C2001/2711, Transcript of Proceedings [2001] AIRCTrans 2577 (2 October 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 0188

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

C2001/2711

TEACHERS (ENGLISH COLLEGES)
AWARD 1999

Application under section 113 of the Act
by the Independent Education Union of
Australia to vary the above award re
public holiday payment

MELBOURNE

10.30 AM, TUESDAY, 11 SEPTEMBER 2001

Continued from 3.7.01 before Vice President Ross

PN29

MS L. COTTER: I appear for the Independent Education Union of Australia.

PN30

THE SENIOR DEPUTY PRESIDENT: In this matter the Commission has notified all respondents to the Teachers (English Colleges) Award of the hearing today in this matter. I should indicate that previously the Commission had received correspondence from the South Australian College of English indicating that it strongly objected to the application to vary the Teachers (English Colleges) Award 1999, indicating that the present award has worked well, the request is unrealistic and is not in line with normal professional teaching conditions and awards, and that they couldn't agree to the variation and believe the present conditions in the award are fair and reasonable. Have you seen that correspondence, Ms Cotter?

PN31

MS COTTER: No, I haven't, your Honour, but I am happy if you like to deal with the substance of it.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes.

PN33

MS COTTER: Okay.

PN34

THE SENIOR DEPUTY PRESIDENT: I will make a copy available to you. Yes, Ms Cotter, in terms of the substance.

PN35

MS COTTER: Would you like me, Commissioner, to deal with that aspect first?

PN36

THE SENIOR DEPUTY PRESIDENT: Yes. Just deal with the substance of the application. I am just foreshadowing to you the correspondence and the actions taken by the Commission.

PN37

MS COTTER: Okay. Your Honour, it is my understanding that the primary reason for this second hearing was that Vice President Ross was concerned to provide this further opportunity for employers to make any submissions, and I will deal with the substance of that objection in a moment. There was one matter I wished to deal with first, if that was all right.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes.

PN39

MS COTTER: His Honour indicated that prima facie it was his view that the Commission should make an order in the terms sought by the union, but there was a question raised at that first hearing, and it was in relation to the minimum payment of four hours. Our draft order seeks a minimum payment of four hours for time worked on a public holiday. I do believe it might have been the intent of his Honour in this respect, that we should have provided further examples of awards that used four hours as the minimum payment, so accordingly I do seek leave to tender to the Commission this morning two extracts from awards that show that standard. Would you like me to tender those together?

PN40

THE SENIOR DEPUTY PRESIDENT: Yes.

EXHIBIT #IEUA4 EXTRACT FROM HOSPITALITY INDUSTRY ACCOMMODATION, HOTELS, RESORTS AND GAMING AWARD 1998

EXHIBIT #IEUA5 EXTRACT FROM VEHICLE INDUSTRY AWARD 2000

PN41

MS COTTER: Thank you, your Honour. Both of these extracts have been down-loaded from the Internet and represent current versions of the awards. In the Hospitality Award the relevant clause is clause 19.2, which refers to the minimum four hours, and in the Vehicle Industry Award if you go to the third last page of that extract it is clause 6.5.4. The union believes, your Honour, that the provision of that additional material should at least deal with the query that was raised by Vice President Ross in the first hearing.

PN42

In terms of the objection that has been received by the South Australian College of English, as far as I can understand it makes no reference to any reason supported by provision of the Act or the Commission's own principles as to why the application should not be approved in terms of the order sought. The issue that it is not part of or extraordinary to teaching practice, the union would seek to rely on an affidavit of our Queensland industrial officer which I can tender now as well.

EXHIBIT #IEUA6 AFFIDAVIT OF JOHN WESLEY SPRIGGS

PN43

MS COTTER: Your Honour, we would accept the view that to date it has not been common practice that teachers in our industry have worked on public holidays, but as the affidavit of Mr Spriggs quite clearly demonstrates, it has been an emerging practice, particularly in our Queensland sector, and so our view is that even if it is not pervasive and everywhere, if it is happening there should be some amenity for those workers that do end up working on a public holiday. So, it is not widespread, but it is happening. That is probably still the view that we would present today.

PN44

We would rely on Mr Spriggs's statement as evidence of that. So, I think to sum up, your Honour, in our view the Commission should approve the application that was made by the union in the first place on the basis of the submissions made in that hearing, and I suppose on the basis of additional submissions made today. If there are other relevant matters though that you think should be raised or responded to, I am happy to address those. Thank you.

EXHIBIT #IEUA7 DRAFT ORDER

PN45

THE SENIOR DEPUTY PRESIDENT: I will adjourn into conference.

SHORT ADJOURNMENT [10.35am]

RESUMED [10.49am]

PN46

THE SENIOR DEPUTY PRESIDENT: Ms Cotter, what would assist me in this matter is if you could provide me with some written submissions which indicate how the clause you seek in exhibit IEU7 is consistent with the Commission's decisions in respect of public holiday provisions. When do you think you could provide that to me?

PN47

MS COTTER: Your Honour, I would be able to provide that to you by October 5.

PN48

THE SENIOR DEPUTY PRESIDENT: Very well. I will adjourn this matter on the basis that you will be providing me with written submissions by close of business on 5 October. Any employer who wishes to put in submissions in regard to the submissions that are put by the IEU should do so by 19 October. They should file those in the Registry and serve them on the IEU. The IEU should then put in any submissions they wish to in reply by 17 October 2001. So, Ms Cotter, to formalise that I am directing as follows, that you file the written submissions by 5 October 2001 and serve them on each of the respondents to the award.

PN49

If the employer respondents wish to put any submissions they should do so in writing by 15 October and they should do that by filing those written submissions in the Commission and serving them on the IEU, and then the IEU can put in submissions in reply by 17 October by filing any written submissions in reply in the Commission and serving them on the employer respondents by 17 October 2001. I would then propose to make a decision in the matter based on the submissions put to date and any further written submissions I receive by the due dates. I will now adjourn this matter.

ADJOURNED INDEFINITELY [10.52am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #IEUA4 EXTRACT FROM HOSPITALITY INDUSTRY ACCOMMODATION, HOTELS, RESORTS AND GAMING AWARD 1998 PN41
EXHIBIT #IEUA5 EXTRACT FROM VEHICLE INDUSTRY AWARD 2000 PN41
EXHIBIT #IEUA6 AFFIDAVIT OF JOHN WESLEY SPRIGGS PN43
EXHIBIT #IEUA7 DRAFT ORDER PN45