TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 25829-1

VICE PRESIDENT WATSON

AM2010/31

s.158 - Application to vary or revoke a modern award

Application by Victorian Hospitals' Industrial Association
(AM2010/31)
Health Professionals and Support Services Award 2010

(ODN AM2008/13)
[MA000027 Print PR986368]




Melbourne

2.06PM, TUESDAY, 13 APRIL 2010

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA
VIDEO CONFERENCE AND RECORDED IN MELBOURNE

PN1

THE VICE PRESIDENT: Can I have the appearances, please, commencing in Melbourne?

PN2

MR V. GOSTENCNIK: If your Honour pleases, I seek permission to appear for the applicant in this matter. My name is Gostencnik and I seek that leave, together with MS PRESTON.

PN3

THE VICE PRESIDENT: Mr Gostencnik.

PN4

MR M. McLEAY: Your Honour, if the commission pleases, McLeay, initial M, for the Health Services Union, and with me today is MS H. BROWN from our No 4 branch.

PN5

THE VICE PRESIDENT: Mr McLeay. In Brisbane?

PN6

MR D. BROANDA: Thank you, your Honour. Broanda, initial D, for the Australian Workers Union of Employees Queensland.

PN7

THE VICE PRESIDENT: Thank you. Mr Broanda, there's no need to stand for the video conference. We can see you better if you're seated.

PN8

MR BROANDA: Thank you, your Honour.

PN9

THE VICE PRESIDENT: Permission is granted, Mr Gostencnik.

PN10

MR GOSTENCNIK: If your Honour pleases.

PN11

THE VICE PRESIDENT: Yes, Mr Gostencnik. Your Honour, might I deal with perhaps a couple of preliminary matters firstly - and I should say that my friends and I have had some discussions about the way in which this matter might progress - your Honour might recall that on or about 15 March your Honour issued some directions that we, the applicant, serve a number of named parties with a copy of the application and a copy of these directions by close of business on 18 March 2010. For present purposes, the applicant duly complied with that particular direction. As is apparent from correspondence received from the AWU this morning, the AWU were not named in the list of parties to whom the application and the directions were to be served. We don't dispute that the AWU represents the industrial interests of a number of the employees who are covered by the modern award which is the subject of this application.

PN12

To that end, I've had some discussions with the AWU and we had reached the position that the AWU was content to proceed, notwithstanding the absence of notification. But in the course of considering the matter, it occurred to me, your Honour, that there's an additional organisation that has an interest in this matter that also hasn't been notified, and that's the Liquor, Hospitality and Miscellaneous Workers Union, which represents the industrial interests of a number of the employees who are covered by this award who work principally in the states of South Australia and Western Australia, and I'm also advised in the Northern Territory.

PN13

Now, obviously it's a matter for your Honour but in the circumstances, as a matter of fairness, it would seem inappropriate to proceed with an application in circumstances where an organisation which has a substantial interest in representing the employees who are covered by this award is not here and is not aware of the application - sorry, I will withdraw that. We don't know whether they're aware or not of the application, but plainly they weren't caught by the direction for service.

PN14

THE VICE PRESIDENT: Directions were issued out of abundance of caution because, I mean, there are no respondents or formal parties to modern awards and there are facilities to subscribe to an award and be notified of any variations to it. That's the way organisations, if they're interested, in the future are to be aware of it.

PN15

MR GOSTENCNIK: I accept all of that, your Honour. I don't quarrel with it. I was simply raising it as a matter.

PN16

THE VICE PRESIDENT: Yes.

PN17

MR GOSTENCNIK: But we, in our discussions, had considered the possibility that the matter might be adjourned and factored in a program of discussions which might - it may or may not - resolve the matter which is the subject of this application, or at least narrow the area of differences. The timetable that we were proposing wouldn't delay this proceeding unduly and we would imagine - again, subject to your Honour's availability - that we would be ready to proceed sometime next week.

PN18

THE VICE PRESIDENT: Next week?

PN19

MR GOSTENCNIK: Yes, your Honour. The dates that we were considering were either the - - -

PN20

MR McLEAY: The 21st, in the afternoon.

PN21

MR GOSTENCNIK: - - - afternoon of the 21st or at your Honour's convenience on the 22nd. I understand your Honour has some other matters on that day but they were the dates that we were contemplating. In the meantime, there would be some discussions with the unions that have an interest in this matter, and also with the employer organisations, to see whether or not an accommodation can be reached. That said, your Honour, we're here today, we're happy to run. It's a matter entirely for your Honour. I just put that there. I thought I should bring those matters to your attention.

PN22

THE VICE PRESIDENT: I think it's significantly in your court, Mr Gostencnik. I'm happy to relist the matter next week and enable those discussions. I can see the sense of all endeavours to at least narrow the issues and the scope of argument. It's clear from the submissions that have been filed that there's possible different interpretations of the provisions that are sought to be varied.

PN23

MR GOSTENCNIK: I would hope to convince your Honour otherwise, but yes, I concede that there are differences in opinion.

PN24

THE VICE PRESIDENT: Yes. So I'm content to have the matter adjourned and find another time - - -

PN25

MR GOSTENCNIK: Yes.

PN26

THE VICE PRESIDENT: - - - if that's the preferred course. Simply because there may be other parties, I wouldn't be inclined not to proceed in those circumstances - - -

PN27

MR GOSTENCNIK: Sure.

PN28

THE VICE PRESIDENT: - - - on the basis of what's currently before me.

PN29

MR GOSTENCNIK: We're obviously happy to have discussions with the unions. I think if the matter is only adjourned for a week, it does no real violence to our position and I'm optimistic that we can make some progress but it may well be that we're back here next week.

PN30

THE VICE PRESIDENT: Yes.

PN31

MR GOSTENCNIK: But those are the two dates that would suit at least the parties that are here today. So I am content with that course, your Honour.

PN32

THE VICE PRESIDENT: Yes. I think the afternoon of the 21st - we might just go off the record while we discuss possible dates. We will go off the record.

<OFF THE RECORD [2.14PM]

<ON THE RECORD [2.18PM]

PN33

THE VICE PRESIDENT: ... those submissions. I think that there is considerable sense in allowing the parties to have further discussions and to ensure that all parties that wish to participate in the proceedings have that opportunity and also have the opportunity to produce relevant material in the form of outlines or any evidence that they intend to rely on prior to proceeding and the adjournment of a week would appear to be appropriate in all the circumstances to enable both the discussions and the full preparation to the extent necessary. I will not make any formal directions.

PN34

I note, Mr Broanda, your undertaking to file an outline of your submissions by Tuesday of next week. That will certainly assist the parties to understand the nature of your submissions. I will otherwise leave it up to other parties or potential parties to the proceedings as to whether they wish to participate and, given the timetabling, I will not make any further directions in relation to this matter. Mr Gostencnik?

PN35

MR GOSTENCNIK: Your Honour, just one minor matter - and it's in the interests of saving my very competent associate from carrying things back to the office - might I tender a folder of documents which are simply the extracts of the provisions which we say are relevant, which are summarised in the table that was attached to our application. Your Honour, I'm content if you mark it now or mark it later but I will endeavour to have another copy made for my friend in Queensland.

PN36

THE VICE PRESIDENT: Yes. I think we will simply hold it at this stage and when we're marking other documents next week, we will deal with that one as well.

PN37

MR GOSTENCNIK: If your Honour pleases.

PN38

THE VICE PRESIDENT: Your load is lightened heading back to the office. These proceedings are now adjourned.

<ADJOURNED INDEFINITELY [2.20PM]