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AG2014/ 1010 , Transcript of Proceedings [2014] FWCTrans 280 (2 June 2014)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1050001-1

COMMISSIONER DEEGAN

AG2014/ 1010 

s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

Application by ACT Government as represented by the Health Directorate
(AG2014/ 1010 )
ACT Public Service Nursing and Midwifery Enterprise Agreement 2013-2017

(ODN AG2014/383)
[AE407324 Print PR548751]]




Canberra

12.01PM, WEDNESDAY, 14 MAY 2014

PN1

THE COMMISSIONER: Yes, could I have the appearances, please.

PN2

MR S. LINTON: Stephen Linton, appearing on behalf of the ACT Health.

PN3

THE COMMISSIONER: Thank you, Mr Linton.

PN4

MR T. CULLEN: Mr Cullen appearing on behalf of the Australian Nursing and Midwifery Federation.

PN5

THE COMMISSIONER: Thank you, Mr Cullen.

PN6

MR B. COQUILLON: Coquillon, initial A, for the HSU New South Wales Branch and, with me, is MS B. TURELLO.

PN7

THE COMMISSIONER: Thank you, Mr Coquillon. Mr Linton, it’s your application.

PN8

MR LINTON: Firstly I’d like to apologise for the fact we need to bring this matter to you. It’s not the first time we’ve had to seek assistance with a variation to an existing agreement. In this particular instance we’re seeking your assistance in varying the agreement to address a number of anomalies and issues within the agreement to ensure that it both meets the intent of the agreement between the parties and also addresses a matter that you yourself brought to our attention in regard to the consultation provisions to ensure that they do meet the requirements of the Act and are consistent with the usage across the ACT Public Service. We have tabled before you a proposed variation document which details those and I’m happy to go through those one by one if you wish me to do so.

PN9

THE COMMISSIONER: Yes, Mr Linton, I think it’s probably a good idea. The consultation clause part I understand. The rest has got me a bit.

PN10

MR LINTON: All right, the first of these relates to a provision dealing with avoiding discrimination. Basically what we’re trying to ensure that there is a consistency of understanding across the ACT Public Service in terms of the application of this clause and to ensure that it is consistent with the wording in the Commonwealth legislation. The actual wording that’s been proposed is not per se fundamentally different from the intent of the original agreement but it does ensure or would ensure that the same provisions would apply to the service as a whole and avoid any possibility for confusion between staff in different employment groups reading their agreements and seeing, “Well, hang on, the wording is different.” It may well mean a different application to each group.

PN11

THE COMMISSIONER: I see. Go on.

PN12

MR LINTON: The second of these relates to personal leave. As with a number of these, these are corrections to the cross-references. We found on a further review of the agreement in a number of instances, and this is just the first of those, that there are a couple of minor nomenclature changes in this particular instance. The clause that we’re seeking to have now entered in here actually ensures that there is no diminution to the entitlements of the staff concerned.

PN13

The third of these relates to maternity leave. Again this is merely correcting a cross-reference issue. The existing cross-reference could actually be read as reducing the entitlements of the employee under the maternity leave provisions.
The next one is in relation to parental leave. This is a correction of the word “or” where it should read “of”. Again this is to avoid any unintended reduction in the entitlements of the staff concerned. The next one at 138.7 about leave for domestic violence, the purpose of this one is to ensure that there is no ambiguity in the wording. The first and second sentences within the agreement actually contradict each other and, to ensure that they are consistent, we are looking to insert the words to make it clear that the particular leave type that we are talking about here is leave with pay, not any form of leave.

PN14

The next provision relates to onerous duty at 139.1 in the agreement. Basically we’re here looking to provide clarity and an appropriate cross-reference to staff. There was concern that the way it’s worded do not clearly indicate to staff where those provisions were laid out so we’re basically looking to make it clear that the actual detail of the entitlements are set out in schedule 10. The next one under Criminal Charges, while it’s only the removal of a couple of points it’s actually quite a significant one. As it is worded at the moment would completely remove some entitlements to the employee. It would basically remove some of their rights of appeal and some of their rights to actually challenge some of the decisions that were made so we thought to actually vary that to ensure that it covers the entire clause rather than just the subclause.

PN15

The next major change listed in the proposed variation is the amendments to the consultation clause. There was, as you’d be aware, some significant issues with the consultation clause related to the requirements of the Fair Work Act that came into force on 1 January this year. We looked at a number of ways in which we thought that we could address that. Unfortunately we could not present those in such a way that they were in keeping the requirements of all of the various parts of the Fair Work Act. As a result of that we effectively drafted a new clause to incorporate the relevant parts of the modern clause and ensured that that was not only suitable but also usable across the whole of the ACT Public Service. It has now been incorporated in all of the ACT Public Service agreements and so we’re seeking leave now to include that version that has been included in the most recently approved agreement, the action agreement, to include that in exactly the same wording as is in that agreement.

PN16

The next provision is in relation to clause 175.3 where we’re seeking to address an ambiguity in the drafting of this clause which was a major rewrite of the provisions around investigations for abuse of actions. There was one instance of the use of the word “investigated” which was not removed. This was only picked up after our agreement went to vote and, to ensure that it is consistent with the intent of that particular section which is about review, we’re seeking to replace that word “investigated” with “a review”.

PN17

The next provision at subclause 175.1(1) again is merely correcting a cross-reference to ensure that matters related to head of service are appropriately referred to the Commissioners for Public Administration rather than as it currently reads back to the head of service which would be completely inappropriate. The next one which is at clause 177.2(e) relates to the appeal mechanism. Again this is correcting the cross-reference and this is intended to ensure that an employee’s appeal rights are not unintentionally removed.

PN18

The last two matters on the list relate to allowance rates. There are two ambiguities that were unintentionally introduced into the allowance rates in the final drafting, one of which was the unintentional doubling of an allowance rate. Now, the actual table that is currently presented clearly states in the current allowance rate that a fortnightly rate would translate to a certain hourly rate. It is unfortunate that calculations were done on a weekly basis so it actually doubled the rate of allowance and we’re seeking your agreement to amend that to the original intention and to ensure that it is consistent with the wording of previous practice.

PN19

The second one relates to qualification allowance. We found that in the translation in applying the increases to the table we inadvertently applied a percentage increase to those allowances rather than the impact of the flat rate first increase, the impact being that the allowance rates are lower than they should have been. It’s only a matter of a few cents in most instances but we feel that it’s appropriate to ensure the allowance rates are as they were intended and as they were effectively advised at the start.

PN20

THE COMMISSIONER: All right, just a moment. Mr Cullen.

PN21

MR CULLEN: Yes, Commissioner, the ANF also wishes to apologise for the number of oversights that Mr Linton has just highlighted but we have no objections to the changes as outlined by Mr Linton and we agree that it clearly reflects what was agreed to in bargaining and hopefully just clarifies - - -

PN22

THE COMMISSIONER: Are you telling me that the current provisions, Mr Cullen, are ambiguous and uncertain and need this to be made correct and certain?

PN23

MR CULLEN: Yes, Commissioner.

PN24

THE COMMISSIONER: Thanks, Mr Cullen. Mr Coquillon.

PN25

MR COQUILLON: I can only add to what my friend here has said. We concur with the amendments.

PN26

THE COMMISSIONER: All right. The only one that gives me any real concern is the discrimination matter and that’s because I can see the ambiguity and certainty in every other clause. Now I put the model consultation clause in. You’ve already got a consultation clause. To have the two running concurrently I’m convinced would make it uncertain which one actually applies and how does it apply and have you taken things away from people they thought they were going to get, so I’m happy to delete the model consultation clause and put this clause in in its place so that it works in tandem with the clause that you already had in your agreement. That seems very sensible. All the cross-references, I’m certain do make it uncertain what it’s actually referring to and, since all the bargaining representatives agree with that, then I don’t have an argument there.

PN27

The only one you’re talking about uncertainty as between this agreement and other agreements, which is not what we’re about, with a variation under this particular thing, how much difference does it actually make, Mr Linton? Can you give me some indication?

PN28

MR LINTON: I think it’s fair to say that if that was a matter which concerned you, Commissioner - - -

PN29

THE COMMISSIONER: You’d live with the way it is?

PN30

MR LINTON: We’ll leave it as is.

PN31

THE COMMISSIONER: You don’t think that - - -

PN32

MR LINTON: I think that we can deal with ensuring clarity to start on this particular issue through policies and information provided to them.

PN33

THE COMMISSIONER: To them, yes.

PN34

MR LINTON: It is desirable that it is consistent. It’s certainly not, as my colleagues have mentioned, an issue of concern from the parties but, if it’s an issue of concern to you, then I’m happy to withdraw that.

PN35

THE COMMISSIONER: Okay. Have you got the original clause there or not? You have, Mr Cullen. I see, it just spells it out in more detail.

PN36

MR LINTON: Yes.

PN37

THE COMMISSIONER: I don’t think it’s - the legislation applies. I hate to say this but it is another good clause in that it just says the public service is committed to providing employees with a work life balance. The Discrimination Act applies in any event, does it not, so all it does is say the discrimination - the new one just says the Discrimination Act applies, doesn’t it?

PN38

MR LINTON: Yes.

PN39

THE COMMISSIONER: Unless of course you’re trying to take away some greater provision.

PN40

MR LINTON: There’s certainly no intention to do so, Commissioner.

PN41

THE COMMISSIONER: So I think I’m going to have to deny that one on the basis that I cannot through any mental contortions find that that’s ambiguous and uncertain as it currently stands. I think it’s clear that the Discrimination Act, that you wish to point out applies, applies. You can point that out in your policies and that’s what you’re getting at here and, if by chance somebody tried to use that particular provision that’s in the agreement as it currently stands to say they ought to get more - that Health ought to do something more for their work life balance, I don’t think it’s fair.

PN42

It’s a commitment to providing them with a work life balance that recognises these things. All are things which you’re required to do anyway so I don’t think it gives them any greater thing. I can’t imagine people are going to demand to have four-day working weeks and goodness knows what on the basis of that particular provision. So in that case, if everybody is content, I’m denying the amendment to subclause 2.1.5 but on all the other clauses, so long as when I check them they appear to do what you say they do and I’m satisfied that what you say is correct, I’ll make an order in those terms. Now, you do know that you have to provide us with an amended copy of the agreement with these new clauses in the agreement to attach to the variation order.

PN43

MR LINTON: We’ve already prepared one. I’ll make the new correction and distribute that.

PN44

THE COMMISSIONER: Good, terrific, all right. But otherwise I will make the other amendments. I am satisfied that in those respects the agreement is ambiguous and uncertain and that’s the correct way to deal with that flaw. All right? I’ll adjourn. Thank you.

<ADJOURNED INDEFINITELY [12.16PM]