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[Extract from Queensland Government Industrial Gazette,
dated 28 October, 2005, Vol. 180, No. 13, pages 750-754]
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 – s.156 – certifying an agreement
The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane trading as De Paul Villa Aged Care AND Queensland Nurses’ Union of Employees (CA/2005/396)
DE PAUL VILLA AND NURSING STAFF – CERTIFIED AGREEMENT 2005
DEPUTY PRESIDENT BLOOMFIELD 14 October 2005
Application for certification of agreement – Employer and employee agreement – Right to be heard pursuant to s. 155 – QNU objects to certification of proposed agreement – Employer allegedly failed to comply with ss. 144 and 146 – Proposed agreement allegedly does not meet no-disadvantage test – Proposed agreement contains numerous provisions less favourable than Nurses’ Aged Care Award – State 2003 – Commission not satisfied reductions are not against public interest – Parties to be given opportunity to satisfy Commission’s concerns.
DECISION
This decision relates to an application for certification of an agreement between The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane trading as De Paul Villa Aged Care (De Paul Villa) and its employees employed at the facility known as De Paul Villa Aged Care, 27 Edmund Rice Drive, Ashmore, Queensland.
Pursuant to s.155 of the Industrial Relations Act 1999 (the Act) the Queensland Nurses’ Union of Employees (QNU) exercises its right to be heard on the application. QNU opposes certification on the basis:
· De Paul Villa failed to comply with ss. 143, 144 and 146 of the Act;
· De Paul Villa has engaged in conduct which offends Chapter 4 (Freedom of Association) of the Act; and
· the proposed agreement does not meet the no-disadvantage test specified at s.160 of the Act.
Sections 143, 144 and 146
QNU argued the Commission could not certify the proposed agreement because the requirements at s.156(1)(a) of the Act have not been satisfied in that the things required by ss.143 and 144 were not done. In this regard, QNU argued:
· Section 143 of the Act was not complied with because the employer had not negotiated with it after it advised De Paul Villa of its intentions to begin negotiations for a certified agreement.
· Section 144(3) of the Act had not been complied with because De Paul Villa had not provided QNU “a reasonable opportunity to represents (at least one) employee in negotiating with the employer about the agreement before it (was) made”.
QNU’s arguments are groundless.
Firstly, s.143 of the Act imposes no obligations, of the type alleged, on De Paul Villa.
Secondly, s.144(3) of the Act does not provide QNU with an exclusive right to represent employees. It merely enables QNU to sit at the bargaining table as a representative of any (member) employee who has asked it to represent that employee/s in negotiating with the employer about the proposed agreement. In this respect, it is common ground that QNU did not disclose to De Paul Villa that it had a certificate, pursuant to s.152 of the Act, allowing it to represent an employee, until after the proposed agreement had been voted on by employees. Further, QNU notified a dispute to the Commission about the whole negotiation process in early June 2005 and directly participated in all negotiations after that time as a result of a specific recommendation, issued by the Commission, directed to De Paul Villa. If QNU felt aggrieved by its treatment it could have requested the dispute to be re-listed.
I can find no substance in QNU’s allegation it was not provided with “a reasonable opportunity” to represent any member in negotiations with De Paul Villa. The unchallenged affidavit of Ms Madden discloses QNU participated in all of the negotiations. While QNU argues that it was excluded from a particular “negotiation”, which occurred immediately prior to a scheduled negotiation, this occurred before the dispute notification and well in advance of any vote on the proposed agreement.
QNU also argues that De Paul Villa breached s.146 of the Act in that it failed to negotiate “in good faith”. Even if there be some truth to that allegation, any such failure is not a matter the Commission is required to consider under s.156 of the Act. Further, if there be any substance to the allegation, the appropriate time to have pursued that matter was by way of notification to the Commission at the time it is said to have occurred.
Freedom of association
QNU also alleges De Paul Villa breached s.105(e)(ii) of the Act in that it “has sought to make an agreement with employees who are the members of one union but had sought to exclude union representation and inclusion in an agreement by employees who are members of another union, namely the Queensland Nurses’ Union of Employees”.
This was said to be demonstrated by the fact De Paul Villa negotiated an agreement with The Australian Workers’ Union of Employees, Queensland (AWU) at the same time it was resisting negotiations with QNU.
In my view, there is no substance to QNU’s allegations. The available material discloses QNU participated in negotiations with De Paul Villa about the proposed agreement which was subsequently approved by a majority of relevant employees. However, QNU has not seen fit to become a party to the proposed agreement. That is it’s right. If the terms of an agreement are unacceptable to the union, the union has the ability not to become a party. However, that does not preclude relevant employees from electing to accept the terms of the proposed agreement. That is all that has happened here. What the AWU has chosen to do was not put before the Commission in the current proceedings. Presumably, AWU accepted the employer’s proposal, insofar as they affected employees AWU was entitled to represent. The fact that one union was prepared to accept a given set of conditions and another union was not does not mean that the second union, or its members, have been discriminated against within the meaning of s.105 of the Act.
The no-disadvantage test
Without rehearsing all of the submissions presented in support of certification by Dr N. Timo, on behalf of De Paul Villa, or those in opposition, presented by Mr D. Elder of QNU, which are amply recorded in the transcript of proceedings, I identify provisions in the proposed agreement which, QNU argues, cause the proposed agreement to fail the no-disadvantage test. I also identify some provisions about which I have concern.
Clause 1.3 (Coverage) – It is proposed that the agreement apply to De Paul Villa and employees “for whom classifications are contained in the agreement employed or to be employed by the said employer at any facility throughout the State of Queensland operated by the employer”.
This clause has two problems which require rectification.
Firstly, there are no classifications contained in the proposed agreement to which the proposed agreement can refer. Consequently, the proposed agreement cannot apply to any De Paul Villa employee. It is not sufficient, as argued by Dr Timo, that the proposed agreement says it is to be read in conjunction with the Nurses’ Aged Care Award – State 2003 (Parent Award). Reading the proposed agreement in conjunction with the Parent Award does not result in classifications being “contained in the agreement”.
Secondly, it is claimed that the proposed agreement will only operate at 27 Edmund Rice Drive, Ashmore in the State of Queensland (see paragraph (e) of the affidavit of Ms Madden). However, the wording in the proposed agreement suggests a wider coverage in that it would also apply to any facility which the employer might operate. To enable it to be certified the proposed agreement should specify the address, or addresses, at which it is to operate.
Clause 2.1.3 (Part-time employees) – It is proposed that part-time employees be paid a minimum of 2 hours on any day where work is performed. The Parent Award presently provides a minimum payment of 3 hours. This alteration constitutes a reduction in existing entitlements.
The agreement also refers to the weekly rate “prescribed by the agreement”. As noted above, there are no classifications prescribed in the proposed agreement. There are also no “weekly rates” prescribed.
Clause 2.1.3(g) (Reduction in hours) – QNU objects to the inclusion of the words “other factors” which expand the circumstances under which De Paul Villa may reduce the hours of part-time employees.
All things considered, I am not satisfied that any changes are required to this clause.
Clause 2.1.7 (Probation) – De Paul Villa proposes to introduce a 6 months’ probationary period during which time either party may terminate the employment relationship by the giving of one day’s notice.
After some considerable thought I have decided to accept the provision providing for a 6 months’ probationary period. This is solely because of the material (admittedly untested) in the statements supplied by 2 employer representatives prior to the hearing which disclosed that it sometimes took longer than 3 months for issues of performance – especially the way staff reacted to and treated elderly clients – to become apparent.
However, the inclusion of a provision allowing either party to terminate the employment during the probation period on one day’s notice appears to be in conflict with s.84 of the Act, notwithstanding the provisions of s.72(3) of the Act. In this regard, the Commission proposes to allow the parties an opportunity to further address it on this specific issue or to amend the provision (see below).
Clause 2.1.7 (Orientation) – De Paul Villa proposes to introduce a provision in the proposed agreement to allow it to “request” a prospective employee to attend a familiarisation period of not more than 2 shifts in their own time (i.e. without payment). This provision is opposed by QNU on 2 bases. Firstly, it is said that it would be unfair for the employer to be allowed to, in effect, require employees to attend for such purposes without pay. Secondly, it is argued that any such provision would not have the necessary employee/employer flavour because any person requested to attend for familiarisation, without payment, would not be an employee.
I do not consider this provision meets the requisite employer/employee relationship as dictated by the High Court in Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40. Consequently, the provision cannot be included. If it were, it would put at risk the whole validity of the proposed agreement.
In any event, I doubt whether such provision is required to achieve the employer’s stated objective. Provided a person did not perform work which might be covered by an award or certified agreement, there would be nothing preventing such person from “volunteering” to attend the employer’s premises for the purposes of familiarisation before they committed to employment.
Clause 2.4 (Disciplinary process, grievance and settlement of disputes procedure) – There is no clear settlement of disputes procedure contained in the provision. By and large it relates to disciplinary matters and resolution of grievances. There is also some (strange) intermingling of the provisions, as demonstrated in the final parts of clause 2.4.1(a) where the “Counselling and Disputes Procedure” is said to involve steps which lead from counselling through to termination. The inclusion of the reference to “and disputes procedure” in the heading which precedes the 4 step process for counselling is clearly incorrect.
The wording of clause 2.4.1(b) will need to be substantially altered if it is to comply with the requirements at s.156(1)(d) of the Act. At the moment the clause does not contain a clear process for dealing with disputes, notwithstanding Dr Timo’s arguments to the contrary. Unless the provision is changed the Commission would not be able to certify the proposed agreement. This is because the statutory requirements have not been met.
Clause 3.4.3 (Uniforms) – The current wording, to the effect that existing custom and practice shall continue to apply, is unsuitable because it is, effectively, unenforceable. The provision should be omitted or the actual custom and practice recorded.
Clause 3.4.7 (In home work – cancellation allowance) – The proposed agreement proposes to reduce existing award entitlements for casual and part-time employees travelling to a client’s residence or to an activity or function away from the facility. Currently, a part-time employee would be entitled to a minimum of 3 hours payment and a casual employee to a minimum of 2 hours payment. The proposed agreement proposes that these minimum payments be reduced to one hour with no minimum payment if the employee is informed of a cancelled appointment or visit before they commence their journey to the requisite location. The proposed agreement also proposes that if alternative employment is offered the minimum payment is to be one hour.
No information about the actual effect of this provision has been provided to the Commission. It might affect one employee per year or it might affect 100. However, on its face, there is a significant change to employee entitlements.
Clause 3.4.8 (Travelling allowance) – There are apparent problems with this clause notwithstanding there are no equivalent provisions in the Parent Award. This is because the clause purports to allow the employer and employee to request the travelling allowances set out therein “not be paid for taxation purposes”.
Further, the clause only provides for a travelling allowance to be paid when an employee is required to use their vehicle “on more than one occasion on any day”. I am not sure that employees understand that this is the effect of the provision.