2

MS C POLLARD: I seek leave to appear on behalf of Epworth.

PN3

THE COMMISSIONER: Is there any objection to Ms Pollard's appearance here?

PN4

MS BROWN: No, Commissioner,

PN5

THE COMMISSIONER: Leave is granted, Ms Pollard. Ms Brown.

PN6

MS BROWN: Commissioner, this is an application under section 451 of the Workplace Relations Act 1996 in relation to a protected action ballot for employees of the Epworth Foundation. Members of the union would include medical scientists, dieticians and psychologists and any other employees employed by the employer who are members of the union. The papers have been filed with the Commission on Monday and negotiations in relation to this agreement commenced in September with some preliminary discussions happening before that date.

PN7

The bargaining period underpinning this application was lodged in or around
29 October 2007 and the Epworth Foundation has been served with a copy of that bargaining period previously. A copy of those documents were also forwarded to the Commission with the application in this matter. The documentation with the bargaining period formed the basis of discussions with the Epworth who also provided a list of claims on their own behalf in bargaining and those negotiations have been productive with only one issue remaining and that is the issue of wages.

PN8

We say that all the requirements of the Act are met in relation to a protected action ballot being granted. I have just been handed a copy of some written submissions from Epworth opposing our application and haven't really had sufficient time to address those. Our view is, as I say, that all the requirements of the Act have been met. The union have been genuinely trying to reach agreement and have been successful on many conditions and there has been conciliation before yourself, Commissioner, on some of those matters.

PN9

The protected action ballot was not made in relation to any matters relating to prohibited content. In just briefly reviewing the written submissions that have just been handed to me now, the Epworth Foundation makes reference to a claim for the inclusion of another certified agreement. That agreement has been discussed in bargaining as a model and has been set aside because other agreements have been reached. The name of that document is the St Vincents Health Melbourne and Health Services Union of Australia Victoria Number 4 Organisational Change Agreement 2004. There has been agreement reached on another organisational change agreement to be included in a potentially new agreement between the parties. On that basis I would say there is no basis for saying that the application is in support of prohibited content. The branch secretary of the Health Services Union number 4 branch have made declarations to that effect which have been included with the documents.

PN10

We have provided a copy of the draft order to the Commission. I have circulated to the Epworth an updated draft order of today's date and that just changes 3.1 so that it reads as follows. I'll wait till you have the old one in front of you. At 3.1 the clause should read on this draft order:

PN11

Subject to clause 3.2 the types of employees to be balloted are those medical scientists, audiologists, dieticians ...(reads)... proposed collective agreement made within the bargaining period bp2007/ 467 .

PN12

That should actually also be altered in consistency with our original application to the Commission to actually read medical scientists, dieticians and psychologists only because my understanding is that Epworth do not employ people in the other categories.

PN13

THE COMMISSIONER: Sorry, Ms Brown, so it should be medical
scientists - - -

PN14

MS BROWN: Dieticians and psychologists. In this document that's been provided to me there is a timeline provided and we say that we are prepared to seriously look at offers and proposals put to the other party, The fact that we don't agree with what has been put before us to date, is not evidence that there has not been genuine bargaining. On the matter of lack of specificity there has been no contact from the Epworth to our office to look at changes to the draft order. There has not even been a phone call to let us know that they were opposing this application. All I can say to that ground is that we can enter into discussions around what they see would be more appropriate. I will have to let Ms Pollard speak to her submissions but there are things that we strenuously object to in this document and we haven't had sufficient notice of it to prepare before this hearing.

PN15

We say all the requirements of the Act have been met and that the Commission should exercise its discretion in our favour to grant the application for the ballot so that our members can press their claims and those are the submissions of the union in this matter.

PN16

THE COMMISSIONER: Ms Pollard.

PN17

MS POLLARD: Commissioner, I do have a copy of my written submissions, if I can hand a copy of those up to you as I step through them.

PN18

THE COMMISSIONER: Do you wish them marked as an exhibit, Ms Pollard?

PN19

MS POLLARD: Yes, I do, thank you.

PN20

THE COMMISSIONER: Is there any objection, Ms Brown?

PN21

MS BROWN: There are a couple of things that have been raised in the submissions that we say disclose without prejudice offers. Those offers have been circulated amongst our membership because they are part of the bargaining party but we not entirely sure that they should form part of the public record at this point which places us in a very awkward position because they are part of the submission of the Epworth Foundation.

PN22

THE COMMISSIONER: Do you have a view on that?

PN23

MS POLLARD: Yes, I do, Commissioner. The specific point that is being raised is the most recent offer that was provided by HSU 4 during the conciliation conference process. We acknowledge the confidential nature of that process, however, in a letter dated 7 March from the Epworth Health Care CEO, Mr Kinkade, to Dr Kelly of HSU 4, that offer was referred to and that letter has been circulated to HSU 4 membership by Dr Kelly. We would say on that basis that waives any without prejudice privilege and also the confidential nature of those discussions that occurred in conference.

PN24

THE COMMISSIONER: Is that correct, as you understand it, Ms Brown?

PN25

MS BROWN: It has been circulated to the members, as I say, but they are part of the HSU 4, they are part of the negotiating party. I guess my concern is we don't know where this process is actually leading to and we don't necessarily want our offers and counteroffers that have been made without prejudice in confidential proceedings in the knowledge of our members who are part of the negotiating party, to be in the mind of any other person who may have dealings with this in the future.

PN26

THE COMMISSIONER: Ms Pollard, I have no difficulty marking this as an exhibit but I'd prefer to have it confidential and not to be available to anybody else other than the parties here today, unless I give permission.

PN27

MS POLLARD: Thank you, Commissioner.

EXHIBIT #R1 WRITTEN SUBMISSIONS OF EMPLOYER DATED 19/03/2008

PN28

MS POLLARD: The applicant has made an application under section 451 of the Act for an order for a protected action ballot, a PAB. The PAB relates to proposed industrial action against the employer in respect of a proposed collective agreement. The proposed industrial action concerns members of the applicant employed by the employer whose employment will be subject to the proposed collective agreement.

PN29

The applicant opposes the application for the PAB and makes these submissions in support of an order by the Commission that the application be dismissed. Alternatively, the employer makes these submissions in support of an application for certain directions in relation to aspects of the conduct of the PAB. The employer submits that the Commission must not grant the application for the PAB because (a) the applicant is not genuinely trying to reach agreement with the employer regarding the proposed collective agreement; (b) the granting of the application would be inconsistent with the object of Division 4, Part IX of the Act because of a lack of specificity in the application regarding the industrial action which the PAB was seeking members to authorise; (c) the PAB seeks to authorise industrial action which would not be protected industrial action because it supports and/or advances claims for a proposed collective agreement that would contravene section 355(1) of the Act.

PN30

Not genuinely trying to reach agreement: I'll now set out a chronology of events leading up to the PAB application and, of course, these are subsequent to the commencement of negotiations which did commence in September 2007. On 21 January 2008, the employer meets with the applicant to discuss the employer's current offer. The employer seeks the applicant's response by 7 February 2008. Further meeting with the applicant was planned for 4 February 2008 regarding the applicant's claims against the employer.

PN31

On 1 February 2008, Rosemary Kelly of the applicant emailed the employer to reschedule the meeting planned for 4 February 2008 to 14 February 2008. The employer replies expressing disappointment with delays being experienced with negotiations for the EBA and notes that the applicant has not responded to the employer's current offer. The further meeting was planned for 14 February 2008 and the employer was to provide a red lined version of a draft EBA by 6 February 2008.

PN32

On 7 February 2008 the applicant emails the employer regarding disputed points concerning classification descriptors and indicating that the employer's salary offer is - - -

PN33

MS BROWN: Commissioner, may I just interrupt. It occurs to me that if Ms Pollard intends to read through this, put it on transcript, it's actually taking away the value of having the submission sealed.

PN34

THE COMMISSIONER: Ms Pollard, I was going to let you proceed for a bit longer just to see what it was that you were planning to do but obviously, given my previous ruling regarding the confidentiality of the submissions, if you are going to read it through, that makes a nonsense of what I've already expressed a view about so I don't think it would be prudent to do that.

PN35

MS POLLARD: Commissioner, I was not going to refer to the most recent offer contained in the submissions marked 7 March 2008 on the bottom of page 2.

PN36

THE COMMISSIONER: My view is that any details regarding the content of what has been agreed, particularly in conciliation, is not to go on the public record because otherwise, what's the purpose of having conciliation conferences to support the parties trying to reach agreement.

PN37

MS POLLARD: Commissioner, may I then refer to the submissions wherein they deal with the legal issues regarding the objection.

PN38

THE COMMISSIONER: Ms Pollard, I want to make it really clear, I'm not trying to be difficult and I'm not in any way trying to prevent the Epworth putting absolutely everything that it wants to. Maybe the other way to do it, for completeness from your perspective, might be to say that you refer the Commission to the details on page 2, for example, without actually specifying what they are. That means that everything that - I mean, it's tendered, the document, anyway before the Commission, but it means that as part of your submissions you've also referred the Commission to that.

PN39

MS POLLARD: Thank you, Commissioner, I understand. Commissioner, would you have any objection to me referring to matters that were discussed outside the confines of the conciliation conference?

PN40

THE COMMISSIONER: It depends as to the understanding that the parties had about those things, whether the parties understood it to be confidential, without prejudice of whatever and given that I wasn't there, I have no idea of the nature of those so I can't actually make a call on that one. I'm sure Ms Brown would be able to assist you if she disagreed about the nature of those discussions.

PN41

MS POLLARD: Certainly.

PN42

THE COMMISSIONER: If that makes sense.

PN43

MS POLLARD: Yes, Commissioner, thank you.

PN44

THE COMMISSIONER: I'm sorry, I can't be more specific because I wasn't present.

PN45

MS POLLARD: On that basis, Commissioner, I will proceed by referring you to page 2 of the submissions and then I will continue on page 3. At 8 March 2008 the applicant posts a note on its website referring to the employer's insulting offer and implicitly suggests that the applicant's members should not take up offers of employment with the employer and Commissioner, that remains posted on the website this morning. There has been no update to the members regarding these proceedings as far as I'm aware when the website was checked this morning.
Following that there was correspondence regarding the information that was posted on the website and that the employer found it offensive and contrary to negotiating in good faith.

PN46

I'll now move onto the numbered paragraphs in the submissions, Commissioner:

PN47

A party will be genuinely trying to reach agreement when they exhibit a preparedness to consider seriously the offers and proposals put by the other negotiating party set out in CEPU and Anor v Cadbury Schweppes Australia.

PN48

I have copies of the decisions referred and documents referred to to hand up to you and to give to Ms Brown.

PN49

The employer submits that the applicant is not indicating preparedness to consider seriously the employer's offer to pay 13.5 per cent over four years. That is because of the matters that are referred to now Commissioner on page 3 of the submissions that may be argued to form part of the conciliation process that may be considered to remain confidential.

PN50

I will now go to point B:

PN51

The applicant has neglected without reason to pursue the dispute resolution processes already initiated by the employer under the existing certified agreement.

PN52

The applicant has not responded in any substantive way to the reasons provided by the employer as to why it has made its pay offer and instead of responding constructively to the employer's current pay offer, the applicant has engaged in conduct designed to damage the reputation of the employer - - -

PN53

MS BROWN: I do object to those statements. I'll go to that later on, Commissioner.

PN54

MS POLLARD: - - - namely, posting materials on its website encouraging its members not to take up employment with the employer and emailing its members a letter from the CEO dated 7 March. For this reason the employer submits that the Commission should refuse to grant the PAB application.

PN55

In terms of the lack of specificity, the applicant seeks to put the following questions to the relevant employees in the PAB. I won't go through those points, they are already listed in the documents before the Commission.

PN56

THE COMMISSIONER: I'm sorry, Ms Pollard, could I interrupt.

PN57

MS POLLARD: Yes, Commissioner.

PN58

THE COMMISSIONER: Where there is a complaint by an employer regarding lack of specificity, regarding the questions that are to be put, the way that I normally try and address that complaint by the employer is to have some detail provided by the employer about the difficulties with the questions as currently proposed by the union and then provide the union with an opportunity to have a discussion with the employer immediately in order to try and sort that out so that agreed amendments can be made to the draft order. I will actually need some - and I think the union would be assisted if there could be some flesh put on your submissions about the lack of specificity.

PN59

MS POLLARD: Commissioner, we do have some detail in the submissions but the Epworth is happy to enter into those discussions and that information has not yet been provided, given the timeframes that we're operating within, Commissioner. I do apologise for that.

PN60

THE COMMISSIONER: There's no need to apologise. In terms of this issue, at the conclusion of your formal submissions, would it be worthwhile if we went off the record for a moment to allow you and Ms Brown to have a discussion about the issues that you do have and to see if Ms Brown, on behalf of the union, is able to make any amendments to the draft order that may address your issues and if there's anything residual we can go back on the record and I can assist the parties on that one.

PN61

MS POLLARD: Yes, Commissioner, we would be happy to enter into those discussions once the formal submissions are finalised.

PN62

THE COMMISSIONER: Is that course of action acceptable to the union, Ms Brown?

PN63

MS BROWN: I have no difficulty with that. My problem will be getting formal instructions. The branch secretary of the union is in national executive meetings this morning and I'm unsure at what time she'll be released from those.

PN64

THE COMMISSIONER: Sounds like a gaol sentence.

PN65

MS BROWN: I may be able to contact her, I may not.

PN66

THE COMMISSIONER: Thank you for letting me know that. I think we might stick to plan A and just see how the timing is going and if we need to we'll find plan B. Sorry to interrupt, Ms Pollard.

PN67

MS POLLARD: I'll commence back at paragraph 9 of the submissions when employees are asked whether to organise industrial action in a protected action ballot, the nature of the propose industrial action must be expressed clear enough to enable them to make an informed choice and we seek to rely on the UFU of Australia v CFA decision. The employer submits that the description of the questions in the PAB application is deficient because it does not state the types of stoppages of work referred to in paragraph (g) above, nor does it state in respect of all of the actions, the time or the periods over which the action is to take place. For this reason the Commission cannot be satisfied that the PAB application would be consistent with the object of Division 4 of Part IX of the Act, therefore the employer submits that the Commission should refuse the application on that ground.

PN68

In relation to proposed collective agreement calls up other documents, section 355 of the Act in effect prohibits a workplace agreement from incorporating by reference terms from another workplace agreement or an award unless that instruments regulates the employment relationship to be covered by the proposed agreement just before it is made. The applicant's PAB application includes a document entitled MSAV and VPA Epworth Claims 2007. This document was attached to applicant's form R4, notice to initiate a bargaining period which was served on the employer.

PN69

The document lists matters that the applicant proposes should be dealt with by the proposed collective agreement. The document refers in several places to industrial instruments, the content of which could not be called up into the proposed collective agreement without offending section 355 of the Act. these include the reference to public sector shift allowance rates in clause 3 and the
St Vincents Health Melbourne and Health Services Union of Australia Victoria Number 4 Organisational Change Agreement 2004 in clause 40.

PN70

If a term of the proposed collective agreement incorporated by reference terms from the industrial instruments named in the previous paragraph, the term would be void, therefore, insofar as the applicant is seeking to organise or engage in industrial action against the employer, for the purposes of supporting or advancing these claims, they are not claims which can be properly made in respect of the proposed collective agreement. Accordingly, industrial action in relation to these claims cannot be protected action within the meaning of section 435 of the Act and cannot be authorised by the PAB.

PN71

I just wish to add on that point, Commissioner, certainly throughout the course of the negotiations there has been discussion about a content of that agreement being taken outside the negotiations but the very fact that that document formed part of the documents lodged with the Commission cannot be ignored at this stage and we felt needed to be brought to the attention of the Commission.

PN72

THE COMMISSIONER: That Full Bench distinguishes between references to rather than the content in another document actually being agreed to and put in the parties' proposed collective agreement. I don't understand, and I apologise for this, but I don't understand the context in which the union's reference to those other documents - I don't understand the nature of that reference. If it is referring to the content rather than picking out clause 1 of the St Vincents Organisational Change Agreement, for example, or incorporating specific clauses or all of it, that's one issue. If the purpose of referring to the document is to provide a template in terms of a model in terms of content and then what was going to result would be terms in a proposed collective agreement that the parties have agreed on, that's a different situation.

PN73

MS POLLARD: Thank you, Commissioner, and perhaps once I've finalised my submissions we could clarify that between the parties because it has only formed a very small part of the negotiations, that it would be taken outside the negotiations but the very fact that the document has included reference, we don't have a clear understanding of what that would mean but if we can clarify that matter, we're certainly happy to have those discussions.

PN74

Regarding the conduct of the PAB, in the alternative, if the Commission determines that it should grant the application for the PAB, the employer submits that the Commission should by order specify that the period of written notice referred to in paragraph 44(12)(b) of the Act should be seven days. The employer makes this submission on the grounds that there are exceptional circumstances justifying that the applicant give the employer seven days' rather than three days' written notice of the nature of the intended industrial action day when it will begin.

PN75

The exceptional circumstances relate to the potential consequences of the industrial action in respect of which the PAB seeks authorisation. Most, if not all of the categories of industrial action described in the PAB application would, if taken, have a potential adverse impact on the personal safety or health or welfare of the employer's patients and clients. The employer needs more time than
three days in order to take measures to eliminate or reduce the potential harm to its patients and clients, including, if necessary, making application to the Commission to suspend or terminate the bargaining period, BP2007467. Thank you, Commissioner.

PN76

THE COMMISSIONER: Ms Pollard, the basis on behalf of the Epworth seeking that the notice required in the Act should be seven days rather than three, the basis on which you make that submission is that there are exceptional circumstances.

PN77

MS POLLARD: Yes.

PN78

THE COMMISSIONER: I don't mean to be difficult, but is there anything in the Act that provides for that?

PN79

MS POLLARD: Commissioner, I'm sorry, I'm not in a position to answer that question just presently, but I can if I can have a short adjournment.

PN80

THE COMMISSIONER: Sure. It would be a difficult thing for the Commission to change the terms of the Workplace Relations Act unless there is an express provision providing for what you're seeking. The Act, unfortunately, rightly or wrongly is the Act.

PN81

MS POLLARD: Thank you, Commissioner.

PN82

THE COMMISSIONER: Ms Brown.

PN83

MS BROWN: Commission, in relation to the last point about the extension of time, I am not certain, without having had a chance to read through the submissions at length, about the capacity for the Commission to extend it, but I'd certainly say there are no exceptional circumstances and Ms Pollard hasn't actually called any evidence to support the view that there are exceptional circumstances in this case in any event.

PN84

In relation to the submissions in relation to proposed collective agreements calling up other agreements, do you have a copy of the bargaining period and the particulars of the log of claims in front of you? In relation to point 40, which is consultation over organisational change and the implementation of change - - -

PN85

THE COMMISSIONER: Hang on a sec. Ms Brown, I've got the notice to initiate a bargaining period.

PN86

MS BROWN: Then there should be an attachment.

PN87

THE COMMISSIONER: No. I do not have the attachment, I don't - hang on, I'm back to front. Yes, I do.

PN88

MS BROWN: It should be entitled MSAV and VPA Epworth Claims 2007 for Discussion. At point 40, just above that the heading is Making the Workplace Work, Consultation and Fair Treatment, point 40:

PN89

Consultation over organisational change and the implementation of change will occur as per the St Vincents Health Melbourne and Health Services Union of Australia Victoria Number 4 Branch Organisational Change Agreement 2004 insofar as it is not prohibited by law.

PN90

Again, at 44 there is a claim for:

PN91

All existing terms and conditions of employment as contained in the extant certified agreement ...(reads)... must be included in a new workplace agreement, an industrial instrument.

PN92

In relation to those two items, it is clear that the intention of the union was never to include prohibited content but to use those clauses and agreements as models to be included in the enterprise agreement and to alter them to remove prohibited content that may be included in those. Accordingly, I don't believe there is any basis on which you can conclude that we are advancing claims in support of prohibited content.

PN93

THE COMMISSIONER: Hold on a sec, sorry, Ms Brown. Could I just have some clarification on that. With respect to clause 40 the underlined, insofar as it is not prohibited by law, does that refer to the contents of that agreement?

PN94

MS BROWN: Yes.

PN95

THE COMMISSIONER: Okay, because the point the Epworth is making is that seeking to actually incorporate the terms of the St Vincents agreement is in and of itself prohibited content because it's calling up terms.

PN96

MS BROWN: But we're not seeking to include those in the agreement and that goes to my next point which is around the negotiations. In relation to both of these points, agreement has been reached on the organisational change clause, as far as I'm aware. I mean, we haven't reached a finalised agreement but my understanding is there is an agreement around the organisational change process that will occur within the new agreement.

PN97

Agreement has also been reached into drafting a new document that takes into account the clauses that are in the current private sector award referred to in 44 and incorporating them into a new agreement, not by reference but by actually altering those things that have been bargained away and actually incorporating those things that are intended to remain the same. The nature of the negotiations is that agreement had been reached on those and there's no basis for assuming that these claims are still on foot in terms of advancing claims for prohibited content.

PN98

I believe there was also a claim in relation to shift allowances. Similarly, I believe the union has actually dropped off on that claim during the course of bargaining so similarly, there is no basis for assuming that we are advancing claims in support of prohibited content.

PN99

Commissioner, I'll just go back through the respondent's submission. At point 6 the respondent has said that the applicant has neglected, without reason, to pursue the dispute resolution processes initiated by the employer. There's not actually a requirement that we pursue those and it is the view of the union and its members that they wish to pursue a ballot. There's no reason why negotiations can't happen concurrently with that process and we're not averse to that at all so we would ask you to find that genuine bargaining is actually happening and has happened under the auspices of conciliation before you, Commissioner.

PN100

If you're not minded to make an order today, we would seek to adjourn the matter and bring evidence on before you because there actually hasn't been evidence put before you today about the nature of the bargaining. It's all been through written submission and verbal submission, obviously.

PN101

THE COMMISSIONER: Would now be a good time to go off the record to talk about the questions to be put and the concerns by the Epworth regarding those?

PN102

MS POLLARD: Yes, Commissioner.

PN103

THE COMMISSIONER: Is it okay with you, Ms Brown? I understand the practical difficulties that you have.

PN104

MS BROWN: Certainly.

PN105

THE COMMISSIONER: Could we go off the record for a moment, please.

<OFF THE RECORD [11.07AM]

PN106

THE COMMISSIONER: As a result of discussions with the parties off the record, the Commission will adjourn for 15 minutes. The Commission stands adjourned.

<SHORT ADJOURNMENT [11.17AM]
<RESUMED [11.57AM]

PN107

THE COMMISSIONER: Ms Pollard.

PN108

MS POLLARD: Commissioner, I refer to paragraphs 17 and 18 of the written submissions and would take the Commissioner to section 463(5) of the Workplace Relations Act. That section states that:

PN109

If the Commission is satisfied in relation to the proposed industrial action that is the subject of the order, that there are exceptional circumstances justifying the period of written notice referred to in para 441(2)(b) being longer than three days, the order may specify a longer period of up to seven days.

PN110

I refer to an order of Commissioner Smith where this power was exercised by the Commission in a secret ballot order made on 17 July 2007 in relation to a matter where the Victoria Police Force was a party to that matter. I don't have a copy of hand up. I have the print number which is 977701.

PN111

Commissioner, we would say that, given further discussions that have happened in private conference, that there would be exceptional circumstances in this case in relation to patient welfare. Some of the proposed bans will have more impact than others and that the employer would seek more than three days to arrange alternate labour in the event that the bans are put into place.

PN112

THE COMMISSIONER: Ms Pollard, I think I'm going to need more convincing on that matter because if my memory serves me, you're right. I was the Commission as was constituted when the same union with respect to actually a wider range of employees than the Epworth sought secret ballot orders in the public sector. Each of those employers had a wider range of types of employees covered by the terms of the secret ballot orders so I'd need some further information regarding the exceptional circumstances.

PN113

MS POLLARD: Yes, Commissioner, and if that's the case we would seek to adjourn the matter and bring expert evidence before the Commission in relation to that matter relating to the provision of the services of psychologists to the patients and the meetings that they would have with patients and families, and more specifically, Commissioner, in relation to the medical scientists group who treat patients with sleep apnoea and some of those conditions can be life threatening if they are not admitted and treated within a short period of time.

PN114

THE COMMISSIONER: Ms Pollard, am I hearing echoes of a potential termination of the bargaining period submission on the grounds of endangering the health and welfare? That's a different test. This is a notice following a potentially successful secret ballot by your employees who are members of the applicant union here regarding the sufficiency of three days' notice of specific times and further details of industrial action to be taken following this matter which sets out in broad terms the potential bans, limitations or stoppages that the Epworth may be potentially facing.

PN115

MS POLLARD: Yes, Commissioner, and that that period at this stage that would be given is three days and the Epworth would say that that is insufficient, that there are exceptional circumstances for the Commission to consider extending that to seven days, allowing the Epworth to ensure that the provision of services to its patients and clients is properly met. As I said earlier, the Epworth would seek to adjourn this matter on that point and if necessary bring expert evidence in relation to this point.

PN116

THE COMMISSIONER: Ms Pollard, the mainstream norm from the Act's perspective is three days. Under exceptional circumstances that can be extended to seven. I don't need expert evidence, I just need an explanation as to why the Epworth is exceptional and exceptional vis-à-vis the public sector.

PN117

MS POLLARD: Yes, Commissioner, well, as I've said the Epworth's position is that it believes that exceptional circumstances exist in this situation in that it would require a longer period of time within which to ensure that the services are provided, but that's all I have to say about that matter, Commissioner.

PN118

THE COMMISSIONER: Is there anything further that either wishes to put in this matter this morning?

PN119

MS BROWN: Commissioner, if I may speak, the union's perspective is that Epworth Foundation is not different from any other employer in the state of Victoria in the health services area and accordingly, we would say that there are no exceptional circumstances for extending the timelines for giving notice beyond the three days, given that those are based on authority would actually have to be three clear days so you'd get effectively five working days' notice of any action. Other than that we've put submissions before you about why Epworth's submissions should not be accepted and we would ask that you grant the order today.

PN120

THE COMMISSIONER: Ms Pollard, is there anything additional?

PN121

MS POLLARD: Nothing further, Commissioner.

PN122

THE COMMISSIONER: This matter is an application by the Health Services Union for a protected ballot order pursuant to section 451 of the Workplace Relations Act. The HSU seeks a ballot of employees who are employed by the Epworth Foundation as medical scientists, dieticians and psychologists and any other employee who would be subject to the proposed agreement.

PN123

The Epworth Foundation opposed the application on three grounds, namely, that the applicant is not genuinely trying to reach agreement with the employer; secondly, that there was a lack of specificity regarding the questions to be asked and thirdly, that the proposed collective agreement seeks to incorporate by reference terms from workplace agreements or awards, which is contrary to the Act.

PN124

I will deal with each of these objections in turn. With respect to the objection that the applicant is not genuinely trying to reach agreement with the employer, I have considered carefully the submissions of the parties. Whilst the parties appear to have reached an impasse in their negotiations, on the material before me there is not the basis for concluding that the union is not genuinely trying to reach agreement with the employer as Acton SDP has defined it.

PN125

With respect to the second objection, I have not been convinced that there is a lack of specificity regarding the questions to be put. In reaching this conclusion I have been guided by the decision of Commissioner Simmonds who said that:

PN126

While lawyers may be able to argue that the questions lack legal precision, I have no doubt that those contemplating how to vote would find the questions set out earlier have sufficient clarity to allow them to make an informed choice.

PN127

Also the Full Bench's words in the Country Fire Authority decision:

PN128

Further, while the intention of the legislature can only be gleaned from the provisions of the legislation ...(reads)... is expressed clear enough to enable them to make an informed choice.

PN129

On the basis of both those decisions I am satisfied that the questions put have sufficient clarity to allow the employees, because they are the ones who are having to make the choice, I'm satisfied that they have sufficient clarity to allow them to make an informed choice.

PN130

The third objection concerned prohibited content and the view that the union is seeking to incorporate by reference into the proposed agreement, other industrial instruments. The union in its response admitted that this was not the intent and that the reference to the other industrial instruments was to provide a model for the discussions between the parties. In addition, the union contended that the parties had actually reached agreement on their own clause with respect to organisational change and that agreement had also been reached by the parties regarding the drafting of a new document which would contain content from the award which has been agreed to be included in the proposed collective agreement but in neither case is there incorporation by reference. On the basis of the material before me therefore, I am satisfied that the proposed agreement does not seek to call up the terms of the award or the St Vincents agreement in the manner set out in section 355 of the Act.

PN131

The union's application falls to be determined pursuant to section 461 of the Act. Section 461 sets out the preconditions about which the Commission must be satisfied before granting the application. I shall deal with each of the preconditions in turn. Section 461A requires that:

PN132

During the bargaining period the applicant has genuinely tried to reach agreement with the employer.

PN133

On the basis of the material before me I am satisfied that the conditions set out in section 461(1)(a) have been met. With respect to section 461(1)(b) this requires that the applicant is genuinely trying to reach agreement with the employer. On the basis of my finding that the applicant is genuinely trying to reach agreement with the employer I am satisfied that the condition set out in section 461(1)(b) has been met.

PN134

In reaching that conclusion I do need to say that the position that the Epworth is currently in in the negotiations is understood and appreciated. However, with respect to the requirements of the Act, and in this I am guided with respect to this particular provision by a range of Full Bench authorities which have dealt with this issue, the conclusion that is reasonably open to me is the one that I have reached and that is that section 461(1)(b) the condition set out in that section has been met.

PN135

I need to also say I apologise this is slightly disjointed. My head is not completely where it should be today.

PN136

In reaching my conclusions in this matter I also recall and note again the Commission's satisfaction that the proposed agreement does not contravene or upset the requirements of section 355 with respect to calling up the terms of an award or other industrial instruments in a manner that would contravene section 355.

PN137

With respect to the requirements of section 461(1)(c) there is no basis on the material before me to conclude that the applicant is engaged in pattern bargaining as defined in section 421 of the Act. Therefore, I am satisfied that the condition contained in section 461(1)(c) has been met.

PN138

Section 461(2) provides the Commission with the discretion to refuse the application that is currently before it. On the basis of the material before me I am not satisfied that the grounds for refusal, as set out in section 461(2)(a) and (b) have been met. The granting of the application would not be, in my view, inconsistent with the objects of this division which is to establish a transparent process which allows employees to choose by secret ballot whether to authorise industrial action. In addition there was no evidence put that the applicant or a relevant employee has contravened a provision of this division or an order or direction under this division.

PN139

Having been satisfied as to the requirements in section 461(1) and seeing nothing in the evidence that would justify an exercise of the discretion in section 461(2) to refuse the application, I am therefore obliged to grant the application.

PN140

With respect to the terms of the order, the Epworth has not had an opportunity yet to put a view regarding the amended draft order that sits before the Commission and obviously the Epworth now. Ms Pollard, have you had an opportunity to consider the terms of the draft order that accompanied the union's application and that has been amended in regard to two respects this morning?

PN141

MS POLLARD: Commissioner, we have had an opportunity to review that, that is the clause 3.1, employees to be balloted. The Epworth does not object to the amendment that the employees to be balloted will be limited to medical scientists, psychologists and dieticians. The other classifications previously referred to are not employed by the Epworth and we do not object to the amendment regarding the employees to be balloted will be limited to members of the union rather than the entire employees who are covered by those classifications.

PN142

THE COMMISSIONER: Ms Pollard, with respect to the rest of the proposed draft order, what is the Epworth's view regarding the remainder of that document?

PN143

MS POLLARD: Commissioner, we have no objection to the remainder of the draft order that is placed before the Commission this morning.

PN144

THE COMMISSIONER: Therefore, an order for a protected action ballot will be issued in the terms set out in the draft order, as amended in those two regards this morning. This matter is now adjourned.

<ADJOURNED INDEFINITELY [12.18PM]