• INTRODUCTION
• INTERVENTION
• JURISDICTIONAL ISSUES
• THE SUBMISSIONS OF RESPONDENT EMPLOYERS NOT SUBJECT TO THE APPLICATIONS ON WHETHER THE NURSES VHS AWARD IS A PAID RATES AWARD AS DEFINED BY S.170LG
• CONCLUSION ON WHETHER THE CIRCUMSTANCES SET OUT UNDER S.170MW(7)(a) AND (b) HAVE BEEN SATISFIED
  • The Nurses VHS Award
• IS THE COMMISSION ABLE TO CONCLUDE THAT THERE IS NO REASONABLE PROSPECT OF THE NEGOTIATING PARTIES REACHING AN AGREEMENT UNDER DIVISION 2 OR 3 DURING THE BARGAINING PERIOD? (s.170MW(7)(c))

Application for an order to terminate various bargaining periods.

INTRODUCTION

This matter involves applications by the Australian Nursing Federation (ANF) under s.170MW(7) of the Workplace Relations Act 1996 (the Act) for orders to terminate bargaining periods between the ANF and respondent members of the Nurses (Victorian Health Services) Award 1992 [Print K6359 [N0175]] (the Nurses VHS Award) listed in Schedule A to the applications. The respondents (totalling 356) operate nursing homes in the extended health care sector in Victoria.

The grounds upon which each of the applications were made are in the following terms:

"1. Immediately before the commencement of Section 170 MW of the Act the wages and conditions of the employees whose employment will be the subject of the relevant agreement were determined by a paid rates award; and

2. Insofar as the wages and conditions of employees whose employment will be subject to the relevant agreement were, before the commencement of Section 170 MW, customarily determined by an award, they were determined by a paid rates award; and

3. There is no reasonable prospect of the Australian Nursing Federation reaching agreement with the employer relevant to each of the applications made herein (`the several Negotiating Parties') under Division 2 or Division 3 of part VI B of the Act during the bargaining period relevant to each such employer; and . . ."

The applications are opposed by the Service Industry Advisory Group (SIAG) on behalf of respondent members [Exhibit R2]. The Victorian Employers' Chamber of Commerce and Industry (VECCI) appeared on behalf of respondent members and put forward material which they submitted the Commission should take into account in deciding the status of the Nurses VHS Award.

INTERVENTION

The Health Services Union of Australia (HSUA) was granted leave to intervene and opposed the application.

JURISDICTIONAL ISSUES

Both SIAG and the HSUA made submissions that the Commission has no power to grant the applications by making orders under s.170MW(1) for reasons which I will come to shortly.

In the case of SIAG, it was submitted that the Nurses VHS Award was not a paid rates award referred to in s.170MW(7)(a) and (b).

The HSUA submitted that the Commission lacked jurisdiction because certain persons sought to be the subject of the proposed agreement by the ANF were employed under an award know as the Health and Allied Services - Private Sector - Victoria Consolidated Award 1998 [Print Q2805 [H0488]] (the Health Services Award) which operates as a minimum rates award. Accordingly, as not all employees whose employment would be the subject of the agreement have their wages and conditions determined by a paid rates award, the Commission has no power to terminate the bargaining periods under s.170MW(1) pursuant to s.170MW(7) because the circumstances set out in s.170MW(7) do not exist.

I turn firstly to deal with the jurisdictional grounds advanced by SIAG. It was submitted by SIAG that for an application to be successful under s.170MW(7) the Commission has to be satisfied that the requirements contained in s.170MW(7)(a), (b) and (c) have been met. In considering the requirements of paragraph (a), the Commission must first consider whether the Nurses VHS Award was a paid rates award before the commencement of the section, the relevant period being prior to 30 December 1996.

In a consideration of whether the Nurses VHS Award was a paid rates award prior to 30 December 1996, it was submitted that the Commission must have regard to the definition of a paid rates award under the Industrial Relations Act 1988 (the IR Act). A paid rates award was defined under s.4(1) of the IR Act as "an award specifying actual entitlements, rather than minimum entitlements, in respect of wages and conditions of employment".

SIAG submitted that under the IR Act, in the circumstances set out in s.170UE(2), the Commission was required when varying an existing paid rates award (or if it varied an existing award so that it became a paid rates award) to include a statement that the award is a paid rates award, unless the award already contained such a statement. It was also put that the words relied on by the ANF in clauses 5 and 6 of the Nurses VHS Award did not constitute a statement in accordance with s.170LG(a).

The Nurses VHS Award was made in 1992 and s.170UE commenced on 30 March 1994. In SIAG's submission, for the ANF to succeed, it would have to show that at some point since then, upon a variation of the Nurses VHS Award, the Commission included such a statement. In the absence of such a statement, it would be difficult to conclude that the Nurses VHS Award was a paid rates award.

Dealing with the ANF's submission that if the Nurses VHS Award did not fall under the definition of a paid rates award at s.170LG(a), it came within the terms of s.170LG(b), it was submitted by SIAG that the Nurses VHS Award has not been regarded by the Commission as a paid rates award. The Commission was referred to a decision by Riordan SDP on 5 October 1994 [Print L5613] dealing with a safety net adjustment under the then wage fixing principles in which he stated that there had been no finding on whether the Nurses VHS Award was a paid rates award or a minimum rates award.

In the submission of SIAG it had never been determined by the Commission either before or after the commencement of s.170MW that the Nurses VHS Award satisfied the test under either s.170LG or the former s.4(1) of the IR Act. The Nurses VHS Award does not include any statement to the effect that it is a paid rates award. The Nurses VHS Award also contains references to "minimum entitlements" and therefore, on the authority of the Industrial Relations Court of Australia in Comalco Aluminium (Bell Bay) Limited v O'Connor and Others (No 2) [(1995) 61 IR 455] (the Bell Bay Case) could not be regarded as a paid rates award.

In respect of the status of the Registered Nurses VHS Award and the Health and Allied Services Award (former awards of the Industrial Relations Commission of Victoria (IRCV)), it was submitted that the IRCV had never determined the status of these former awards and on a number of occasions single members and the Commission in Full Session had declined to determine the paid rates or minimum rates status of either of the two relevant former awards.

VECCI advised the Commission of a survey conducted with its members, the subject of the applications, regarding the incidence of over award payments. The survey disclosed that 128 residential aged care facilities did not make any over award payments and 24 did make such payments. Of the total of 3143 employees employed by the 131 respondent members, only 26 employees were in receipt of over award payments. While this may be evidence of how the Nurses VHS Award is applied in the field, it did not, in VECCI's submission, conclusively establish the Nurses VHS Award as a paid rates award.

In the submission of VECCI, the Commission, as presently constituted, should exercise its discretion and determine the status of the Nurses VHS Award as it applies to the current applications.

The VHIA, intervening, made written submissions [Exhibit VHIA1] in which it submitted that the Nurses VHS Award was not a paid rates award but "hybrid" in character. The VHIA also relied on the failure of the ANF not to agitate the virtue of "s.170MW(7) in 1997 in the public sector after two months of protected action as demonstration that the ANF itself was a little ambivalent about the true status of the Nurses VHS Award.

The ANF submitted that for the purposes of s.170LG, the Nurses VHS Award need not expressly state that "this award is a paid rates award". In the ANF's submission it was sufficient to include, as the Nurses VHS Award does, a statement that "employees shall be paid the weekly rate as set out hereunder corresponding to that employee's classification". Alternatively, in the absence of a statement to the effect that the award is a paid rates award, it is sufficient for the purposes of s.170LG that the award has been regarded by the Commission as a paid rates award when applying principles for the purpose of determining wages and conditions of employment.

It was submitted that, for the purpose of s.170LG, an award containing provisions expressing minimum entitlements could be a paid rates award if the award has been so regarded by the Commission. The ANF relied upon the decision in the Bell Bay Case to support a submission that clause 5 of the Nurses VHS Award dealing with classifications in grades containing the words "and paid as such" and clause 6 which contains the words "employees shall be paid weekly salaries" were not materially different to clause 8 of the award in the Bell Bay decision. In the Bell Bay decision the words "shall be paid the wage rate" were words described as specifying "actual adult wage rates, not minimum rates".

In the ANF's submission, the Nurses VHS Award does not provide for any minimum rates and supplementary payments but makes clear that the terms and conditions are those that actually apply. In the submission of the ANF the effect of the wording in the Nurses VHS Award, particularly clauses 5 and 6, is that it contains a statement to the effect that it is a paid rates award.

The ANF submitted, as an alternative, that the Commission has regarded the Nurses VHS Award as a paid rates award in accordance with s.170LG(b). The ANF relies on the decision of Riordan SDP [Print K6053] when making the Nurses VHS Award on 23 December 1992 under the then "First Awards and Extensions to Existing Awards" principle. The terms and conditions included in the Nurses VHS Award were intended to reflect the provisions contained in awards of the IRCV applying to registered and enrolled nurses.

The ANF submitted that the present case is one where, as a result of Riordan SDP's decision, there had been a translation from a State paid rates award into a federal paid rates award in accordance with the relevant wage fixing principles. The State awards covering nurses at the time SDP Riordan made his decision were paid rates awards and had been so regarded by the parties. The ANF relied on various decisions of the IRCV establishing professional rates of pay for nurses to support its submission.

The ANF also relied on the Full Bench decision on enrolled nurses where the Full Bench decided to include "the National State Enrolled Nurse Pay and Career Structure" in the award as further evidence that the Commission had treated the Nurses VHS Award as a paid rates award.

THE SUBMISSIONS OF RESPONDENT EMPLOYERS NOT SUBJECT TO THE APPLICATIONS ON WHETHER THE NURSES VHS AWARD IS A PAID RATES AWARD AS DEFINED BY S.170LG

The opportunity was provided following the conclusion of proceedings dealing with the application for respondent employers not subject to the applications by the ANF to make submissions on whether the Nurses VHS Award was a paid rates award in accordance with the definition of s.170LG of the Act.

The Victorian Hospitals' Industrial Association (VHIA), on behalf of members, and Jenny Fraumano and Associates, on behalf of respondent members of the Private Hospitals Association of Victoria (Exhibit A1) and the Benchmark Hospital Mutual Group (Exhibit A2) were granted leave to intervene and both made submissions that the Nurses VHS Award was not a paid rates award as defined by s.170LG (Exhibit VHIA1).

SIAG also made separate written submissions on behalf of respondent members not subject to the applications in which it submitted that the Nurses VHS Award was not a paid rates award (now marked Exhibit R4).

Both the VHIA and Jenny Fraumano and Associates supported the submissions made by Mr Rahilly on behalf of SIAG in respect of the status of the Nurses VHS Award.

The ANF made a written response to those submissions which were filed on 18 December 1998 and are now marked as Exhibit ANF13.

CONCLUSION ON WHETHER THE CIRCUMSTANCES SET OUT UNDER S.170MW(7)(a) AND (b) HAVE BEEN SATISFIED

The first matter requiring determination is whether the Nurses VHS Award is a paid rates award as defined by s.170LG(a) or (b).

Section 170LG is as follows:

"170LG Paid rates award

A paid rates award is an award or a State award that:

(a) includes a statement to the effect that it is a paid rates award; or

(b) has been regarded by the Commission, or a State industrial authority, as the case may be, as a paid rates award when applying principles for the purposes of determining wages and conditions of employment."

Section 170MW(7) is in the following terms:

"(7) A circumstance for the purposes of subsection (1) is that:

(a) immediately before the commencement of this section, the wages and conditions of the kind of employees whose employment will be subject to the agreement were determined by a paid rates award, or would have been so determined if a certified agreement, an enterprise flexibility agreement (within the meaning of this Act as then in force) or a State employment agreement had not prevailed over the award; and

(b) so far as the wages and conditions of the kind of employees whose employment will be subject to the agreement were, before the commencement of this section, customarily determined by an award or a State award, they were determined by a paid rates award; and

(c) there is no reasonable prospect of the negotiating parties reaching an agreement under Division 2 or 3 during the bargaining period."

The relevant period under s.170MW(7)(a) is that period immediately before 30 December 1996.

The Nurses VHS Award

The Nurses VHS Award was made by Riordan SDP on 23 December 1992 and covers respondents in both the public and private health care sectors in Victoria. The Senior Deputy President set out the principles which he followed in making the award and this appears at page 5 of his decision [Print K6053] in the following terms:

"The principles to be applied to the making of first awards are clearly set out in the current principles of wage fixation in the following terms:

`FIRST AWARDS AND EXTENSIONS TO EXISTING AWARDS

(a) In the making of a first award, the long established principles shall apply, i.e. prima facie the main consideration is the existing rates and conditions.

(b) In the extension of an existing award to new work or to award-free work the rates applicable to such work will be assessed by reference to the value of work already covered by the award.

(c) In awards regulating the employment of workers previously covered by a State award or determination, existing State award rates and conditions prima facie will be the proper award rates and conditions.

(d) Where a first award is made it shall contain a minimum rate for each classification of employee covered by it. The total minimum rate determined for each classification will be expressed as a minimum classification rate and a supplementary payment which bear a proper relationship to the rates for relevant classifications in other minimum rates awards. Where an existing State award rate exceeds the amount appropriate to a proper relationship, the excess is to be prescribed in a separate clause. That excess amount will not be subject to adjustment.'"

There was no mention in the decision on whether the award being made was a paid rates award in accordance with the wage fixing principles.

On 5 October 1994, Riordan SDP gave a decision [Print L5658] dealing with an application by the HSUA to vary the Nurses VHS Award in relation to a safety net adjustment for State enrolled nurses and trainee State enrolled nurses. The issue of whether the award was a paid rates award seems to have been raised in the proceedings as the SDP at page 3 stated the following:

"Whether or not the Nurses (Victorian Health Services) Award 1992 is a paid rates award or a minimum rates award is a matter of some contention and disputation between the parties. I make no finding in that regard, having heard no argument about it; and so that remains an open question to be decided at some future date when all the parties are given notice that it will be debated and the matter can be decided, having regard to the historical and current circumstances."

The decision of Riordan SDP of 23 December 1992 was the subject of an appeal and a Full Bench of the Commission gave a decision on 8 December 1993 [Print L0320]. The Full Bench also had before it, by way of s.107 reference, applications by the ANF and HSUA for the making of an award covering employees in Victorian Community Health Centres in terms almost identical to the award made by Riordan SDP, the subject of the appeal. The Full Bench, in considering the secondary submissions of the appellants, stated the following [ANF 3, Vol 2, tab 18, page 10]:

"The secondary position of the appellants in the event that we do not find there has been a denial of natural justice and quash the award, is that the award should nevertheless be quashed because it fails to meet the Commission's wage fixing principles. It is submitted that once the award is quashed the Commission should sit to hear submissions on the form of an award which meets these principles.

We have considered the submissions put by all parties on wage fixing principles and we are not prepared to rule on all the submissions at this stage. This is because we have not heard the parties in relation to the principles of wage fixation which formed part of decisions arising out of the October 1993 Review of Wage Fixing Principles [Prints K9700 and K9940]. It is those principles which must now be met in applications by consent or arbitration for the making of new awards. We indicate to the parties that we are not yet satisfied that the award made meets the principles of wage fixation. However a number of matters cause us concern and combine to lead us to the view that leave to appeal should be granted in relation to the grounds advanced going to the form of the federal award."

The Full Bench at page 11, after referring to an extract from the October 1991 National Wage Case regarding the existence of "hybrid" awards eroding the distinction between paid rates and minimum rates awards, went on to state the following:

"These two factors, neither of which were raised before Riordan SDP, are sufficient in our view to bring into question the integrity and validity of the award being made as a paid rates award. This issue then raises the relationship between the terms of a Victorian award which is minimum rates in character and the objective, supported for some years by the Commission, of achieving nationally consistent rates and conditions for nurses via the making of paid rates awards. Implicit in the application of that objective are a number of conditions matters which were raised with us on appeal including the annual leave issue for shift workers and the annual leave loading. Additionally, our decision on ambit means that a number of award clauses governing conditions will be set aside pending the processing of new logs. We also remind the parties that His Honour the President raised the spectre of s.106 in relation to some conditions matters covered by the award."

Relevantly, the Full Bench granted leave to appeal in respect of the form of the award to apply and to sit to hear further submissions on the following [page 12]:

"1. The appropriateness or otherwise of s.111(1B) to this matter.

2. The further status of the federal award in light of the finding of Exhibit K3 and the expressed view of employers that they do not consent to a paid rates award being made.

3. The final terms of any award in the context of the history of federal decisions pertaining to national regulation of nurses rates and conditions of employment. In particular we would expect the respondent employers to address us on the structure and form of a minimum rates award for wage rates and conditions."

The matters were listed again on 8 March 1994, however, no submissions were made on the matter of the paid rates issue. The Full Bench decided that in the light of the impending changes to the IR Act, in particular the inclusion of Part VIC (the paid rates section), the matters relating to the status of the Nurses VHS Award be adjourned and relisted on application. The matter was not the subject of any further application and, as a consequence, the appeal regarding the status of the Nurses VHS Award was never determined.

Before examining the Nurses VHS Award to ascertain whether it includes a statement referred to in s.170LG(a), it is relevant to examine the status of the State awards covering registered nurses and enrolled nurses prior to the making of the Nurses VHS Award.

At the time Riordan SDP made the Nurses VHS Award the IRCV had included a new classification structure and rates of pay in the Registered Nurses Award (the State award) following an extensive case which examined the career structure and remuneration of registered nurses. The case was described as "The Registered Nurses Professional Rates Case". The new classification structure and professional rates were included in the Award as a result of a series of decisions of the IRCV. The first of these decisions was given on 20 June 1986 [Decision D86/9986] and the last decision on 19 May 1989 [Decision D89/0211]. In a decision given on 23 January 1987 [(1987) 2 VIR 296] the IRCV made the following observation regarding the establishment of national rates [Exhibit ANF 3, Tab 12, page 302]:

"Whilst the immediate objective is to resolve the dispute in Victoria by putting in place a fair and workable system for nurses, it is important that that local objective must be seen to be part of a logical national exercise of achieving a fair and effective system for nurses throughout Australia.

The ACTU view is that the proper approach would have been national rates for nurses. However, Mr Kelty indicated that that is not achievable because nurses, although they have regard to rates of pay throughout Australia, say that what is determinant is what can be achieved in their own State.

It is a matter of history that the federally registered RANF operates very strongly at State or branch level.

Clearly there is a need to establish a rational basis for the adjustment of nurses' rates of pay. We note that the ACTU in particular, but also the other parties before us, are committed to satisfying that need."

The IRCV at page 303 made the following comment regarding the nurses' position:

"It is pleasing to record that the RANF has also recognised the need for a rational approach to rates of pay and structure for nurses, including the need to `alleviate the problems of `leap frogging' which have been of concern to the parties in this matter'."

In the 19 May 1989 decision, the IRCV commented on the need to avoid "interstate leap-frogging" of nurse rates in the following manner [Exhibit ANF 3, Tab 14, page 1:

"On 16 August 1988 [Decision No. D88/0228] the Commission made a finding that Nursing is a professional occupation and that the Award salaries for Registered Nurses were to be increased to give effect to that finding.

We took the firm view that `Nurses, as professionals, should have their own benchmark'.

We expressed our concern that this case should not give rise to another interstate leap-frogging exercise and endorsed the Australian Council of Trade Unions (the ACTU) view that there should be a co-ordinated and consistent approach to the fixation of professional salary rates for Registered Nurses."

The IRCV also considered the rate of pay for State enrolled nurses who were covered at the time by a separate award. On 18 December 1986, the IRCV in Full Session handed down a decision [Dec No. 157/1986, Garlick ADP, Eggington C and William AC] increasing rates of pay based on the relevant work value principle together with the anomalous position that existed between rates of pay for enrolled nurses and other occupational groupings in the health industry.

In the same period that the IRCV was dealing with classification structures and salaries for registered and enrolled nurses, this Commission made a series of federal awards for nurses in areas which had been the subject of State award coverage. The federal awards were in all States except New South Wales in both the public and private sector. The last of the State award areas to be covered by a federal award was the Nurses VHS Award.

In 1989, the ANF made application in the Commission for the establishment of national rates for registered nurses. A number of Full Bench hearings followed leading to a series of decisions over a number of years which established national rates for registered nurses across all the federal nursing awards and eventually for enrolled nurses together with uniform wage related conditions of employment.

A Full Bench of this Commission in a decision on 21 August 1990 [Print J4011] in deciding on a classification structure and wage levels set out the following factors it took into account [Exhibit ANF 3, Tab 7, page 10]:

". the history of recent wage fixation for nurses by both federal and State tribunals, including those of New South Wales and Victoria;

. the structures of nursing classifications in federal and State awards;

. programs which have been established for implementing consistency of pay-related conditions in federal nursing awards;

. evidence as to work value and the agreement of all of the employing authorities respondent to the federal awards as to work value comparability justifying common incremental scales and common rates at levels 1, 2 and 3 in these awards;

. the submissions of the parties as to cost;

. rates applying to other health professionals. In this respect we refer to the statement of the Full Bench in the National Wage decision of August 1989 that paid rates awards should not be fixed at a level which would affect the rates for other workers;

. the need to ensure the proper application of the Wage Fixing Principles, in particular the Structural Efficiency Principle which requires that `structural efficiency exercises should incorporate all past work value considerations';

. our own familiarity with standards of remuneration for work requiring different levels of qualifications and skill; and

. the assurance of the ACTU, which proposes rates higher than those which we are granting, that there will be no pressure for flow to other health professionals or other groups within the hospital environment."

The various decisions of the Commission and the IRCV relating to the fixation of rates of pay for nurses (in the case of the IRCV in 1986) support a conclusion that the rates of pay for registered nurses were established in both jurisdictions with the intent of establishing professional rates, eliminating the leap-frogging exercises across States on nursing rates, and were intended to be actual rates of pay rather than minimum rates.

Further support for this conclusion is to be found in the Full Bench decision in the appeal against Riordan SDP cited earlier. In that decision the Full Bench refers to the objective of the Commission "of achieving nationally consistent rates and conditions for nurses via the making of paid rates awards". Following the inclusion of national rates in the federal nursing awards, statements that "this is a paid rates award" were subsequently inserted in a number (though not all) of nursing awards following the inclusion of s.170UE in the IR Act.

Other material tendered in the proceedings regarding the status of the State award covering registered nurses lends support to the conclusion that the State award was regarded as a paid rates award. In a decision by Commissioner McIntyre of the IRCV of 22 August 1990 [Decision D90/1826] under the heading "Minimum Rates" the Commissioner deals with submissions of employers regarding the conversion of the existing rates of pay into minimum rates. The Commissioner concluded as follows [Exhibit ANF5, Tab E, page 3]:

"MINIMUM RATES

The employers have put to the Federation on a number of occasions that they reserve their rights to pay over-award payments for their staff when they believe that is required. The Federation supports this view.

The employers state that over 50% of private hospitals are around 60 beds or less. Therefore, to attract and retain the best staff in private hospitals, at times over-award payments may be required for some staff.

However, the employers do not wish to pursue the minimum rates matter at this time."

The Employment Relations Commission of Victoria (ERCV) in Full Session, in dealing with the application of an $8.00 safety net adjustment to former common rule awards of the Commission (including the Registered Nurses Award) referred to various submissions of the parties [Decision E94/0177]. Mr Rahilly, appearing for Aged Care Victoria (ACV), the Victorian Community Services Employers Association (VCSEA) and the National Association of Nursing Homes and Private Hospitals (NANHPH), had the following part of his submissions regarding the Registered Nurses Award, set out in the following terms [Exhibit ANF5, Tab F, page 21]:

"As to the status of the awards Mr Rahilly said:

`On the question of minimum rates, whilst we don't make any particular comments strictly speaking without the commitment of all of the employers to whom the awards apply, it must be difficult to conclude that they are minimum rates awards.

It would be fair to say, particularly in the areas in which my clients operate, that in the aged care centres, government funded as it is, that in large part if not entirely they would be paid rates, particularly so far as nurses are concerned, the nursing staff, and that would include the state enrolled nurses. But whether that is 100 per cent accurate, I'm not able to say and I wouldn't venture to say that it is'."

The Metal Trades Industry Association (MTIA) position was also set out in these terms:

"The MTIA submitted that the awards are regarded as paid rates awards and said:

`If any adjustment can be made to a paid rates award in our view it can only be made in an award which specifies a minimum rate upon which the paid rate is based and the adjustment must be to the minimum rate. It follows that because no such minimum classification rate was established in either the Registered Nurses or the Health and Allied Services Awards then no safety net adjustment should be made to them'."

In the same proceedings the Department of Health and Community Services (DHCS) made a written submission [Exhibit ANF5, Tab G] in respect of the Health and Allied Services Award and the Registered Nurses Award. Dealing with the application of the $8 safety net adjustment arising from the October 1993 National Wage Case decision of the Commission, the DHCS, in part, submitted: [page 5]:

"12. The Commission also provided that any increase awarded was to be absorbed to the extent that actual rates of pay whether specified in an award, agreement or granted over award, were in excess of the minimum rate as defined. Such absorption is a concept which has no meaning, in the historically predominant paid rates environment of the Public Health Sector. The former awards prescribed the only salary payments that could be made. There are no other payments against which an $8 adjustment could be absorbed.

13. The Commission's position on paid rates is outlined in the above extract:

`to the extent that existing paid rates awards do not contain a reference to the relevant minimum rates award classification(s) then this should be addressed to ensure that the benefit if any, of the safety net adjustment is not lost.' (Emphasis added)

The former state awards have historically been paid rates awards with no such reference....."

I now turn to deal with the variations to the Nurses VHS Award since 1992. The only variation of the Nurses VHS Award which provides a consideration on whether s.170LG(b) has any application occurred with the variation in respect of enrolled nurses. In a decision on 24 January 1996 [Print M8859], Drake DP varied the Nurses VHS Award by including the national career structure for enrolled nurses which had been established by a Full Bench in a number of Federal nursing paid rates awards.

The Deputy President in her decision set out the background to the application by the ANF and HSUA to vary the Nurses VHS Award and, in part, said [page 2]:

"The application by the Australian Nursing Federation (ANF) and Health Services Union of Australia (HSUA) (the Unions) is consequent upon a decision of a Full Bench of this Commission, dated 10 July 1992 [Print No. K 3662], comprising Marsh DP, MacBean DP and Smith C (hereinafter `the EN Full Bench'). This Full Bench concerned the implementation of a national pay and classification structure for ENs across all awards and followed the completion of that process for RNs [Print No. J 4011]. The EN Full Bench determined that the grounds for a special case existed, to apply a common classification structure across all awards and that the wage relationship between enrolled nurses and registered nurses, year one, should be established on work value grounds.

At the time of the decision of the EN Full Bench, the Victorian Industrial Relations Commission was hearing an application to vary the award for enrolled nurses in Victoria. The EN Full Bench deferred the application for Victorian ENs. At page 19 of the decision it stated:

`Applications to vary that award for ENs are part heard in the Victorian Industrial Relations Commission. We have not given weight to the extracts of evidence which form part of those hearings which were tendered in proceedings before us. If the matters resume in Victoria then it will be a matter for that Commission to give to our decision whatever weight it considers appropriate taking account of all the circumstances of that case. Likewise, if coverage of Victorian ENs is shifted to this jurisdiction then any application in relation to ENs' rates and structures would be dealt with in accordance with the merit of submissions put at that time.'

Given the demise of the Victoria Industrial Relations Commission before the application referred to was concluded, and the shift of coverage to this jurisdiction, the application in relation to Victorian enrolled nurses has now been renewed before the Australian Industrial Relations Commission.

The EN Full Bench was asked to decide that the work of enrolled nurses across awards and settings is comparable, and then develop for the common body a career based structure, which reflects the attainment and utilisation of skills on the basis of work experience and in-service training. The EN Full Bench fixed rates between 91% and 99% of the structure. The rates were related to a year one, who holds a UG 2 qualification."

The Deputy President, after reviewing the evidence and submissions, came to the following conclusion [page 30]:

"Having followed the conclusions of the Full Bench, and examined the evidence before me, I have concluded that the classification structure decided upon by the EN Full Bench should be applied in Victoria as set out in Annexure 1."

In the proceedings before Drake DP, the Victorian Hospitals' Industrial Association (VHIA), representing public hospitals and community health centres, made written submissions in response to the ANF application [Exhibit ANF5, Tab K]. Relevantly, at page 4, the VHIA submitted as one of the grounds of opposition the following:

"7. There are six respects in which the award variations sought by the ANF is beyond the Commission's award-making power.

(a) The award variation seeks the prescription of actual rather than minimum rates of pay;"

and further, at page 5, under the heading "Actual Rates of Pay" the following submission is made:

"8. The salary rates and associated conditions of employment (shift and weekend penalties, overtime and recall allowance and on-call allowance) which the ANF seeks to have incorporated into the award, are actual rates of pay, as distinct from minimum rates of pay. The prescription of actual rates of pay for enrolled nurses would contravene the operation of the implied limitation on the Commonwealth's legislative power."

The decision by Drake DP was to adopt the Full Bench decision on enrolled nurses which was to apply in the various paid rates nursing awards. Though not expressly stated by Her Honour, the decision to incorporate actual rates of pay for enrolled nurses demonstrated that the Commission regarded the Nurses VHS Award as a paid rates award.

I now turn to consider whether the Nurses VHS Award, immediately before the commencement of the section, included a "statement to the effect" that it is a paid rates award, though the absence of such a statement would not necessarily deprive the award of being a paid rates award having regard to s.170LG(b).

In considering whether the Nurses VHS Award contains the appropriate statement, it is relevant to consider various sections of the IR Act. Under the IR Act a paid rates award was defined in s.4(1) in the following terms:

"'paid rates award' means an award specifying actual entitlements rather than minimum entitlements in respect of wages and conditions of employment."

Section 170UE of Part VI, Division 3, of the IR Act provided the following:

"170UE(1) The Commission must include in a new paid rates award a statement that the award is a paid rates award.

170UE(2) If the Commission:

(a) varies an existing paid rates award; or

(b) varies an existing award so that it becomes a paid rates award;

the Commission must include in the varied award a statement that the award is a paid rates award, unless the award already contains such a statement.

170UE(3) If the Commission varies an award so that it stops being a paid rates award, the Commission must remove from the award the statement included under subsection (1) or (2).

170UE(4) This section does not affect the validity of an award or variation."

Paid rates awards which were varied under s.170UE and had included in them a statement generally did so by inserting a formal statement that "This is a paid rates award" or a statement that the award complied with the requirements of s.170UE of the IR Act. In some awards, the words "paid rates" appear in the wages clauses.

Examples of statements which were included under s.170UE of the IR Act are set out below:

"This award is identified as a paid rates award and is in compliance with the provisions of Section 170UE(1) and 170UE(2) of the Industrial Relations Act 1988." [R0079]

"In accordance with Section 170UE this award is a paid rates award." [S0299]

"This paid rates award (reference Section 170UE(1) of the Industrial Relations Act 1988) shall be binding upon TransAdelaide, the Australian Rail, Tram and Bus Industry Union (known as the `PTU') and all employees who are engaged in any of the classifications specified in this award." [T0688]

"This is a Paid Rates Award." [V0202]

An example of a clause containing the words "paid rates" in describing wage rates, as distinct from the award being described as paid rates, appears in the CSL Limited Award 1992 [C0376] at clause 8(d) which was inserted at the making of the award prior to s.170UE commencing and is in the following terms:

"(d) The rates prescribed in subclause (b) (Schedule 1) of this award are paid rates..."

One of the matters for consideration is whether there is a distinction between the words "a statement that the award is a paid rates award" which appeared in s.170UE and the words "a statement to the effect that it is a paid rates award" contained in the Act.

The Oxford Dictionary defines the word "statement" as follows:

"statement stating or being stated, expression in words; thing stated;"

and "effect" as:

"effect result, consequence, (in effect, for practical purposes; to that effect, having that result or implication);"

I consider there is a distinction to be made from the words used in s.170UE and those now used in the definition of a paid rates award. The inclusion of the words "to the effect" allows for the inclusion of a statement or statements which does not necessitate the words "paid rates" to appear in a statement to meet the definition at s.170LG(a) so long as the award includes a statement to the effect that it is a paid rates award.

The legislature, in framing the definition of s.170LG, did so in circumstances where the failure to insert a formal statement that an award was a paid rates award under the IR Act did not in accordance with s.170UE(4) affect the validity of an award or variation. In other words, awards which were paid rates awards in accordance with the definition under the IR Act did not have their status as paid rates awards affected through a failure to have the formal statement included.

The definition of a paid rates award under the IR Act was considered by the Full Court of the Industrial Relations Court of Australia in the Bell Bay Case. In the Bell Bay Case the majority, consisting of Wilcox CJ and Keely J considered the meaning and operation of Part VIC of the IR Act when examining whether the 1991 Award covering the operations of Comalco Aluminium (Bell Bay) Limited was a paid rates award. The majority concluded the following [page 481]:

"The definition of `paid rates award' draws a clear distinction between `specifying actual entitlements' and `(specifying) minimum entitlements'. When minimum entitlements are specified in an award, there is not necessarily an expectation on anybody's part that these will accord with the entitlements actually provided to employees. It is commonplace, in many industries, for employers to provide over-award benefits. Because there is no necessary expectation of a correlation between specified minimum entitlements and actual entitlements, it is clear that an award that specifies minimum entitlements is not a paid rates award. As we have pointed out, the Act uses the term `award' to refer to a complete instrument, not part of it. It seems to us that, unless the whole award meets the test of specifying actual entitlements rather than minimum entitlements, it is not a paid rates award. It is not enough that it specifies some actual entitlements, if it specifies only minimum standards in relation to others.

There was an issue whether the language used to specify adult wage rates in the 1991 Award was intended to specify minimum rates or actual rates. It will be recalled that adult rates are dealt with by cl 8 which opens with the sentence:

`An adult employee of a classification specified herein shall be paid the wage rate hereunder assigned to that classification.'

However, cl 9 is differently framed. It specifies `minimum weekly rates of wages' for unapprenticed junior employees. Having regard to the use of the word `minimum', it is not possible to see cl 9 as a specification of actual rates. Although this clause is probably only of limited practical importance, its effect is to take the award out of the statutory definition. The award is one that specifies actual entitlements in relation to some employees but minimum entitlements in relation to others. An award cannot be segmented for the purposes of the application of the definition to Pt VIC. The prescription of minimum rates for unapprenticed junior employees gives the award a character inconsistent with the defined character of a paid rates award."

In the Nurses VHS Award at clause 5 - Classification in Grades, the words "and paid as such" appear at the end of various definitions of grades of registered nurses. For example, at Grade 2 "Clinical Nurse Specialist" the following appears:

"(c) A registered nurse appointed as a Clinical Nurse Specialist and paid as such."

The rates of pay are those set out at clause 6 corresponding to the classifications under clause 5. In clause 6, the clause commences in the following manner:

"6 - SALARIES

Students of Nursing

(a) Employees shall be paid the weekly salaries as set out hereunder corresponding to that employee's classification in accordance with clause 5."

Clause 45 - Salaries contains salaries and definitions for enrolled nurses and commences with the following:

"45 - Salaries

(a) The weekly ordinary full-time wage shall be ....."

Having regard to the Bell Bay decision, the language used in the various clauses cited above are ones specifying actual entitlements as distinct from minimum entitlements.

However, as the Bell Bay decision concluded, it was not sufficient to meet the definition of a paid rates award under the IR Act if the specifications of actual entitlements did not extend to all other employees covered by the award.

In the Nurses VHS Award, there are some classifications which use the words "minimum weekly salary" in setting out the salary level. In clause 6 the Deputy Director of Nursing (Extended Care) has a salary defined as follows:

"(v) (1) (A) The minimum weekly salary for a Deputy Director of Nursing shall be at the Grade 5 (13-50 beds).

(B) In addition to this amount a Deputy Director of Nursing shall be paid the following in respect to approved beds over which responsibility is exercised:

an additional 0.065% of the minimum base weekly salary per bed for each approved bed to fifty beds: plus

an additional 0.065% of the minimum base weekly salary per bed for each approved bed from fifty-one to one hundred beds: plus

an additional 0.032% of the minimum base weekly salary per bed for each approved bed above one hundred beds."

and Director of Nursing (Extended Care) the salary is defined as:

"(v) (2) (A) The minimum weekly salary for a Director of Nursing shall be at Grade 7 (Less than 13 beds).

(B) In addition to this amount a Director of Nursing shall be paid the following in respect to approved beds over which responsibility is exercised:

an additional 0.24% of the minimum base weekly salary per bed for each approved bed to fifty beds: plus

an additional 0.12% of the minimum base weekly salary per bed for each approved bed from fifty-one to one hundred beds: plus

an additional 0.05% of the minimum base weekly salary per bed for each approved bed above one hundred beds."

I am satisfied that the use of the words "minimum weekly salary" are, as the ANF submitted, a "product of the nature of the classification structure" and not a reference to minimum wages as described in the Bell Bay Case.

In each of the classifications cited, the award contains additional payments based on the number of approved beds. The use of the word "minimum" needs therefore to be seen in the context of the classification structure specifically designed for the extended care sector providing for the minimum and maximum rate in a classification structure based on the number of beds established as a result of a work value review.

Clause 6 under "Students of Nursing" subclause (a)(i)(1) provides the following:

"(1) Provided that Adult students in employment as at 23 January 1987, shall be paid at not less than the salary for a third year Student nurse."

This clause, along with the definition of Grade 1 and 2 registered nurses, was relied upon to submit that these clauses did not specify actual entitlements and therefore would prevent the award being identified as a paid rates award under the IR Act.

The provisions of subparagraph 6(a)(i)(1) were inserted as a savings clause by the IRCV on 23 January 1987 as part of a decision by the IRCV in Full Session [(1987) 2 VIR 296] when including a new classification structure and professional rates of pay for nurses. This can be seen from the following extract of the decision at page 304 under the heading "Student Nurses" [Exhibit ANF3, Vol 2, Tab 12]:

On 5 December 1986 we accepted that the ACTU had made out a case for `the adjustment of rates' of student nurses.

Whilst it was common ground between the ACTU, the HEF, the RANF, the HDV and private employers that the base salary will be that payable to a registered nurse grade 1 year 1 (in the new award that will mean registered nurse grade 1) their proposed percentage amounts differed. However, with the exception of the HEF, they agreed that the percentage for a third year student nurse should be 80 per cent of the base rate. We accept that percentage as being appropriate.

Having considered all of the material put before us we decide that the percentages proposed by the ACTU, with which the RANF agree, for the first and second years are the appropriate percentages to be applied.

Any adult student currently employed shall be paid not less that the salary for a third year student nurse."

The present provision is now a redundant clause and was only ever a savings provision arising from a change in the wage scale for student nurses as a result of the decision cited above establishing a structure based on percentages of the registered nurse Grade 1.

In respect of Grade 1 and 2 registered nurses, those grades of nurses were included as part of the classification structure inserted in the State Award by a decision of the IRCV during 1987-1989 in establishing professional rates for registered nurses and described by the IRCV as the Professional Rates Case. These grades need to be read in conjunction with clause 6(a) which states that those employees "shall be paid the weekly salaries as set out hereunder corresponding to that employee's classification in accordance with clause 5".

I am satisfied, for the reasons given, that neither the adult student nurse clause nor Grade 1 and 2 registered nurses set rates of pay which can be described as setting minimum rates and, together with Director and Deputy Director of Nursing classifications referred to earlier, did not give the award a "character inconsistent with the defined character" of a paid rates award under the IR Act.

For the reasons set out, I have concluded that the Nurses VHS Award, while not containing a statement inserted pursuant to s.170UE of the IR Act nor any inclusion of the words "paid rates", nevertheless is an award which would have met the definition of a paid rates award under s.4 of the IR Act. That is an award specifying actual entitlements rather than minimum entitlements.

I also conclude that the specification of actual entitlements in the Nurses VHS Award cited earlier constitute a statement to the effect that it is a paid rates award as set in s.170LG(a) of the Act. While it is not necessary to consider whether the Nurses VHS Award meets the definition under s.170LG(b), I have, nevertheless, come to a conclusion having regard to the decision in the Enrolled Nurses Case referred to earlier that the Nurses VHS Award also meets the definition under s.170LG(b).

There were submissions made by SIAG and VHIA and Jenny Fraumano and Associates that relied on the decision of the Full Bench in the Paid Rates Review Decision [Print Q7661] in which the Full Bench found that the SA Nursing Awards contained properly fixed minimum rates. SIAG made the following submission:

"3. We submit that the fixation of rates in the present award is inextricably linked with the Commissioner's fixation of rates in nursing awards across Australia particularly in the context of professional rates for nurses. This, we submit, leads to the inescapable conclusion that the award before the Commission as presently constituted is and has been, for relevant purposes in these proceedings, treated as a minimum rates award."

This submission and those of the VHIA and Jenny Fraumano and Associates fail to have regard to the matter requiring decision by the Full Bench. The Full Bench set out in the following terms the basis on which the applications were being considered [page 2 of Decision Summary - Paid Rates Review]:

"The applications now before us are being dealt with as part of a general review of the approach the Commission should adopt in exercising a discretion under item 51(4) in respect of those awards which provide rates of pay that have not been operating as minimum rates of pay or were made on the basis that they were not intended to operate as minimum rates.

We have decided that in principle all awards which provide for rates of pay which are not operating, or not intended to operate, as minimum rates and which do not bear a proper work value relationship to award rates which are properly fixed minima, should be subject to a conversion process so that they do contain properly fixed minimum rates of pay. We consider that the Act compels this conclusion."

The Full Bench came to the following conclusion in respect of the SA Nursing Awards:

"In respect of the awards before us, we have determined that the SA Nursing Awards, though they have been treated as paid rates awards in the past, nevertheless contain properly fixed minimum rates with rates for the relevant classifications (including incremental salary levels) being within the acceptable range of relativities in relevant minimum rates awards. The exception to this is the rates of pay set out in Appendix A to the SA Private Sector Award which we have determined are in excess of properly fixed minimum rates for nursing classifications. The amount by which the rates in Appendix A exceed the rates in the award proper will be identified separately and dealt with in accordance with the principles in this decision."

The Full Bench were not deciding whether the SA Nursing Awards were paid rates awards as defined by s.170LG, but whether they contained properly fixed minimum rates in accordance with Item 51(4) of the Workplace Relations and Other Legislation Amendment Act 1996 (the WROLA Act). As set out earlier, the rates of pay in the Nurses VHS Award were determined as part of the establishment of professional rates for nurses in nursing awards across Australia, including those in South Australia - a fact acknowledged in SIAG's submissions referred to above.

Subject to an award meeting the requirements set out under s.170MW(7)(a) and (b), an alteration in rates of pay of a paid rates award so that they operate as properly fixed minimum rates will not affect the paid rates status of that award for the purposes of s.170MW(7)(a) and (b).

The findings of the Full Bench that the SA Nursing Awards have been treated in the past as paid rates awards is further support for the conclusion reached above on s.170LG.

The next matter requiring consideration on jurisdiction is the point raised by the HSUA intervening.

It was the HSUA's submission that the ANF included in the particulars under s.170MJ a description of the classification "assistants in nursing" which is found in the Health Services Award, a minimum rates award. In the circumstances, the HSUA submitted that the Commission is not able to terminate the bargaining periods because the kind of employees whose employment would have been subject to the agreement immediately before the commencement of the section were not all determined by a paid rates award.

The ANF submitted that the notices of the initiation of bargaining periods were limited to nurses and relied on the particulars given under s.170MJ(a). This states that the single business to be covered by the proposed agreement "involves nurses employed at <<Company>>". The ANF also relied on the letter which was forwarded to respondent employers with the notices of initiation of bargaining periods which contained references to the claim being for nurses.

It was also submitted that the inclusion of nursing assistants was an error and the ANF did not and does not seek an agreement to cover assistants in nursing nor did it do so during the negotiations with the employer parties.

Section 170MW(7) has been set out earlier and relevantly at subclause (a) uses the words, "the kind of employees whose employment will be subject to the agreement were determined by a paid rates award". There was no disagreement between the parties that the "assistants in nursing" classification was found in the Health Services Award and such award is a minimum rates award.

In considering the meaning of "the kind of employees whose employment will be subject to the agreement" the matter to be decided is whether the "kind of employees" is defined only by reference to the particulars contained in s.170MJ(a) and (b) which state:

"(a) the single business or part of the single business to be covered by the proposed agreement; and

(b) the types of employees whose employment will be subject to the agreement and the other persons who will be bound by the agreement; and"

Section 170MW(1) is in the following terms:

"(1) Subject to subsection (8), the Commission may, by order, suspend or terminate the bargaining period if, after giving the negotiating parties an opportunity to be heard, it is satisfied that any of the circumstances set out in subsections (2) to (7) exists or existed."

I am satisfied that the combination of s.170MW(1) and the words "will be the subject of the agreement" does not confine a consideration of the "kind of employees" to the particulars set out at s.170MJ. The Commission is entitled to consider "the kind of employees that will be subject to the agreement" at the time the negotiating party make application for the termination of the bargaining periods.

The ANF makes no claim to have assistants in nursing covered by any agreement. In addition, the evidence of Ms Ligeti together with other material that passed between ANF and individual employers and employer associations indicate the claim being pursued by the ANF was one directed towards nurses employed in the extended health care sector gaining wage parity with nurses in the acute care sector. I do not find it necessary to consider the other points put by the ANF going to the error said to have occurred in the draft agreement or the reliance on the particulars set out at paragraph (a) accompanying the written notice under s.170MI(2).

For the reasons set out, I find that the requirements of s.170MW(7)(a) have been met.

I now turn to consider s.170MW(7)(b). This requires a consideration of whether the wages and conditions of the kind of employees whose employment will be subject to the agreement sought by the ANF were, before the commencement of s.170MW, customarily determined by an award or a State award, they were determined by a paid rates award. "Customarily" is defined in the Oxford Dictionary as meaning:

"According to custom; commonly used or practised; usual, habitual"

The employees concerned have been covered by an award of this Commission since the decision of Riordan SDP in December 1992 and the terms of the award in respect of clauses 5, 6 and 45 were included in the award by Riordan SDP when it was made in 1992.

Since 1994, as I have already concluded, the Nurses VHS Award met the definition of a paid rates award included in s.4 of the IR Act and had been regarded by this Commission as a paid rates award when applying principles for the purpose of determining wages and conditions of employment. I am satisfied therefore that the wages and conditions of employees sought to be covered by the agreement were customarily determined by an award that was a paid rates award.

The requirements of s.170MW(7)(b) have therefore been met.

IS THE COMMISSION ABLE TO CONCLUDE THAT THERE IS NO REASONABLE PROSPECT OF THE NEGOTIATING PARTIES REACHING AN AGREEMENT UNDER DIVISION 2 OR 3 DURING THE BARGAINING PERIOD? (s.170MW(7)(c))

The employers who were served with s.170MI notices operate nursing homes in the extended health care sector. The facilities operate on Commonwealth funding and in the past have argued they were unable to meet the claims of the ANF due to the Commonwealth's funding system not providing sufficient reimbursement for increased costs related to wages.

In the present proceedings, Mr Rahilly submitted there was doubt whether every employer served with a s.170MI notice had responded. As a consequence, the Commission could not be satisfied that no agreement could be reached in every case.

The nursing home employers represented by SIAG (Mr Rahilly) and VECCI (Mr McIntyre) totalled 250 out of 358 served with s.170MI notices.

The negotiations were conducted at a central level between the ANF and the various employer organisations over a lengthy period commencing in June 1997. I have set out an extract from the evidence of Ms Ligeti [Exhibit ANF3], an industrial officer with the Victorian Branch of the ANF, which sets out the efforts of the ANF to negotiate enterprise agreements following the serving of the s.170MI notices:

"108. Various meetings between ANF officers, industry organisations including, VECCI, SIAG, Aged Care Victoria, ANHECA (Vic), NAN&PH (Vic) and individual employers commencing June, 1997, took place to discuss the potential for enterprise agreements in the residential aged care sector.

109. In addition to various meetings on the 18th November, 1997, officers of the ANF and representatives of SIAG and VECCI participated in a full day session and engaged a facilitator in an effort to progress enterprise bargaining.

110. ANF officers attended various forums organised by SIAG and VECCI in late 1997 and early 1998 and made presentations to employers to progress enterprise bargaining.

111. By the commencement of April 1998 there had been one offer by an employer, `Good Shepherd Aged Services Inc.', to settle the key claims set out in the Notice of Initiation of Bargaining Period. On the 1st May, 1998 the ANF received correspondence from SIAG stating that this offer was revised because of the AIRC decision of the 20th April, 1998 in the `Living Wage' case. The offer was also stated to be subject to formal endorsement by the `Finance Committee'. The ANF has not been informed whether or not the offer has been confirmed and has not received any further indication that the employer wishes to progress enterprise bargaining.

112. Between May, 1998 and late June, 1998, ANF members at a number of nursing homes participated in `protected industrial action' in order to support and advance claims made in respect of the proposed agreement."

This evidence was in addition to earlier evidence given by Ms Ligeti which detailed extensive correspondence from the ANF to each of the individual employers and the employer organisations who had not responded to the ANF's request to progress their claims through enterprise bargaining. No employer, either through their employer organisation or individually, has agreed to the claims of the ANF.

Both Mr Rahilly and Mr McIntyre conceded that no agreement was possible having regard to the difficulties that existed in the extended health care sector due to Commonwealth funding levels. Mr McIntyre put the position of those he represented in the following manner [Transcript, page 149]

"The majority of our members are small nursing homes with 30 to 60 beds. They run that close to the wind that another $10 is enough to drive them into insolvency and they rely entirely on funding from the Commonwealth. Now, as a consequence of that the respondents have requested ourselves to deal with these applications collectively and to negotiate with the applicant, and, indeed, the funding authority and the evidence of Ms Ligeti yesterday was that indeed the parties had collectively approached the existing Governments and the opposition about their particular needs and their particular problems and whilst both areas were sympathetic it is only the current Federal opposition that have expressed a view on how the matter might be resolved and the existing Government is aware of the problem but has not expressed a view on how it might be resolved."

Having regard to the evidence and material before the Commission and the submissions of both Mr Rahilly and Mr McIntyre, I am satisfied that there is no reasonable prospect of the ANF and those employers represented by Mr Rahilly and Mr McIntyre reaching agreement under Division 3 during the bargaining period. I have also concluded that there is sufficient evidence to come to the same conclusion in respect of those employers served with the s.170MI notice but not represented in proceedings.

The evidence is that the ANF made several attempts to engage those employers not represented by Mr Rahilly and Mr McIntyre in negotiations over their claims for wage parity with public sector nurses. These attempts have not resulted in any agreements nor any offer being made acceptable to the ANF. This is not surprising given that all the aged care homes subject to the s.170MI notices are all operating under the same Commonwealth funding arrangements.

For all the reasons set out, I have concluded that the circumstances set out in s.170MW(7) exists or existed. I have decided that the applications for the termination of the bargaining periods initiated by the ANF be granted. A copy of the order is attached to this decision.

In accordance with s.170MX(2), the Commission will convene a conference of the parties at a time and date to be fixed for the purpose of exercising the conciliation powers mentioned in s.170MY.

BY THE COMMISSION:

SENIOR DEPUTY PRESIDENT

Appearances:

V. Gostencnik of counsel with R. Burrows and J. Ligeti for the Australian Nursing Federation.

M. Rahilly of counsel for respondent clients of the Service Industry Advisory Group.

R.J. McIntyre with C. Hicks for respondent members of the Victorian Employers' Chamber of Commerce and Industry.

D. Langmead of counsel for the Health Services Union of Australia, intervening.

A. Djoneff for respondent members of the Victorian Hospitals' Industrial Association, intervening.

J. Fraumano for respondent members of the Private Hospitals Association of Victoria and Benchmark Hospital Mutual Group.

Hearing details:

1998.

Melbourne:

July 6;

September 15, 16;

December 2, 15.

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Mis 034/99 S Print R1055

Termination of bargaining period.

A. Further to the decision issued by the Commission on 25 January 1999 [Print R0947] and pursuant to s.170MW(1) of the Workplace Relations Act 1996, the Commission terminates the bargaining periods initiated by the Australian Nursing Federation in the following case numbers:

B. This order shall come into force on and from 4:00 pm on Monday, 25 January 1999.

BY THE COMMISSION:

SENIOR DEPUTY PRESIDENT

Decision Summary

<Price code A>

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