C0034/698, Transcript of Proceedings [2001] AIRCTrans 2816 (19 October 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 0538
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C No 00346 of 1998

HIGHER EDUCATION GENERAL AND SALARIED
STAFF (INTERIM) AWARD 1989

Review under section 51, item 51, schedule 5,
transitional WROLA Act 1996 re award certification

MELBOURNE

9.35 AM, WEDNESDAY, 3 OCTOBER 2001

Continued from 2.10.01

PN23084

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Britt.

PN23085

MR BRITT: Thank you, Deputy President. Very briefly, the document we handed up yesterday which was Meredith 33, that is the spread sheet document, there is one incorrect figure in that, which we seek to correct. That figure relates to wages at the University of Queensland at Level 8

PN23086

Step 2. In says, $47,468, and, as I understand it correctly, it should be $47,378.

PN23087

THE SENIOR DEPUTY PRESIDENT: The figure was highlighted.

PN23088

MR BRITT: I think it might have been highlighted because I gave you my only document, and I think that was the - - -

PN23089

THE SENIOR DEPUTY PRESIDENT: To remind you?

PN23090

MR BRITT: Yes. And it didn't, when I handed it up, so I apologise. Now, the next issue I wish to turn to is the issue of respondency. This applies both in respect to our primary position, but also in respect to the alternative joint position. The NTEU seeks to become a respondent to the award in respect to all of the institutions, and, in our submission, that should not be granted.

PN23091

The NTEU is seeking once again to expand the issue of respondency. This is the third time the Commission has had to look at this issue: first of all, in the original Australian Maritime College decision; secondly, in the section 111(1)(f) application. We say that the Commission should follow its earlier decisions in the Maritime College. They are set out, Deputy President, at tabs 10 and 11 of the folder. The Commission as presently constituted is obviously aware of those decisions.

PN23092

I do not propose to take the Commission to them, except to say that the decisions, in our submission, are relevant in respect to the additional words that the NTEU seeks in the joint draft order, and they should be no granted for the same reasons they were not granted in respect of a single institution, that being the Australian Maritime College.

PN23093

The NTEU is free, of course, after an award is made, be it our original position or our alternative position, to make application to vary the award in relation to the respondency, and have those matters dealt with at that particular time. And we say that is the appropriate time to consider the issue of respondency to the award, not this time, for the reasons your Honour has set out in both your Maritime College decisions.

PN23094

Deputy President, if I can turn to the proposed classification structure and rates of pay. Once again, these submissions apply equally in respect to our primary position and our alternative position. These proceedings are being heard under Item 51(4) of the WROLA Act. The Commission has already been taken to Item 51(4). In our submission, these proceedings do well and truly fall within the confines of Item 51(4), be it 51(4)(a) and also 51(4)(b). We would also adopt the submission of Mr Pill that the rates themselves are obsolete, which would seem to be an additional ground under Item 51 to consider the rates of pay in the HEGSS Award.

PN23095

Deputy President, you have before you the chronology. One of the first documents in that chronology at tab 2 dealt with a decision of Commissioner Frawley of 4 May 2000. He formed the view that the award was in fact - 1990, not 2000 - he formed the view that it was not a minimum rates of pay award, but a paid rates award. We may quibble with that view, but even with that quibbling it falls within, in our submission, the confines of Item 51(4): and certainly falls within the interpretation of Item 51(4) that has arisen, both within the award simplification decision and also in paid rates review.

PN23096

If I can take you to the paid rates review, which is found at tab 3 of the folder. If I can take the Commission to the folder that we handed up, as distinct from the - - -

PN23097

THE SENIOR DEPUTY PRESIDENT: Not the original chronology?

PN23098

MR BRITT: Not the original chronology folder. Sorry, Deputy President, the larger folder we handed up and were referring to yesterday.

PN23099

THE SENIOR DEPUTY PRESIDENT: Tab 3, did you say?

PN23100

MR BRITT: Tab 3, Deputy President.

PN23101

THE SENIOR DEPUTY PRESIDENT: Tab 3 in the folders that I got yesterday is the - - -

PN23102

MR BRITT: The paid rates review decision.

PN23103

THE SENIOR DEPUTY PRESIDENT: Yes, it is. It is.

PN23104

MR BRITT: If I can take you to page 13 of that decision. At the bottom of that page, at about point 8 in paragraph 12, the full bench begins its consideration of Items 51(4) and 51(5) of the WROLA Act, and set out the relevant legislative sections. Then over to page 14, the full bench states at about point 6:

PN23105

Item 51(4) like Item 49(5) is not confined to paid rates awards, but applies to any award providing for rates of pay that are not operating or not intended to operate as minimum rates.

PN23106

Certainly Commissioner Frawley was of the view that the HEGSS Award was a paid rates award, but, notwithstanding that, it is clear, we say, on the evidence that the HEGSS Award was not providing for minimum rates of pay, nor was it intended to operate as providing for minimum rates of pay.

PN23107

The full bench then goes on in the next paragraph:

PN23108

It will be necessary to examine the history of fixation of rates in each review of an award under Item 51 to ascertain whether the discretion in Item 51(4) needs to be exercised.

PN23109

In our submission, that discretion does in fact need to be exercised by the Commission. The Commission does note that half-way through the next paragraph:

PN23110

Awards which have not been through the MRA process may nevertheless contain properly fixed minimum rates consistent with sections 88A, 88B and 89A ...(reads)... which have completed the MRA process.

PN23111

In our submission, when you look at the actual rates of pay in the underlying awards to the HEGSS Award, they have not gone through the minimum rates of pay process. Secondly, those rates of pay are not consistent with matters in 88A, 88B and 89A(3), nor do the underlying rates of pay contained within the HEGSS Award bear an appropriate work value relationship to rates for work covered by minimum rates awards which have completed the MRA process.

PN23112

Those underlying rates of pay were not really in evidence in these proceedings, other than notionally in evidence as being referred to as forming part of the HEGSS Award, but no party was saying that they provide an appropriate minimum rate of pay. Those rates of pay in those underlying awards certainly predate any minimum rates adjustment process adopted by this Commission, or in fact adopted by the State Commissions where those underlying rates of pay are State based awards.

PN23113

So we say that the matter is very much before your Honour. That it is a matter where you should exercise your discretion in Items 51(4) to review those rates. In relation to reviewing the rates, the relevant principles are set out at page 17 of the decision. When you look at principle 1 and 1(a), it states:

PN23114

Awards requiring review under Item 51(4) will be awards containing rates which have not been adjusted in accordance with the minimum rates adjustment principle in August 1989 National Wage Case decision.

PN23115

And we say the HEGSS Award clearly falls within principle 1(a). So we say that in accordance with paid rates principles, we do fall clearly within principle 1(a) on all the evidence in these proceedings. Upon making that finding as we say the Commission should make, the other principles come into play.

PN23116

The first of those principles which we say is relevant to these proceedings in principle 2, and that is a matter we will return to later. Principle 3 concerning the rate of the key classification in the award. And it will be our submission that the Commission can in fact consider both Level 3.1 and Level 5.1, as either one of those provisions or levels being the key classification. And, finally, item 9, or principle 9, which provides:

PN23117

where the parties cannot agree on rates, but they agree on rates which the Commission is not satisfied are properly fixed minima, the Commission will determine the matter ...(reads)... pursuant to section 107.

PN23118

In relation to the agreement, all but one party to these proceedings agreed in respect of the rates, notwithstanding that the Commission, of course, must still be satisfied: but say that that is a factor the Commission can take into account, and should take into account concerning whether the rates of pay are appropriately set in either our alternative position, and our final position, or primary position where the rates are identical.

PN23119

Now, if I can take the Commission then to paragraph - principle 12, there is no evidence in these proceedings that conditions of employment in the converted awards are being reduced or increasing the conditions of employment in other awards. Deputy President, in relation to setting appropriate rates in the award in item 51.4:

PN23120

The Commission is to have regard to those matters in 88A and 88B.

PN23121

One of those matters in 88B(3)(a) is the need for any alteration to wage relativities between awards to be based upon skill, responsibility and conditions under which work is performed. The Commission has a long history in considering assessing the value of work and I can take the Commission very briefly back and it is a case that has been referred to by my friend Mr Pill, the Metal Trades work value case [1967] CthArbRp 1144; (1967) 121 CAR 587.

PN23122

That case concerned a full work value review by the Commission of the work covered by the Metal Trades Award. It was a substantial case, including site inspections and taking of evidence over a long period of time. His Honour Gallagher J set out a number of factors that were taken into account in assessing the value of work. They included qualifications, training and skill, technological changes which is probably more important for changes in work value, changes in conditions, changes in the types of metal, alteration to the methods of work, increased tempo of work.

PN23123

But in our submission, the key factors that are taken into account when assessing the value of work as distinct from a changed value of work, included those matters such as qualifications, training, skill, responsibility and the conditions under which work is performed.

PN23124

An example of how the Metal Trades work value case was then flowed on in found in the Vehicle Industry Award, a 1953 case reported at [1968] CthArbRp 471; (1968) 124 CAR 295 where Commissioner Taylor when setting what he believed were fair and just rates, took into account the qualifications necessary, the training period required, any attributes required to perform the work, the issue of responsibility for the work, material, equipment and the safety of plant and other employees, the conditions under which work was performed, the quality of work attributable to and required of the employee, the versatility and adaptability of the employee, their ability to perform a multiplicity of functions and the relevant skill exercised by the employee.

PN23125

The Commission also took into account the acquired knowledge the employee may have of the process and/or the plant. It took into account the issue of supervision over others or the ability to work without being supervised and the importance of that work to the overall operation of the employer when assessing what was the appropriate value of work to be performed by employees. Now, it is with that history I return then to the DWM exercise in the HEGSS Award. In our submission, the DWM exercise took into account those very factors which had been considered by Gallagher J in the Metal Trades case and Commissioner Taylor in the Vehicle Industry case to assess the value of work of employees employed under the HEGSS Award.

PN23126

If I can take the Commission to the agreed document and in particular take the Commission to tab 7 of the red folder and on page 2 of tab 7. The introduction commencing on page 2 sets out what was the role of the DWM which had been engaged by the joint negotiating group and what in summary was undertaken by those particular consultants. At the first hash point, if I can take the Commission to that, I don't propose to quote it. In our submission that goes to issues of work value. If I can then take the Commission to the last hash point on that page and then take the Commission and rely on the two other hash points on page 3 of the document. The methodology adopted by the consultants is set out on page 4. I don't take the Commission to beyond that comment. If I can then take you to page 19 which deals with the issue of relativities.

PN23127

In our submission when looking at the issue of relativities, it involves a consideration both of the work which has been performed under the HEGSS Award as well as the work which has been performed under a range of other awards. The report then sets out how the relativities that they are comparing consider relativities in other awards and the Commission will note at page 19 through to page 22, DWM Consultants looked at a range of different relativities and then at item 5.2 they do a comparison exercise between the highest HEGSS relativities compared to other restructured awards.

PN23128

Now, in our submission that exercise is consistent with the approach that the Commission would have taken if the Commission back in 1992 or 1990 through to 1993 had been called upon to in fact assess rates under the HEGSS Award. In our submission what occurred is than the Commission doing it itself, that work was done by the DWM. It was done on principles which were principles of this Commission. Secondly, it was done and I don't want to overstate, but perhaps with the imprimatur of the relevant Commissioners who had carriage of the HEGSS Award at that particular period of time and we freely concede it is not work done by the Commission, but it is work done by the parties, it is work done by outside consultants. It was extensive work when you look through the report and the Commission has heard the evidence of the witnesses concerning what was actually involved at the various institutions.

PN23129

In our submission, that work did in fact set appropriate rates of pay, appropriate classifications and appropriate relativities between classifications which, albeit were not inserted into the HEGSS Award, but were inserted into the section 134 agreements, but notwithstanding that, they do provide in our submission appropriate rates of pay as updated to be inserted into a minimum rates award by this Commission. Senior Deputy President, if I can take you to page 29 of that report and page 29 sets out the National Training Board competency model which was adopted by the DWM Consultants and sets out a range of hatched matters.

PN23130

In our submission, those matters fall very well and truly within work value assessments as developed by his Honour, Gallagher J, and Commissioner Taylor. They are clearly in our submission matters that go to the issue of work value, albeit the language is probably updated from that adopted by Commissioner Taylor and Gallagher J and what we say are important work value cases.

[10.02am]

PN23131

The principles in the paid rates review require that there be - and this is at principle 2 - require that there be a key classification rate. The key classification rate adopted by the DWM Consultants was that of the level 3 employee - and I will not take the Commission to it - but it is clear that the DWM Consultants did look at the relativity arrangements between the level 3 employee and the C10 fitter.

PN23132

They note that there are a range of some differences and the Commission has already been taken to some of those differences at pages 23 and 24 of the DWM Consultants report. I do not propose to take the Commission to those matters again. The Commission has also heard that one of the reasons for there being some differences goes to the issue of the leading hand allowance and the absorption of that allowance in the DWM classifications and its continued existence, of course, in the Metal and Engineering Trades Award.

PN23133

Now, in our submission, it would be equally open - and in this respect we do agree with the submission of Mr McAlpine to, in fact, consider the level 5 or the grade 5 position to now be the key classification in the award - that is, the graduate entry point in the award, be it in the library or elsewhere - and the Commission has heard considerable evidence concerning the number of employees at level 3 and the number of employees at level 5 in the HEGSS Award - be it that the Commission was prepared to accept the level 3 - sorry, that the level 5 position was, in fact, the relevant position or it was the key classification in the award - and certainly in evidence and some recent evidence I will take the Commission to later we fully concede there is many more employees employed at level 5 than there are at level 3 - but taking the level 5 position as a key position, we say that comparing the descriptor for the level 5 position it compares or is very similar to the position of a professional scientist with a three-year degree or diploma which itself has a relativity of 125 per cent.

PN23134

Deputy President, if I could take you to tab 12 in the folder we handed up yesterday, tab 12 contains an extract from the Australian Industry Group copy of the Metal Industry Award, albeit back in 1996. The relativities have not changed in that time. If you look, Deputy President, at the C6 level itself provides a relativity of 125 per cent. The relativity in the draft order for the C5 - I withdraw that, for the level 5 position is itself 125 per cent.

PN23135

When you look at the relativities for that position in the DWM descriptors, it runs between a level of 125 to 145 per cent. And in that sense, Deputy President, it also takes into account, in our submission, the C5, C4 and C3 positions which are positions dealing with graduates who have, in fact, obtained relevant experience.

PN23136

In that sense we say even is the Commission was of a mind to find that the key classification was that of a C5, sorry, that of a level 5, then when a comparison is done with a level 5 position and the relevant provisions in the Metal Industry Award with the relativities which are being proposed for the level 5 position which run between 125 and 145 per cent, assuming the Commission adopts our submissions in relation to pay points, there is a broad comparison and, in fact, equivalence between the Metal and Engineering Award and the proposed award in respect to the graduate entry point being the C5 position.

PN23137

THE SENIOR DEPUTY PRESIDENT: C5 or C6?

PN23138

MR BRITT: Sorry, C6 position. But there is also broad - in relation to the C5, given that is 130 per cent and, of course, not all graduate entries would be three-year. There will, of course, be some four-year. But level 5 encompasses a range of relativities and those relativities are broadly consistent or, in fact, similar to that which is found in the industry award.

PN23139

THE SENIOR DEPUTY PRESIDENT: Are you saying that level 5 is a broader classification in its descriptor than that for C6, which has no more than what we see here in the attachment?

PN23140

MR BRITT: What happens, in my submission, in the Metal Industry Award is a person may start off as a professional scientist and then, in fact, advance through a number of the levels contained in the Metal Industry Award ultimately reaching a position of an experienced scientist at level C6B.

PN23141

THE SENIOR DEPUTY PRESIDENT: Yes, which the pay points do in this proposed HEGSS Award.

PN23142

MR BRITT: Yes.

PN23143

THE SENIOR DEPUTY PRESIDENT: Yes.

PN23144

MR BRITT: We say that the proposal does, in fact, satisfy section 88B subsection (2) of the Act and 88B(3)(a) of the Act. That what, in fact, occurred here is rather than the wages being set by the Commission, they were set by outside consultants, but outside consultants who applied the same tests that the Commission would have applied in the circumstance. Nothing turns, in our submission, on the fact that they were included in the 135 agreements.

PN23145

As I said yesterday, we are seeking to have the rates included in the draft award, not because they are in the 134 agreement, but because they are appropriately set adopting principles utilised by the Commission. In relation to the issue of pay equity, your Honour, that is a matter which has to be considered under section 88B(3)(d), the Commission has certainly heard evidence as to the role of a renowned expert, that of Dr Clare Burton, at least in the adoption of these matters at a local level, and we say the Commission can be satisfied that the pay equity requirement is, in fact, satisfied by the proposals being put forward by the parties.

PN23146

Now, one further factor the Commission has to consider is the internal relativities within the award. In our submission, by adopting the DWM-based proposal, the Commission is, in fact, adopting the internal relativities as well within the proposed award. And that particular element, we say, is satisfied, albeit as the Commission has already been taken to by my friend Mr Pill, there is a degree of compression, that compression being caused by flat safety net adjustments.

PN23147

Furthermore if history could be changed and there had been an issue between the parties in relation to whether the award should be a paid rates award or a minimum rates award, so we could somehow remove that particular issue, in our submission, it would have been the case the DWM rates would have been included in the award. They were included in the agreements.

PN23148

There had been a distortion, perhaps, caused by various parties view as to whether paid rates were in this award at the time the agreements were certified, but there was not disagreement in relation to the relativities to be included in the agreement. There was not disagreement between the parties at the time as to the descriptors. Perhaps there was some distortion caused by Federal Government funding which may well have encouraged parties to undertake agreements rather than the award and the Commission has already heard some evidence from Mr McAlpine concerning the issue of supplementation that would be paid, that was, in fact, included in an agreement.

PN23149

As I said yesterday, we adopt the submission of Mr Pill in respect to the DWM and, in particular, adopt those paragraphs and refer the Commission again to those paragraphs at AEU25, they being paragraphs 7 to 9, 11, 12, 13, 19, 20 to 31 where Mr Pill addresses this very issue. Now, Commissioner, we would note that both in our primary position and in the alternative position, that the parties are seeking to flow on the safety net adjustments up until and including this 2001 safety net adjustment.

PN23150

In our submission, the Commission can do that and in support of that I would take the Commission to - I do not have a copy of this and I apologise, Commissioner - to the safety net review wages May 2001. And if I could refer the Commission to paragraphs 151 and 152 of that decision. The Commission varied the pre-existing wage-fixing principles so that awards, especially awards which had gone through the simplification process, can be varied with one hit to provide for a catch-up on the various safety net adjustments. At paragraph 152 the Full Bench states:

PN23151

We have decided that a member of the Commission should be able to waive the requirement for 12 months to elapse between wage adjustments allowable by the previous safety net decisions provided that each party to the award consents to the variation -

PN23152

And I stop there. Certainly all of the parties, other than the University of New South Wales, consent to the variation. I am unsure of the University of New South Wales position in relation to a flow-on of the safety net adjustments:

PN23153

... and secondly, there is cost to any employer party to an award.

PN23154

Now, in our submission, there is no cost to any employer party within the award and, in our submission, it is open to the Commission to flow on all of the previous safety net adjustments up to and including those within the May 2001 decision in either our primary position or in our alternative position.

PN23155

THE SENIOR DEPUTY PRESIDENT: Yes, I remember Mr Moorhouse specifically acknowledging the consent that you have just referred to. Did you do the same, Mr Pill?

PN23156

MR PILL: I did not, your Honour, but I am happy to do so now.

PN23157

THE SENIOR DEPUTY PRESIDENT: Yes.

PN23158

MR PILL: It is the case that each of my clients there is no direct cost impact.

PN23159

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you.

PN23160

MR BRITT: Deputy President, if I can now turn to our primary position, and if I could take the Commission to, first of all, Meredith 32. This is the document, Deputy President, which sets out the changes between Meredith 32 and ANU24.

PN23161

THE SENIOR DEPUTY PRESIDENT: Meredith 32.

PN23162

MR BRITT: It is one of those annoying documents, Deputy President, which has not got the changes tracked upon it, but it is used for some purposes. If I can hand up a spare copy.

PN23163

THE SENIOR DEPUTY PRESIDENT: Yes. I certainly should have it. It was only handed up yesterday, was it not?

PN23164

MR BRITT: I handed up a copy of Meredith 31, which is the clean copy as well.

PN23165

THE SENIOR DEPUTY PRESIDENT: Yes. I certainly have them, but I thank you for that. Right. We look at number 32.

PN23166

MR BRITT: If the Commission refers to it you will note that in the draft order, first of all, in order A there is a variation to the Higher Education General Staff, General Salaried Staff Interim Award 1989. And like with the other order, only in respect to salaries and classification, and is then to the extent set out in what is, in fact - and as I referred to yesterday - an illustrated award and obviously if the Commission was to grant our primary position, we would be happy to provide and do the drafting of all the other awards.

PN23167

And an award title the University of Technology General Sydney Staff Interim Award 2001, and the second order which has been sought is a making of the University of Technology Staff Sydney General Staff Interim Award 2001. Now, we say that the award should be an interim award on the basis that it certainly envisaged that added to this award at some stage would be the issue of conditions of employment. And at that stage the award would be finalised by the Commission.

PN23168

As the Commission is aware - and it is a matter I will take the Commission to in some detail later in the these submissions - the Commission has already made a number of conditions awards. In relation to those conditions awards, if the Commission is to adopt our primary position, those awards would then be varied to reflect the classification and salaries which have been agreed between the parties.

PN23169

In paragraph 3 - which should really be 1, I apologise for that - title. There is a change to the title, but perhaps more importantly schedules B and C are deleted and they are deleted because the respondents to the award will then be set out in clause 4 to the award and you would note that in relation to the University of Technology Sydney, there are a number of respondents listed at schedule C.

PN23170

And rather than include a schedule C, the named respondents have been included in 4A(i). And consequent amendments needed in relation to 4A(iii) because there is no schedule C, and my client will still be a respondent, but there is no need to list its member because its member, in fact, is going to be 4A(ii). There are a number of - in clause 5 rather than define - there is a number of changes dealing with - given that there is no schedule C or schedule B, other changes have been made to 5A.

PN23171

Rather than looking at 5B, refer to the institution, we have defined it as the university. And we have also not used the term, organisation, but the term, union. We did that on the basis that the actual draft so that the disputes clause itself does not refer to an organisation, but refers to the union or unions, and we thought that was more appropriate, but nothing really turns on that particular issue.

PN23172

Clause 6 then has some consequent amendments due to the renumbering of schedule D and the removal of the word, institution. The same applies in relation to clause 7, we have used the word, university, rather than institution. And the same applies in clause 8. Other than that it adopts the classification structure which is then that schedule A that is identical and schedule D has become schedule B, and it only applies to the University of Technology Sydney, so there is only one group of wage rates rather than some 30 groups of wage rates found in the proposed draft award.

PN23173

In relation to the positions adopted by Mr Pill and Mr Moorhouse's clients, we are certainly not requiring them to enter into institutional awards. If the Commission is prepared to grant our position, we say that it would be possible to have multi institutional awards and in fact one such award has been made in relation to the University of Southern Queensland and Queensland University of Technology and Central Queensland in relation to a conditions award. In relation to Mr Moorhouse and Mr Pill's clients they would be free, in our submission, to either have an institutional award or between them have a multi institutional award. So our position does in fact envisage both individual institutions and multi institutional awards.

PN23174

Now, in support of our proposal for institutional or multi institutional awards, we say that the HEGSS Award is not really a national award. We would characterise it as an award with a cover sheet and a rather large staple. That rather large staple encompasses some 157 awards both of this Commission, but certainly many more awards of various State and Commissions. We are seeking the Commission to remove the staple, we are seeking to go back to institutional and/or regional awards.

PN23175

If I can take the Commission to tab 13 of our folder. Other than - and take the Commission to the arrangement clause, in support of our submission that it is an award or a cover sheet with a rather large staple, we say that other than clauses 6, 9 and 10, the award does not deal with conditions of employment, all it does is adopt in clause 6 the three existing conditions are to continue to apply. In relation to the issue of salaries and perhaps classification, we may have dealt with once again in clause 6, and perhaps indirectly in clause 7, the Commission itself provided for two structural efficiency increases being added to the rates of pay in the underlying awards.

PN23176

And it is our submission that this is not an award which is a true national award or in fact a true award of this Commission. It merely incorporates a range of State awards and instruments. And in respect to the ANU and the Northern Territory, pre-existing Federal award instruments. If I can take the Commission to support that submission to schedule C, and I would ask the Commission to ignore my doodling down the side of schedule C.

[10.25am]

PN23177

Schedule C sets out the underlying awards which are incorporated into the HEGSS Award, and if I could characterise awards perhaps in three ways. May be awards which apply specifically to universities and/or at that time CAEs or awards which apply generally to universities and CAEs and in other general awards. Adopting that analysis, in considering the situation in the ACT which is found at page 12, in our submission, there are 18 university-specific awards.

PN23178

THE SENIOR DEPUTY PRESIDENT: University-specific, the Painters and Glaziers ACT Award.

PN23179

MR BRITT: And eight awards which are general awards. And the Painters and Glaziers ACT Award we would characterise as a general award. But awards such as the Administrative Clerical Officers Canberra College of Advanced Education Salaries Award, we say that is an award which applies to a specific institution just as the award which is underneath that award is once again an award which applies to a specific institution.

PN23180

And given it is the ACT - and Mr Meredith reminds me - those awards we would classify as general awards are also more likely than not to be common law awards in the ACT. If a similar analysis is adopted in relation to the New South Wales - and the New South Wales Awards start at the bottom of page 14 - we say that there are 16 awards which apply to specific institutions.

PN23181

And in the case, for instance, of - and this is on page 16, the second last two awards we classified those as awards which apply to specific institutions, but concede that they apply to more than one institution. There are some 22 awards which apply to universities or CAEs generally, albeit they may not apply to all but they certainly apply to a number, and there are four awards that we would say are general awards that also happen to apply to parties or respondents to this award.

PN23182

And a similar exercise is conducted in the Northern Territory and the Northern Territory Award is found on page 18. Three of the awards are clearly specific awards and there is one general award up in the Northern Territory Public Sector Salaries and Conditions of Employment Agreement 1987.

PN23183

When considering Queensland which commences at page 18 of the award, we say that there are two awards which are specific. There are then six awards which apply to a number of institutions but are higher education-specific and there is one general award, being the Electrical Engineering Award.

PN23184

In relation to South Australia, which is found at page 19 of the award, we say that there are six awards which are specific. There are four university general awards, but in relation to those four they only apply to colleges of advanced education. In our submission, there is a clear divide in South Australia between university and colleges of advanced education and there is four awards which could be classified as general awards, primarily the first of those, the Building Trades Award and then on page 20 the Painters and Decorators, the Plumbers and Gasfitters and the Metal Trades

PN23185

In relation to South Australia, we say that there are - no, in relation to Tasmania, we say that there are five university-specific awards. I am unsure as to what the general conditions of service award is, whether that is a university-specific, whether it is a general award that applies across Tasmania. Mr Meredith tells me it is a general public sector award across Tasmania, but we would classify that as a general award. So there are three general awards.

PN23186

In relation to West Australia, we say that when we conduct the same analysis there are four awards which are university-specific, there are two awards which apply generally to universities and/or CAEs, and there are some nine general awards. We say that that analysis of the award supports our view that the HEGSS Award is not a national award in the true sense. It is an award which is by and large institution-specific and/or group of institutions if you are considering the CAEs as a group of institutions.

PN23187

We do concede, of course, that it does contain a number of underlying awards which were general awards, but in our submission we would say generally those awards were awards that apply to a small and discrete group of employees being child care workers, building trades. It did not apply generally.

PN23188

A similar sort of analysis can also be considered if the Commission considers and, in fact, it is an exhibit which is found at page 14 - or sorry, tab 14 of the folder, and on my consideration I think it was actually marked twice in these proceedings, exhibit Meredith 17 and also I think it is JCU6 which sets out an analysis in respect to New South Wales listed along the top and the names of the universities, they being Australian Catholic University, Charles Sturt, Macquarie, Newcastle, Southern Cross, University of New England, University of Western Sydney, University of Sydney, University of Technology, Sydney, University of Western Sydney and University of Wollongong.

PN23189

Other than taking the Commission through those names to ensure the Commission can understand what the abbreviations stand for we say that shows an analysis as to which awards applied there, which once again shows very much a - while very much a State base but also a fair degree of variety as to which of the underlying awards applied to which institutions at least in relation to New South Wales. We say that considering all those matters the Commission can find a number of matters.

PN23190

First of all that the HEGSS Award in fact by incorporating the underlying awards did in fact incorporate a situation whereby award regulation was at the State level or at the institutional level or across a multiplicity of institutions. And that is merely, we say, a matter of history. Secondly, there are considerable differences between the award regulations both within States and between States. Thirdly, there is a considerable amount of underlying award regulation which is universally specific.

PN23191

By that I mean it applies to a specific university or a group of specific universities. Fourthly, by considering the underlying awards there is considerable difference between the regulation conditions of employment between the former CAEs and universities. And finally, that HEGSS itself was not a true national award in the true sense.

PN23192

There was no equality of positions and it is an award which was institutionally based further support for the submission that the HEGSS Award is an award which is institutionally based and rises itself from the issue of respondency to the award. The Commission is very much aware of clause 4 of this award and in particular clause 4(a)(2) of the award at schedule B. Very briefly schedule B sets out a range of institutions in the first column and then in the column number 1 it lists the respective respondents to the award in relation to that particular institution.

PN23193

We say that that provides support for a view that the award really is an award which itself is institutionally based given the respondency to that award is institutionally based. And that certainly be so consistent with an interpretation that your Honour gave in clause 4(a)(2) in the Maritime College decisions. For those reasons we say that it is appropriate for the Commission to remove the staple to allow the award or award based conditions and wages to be found in either institutional awards or in multiple institution awards.

PN23194

The second argument that we would advance is that the award was never a national award in any sense. The HEGSS Award does not apply to Victoria where the HEWV Award applies. There has been considerable evidence as to the circumstances concerning the making of the HEWV Award in these proceedings and we would refer the Commission to particularly the evidence of Ms Bare and that of Mr McAlpine. However, in our submission there is no evidence in these proceedings as to why there was any need for a HEWV Award.

PN23195

There is no evidence in these proceedings as to why HEWV - sorry, I withdraw that - why Victorian Universities and CAEs were not included in the HEGSS Award. There is just no evidence as to why Victoria was never included in the HEWV Award. We had some comments yesterday by Mr McAlpine explaining that situation but simply they are submissions from the bar table they are not evidence. It is a fact that Victoria is not included in the HEGSS Award so it can't be a national award. Now despite the evidence of Mr McCulloch and Mr McAlpine that there is a national industry or national labour market since the making of the HEGSS Award it has not been a national award, it has not included Victoria.

PN23196

In our submission we ask the question if it is acceptable to the parties to have a separate award for Victoria why is it not acceptable to have separate awards for other States or separate awards for institutions. Thirdly, we say that the issue as to whether there should be - sorry, I withdraw that - the issue as to whether there must be a single award in these proceedings is a matter which has already been considered by the Commission in these proceedings, albeit it not as constituted as it now is.

PN23197

On 3 June 1999 Commissioner Smith heard argument from the parties as to his capacity to make individual or regional awards or to make an exclusive national award as to the outcome of an item 51 review. On 20 August 1999 Commissioner Smith issued his decision concerning the form of awards able to issue from the item 51 review process. That decision is found at tab 14 - sorry tab 15 of our folder. If I could first of all take the Commission to paragraph 5. Commissioner Smith states in his decision:

PN23198

I do not propose to traverse the history of award regulation for general staff covered by the HEGSS ...(reads)... This sentiment I believe is shared by all.

PN23199

At paragraph 6:

PN23200

In essence is it appropriate to concentrate on one issue, that is should an award be made which ...(reads)... universities without parties having the opportunity to create enterprise awards.

PN23201

The Commission then answers that question at paragraph 7:

PN23202

The answer to that question is no.

PN23203

Certainly we say that Commissioner Smith was of the view that it was possible arising out of the item 51 proceedings for there to be institutionally based awards. And the reasoning process - I don't take the Commission to it in detail - for Commissioner Smith's decision is in fact set out in paragraph 8 and we certainly rely upon that reasoning process. Now, the Commission would note - and I think it is in exhibit NTU43 - that there was an appeal by the NTU against the decision of Commissioner Smith. In relation to that appeal that matter did not proceed and it is my understanding that the appeal was withdrawn.

PN23204

In our submission the reasoning process at paragraph 8 adopted by Commissioner Smith is as relevant today as it was two years ago and Commissioner Smith has already in these proceedings ruled that it is not necessary to have one single award. Fourthly, in support of our primary position concerning individual awards we say the Commission has already made for the conditions award which arise from the item 51 review. The first of those is the Queensland Universities General Staff Interim Award a decision of Commissioner Smith on 14 April 2000 which is print S3535 and found at tab 16 of the folder.

PN23205

If I can take the Commission to paragraph 4 of that decision which is found at page two:

PN23206

The Commission notes that a process has evolved whereby most parties have agreed to simply the HEGSS Award ...(reads)... form part of the proceedings but will be dealt with separately.

PN23207

Then at paragraph 5 Commissioner Smith holds:

PN23208

The first such rule to be made will be known as the Queensland Universities General Staff Interim Award ...(reads)... may lead to the setting aside totally of the HEGSS Award.

PN23209

The Commission would note that this in fact is a decision only arising under the item 51 review. The second such award - sorry - further award made, again by Commissioner Smith, concerned the University of New England which is found at tab 17 and I don't take the Commission to any part of that. A further award was made by Commissioner Smith on 26 July 2000 that being the University of Western Sydney General Staff Interim Award. And I understand that the University of Adelaide itself has also made an interim conditions award.

PN23210

The Commission has before it two applications for further institutional awards one concerning the University of Canberra and the other concerning the Maritime College. Now in our submission there is nothing special about wages and classifications as distinct from other conditions of employment. If it is appropriate for the Commission to make regional and/or institutional specific awards conditions of employment then it is equally appropriate for the Commission to make salaries and classification awards for institutional specific respondents.

PN23211

Furthermore we say it is more appropriate to have a single award for each institution which contains all of the conditions of employment including matters such as salary and classifications and certainly in relation to the issue of those awards which were made. It is clearly, in our submission, the view of Commissioner Smith that they are interim awards and are awaiting finalisation and one of the matters they were awaiting finalisation in respect of was the outcome of these proceedings.

PN23212

In our submission an institution having to have multiple awards applying to its general staff is contrary to the whole simplification process. And it certainly should be the case that there be one award applying at each institution, that award being an institution specific award or a group of employers award, and that is what should result as a result of a simplification process. In our submission there is simply no good reason advanced to differentiate between salaries and classifications and other conditions of employment.

PN23213

In our submission it is more satisfactory for all to have one award applying institutionally. There are no good purposes for such a separation either at public policy and certainly such a separation, in our submission, is contrary to t he objects of this Act. In our submission institutional awards are consistent with the Act and in particular consistent with the objects of the Act. Furthermore, this position is supported by the ASU and the CPSU and that is a matter which I will take the Commission to later but we say that is an important consideration.

PN23214

Now, in our submission this is a process under item 51(4) that when exercising power under item 51(4) such an exercise must be considered with the provisions in 88A and 88B of the Act. If I can take the Commission to section 88A and in particular take the Commission - sorry, I withdraw that. Well, we concede that the making of institutional awards is also consistent with 88A. However, we would say if the making - sorry, I withdraw that. We would say that the making of a national award would be consistent with 88A.

PN23215

However, we would say that the making of an institutional award is even more consistent with 88A and in particular those matters which are found at 88A sub-paragraphs (c) and (d). In relation to (c) we say that institutional specific awards are more suited to the efficient performance of work according to the needs of a particular workplace or enterprise because it is the award which applies to that particular workplace or enterprise rather than be a national award.

PN23216

Furthermore, we say in relation to 88(d) that an institutional specific award provides greater encouragement for the making of agreements between employers and employees at the workplace or enterprise level. And furthermore, can take into account on a better basis a case by case approach to protect the competitive position of young people in the labour market to promote youth employment, youth skills and community standards and to assist in reducing youth unemployment rather than a more removed general award.

PN23217

In relation to 88B we would concede, of course, that a national award can in fact comply with 88B but we say that in fact an institutional specific award complies better with 88B. Now, 88B in paragraph 1 incorporates, in our submission, the objects of the Act as they are found in section 3. And in making institutional specific awards, and we specifically refer the Commission to those matters in object 3B, that is ensuring that the primary responsibility for determining matters affecting the relationship between employers and employees rests with the employer and employees at the workplace or enterprise level.

PN23218

Now, in our submission it is clearly the case that where you have an institutional specific award that it does in fact provide for the primary responsibility occurring at the workplace and/or enterprise level. We also refer the Commission to paragraph 3(d). We rely on 3(d)(i) which once again makes reference to the workplace or enterprise level and rely on paragraph 3(e). In our submission they are matters that go - that are better served - or objects which are better met by an institutional specific award rather than a general award.

[10.53am]

PN23219

Reference was made yesterday by Mr McAlpine and Mr Warburton concerning the award simplification test case decision, and in particular Mr Warburton made reference to - well, both this decision and the Metals decision - didn't provide for a break-up of those awards. Response to that is quite simple. The Commission wasn't asked by any of the parties in either of those cases to break up the award. In those circumstances it is not surprising the Commission did not consider those particular matters.

PN23220

In our submission there is nothing contained within the award simplification decision which prevents this Commission from adopting institutional awards - or group of institutional awards, rather than a single national award. And in fact we say that our submission is buttressed by in fact a passage within the award simplification test case decision, and I would refer the Commission - and this is not a decision in our folder. It wasn't a matter that I was going - I wasn't - I intended to take the Commission to. I know the Commission has got - I think the Commission has got its decision before it.

PN23221

THE SENIOR DEPUTY PRESIDENT: Not on the bench, but simply - just read it - some parts of it are becoming learnt by heart.

PN23222

MR BRITT: Well, I think this might be a new part, Deputy President. It is found at the top of page 34, and I quote:

PN23223

Multi-employer awards should generally not include provisions which apply only to single enterprises.

PN23224

And I end the quote there. Now, in our submissions the alternative position which has been put is a multi-employer award, and it does have provisions which apply to single enterprises. That is, each of the institutions listed in annexure D, is a provision that deals with a single enterprise. Now we conceded that it is not a prohibition and the passage I read is not a prohibition on that approach.

PN23225

In our submission, it is more consistent with the award simplification test case decision for the Commission to adopt our primary position, that is there being an individual award and the enterprise, which is enterprise specific, and doesn't contain provisions that only apply to specific institutions - that only - that apply to other specific institutions. So we say it is more consistent with the award simplification test case to adopt our primary position over that of our secondary position.

PN23226

In our submission there is nothing in the principles that prevents a single award or institution awards. Now furthermore we say that the Workplace Relations Act has as a principal object - you need to ensure that primary responsibility for determining matters affecting relationship between employers and employees, rests with the employer and employees at the workplace or enterprise level.

PN23227

In our submission, that focus is not limited to agreement making, but can also include a safety net award regulation. We say that the making of institution awards does not detract from the national focus of the sector, and in particular this sector. And we say that they are the types of arguments that Commissioner Smith was attracted to in his decision, which is at found at tab 15.

PN23228

We say that further support for institutional based awards is found in the decision of Commissioner Lewin, which is set out at tab 18 of our folder. If I can take the Commission to page 4 of that decision and the second paragraph. Commissioner Lewin notes, and I quote:

PN23229

The situation facing review, therefore, has three significant facets among others. The first is that there are numerous ...(reads)... persons bound by it.

PN23230

Commissioner Lewin then goes on:

PN23231

Clearly having regard to the objects of the Act and the requirements of item 51, this situation will have to change dramatically.

PN23232

If I can then take the Commission to page 5, the first paragraph on that page:

PN23233

During the conferences held under the section 33 proceedings previously mentioned, I observed that there seemed to me to be two ...(reads)... conditions of employment.

PN23234

And I end the quote there for the moment, and say, our alternative position, even in relation to salaries does not do that. There is some variation. I continue the quote:

PN23235

The second but more readily achievable would be to bundle all of the conditions applicable to each of the respondent institutions which ...(reads)... each of the respective institutions.

PN23236

If I can then take the Commission to the third paragraph, starting in the second sentence:

PN23237

I make the observation that in my view there is a serious question of whether or not a uniform national code of conditions is achievable ...(reads)... conditions of employment in the sector.

PN23238

If I can take the Commission then to the sixth paragraph. Commissioner Lewin states:

PN23239

While certain instruments apply to more than one university, the pattern of regulation is a sedimentary accrual of conditions of employment ...(reads)... applicable to the review.

PN23240

I end the quote there. In our submission the proposal, primary proposal, is consistent with the recommendation of Commissioner Lewin in these matters, at least as it relates to salaries and to classifications; that is, adopting institutional basis for the conduct of the item 51 review. I would also refer the Commission to the decision of the Full Bench of the Commission in Abadere Collieries Pty Limited, more commonly known as the Moringbah North Coal ..... Pty Limited case, which is found at tab 19 of our folder.

PN23241

This is not a matter concerning an item 51 review. It is a matter concerning the making of institutional based awards, rather than including persons in a multi-enterprise award. If I can take the Commission to paragraph 12, a decision of - - -

PN23242

THE SENIOR DEPUTY PRESIDENT: Paragraph?

PN23243

MR BRITT: Sorry, page 12 of the decision.

PN23244

THE SENIOR DEPUTY PRESIDENT: Page 12, very well.

PN23245

MR BRITT: At about point 5 on that page the Commission commences it consideration of whether there should be a separate award, Deputy President. We rely upon those passages on page 12 dealing with the issue, over to page 13. I don't propose to take the Commission to them in detail. Now, Commissioner, there were submissions yesterday by both Mr McAlpine and Mr Warburton concerning the power of the Commission to make institutional awards.

PN23246

That is a matter I address perhaps a bit later in detail in the submissions. But we say that in these proceedings such an approach is in fact inconsistent with the decisions of Commissioner Smith in this matter, they being the decisions I have already taken the Commission to at tabs 15, 16, and 17 of our folder, and also inconsistent with at least the recommendation of Commissioner Lewin, which I have taken the Commission to at tab 18.

PN23247

Now, in the event the submission of Mr McAlpine and Mr Warburton is accepted by the Commission, serious question would then be called in respect to those institutional awards which have been made under item 51, and the process which has been adopted by the parties in relation to a consideration of the matter of conditions, which would then require the Commission to consider the making of conditions on a national basis, rather than on the basis that has been adopted to date by the parties.

PN23248

In that sense, it would be like trying to put the genie back into the bottle, or as Mr Meredith explained to me this morning, perhaps a more accurate description would be trying to put the toothpaste back into the tube, in relation to condition matters. Before addressing the matters raised by Mr McAlpine and Mr Warburton, I want to take the Commission to a number of other decisions of the Commission.

PN23249

The first of those decisions I would take the Commission to is found at tab 20. And that is a decision of Commissioner Larkin in the Transport Workers Australian Government Wages Staff Award 1987, decision at print Q9067. The Commission would note from the first page of that decision that they are considering only an item 51 review. As part of that item 51 review, I take the Commission to page 12. Commissioner Larkin was of the view that she was making a new award.

PN23250

I take the Commission to page 12, at about point 5 on that passage. And if I can take the Commission to page 13, of the decision at about point 3, ..... reference has been made to certain provisions in the new award as part of the item 51 review. If I can then take the Commission to a decision of Senior Deputy President Marsh in The Journalists ACT Award 1996. Once again this is a proceedings restricted to an item 51 review, and it is found at tab 21.

PN23251

In relation to these proceedings, I refer the Commission to paragraph 2. There is an application to vary the award by making a new award. If I can you to then paragraph 4. It is clear - specific provisions that a new award is in fact being made in relation to clause 6. Your Honour then sets aside the existing award under section 33 of the Act on the basis that it is obsolete. So what we have here, in my submission, is the making of a new award and then the utilisation of item 51, 7(d), which has set aside an award which has now become obsolete, because it has been replaced by a new award.

PN23252

THE SENIOR DEPUTY PRESIDENT: What action was specifically taken under section 33?

PN23253

MR BRITT: Yes, under section 33, that being the Commission of its own motion.

PN23254

THE SENIOR DEPUTY PRESIDENT: Using a particular power? Could it not be a 113 power?

PN23255

MR BRITT: It might be, but the only matter before the Commission - - -

PN23256

THE SENIOR DEPUTY PRESIDENT: It is not said so?

PN23257

MR BRITT: Yes. It's the item 51 review.

PN23258

THE SENIOR DEPUTY PRESIDENT: I agree. No reference is made to section 113.

PN23259

MR BRITT: And in fact reference is made to item 51 (7) (d). That is setting aside an award because it is obsolete, is a variation to that award. Given item 51(7) refers to variation of the award.

PN23260

THE SENIOR DEPUTY PRESIDENT: Yes, that is right. The Senior Deputy President obviously believed she was using 51(7)(d).

PN23261

MR BRITT: If I can then take you to decision, again of Senior Deputy President Marsh. It is found at tab 22, decision at print S0399, a decision that involves Mr Warburton's Union. In this, once again, Deputy President, this is a matter that only relates to an item 51 review, in considering the front page of the decision. At paragraph 1, in our submission that is made clear. In paragraph 2, the three awards which are being considered are set out.

PN23262

Paragraph 8 sets out the objective of the parties arising out of the review, that is to reflect the item 51 variations to each of the three awards in one consolidated award, with three schedules with the consolidated award superseding the three current awards. And at paragraph 9 her Honour states:

PN23263

I have formed the view that the spirit and intent of the award simplification process is met by adopting the parties preferred procedural outcome. To give ...(reads)... following the issue of the consolidating award.

PN23264

Now, at paragraph 10, there is reference to a matter under section 111(1)(b) and the making of a new award, but there is no reference in relation to the making of a new award, to setting aside the other two awards. In our submission, those awards are being set aside as variations under item 51. In our submission, setting aside award is a variation, so in fact would be - I withdraw that. The consolidating awards are variations so they would be breaking awards down a variation and that is a matter I will turn to in more detail in a moment.

PN23265

If I can refer the Commission then to a further decision of Marsh SDP at tab 23 a decision in the Saddlery, Leather, Canvas, Worsted Material Workers Award at print R7509 a decision given on 26 July 1999. Once again from the heading of the decision it is a matter under item 51 part 2 and that is made clear in relation to paragraph 1. It is another matter that involves Mr Warburton's union. If I could take the Commission to paragraph 4 on page three the parties have agreed to a consent position in terms of a new award and at paragraph 11 a new award was made by the Senior Deputy President.

PN23266

Finally, if I can refer the Commission to a decision of Commissioner Hingley which is found at tab 24 print S3125 a decision given on 25 February 2000. I take the Commission to paragraph 35. I don't propose to read through it but we rely on paragraphs 35 through to 38 where once again we have the Commission as part of the item 51 process consolidating a number of awards. In my submission the Commission has adopted a broadening to what is meant by a variation to an award when considering item 51 and that is demonstrated by those respective cases. That is a matter I will take the Commission to when I respond directly to Mr McAlpine's submissions.

PN23267

A further argument in support of awards on an institutional basis is the issue of award respondency and the attitude the parties are taking to that. We say that the Commission adopted the correct approach to award respondency under the Maritime Decision as it applies on an institutional level. When you adopt that approach you find that the NTU and its predecessors are capable of being respondents at some three institutions, they being the University of Adelaide, Flinders University and ANU University.

PN23268

Now we would concede that Mr Warburton's union has respondency at many more institutions than that but those unions represented by Mr Mendelssohn in these proceedings - they are the ASU and the CPSU - we say that they in fact are respondents at 49 of the institutions listed within the HEGSS Award. You will note that there are more institutions than universities. Those institutions occur at a number of colleges which were then ..... . But we say that they are certainly significant respondents to a large number of those university awards and the agreement between my client and the unions represented by Mr Mendelssohn is a matter that the Commission should take into account given that they are the dominant - between us we are the dominant parties in relation to respondency under the HEGSS Award.

PN23269

Furthermore, the evidence in relation to union membership - there is evidence of Mr McCulloch at paragraph 22329 where he puts the membership of the CPSU at some 6800 and his evidence at paragraph 21691 is that outside of Victoria the NTUs membership is some 3800. I think Mr McCulloch gave a slightly lower figure but that is probably explained on the basis that a significant period of time had elapsed between Mr McCulloch and Mr McAlpine's evidence and Mr McCulloch's evidence. And I am not suggesting that either of the witnesses should not be believed of t heir respective estimations.

PN23270

But we say that that shows that the - we say that those figures in relation to the CPSU do not include membership of the ASU. When you take into account ASU membership and CPSU membership we say that it is roughly equivalent to twice that of the NTU and that is a figure that should be taken into account, albeit we concede that Mr Warburton's union there is no evidence in these proceedings as to the size of that union although there is evidence that - sorry, I withdraw that.

PN23271

There are submissions that the union is primarily concerned with the lower levels, they being levels 3 or perhaps 4, 3, 2 and 1 where perhaps the evidence is that there's not so many employees as compared to the higher levels. But we make these submissions to say that you should take into account the dominant industrial parties agreement and both those parties wish to have institutional and/or regional awards.

PN23272

Commissioner, would it be an appropriate point to - - -

PN23273

THE SENIOR DEPUTY PRESIDENT: Yes, it would, Mr Britt. I will adjourn until half past 11.

SHORT ADJOURNMENT [11.17am]

RESUMED [11.36am]

PN23274

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Britt.

PN23275

MR BRITT: Thank you, Deputy President. One of the bases for proposing a national award is the argument that there is a national labour market. In our submission the evidence shows that in fact it is not a national labour market and it is very much a local and/or regional labour market when it comes to employment as general staff by universities. To that end, Deputy President, I would take you to tab 25 of our folder.

PN23276

At tab 25 we set out again the evidence upon which we rely concerning the labour market. As of the document I took you to yesterday, it is various extracts from cross-examinations and each of those extracts is identified by the name of the person being cross-examined, by whom they are being cross-examined and on what day they are being cross-examined and once again I hope that all of the references are to the amended paragraph numbers. I do not propose to take the Commission through this document in any detail but we do rely upon the evidence contained in this document to show that there is in fact not a national labour market.

PN23277

Finally, can I take you to the evidence of Mr McCulloch which is in fact found at the second last page of that document. Mr McCulloch is asked at paragraph 21866 by Mr Pill:

PN23278

Would you agree that the majority of general staff are recruited within the State in which the employee institution ...(reads)... I couldn't give you a specific number, no.

PN23279

We say that even the secretary of the NTEU concedes that it is not a national labour market. The majority of workers are coming from within a State. But we rely upon all of the evidence contained in that tab to support our proposition that in fact it is not a national labour market. As to whether the making of institutional awards would impede the ability of the NTEU to undertake enterprise bargaining and in that sense impede object 3G of this Act, we take the Commission to the evidence in these proceedings given by Mr McCulloch concerning the effect that institutional awards would have upon the NTEUs ability to bargain and we refer the Commission once again to our folder and tab 26 where the evidence of Mr McCulloch in cross-examination concerning this matter is set out.

PN23280

We say that that evidence when read by the Commission shows the fact that they are institutional awards would have no impact upon the NTEUs ability to bargain on behalf of its members at institutions. Deputy President, we say that the need for institutional awards is supported by the differences that exist between the universities or between the respondents to this award. We have set out in our folder at tabs 27 and 28 the evidence we rely upon to support that proposition.

PN23281

Tab 27 concerns the evidence given in-chief by a number of witnesses and if I could perhaps substitute, Deputy President, your tab 27 for a revised document.

PN23282

THE SENIOR DEPUTY PRESIDENT: In toto?

PN23283

MR BRITT: In toto, yes. Deputy President, I do not propose to take you through the document in detail in relation to tab 27 but we say that the evidence as found in tab 27 shows that there are a number of significant differences between universities and between different types of universities, be they regional universities or country universities and city universities or universities that could be classified as G8 and other universities or between universities that were former CAEs. But we say that that evidence in its totality shows considerable differences between universities and should be accepted by this Commission.

PN23284

At tab 28 we also rely upon to show that the difference - shows evidence of the differences between the respective universities. As with the previous documents we have seen in cross-examination it sets out the name of the witness being cross-examined, the date on which that cross-examination was occurring and who was cross-examining them and sets out the paragraph number. There are some 46 extracts from witness evidence in this document.

PN23285

We rely upon those extracts to show that there are a wide range of differences between the respective universities and we also in particular rely upon the cross-examination of Mr McCulloch concerning these matters which commences - - -

PN23286

THE SENIOR DEPUTY PRESIDENT: At item 43.

PN23287

MR BRITT: No, it actually commences - sorry. It actually commences at item 32. It is set out that way, Deputy President, because different people were cross-examining.

PN23288

THE SENIOR DEPUTY PRESIDENT: I see.

PN23289

MR BRITT: And it is set out in complete passages rather than with their breaks being between them, but we certainly rely upon the evidence of Mr McCulloch as demonstrating the differences that exist between universities. Finally, rely upon the document which is found at tab 29. Now, Tab 29 is based on attachment C to the evidence of Mr McCulloch which was the various reports concerning staffing profiles.

PN23290

You may recall that Mr McCulloch was cross-examined by myself concerning the respective percentages at various levels at various universities based upon the returns at schedule C. What annexure 29 sets to do is set out those respective levels as a diagram based on the percentages that are found within attachment C to Mr McCulloch's statement. In relation to those figures, looking at them again, the Commission perhaps should not have regard to series 3, University of Victoria, which is the one with the triangle which seems not to add up to 100 per cent.

PN23291

In respect to those figures they set out the percentage of employees based upon those returns in attachment C at what particular level. You will see in our submission considerable variation between universities. In relation to level 1 they vary from no employees at level 1 to ..... per cent of employees at level 1. They vary from approximately 2 per cent to 8 per cent of the staff at level 2. At level 3, from some 8 per cent of the staff through to 17 per cent of the staff at level 3. At level 4 they vary from about 15 and a half per cent to 22 and a half per cent.

PN23292

At level 5 they vary from 13 per cent to over 22 per cent. At level 6 there is considerable variation between 11 per cent almost 19 per cent. We would concede at level 7 they are relatively grouped together, there being some 2 percentage points difference and also at level 8 they run from approximately 5 and a bit to 8 per cent. Considerable variation at 9 from 1.4 per cent to 4.8 per cent and variation at level 10 from approximately 3 per cent to almost 10 per cent.

PN23293

Now, in our submission they show considerable variations between the staffing employment patterns at those six universities. We say that they show, despite the evidence of Mr McCulloch, that it is broadly similar that in fact it is not broadly similar. There is a number of institutions where level 4 is the most popular level and others where level 5 is the most popular level. There are considerable variations when you are talking at level 5 of a variation between 13 and 22 per cent, you are talking variations in terms of up to 50 per cent, dependent upon respective universities.

PN23294

So there is considerable deviation between employment at various levels based upon which institution those people are employed at and we say reflects differences in the work done at those respective institutions and supports the argument that there should be a local award rather than a national award given the differences in staffing patterns.

PN23295

THE SENIOR DEPUTY PRESIDENT: That institution which has the highest level 10 components, I am just a little puzzled by the key. Is it series 4?

PN23296

MR BRITT: I think it is, yes.

PN23297

THE SENIOR DEPUTY PRESIDENT: It is?

PN23298

MR BRITT: Yes. And we concede that that is not an institution which is covered by HEGSS but was one of the institutions which was attached to the evidence. Furthermore, even if the Commission was of a view that there was a national industry that does not justify in our submission there being a single national award. The Commission is aware that the oil industry has awards. Those awards are usually refinery specific awards. The airlines Award - I am sorry, airlines we would say is a national industry and there are airline awards and agreements.

PN23299

The steel industry we say is a national industry. There are State based awards. There are federal based awards. They do not apply across the industry. They do not apply across employers. They are industry specific awards. An industry in which the Commission is presently as constituted has more knowledge that anyone else, the coal industry, has a variety of awards. Even though we may say it is a national industry not all of the awards are national awards.

PN23300

THE SENIOR DEPUTY PRESIDENT: It did not.

PN23301

MR BRITT: Pardon?

PN23302

THE SENIOR DEPUTY PRESIDENT: It did not.

PN23303

MR BRITT: Yes. It still does not have overall national awards. The telecommunications industry, in looking at the major telecommunication providers, Telstra, Optus Vodafone, they have company specific awards. If you look at the Federal Government itself and look at the various institutions that instrumentality is ..... established by the Federal Government. There is not a single Federal Government award. There are a range of awards that cover persons in Federal Government employment.

PN23304

The mere fact that an industry can be described as a national industry in our submission is not a reason for there being one single award applying to that industry. It does not happen in other national industries. It does not happen in the cement industry. It does not happen in the motor vehicle industry. It is not a reason to have a single award in this industry. Finally, the task of the Commission in these proceedings is to simplify and award.

PN23305

In our submission the easiest way to simplify the award is to have institutional specific awards. You end up with an award that applies at the specific institution and there is no vast number of schedules attached to that award. It is an award an employee can look at. They can locate simply their rate of pay, their classification and apply it. When you compare the size of the two documents between our alternative position and our primary position one in our submission is just much simpler than the other.

PN23306

If I can return briefly to the position of the NTEU concerning respondency, that has ramifications above and beyond the NTEU. If the Commission could consider the draft order, which is our alternative position, ANU24, the Commission will note that at schedule B to that award there are a range of organisations listed. Some 12 organisations by my quick count. The NTEU proposal would see all 12 of those organisations made respondent to the award at each institution.

PN23307

THE SENIOR DEPUTY PRESIDENT: Now, just a moment - - -

PN23308

MR BRITT: This is ANU24.

PN23309

THE SENIOR DEPUTY PRESIDENT: ANU24, schedule B?

PN23310

MR BRITT: B. Page number 22.

PN23311

THE SENIOR DEPUTY PRESIDENT: Higher education worker level 9 is page 22.

PN23312

MR BRITT: If you would go over two pages, Deputy President.

PN23313

THE SENIOR DEPUTY PRESIDENT: Schedule B is classification and salaries.

PN23314

MR BRITT: I think that you may well be looking at MEREDITH32.

PN23315

THE SENIOR DEPUTY PRESIDENT: I have marked it ANU24.

PN23316

MR BRITT: Deputy President, perhaps if I could hand up another copy of the document.

PN23317

THE SENIOR DEPUTY PRESIDENT: It is a draft order and my notes indicates that is what it was handed up as.

PN23318

MR BRITT: We seem to have a different document - or those to my left seem to have a different document than the one you have got in front of you, Commissioner.

PN23319

THE SENIOR DEPUTY PRESIDENT: That I have got.

PN23320

MR BRITT: I think that is MEREDITH22, Deputy President - sorry, MEREDITH32.

PN23321

THE SENIOR DEPUTY PRESIDENT: Yes, I can see. The reason I asked the question that I could not possibly understand your reference to this is not our preferred position.

PN23322

MR BRITT: Yes.

PN23323

THE SENIOR DEPUTY PRESIDENT: And I was thinking, well, it is a pretty good position.

PN23324

MR BRITT: Have we changed over morning tea?

PN23325

THE SENIOR DEPUTY PRESIDENT: I shall mark - well, it has been marked for me.

PN23326

MR BRITT: Thank you, Deputy President.

PN23327

THE SENIOR DEPUTY PRESIDENT: That does explain my not having MEREDITH32 previously. Yes. Sorry about that, Mr Britt.

PN23328

MR BRITT: Thank you, Deputy President. If I could then take you to page 22 of ANU24.

PN23329

THE SENIOR DEPUTY PRESIDENT: Where you confidently expect I will find something.

PN23330

MR BRITT: I think Mr Pill for the document. I presume he has ..... page.

PN23331

THE SENIOR DEPUTY PRESIDENT: Yes, organisations.

PN23332

MR BRITT: The change envisaged by the NTEU at clause 4A(ii), which is the second page of the same document, would in fact see all of those, I think I said 12 organisations becoming respondents to the award at each and every institution, not just the NTEU. In our submission an award that may have had one or two respondents now finding itself with 12 respondents is not a simplification process. It is a complicating process.

PN23333

There is then also an issue concerning whether some of these universities can - some of these organisations can in fact be respondent to the award at certain institutions. I am instructed that, for instance, the ASU, does not have the ability to represent persons in universities in Western Australia under its rules but the proposal being provided by the NTEU would in fact see the ASU respondent to a university in which it does not have the rules to be a respondent to.

PN23334

If I can turn then to the submissions made by Mr McAlpine and Mr Warburton yesterday concerning the issue of whether there should be a national award or institutional awards and whether the Commission has the power to make such awards. The first argument advanced by Mr McAlpine, that there was no power to make an award under item 51, only a power to vary an award under item 51 which forms of part 2, schedule 5 of the WROLA Act. In support of that proposition Mr McAlpine referred to the decision of the High Court in Pacific Coal Pty Ltd ex parte Construction, Forestry, Mining and Energy Union.

PN23335

In relation to that decision we say that that decision is clearly over the dicta. The issue that was being considered by the High Court in that particular case can in fact be found at pages 2 and 3 of that decision. At about point 9 on page 2. Deputy President, at point 9 on page 2 the questions that the High Court is required to consider are set out. The question concerns whether certain laws are valid. It does not concern what is the meaning of particular provisions contained within part 2 of schedule 5 of the WROLA Act.

PN23336

Furthermore, on my reading of the decision no particular reference for instance is made on item 51(4) in that particular decision. There is no consideration in our submission to the meaning of item 50 or item 51. When referring to those passages their Honours are merely repeating the legislation rather than being asked to interpret the legislation and they do not in our submission attempt to interpret those provisions, nor was it appropriate for them to do so given particular questions they were concerned with.

PN23337

Thirdly, there is no consideration given by their Honours in their decision as to what is meant by vary, varying or variation of an award.

[12.02pm]

PN23338

THE SENIOR DEPUTY PRESIDENT: Just while on that point, about far removed, did your research in those which revealed those decisions of Senior Deputy President Marsh turn up the orders that were made?

PN23339

MR BRITT: No, they did not but they are perhaps a matter that I could provide the Commission by tomorrow.

PN23340

THE SENIOR DEPUTY PRESIDENT: Yes.

PN23341

MR BRITT: I cannot guarantee but I can attempt to.

PN23342

THE SENIOR DEPUTY PRESIDENT: No.

PN23343

MR BRITT: I would also in this decision refer the Commission to paragraph 193 on page 43 of the decision, to the decision or the judgment of Gummow and Hayne JJ and reference is made to primary responsibility occurring at the workplace or enterprise level and that is certainly a change envisaged by my client in these proceedings and we would say that is consistent with albeit another obiter dicta comment seen in the ..... of the WROLA Act.

PN23344

The Commission yesterday was taken to a passage at page 199 on page 44 by Mr McAlpine. It is again in the judgment of Gummow and Hayne JJ. In relation to that passage we say that deals with variations concerning allowable matters. In fact what is being sought by my client in these proceedings is not the addition of matters or changes concerning allowable matters but merely in showing that the award applies to a single employer rather than to multiple number of employees.

PN23345

But our submission is that the decision itself is not relevant to these proceedings given there is no consideration as to what is meant by item 51. No consideration was meant by varied or variation within that judgment. Now, Mr McAlpine yesterday also referred to the award simplification test case saying that it was consistent in that case that there be variations. As I have already pointed out earlier this morning, it was not argued in that case as to whether awards can in fact be made or be made in relation to specific employers arising out of a simplification process.

PN23346

Certainly we say that argument is buttressed by the passage I took the Commission to earlier on page 34 concerning multi employer awards. We say it is clear that at least the Bench implicitly was conceding that you could in fact have single employer awards arising from the award simplification test case. If I can take the Commission to the paid rates review case. Just go to tab 3 of our folder. This ..... I believe yesterday by Mr McAlpine that this case supported the principle that you could not make new awards arising from such a review.

PN23347

If I could take the Commission first of all to page 14 where the Commission again ..... considerations of items 51(4) and (5). It then sets out its decision at paragraph number 13. One of those matters which is then set out at paragraph 17, all part of consideration of item 51 review, is relativities.

PN23348

THE SENIOR DEPUTY PRESIDENT: Paragraph 17?

PN23349

MR BRITT: Page 17.

PN23350

THE SENIOR DEPUTY PRESIDENT: Page 17.

PN23351

MR BRITT: Now, if I could take the Commission to about point 4 in considering relativities and in our submission this is a consideration of relativities in the context of item 51(4) and at about point 4 the Full Bench held:

PN23352

We emphasise that this approach is directed to enterprise based awards including those in the public service. ...(reads)... for a special case.

PN23353

Now, in our submission it is implicit in that passage given it was in consideration of item 51(4) that in fact the Full Bench are in fact envisaging that arising from a review of rates of pay under item 51(4) that it is possible for the Commission to make awards and in fact we have, as we do in this particular case, an award which is not enterprise based then it may well be appropriate to create enterprise specific awards in order to implement a minimum rates adjustment principle.

PN23354

Further, in relation to the submissions concerning whether the Commission has jurisdiction, we would refer to the decisions of Commissioner Smith, Lewin, Larkin, Marsh and Hingley that we have taken the Commission to earlier this morning. In relation to the word vary where it is found in item 51 in our submission the Commission should not adopt a restricted meaning to what is meant by varied or variation as we say is sought by the NTEU and the ALHMWU.

PN23355

We say that a broad approach should be given. Varying in our submission includes varying the award by making a new award or by rescinding an old award. We say that this approach is consistent with the decision of the High Court in the R v Tonkin ex parte Federated Ship Painters and Dockers Union of Australia [1954] HCA 38; (1954) 92 CLR 526. I will provide the Commission with a copy.

PN23356

THE SENIOR DEPUTY PRESIDENT: In due course. In due course.

PN23357

MR BRITT: I am happy to get Mr Meredith to hand it over.

PN23358

THE SENIOR DEPUTY PRESIDENT: All right.

PN23359

MR BRITT: Now, first of all I apologise that this is an internet copy of the decision and I have my doubts as to whether it is a full copy of the decision. I had not been able to have access to the CLRs this morning to check that. I do so on the basis of saying that it does not appear to be the judgment of a number of the judges other than it says that the following judgment of the court. Perhaps it is implicit in that that they all agreed.

PN23360

Now, if I can then take the Commission to the second page. In the third line Dixon CJ held:

PN23361

The word vary is one which no doubt in different context may have different meanings. In section 49 -

PN23362

And that is a reference to 49 of the former Conciliation and Arbitration Act -

PN23363

there is a distinction drawn between setting aside an award or any of the terms of an award and varying the ...(reads)... qualification or otherwise.

PN23364

And I end the quote there. Now, we say when you look at exhibit MEREDITH32, which is now a draft order in these proceedings, the Commission is in fact varying the award. It is modifying the HEGSS Award by creating the University of Technology Sydney General Staff Interim Award 2001. It is doing it by substitution. It is also qualifying that award and it is varying in the use of the words or otherwise.

PN23365

In our submission the High Court has given a very broad meaning to the word variation and a consequent broad meaning we would say to the word vary. The impact we say of MEREDITH32 is to vary the award by making a new award and that we say falls within what was recognised by the High Court in Tonkin's case. Finally, if the Commission is against us in relation to the terms of item 51 we say that places into jeopardy the process which has been put in place in respect to conditions awards. The mere fact they may well have been agreed does not give the Commission jurisdiction to make such awards.

PN23366

Finally we say the Commission does in fact have jurisdiction to make the awards even if a restricted meaning is given to the word vary. It has jurisdiction we say under section 111 of the Act. We say it has jurisdiction under 111 because of the extension given to the meaning of the phrase industrial dispute under section 111(2). The Commission may recall that in fact this was the matter or one of the matters that the Commission had to consider in the second Maritime College decision as to whether section 111 applied to the Commission's jurisdiction under item 51.

PN23367

THE SENIOR DEPUTY PRESIDENT: Or as I prefer, to put it under the WROLA Act.

PN23368

MR BRITT: Under the WROLA Act, yes. The Commission will recall that the parties I represent pressed for a narrow meaning to be given to section 111 and the Commission was against us on that point. The Commission formed the view, and this is at tab 11, page 3 of our folder, at about point 5 on page 3:

PN23369

The next question raised as a consideration is whether or not the decision in question is a proceeding before the ...(reads)... is made available.

PN23370

The Commission then considers the decision in Australian Railway Commission v Ruptions and the Commission formed the view, this is at page 4:

PN23371

From this I deduce that section 111(2) is to be interpreted broadly.

PN23372

The Commission then went on to hold at about point 6:

PN23373

I therefore hold that the NTEU can make the application which is under section 111(1)(f). I therefore consider the merits of the application.

PN23374

In our submission the Commission should adopt a similar approach to these proceedings. Rather than rely upon section 111(1)(f) we rely upon section 111(1)(b) which gives the Commission the power to make an award or order in relation to any matters in dispute, including the provisional award or order for an interim award or order. In our submission if the Commission should find in the alternative, that if does not have jurisdiction under item 51(4) simpliciter it does in fact have jurisdiction under section 111(1)(b) because section 111(2) applies.

PN23375

Of course the Commission would also recall that there was issue of summonses in these proceedings which are also issued under section 111. So we would say that section 111 does still have work to do. The Commission therefore does have the power to make an award or order. Now, the issue is this as a matter in dispute, we say going back to the decision of Commissioner Lewin this is a matter which has been very much alive in these proceedings. It was a matter that was ventilated before Commissioner Smith and it is a matter which is very much alive both in the submissions of my client both in opening and also in the material filed and is very much a matter in dispute in relation to the material filed by Mr Sandler's client.

PN23376

So we say that it is clearly a matter in dispute and we say that the Commission does in fact have jurisdiction under section 111(1)(b) even if it was not to find jurisdiction under item 51. Furthermore, we say the Commission does in fact have jurisdiction to grant institutional awards under section 33 on its own motion, utilising the power under section 111. It is one of those cases where a few weeks ago we were arguing one thing to oppose it. We accept the decision of the Commission. It was a very wise decision and we adopt it in its entirety.

PN23377

On that basis we say the Commission clearly does have jurisdiction under 111(1) and under section 33 to act on its own motion. A number of matters were then put in relation to the merits argument by Mr McAlpine and Mr Warburton. One of them is they should maintain the status quo unless we can convince the Commission otherwise. In relation to that we refer to our earlier submissions. We submit that they do provide a basis and a significant basis for making institutional or regional awards rather than a national award.

PN23378

The second argument advanced by Mr McAlpine was, well, there was an agreement. In relation to that we would say, well, yes, there was an agreement, that agreement was 10 years ago and was prior to the introduction of enterprise bargaining. It was prior to the 1996 Act. The agreement itself, an that is where Mr McAlpine referred to - it is set out in tab 3 of the agreed chronology document. At page 2, in the first paragraph, it is set out that the ACTU and AHEIA have agreed to a new classification structure which would applied nationally.

PN23379

In relation to that our primary position has not resiled from the terms of that agreement. We say that in relation to the classification levels albeit the agreement provided for 9, we have not insisted upon there being 9. We are happy to agree to 10. The agreement at page 3 provides that -

PN23380

It is agreed that these descriptions will be the primary reference point for determining the appropriate ...(reads).... relevant awards.

PN23381

In our submission we continue to agree to that. If I can take you then to attachment D to that document which sets out an information paper on Higher Education General Staff Award Restructuring. This unfortunately is another one of those documents which is not paged numbered.

PN23382

THE SENIOR DEPUTY PRESIDENT: Paged, yes, but I do have it.

PN23383

MR BRITT: The second paragraph sets out what was agreed and that provides, and I quote:

PN23384

It was agreed that there would be a move towards federal regulation and that all award restructuring ...(reads)... State Commissions.

PN23385

And I end the quote there. It does not say that there will be a single federal award. What it does say is there will be a move towards federal regulation. My client is not seeking to move away from federal regulation. What it is seeking to do is have federal regulation at an institutional or regional basis and in that sense we are still honouring the commitment that we gave some 11 and a half years ago.

PN23386

It was advanced by Mr McAlpine that the strongest argument for ..... presume his jurisdictional argument, for retaining the single structure is that the relativities and the classification structures are staying the same and it is freely conceded that the classification descriptors are staying the same and that has been agreed. However, the Commission would not when it looks at MEREDITH33, and I do not propose to take the Commission to it, there is in fact a range of rates, albeit close, and in some cases mirroring each other, but across the industry there are differences between the rates of pay and that justifies in our submission the making of individual awards.

PN23387

You will also note, Deputy President, that they do not all have the same number of incremental points, which is another reason which shows differences and it is another matter to support, we say, institutional or regional awards over a general award. Mr McAlpine and Mr Warburton relied upon the objects of the Act. I have taken the Commission already to section 3, sections 88 and 88B. We say that those objects can be viewed, in any legitimate fashion, support the making of institutional awards over the making of an industry specific award.

PN23388

Now, it was submitted by Mr McAlpine and also by Mr Warburton that the making of institutional awards would somehow impede the operation of the unions when it came to dealing with those awards, or would somehow be more difficult for the unions. Well, the first submission that I would make is that there is no evidence to support that. Secondly, it is clearly a submission from the bar table. Thirdly, if you look at the number of awards that Mr Warburton's union is respondent to a further 30 is going to be an insignificant number of awards.

PN23389

Finally, when you look at the evidence of Mr McCulloch, all these enterprise agreements have not provided any sort of impediment or barrier and he said that in our submission that it would not provide, if there was a multiplicity of awards, it would not provide a further impediment and we have set that evidence out in the folder. In our submission there is nothing to stop the unions operating effectively if it was a multiplicity of awards. It was also suggested that somehow it would make the union, more difficult for the unions to run work value cases.

PN23390

Well, in fact in our submission it would not. It would enable the unions to concentrate upon a particular university and address work value issues at that university and changing the work value at that university and would be of assistance to the unions rather than impediment. Finally, of course in relation to the NTEU they are respondent to three, in our submission, to three organisation - or three respondents. If it is going to be that difficult for them they do not have to become respondents to the other awards if they do not think they can handle the workload.

[12.28pm]

PN23391

THE SENIOR DEPUTY PRESIDENT: Your consideration plus, Mr Britt.

PN23392

MR BRITT: Thank you. Another ground of that by the NTEU was the reasoning was not made clear to them. Well, simply put that is not a proper ground why the employers may want individual awards and not providing some sort of list of reasons to the NTEU, Mr McAlpine, is just not a ground for not making those awards. The evidence in these proceedings shows the differences. We have not hidden the fact that we want to have institutional awards.

PN23393

The making of institutional awards is in fact in perfect accord with sections 88A, 88B and sections 3 of the Act. Finally - sorry, I withdraw that, there are two further arguments advanced by Mr McAlpine. One was the fact that there were federal awards applying across institutions for other staff members. We say that is simply irrelevant as to whether these staff members there should be one award applying across the industry, that there is somehow the national superannuation scheme and the fact that there is such a scheme is advanced as some reason for having a national award, well, that does not hold up in other industries and other sectors and it should not hold up in this industry and this sector.

PN23394

Finally, it is advanced by Mr McAlpine on behalf of the NTEU the decision of his Honour Deputy President Williams in the section 118 award coverage ..... well, simply that was not a matter of which many of the parties at this bar table were present. Two, it is not a matter that goes to whether there should be individual awards or a national award. It is not a matter that should be considered by this Commission.

PN23395

The mere fact that there is a national union and an industry that operates nationally is not a sufficient reason for there to be a national award in oil, coal, telecommunications, steel, motor vehicles, timber, concrete, clerical, insurance, and it should not be a reason here. Furthermore, there are significant differences between various employees and they are set out in the folder at tab 27 and 8 and I do not intend to take the Commission through them again.

PN23396

Once again Mr Warburton referred to the additional administrative burden that would arise as a result of these awards. Well, we think given the number of awards ..... respondent to the addition is insignificant and once again there is no evidence in these proceedings to support that proposition. In our submission the Commission does in fact have the jurisdiction to both vary and make awards under the item 51 proceedings, that the Commission when considering the evidence should determine that the appropriate for industrial regulation in this industry is the making of institutional awards as sought in MEREDITH32. They are our submissions unless the Commission has any further questions.

PN23397

THE SENIOR DEPUTY PRESIDENT: Very well. No, I do not, Mr Britt. Thank you. Yes, Mr Mendelssohn.

PN23398

MR MENDELSSOHN: Thank you, your Honour. I am not going to be overly repetitive of submissions made by other parties. The CPSU and the ASU are amongst the parties which subscribe to the agreed position other than for UNSW and on the issue that is still left open for arbitration amongst those parties, the issue of whether there should be a national salaries award with approximately 29 institutional schedules or whether there should be institutional awards, the parties I represent agree with the position adopted by Mr Britt's client, namely, that there should be institutional awards.

PN23399

With respect - I withdraw that. I will emphasise some of the points that we think are particularly important without going to them in detail because other parties have more than adequately covered them, but there are - and now starting to wonder whether with the number of documents that have been handed up whether in fact any more are more of a hindrance than a help. Nevertheless there will be unfortunately more, but there are this stage two documents I would - when I say, there is one other document I would like to hand up at the outset and that is an index of evidence - and I think I have enough for everybody - an index of witness evidence going to the development and implementation of the DWM structure.

PN23400

THE SENIOR DEPUTY PRESIDENT: I see. I will mark that document.

EXHIBIT #CPSU12 INDEX OF WITNESS EVIDENCE GOING TO THE DEVELOPMENT AND IMPLEMENTATION OF THE DWM STRUCTURE

PN23401

MR MENDELSSOHN: Thank you, your Honour. What I have done in that document is simply referred to the relevant paragraphs of witness statements or the relevant paragraph numbers in the transcript and it is under - it goes to the evidence relating to translation of staff from the old classifications and the implementation of the new structure and then to evidence concerning the development and implementation of the new structure.

PN23402

That is to say the negotiations that took place between the parties leading to the new structure as distinct from its implementation in particular institutions and also evidence which supports a level 3.1 rate slightly higher than an exact C10 equivalent and particularly I have highlighted some of the evidence which goes to absorption of allowances. It should be said, your Honour, that the evidence before the Commission does not disclose that the leading hand allowance was absorbed at all institutions across the country. It was absorbed at many but not absorbed at all.

PN23403

But I submit that what the evidence does disclose, that absorption of allowances of one kind or another was a general phenomenon, and finally, evidence which goes to the fact of work value being examined in the implementation of the new structure. That is to say that employees were not simply transferred across to the nearest salary equivalent, although that was what happened in some institutions as an interim step, but that there was an - in fully implementing the new structure there was an examination of the value of the work of individual employees at institutions and I have pointed to the evidence there.

PN23404

Obviously I am not going to take your Honour to the particular places in the transcript here and now but I simply offer that as an index of relevant evidence which - a number of the passages that I refer to there have been referred to by other advocates and who have taken your Honour to those passages, but I think that what I have put here is a fairly comprehensive index of where the relevant evidence is in relation to those matters.

PN23405

On those matters I concur and adopt the submissions made by Mr Pill, Mr Moorhouse and Mr Britt and I also concur and adopt the submissions of Mr McAlpine in relation to the relevant principles, other than his construction of item 51(4) in relation to whether there is jurisdiction to make institutional awards and other than on that particular issue the submissions of Mr Warburton, particularly in relation to his observations on the appropriateness of the Higher Education Workers Victoria Award rates.

PN23406

But what in my submission the evidence shows is that, first of all, that the classification structure found in the instruments which were incorporated into the HEGSS Award at the time it was made are now obsolete and they have long ceased to be applied on the ground because they were abolished when the DWM structure was implemented and your Honour has been taken to the evidence in relation to that.

PN23407

It necessarily follows from that that those classification structures are incapable of acting as a safety net of fair minimum wages and conditions, as required by section 88A(b) of the Act. The Workplace Relations Act that is. Therefore the exercise is simply updating those rates or trying to assess those rates in terms of whether they are - what the appropriate minimum rates are with the existing classification structures and rates in an exercise which it would simply be pointless for the Commission to attempt to engage in.

PN23408

The parties I represent also say that the development of the DWM structure was in fulfilment of the requirements of the structural efficiency principle and was the basis on which the Commission awarded the first and second structural efficiency principle increases and there is evidence of that and we say your Honour has been taken to relevant decisions of the Commission at the time. I might say - I should have said this at the outset, your Honour, that I rely on the submissions I made at the beginning. I rely on my opening submissions in this matter, except - I withdraw that.

PN23409

I withdraw on - I withdraw that. I rely on my opening submissions which are found at paragraphs paragraph number 388 to 520 of the transcript, except what I said in paragraph numbers 484 to 491 because what I said there goes to matters which are no longer relevant, namely, the NTEU/LHMU draft order. But I am in the position, your Honour, that I can rely on everything I said in my opening submissions apart from those matters which are no longer relevant.

PN23410

THE SENIOR DEPUTY PRESIDENT: It must have been a very wisely constructed opening submission. It did not happen to me very often.

PN23411

MR MENDELSSOHN: That is why perhaps because it is unusual for parties to be in that position I make the point. I will continue from where I was before, your Honour. The rates applied to the DWM structure when it was implemented were developed by comparison of a wide range of rates for comparable areas of work including minimum rates awards and your Honour has been taken by Mr Pill and others to the relevant passages in the DWM report and that is examination identified at level 3.1 is the pay point in the new structure correspondent most closely to the C10 level in the metals award and the rates struck at each institution for level 3.1 were no more than a few hundred dollars greater than the annualised C10 rate at the time.

PN23412

The parties I represent say that this slightly higher rate for level 3.1 is justified when one considers two factors. The first is that in the descriptor for level 3.1 it states that this is the first level at which an employee may be required to supervise other staff and while in practice that may not be common, it nevertheless is part of the descriptor and therefore in principle any employee employed at level 3.1 may be required to supervise other staff. We say that has to be worth something in terms of assessing the proper rate for level 3.1 in comparison with the C10 in the metals award.

PN23413

The other factor which we say is significant is the absorption of allowances into the level 3.1 rate where those allowances would continue to be paid separately to employees under the metals award.

PN23414

THE SENIOR DEPUTY PRESIDENT: Is that a useful point? Does it not raise the spectre of unbundling rates which is a feature of some paid rate demolition exercises?

PN23415

MR MENDELSSOHN: Well, I was going to take your Honour and this may answer the question or it may not, but if it does not if your Honour could indicate I will address it further. But your Honour has already been taken to a decision of his Honour Ross VP in the Industrial Catering, Cleaning and Incidental Services (AWU and LHMU) Award 1988 in print S5616 and I believe a copy was handed up yesterday.

PN23416

THE SENIOR DEPUTY PRESIDENT: Yes, I need to get a line on where it came from. It is not in the big book.

PN23417

MR MENDELSSOHN: It is not in the AHEIA folder to my knowledge. I think it came from Mr Moorhouse.

PN23418

THE SENIOR DEPUTY PRESIDENT: Industrial Catering, Cleaning and Incidental Services (AWU and LHMU) Award 1988, print S5616. Yes, I have it.

PN23419

MR MENDELSSOHN: Yes, and at paragraphs 53 and 54 of that decision which are on page 17 of the internet copy if that is what your Honour has.

PN23420

THE SENIOR DEPUTY PRESIDENT: Yes.

PN23421

MR MENDELSSOHN: Yes, paragraphs 53 and 54.

PN23422

THE SENIOR DEPUTY PRESIDENT: The internet copy does not have the numbered paragraphs. How does it begin, Mr Mendelssohn?

PN23423

MR MENDELSSOHN: Sorry?

PN23424

THE SENIOR DEPUTY PRESIDENT: How does the paragraph begin?

PN23425

MR MENDELSSOHN: It begins:

PN23426

The second thing which has led me to reject the employers approach.

PN23427

THE SENIOR DEPUTY PRESIDENT: I have it.

PN23428

MR MENDELSSOHN: And if I may continue with that quote:

PN23429

relates to matters which were comprehended within the rates of pay in the award when it was originally made.

PN23430

And his Honour then quotes from the decision of Commissioner Lang when the award was made, and if I may quote from the last sentence in that citation:

PN23431

As well the proposed wage levels absorb allowances previously made as separate payments, including those for split shifts and toilet cleaning.

PN23432

I end the quote there. And on that basis his Honour rejected the employers approach in - - -

PN23433

THE SENIOR DEPUTY PRESIDENT: Attacking the rate on that basis.

PN23434

MR MENDELSSOHN: Yes.

PN23435

THE SENIOR DEPUTY PRESIDENT: Or the opposite.

PN23436

MR MENDELSSOHN: And so - - -

PN23437

THE SENIOR DEPUTY PRESIDENT: That seems to be clear enough as far as my point is concerned.

PN23438

MR MENDELSSOHN: Thank you, your Honour. I will be coming back to that decision for another point later on, your Honour. Now, that also in my submission, your Honour, is a serious problem with the rates in the Higher Education Worker Victoria's current award as to whether they are in fact properly fixed minimum rates. In my submission it is at least seriously arguable that the rates in that award are below properly fixed minima because the level 3.1 rate in that award is from my recollection almost an annualisation of the C10 rate.

PN23439

It is very slightly above but is only $100 or so from recollection above the annualised C10 rate at the relevant time.

PN23440

THE SENIOR DEPUTY PRESIDENT: And the same thing happened there, allowances were absorbed and - - -

PN23441

MR MENDELSSOHN: I believe that is the case.

PN23442

THE SENIOR DEPUTY PRESIDENT: Yes.

PN23443

MR MENDELSSOHN: But certainly whether or not that was the case in Victoria it clearly was the case in institutions under the HEGSS Award and it would therefore make the Higher Education Worker Victoria Award rates inappropriate as, in my submission, as appropriate rates for institutions under the HEGSS Award. Another matter which I want to make some additional submissions on other than the submissions with which I have adopted that other advocates have made is in relation to the item 15 issue in the terms of item 15 of the paid rates review decision where the Full Bench at print Q7661 said:

PN23444

Variation of awards to reflect the terms of an expired agreement is inconsistent with the safety net character of the award system.

PN23445

And further to submissions which have already been made on that issue, it is my submission that this principle has application to a situation and is directed to a situation where an agreement has been certified as a result of the enterprise bargaining process to reflect the appropriate rates and conditions to apply to a particular workplace in the economic circumstances pertaining at the time and where that agreement subsequently expires and the parties then seek to incorporate terms from that agreement into the award.

PN23446

In my submission such a variation would be inconsistent with the safety net character of the award system because the terms of the agreement were not intended to act as a safety net and in fact did not act as a safety net but were based, amongst other reasons, on the capacity of the employer to grant those terms at the times of making the agreement and that is the sort of situation which in my submission the Full Bench in the paid rates review decision were directing that statement in item 15.

PN23447

But in our submission, and your Honour has been taken to voluminous evidence to this effect, what happened in the case of the HEGSS Award was that the rates to apply at each institution were struck by the parties as a result of carrying out the requirements of the structural efficiency principle in a manner which is also consistent with the requirements of the minimum rates adjustment principle and that is what the parties from approximately 1990/91 through to 1993/94 were engaged in doing and at all times the evidence discloses the parties intended to incorporate the results of this activity into an award, but because of the problem of what form the award should take in that the employer parties at the time were seeking a minimum rates award and the union parties at the time sought to maintain the award as a paid rates award, there was an impasse as to what form the award should take and to, as it were, break the gordian knot in relation to that and enable the matters to progress.

PN23448

Until that matter could be resolved the results of the SEP exercise were incorporated into the certified agreements and unfortunately the parties then were not able to finalise the award issue and your Honour might recall Mr McAlpine in his witness statement used the word velleity which Mr McAlpine defined as having the will to do something but not sufficient will to actually make it happen.

PN23449

I am not sure that I fully agree with Mr McAlpine in that respect in that there were as I understand it a number of attempts made to address the issue but they were not able to get sufficient support from all of the parties and it is really the requirements of the item 51 review which have forced the parties to come back to it and actually do something about it. But that in my submission is the significant difference between the circumstance that the Full Bench in the paid rates review decision were seeking to avoid and the circumstances in the matter now before your Honour.

[12.55pm]

PN23450

With respect to the agreement between the parties other than the University of New South Wales that there be a review of the descriptors. The parties I represent support that. In my opening submissions I said that we regard the descriptors as imperfect although adequate for the purpose, but we did acknowledge at the outset that we do see them as imperfect, as we would see any set of descriptors as being. But in my submission there was enough that emerged in evidence, particularly in Mr McAlpine's and Mr Warburton's cross-examination of a number of the employer witnesses to indicate that at least a review is appropriate within the parameters set out in exhibit ANU23.

PN23451

The parties I represent are quite prepared to participate in such a review and consider any appropriate modifications that may be proposed.

PN23452

THE SENIOR DEPUTY PRESIDENT: Are you going on to another point.

PN23453

MR MENDELSSOHN: I will be and at some length, your Honour.

PN23454

THE SENIOR DEPUTY PRESIDENT: In that case I will adjourn until 2 o'clock.

LUNCHEON ADJOURNMENT [12.57pm]

RESUMED [2.07pm]

PN23455

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Mendelssohn.

PN23456

MR MENDELSSOHN: Thank you, your Honour. I now turn to the point and which a number of the previous advocates have suggested, I am going to make extensive submissions, but because of their own submissions my submissions will not be nearly as extensive as they otherwise might have been and Mr Pill and Mr Moorhouse and Mr Britt have considerably reduced my workload in that regard and in particular Mr Britt took your Honour to a number of passages of evidence going to the establishment of a work value basis for incremental progression or pay point progression within a classification level.

PN23457

Similarly to my earlier document I also have a document - well, actually there are two documents I would hand up at the moment. The first is an index of witness evidence in support of pay point progression within a classification level and the other is a list of authorities I have been able to locate of this Commission relevant to pay point progression, after the - or subsequent to the paid rates review decision.

PN23458

THE SENIOR DEPUTY PRESIDENT: Very well.

EXHIBIT #CPSU13 INDEX OF EVIDENCE DEALING WITH PAY POINT PROGRESSION WITHIN A CLASSIFICATION LEVEL

EXHIBIT #CPSU14 LIST OF AUTHORITIES RELEVANT TO PAY POINT PROGRESSION

PN23459

MR MENDELSSOHN: Again, your Honour, as with exhibit CPSU12, I do not propose to take your Honour in detail to the passages of evidence referred to but it rather points to where the evidence is and that is both evidence in-chief in witness statements as well as in transcript and there are more passages referred to there than the extracts in that to which Mr Britt referred your Honour in the AHEIA folder. With respect to the authorities, I handed up all but the last two, the decision of Senior Deputy President Marsh and the order of Senior Deputy President Marsh in relation to the Australian Broadcasting Corporation Journalist and Reporters Conditions of Employment Interim Award.

PN23460

I handed up all the other authorities during my opening submissions. I regret that I did not make copies of the decision and order of Marsh SDP. I can supply those in due course if - - -

PN23461

THE SENIOR DEPUTY PRESIDENT: Well, we can get those too.

PN23462

MR MENDELSSOHN: Thank you, your Honour, I appreciate that. That was an oversight on my part. I should have had copies to hand up. Now, the other advocates have taken your Honour to the relevant passages in the paid rates review decision and it is my submission that if one has regard to the evidence and also the terms of the progression clause in the draft order, which is clause 7 in exhibit ANU24 and also clause 7 in exhibit MEREDITH31, that there is a proper basis in terms of the requirements of the paid rates review decision to insert pay points within each classification level on the basis of work value, that is pursuant to the relevant work value principle as it stands in the wage fixation principles at the moment.

PN23463

The work value as it is in force at the moment, and this has been unchanged for at least a decade or for more than a decade, requires that the change in the nature of the work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification. The evidence which is found - or which is pointed to in exhibit CPSU13 shows that there is evidence from a significant number both of employer witnesses and union witnesses to establish that the great majority of general staff positions, in fact all but perhaps a handful of general staff positions, of what the witness from the University of Technology Sydney, Mr Peter Fox, referred to as the boom gate operators type of which there are now very, very few in the system, that apart from the handful of those sorts of positions still remaining most general staff positions require more than one year and usually three or four years to perform to the maximum effectiveness.

PN23464

Obviously that increases as the level of the positions increase. But even at lower levels, in my submission, the witness evidence establishes that there is a basis - that year by year, at least for some years, employees acquire skills which the employer requires them to utilise in the position. However, the insertion of a scale into each classification level is a much more flexible and efficient device than establishing a separate and discrete classification level to reflect each skill level and in my submission the insertion of such a scale into each classification level is more suited to the efficient performance of work according to the needs of universities workplaces or enterprise, to paraphrase section 88A(c).

PN23465

Or to put it in another way, in my submission it would be contrary to the evidence in this matter to fix only one salary point for each classification level, that the evidence from both employer and witnesses and members of general staff called as witnesses by the various unions indicates that the nature of the work is such that it cannot be comprehended properly within a single pay point for each classification.

PN23466

Even though in exhibit CPSU13 I do not refer to the evidence of the general staff witnesses called by the NTEU except for those that I directly cross-examined in relation to this issue I submit that their evidence generally to the extent that they talked about the jobs that they do and the range of duties they perform, even though it may not have established what the NTEU set out to establish by it, it does establish that general staff work in universities requires a range of skills to be utilised and a complexity that can only be fully mastered after at least, generally two to three years in the job and that applies even to lower level positions and I refer to the - rely on the evidence of the LHMU witnesses generally as to the varied duties they perform and particularly the need in order for them to perform to the maximum effectiveness to get to know the university environment and get to know the particular university in which they are working.

PN23467

So in my submission the evidence clearly indicates a work value basis for pay point progression within each level and the proposed clause which is found at clause 7 of the draft order which represents the minimal agreed position of all parties other than the University of New South Wales and is also the draft clause in the exhibit which indicates the preferred position of the AHEIA and the unions that I represent will fulfil the requirements of the paid rates review decision.

PN23468

I would submit in fact, your Honour, that it is more stringent and more precise and more explicit in its requirements than some of the other incremental progression clauses that have been inserted by members of this Commission post the paid rates review decision including the clause inserted into the nurses award by a Full Bench of this Commission in print R9289. If one - - -

PN23469

THE SENIOR DEPUTY PRESIDENT: It has already been referred to.

PN23470

MR MENDELSSOHN: Yes, and in my submission, your Honour, if one compares the two incremental progression clauses the one proposed in these proceedings is more stringent, more precise and more explicit in its requirements as to how employees must attain increased skills and be utilising those skills before they become eligible for progression to the next pay point within the level.

PN23471

THE SENIOR DEPUTY PRESIDENT: Yes, I know exactly what you mean.

PN23472

MR MENDELSSOHN: The other matter I wish to address - sorry, I withdraw that. I did in my opening submissions and I do this more for the sake of completeness or as a backup rather than as my primary submission, I did in my opening submissions refer to a number of judgments of the New South Wales Industrial Relations Commission in relation to the way in which increments find their way into State awards in New South Wales and this is against the background that something like half the New South Wales State instruments incorporated into the HEGSS Award either are salaries awards containing increments or have in them salaries clauses containing increments and regardless of the actual number of instruments.

PN23473

The great majority of employees of universities in New South Wales were employed under awards containing increments or under salary scales derived from the New South Wales public service which contained incremental scales inserted in accordance with the principles of the New South Wales Industrial Commission. As things have gone this may not really go very far but I have prepared just a digest of the relevant authorities which go to illustrate at least as far as the New South Wales instruments are concerned and there are approximately a third of the institutions under the HEGSS Award are in New South Wales and so we are talking about a very significant number of employees employed under the HEGSS Award, so I would seek to hand that up simply for the sake of completeness, your Honour.

EXHIBIT #CPSU15 COMPENDIUM OF NSW AWARDS

PN23474

MR MENDELSSOHN: Thank you, your Honour. That really only goes to the point that at least for a significant number of employees under the HEGSS Award increments were inserted into the underlying awards which apply to them pursuant to the work value principles in force in the New South Wales Commission at the relevant time. It does not go any further than that, your Honour, and I do not press the point any further than that.

PN23475

I finally wish to address the issue of whether salaries and classifications can be placed into institutional or regional awards or whether in fact they can, having regard to the jurisdictional arguments raised by Mr McAlpine and Mr Warburton, be so treated or whether they either must or should be retained in a national salaries award. In general with a few minor variations I concur with and adopt the submissions of Mr Britt in that regard. There are a couple of matters in which I do not go all the way with Mr Britt and that there are a few additional points I wish to make.

PN23476

One minor point is that in relation to the evidence of Mr McCulloch about the membership of the CPSU, Mr McCulloch was forced to concede under the cross-examination that he - or in the course of my cross-examination that his estimate of the CPSUs membership was in fact a guess and he did not really know what it was. Also I would concede that perhaps Mr Britt was making a little too light of the points that Mr McAlpine and Mr Warburton were making as to how they perceived the onerous of multiplicity of awards as it would affect them.

PN23477

I do not share their concern but on the other hand I would not seek to make the point as strongly as Mr Britt did. I do however concur with Mr Britt in his submissions relating to the High Court judgment in Pacific Coal that that case is simply not in point because the High Court in that case were required to consider the validity of the provisions in question, including item 51, and were not called upon and therefore did not construe those provisions or interpret them or say how they should be applied.

PN23478

So while the Justices might have cited or paraphrased provisions which might have included the words vary or variation they were not interpreting those words because that was not what that case was about. It was a challenge to the actual validity of the provisions. Further to that, it is now a generally accepted principle of statutory interpretation that in construing the terms of the statute that construction should be adopted which will as far as possible give effect to the legislative intention and that is in fact a requirement of section 15AA of the Acts Interpretation Acts of the Commonwealth.

PN23479

I cannot recall I have to say, your Honour, whether that only applies to courts established under Commonwealth legislation or whether it also extends to this Commission, but even if it does not extend to this Commission in my submission that is the principle that should be adopted. It is clearly one of the legislative intentions of item 51 that awards should have removed from them those matters which are no longer allowable since section 89A can only operate prospectively. But that is not the only legislative intention.

PN23480

It is also clear in my submission that the legislative intention is to produce awards which are expressed in plain English, are clear as to their structure and content and can be readily used by employees to establish what their award safety net is. That was a matter that was - or part of the intention of item 51 that Commissioner Lewin specifically drew attention to in the decision to which Mr Britt took your Honour in print R2495 where at page 4 of the decision Commissioner Lewin quotes that part of item 51, namely, paragraph 7C, that the award should be expressed in plain English and is easy to understand both in structure and content.

PN23481

In order to give effect to that, in my submission a national award is incapable of achieving that requirement. If your Honour accepts the submissions made on behalf of the unions and the majority of the employers in regard to the appropriate rates which would require if the award is to be retained as a national award something like 29 institutional schedules, in my submission this is not giving proper effect to the legislative intention in enacting item 51.

PN23482

Furthermore, if Mr McAlpine's submission is correct, that means and I think Mr Britt has already alluded to this, that means that the interim conditions awards already made were not validly made, because as Mr Britt in slightly different words said, if the Commission lacks jurisdiction the consent of the parties cannot confer jurisdiction on the Commission. So if Mr McAlpine is correct, what then happens to those awards? And that would also mean that rather than as a consequence of the item 51 review the conditions being incorporated into institutional awards one would have to have something like 29 institutional condition schedules to the HEGSS Award and how that would be a simplified award conforming to the requirements of item 51 is frankly beyond me, your Honour, because it would simply not fulfil the requirement of being easy to understand both in structure and content.

PN23483

So if one is to give proper effect to the legislative intention in item 51, not just to remove non allowable matters but to produce simplified and in the common parlance nowadays, user friendly awards, necessarily in my submission that would have to be way of placing both salaries and conditions in institutional or regional awards.

[2.32pm]

PN23484

Mr McAlpine's attempt to persuade your Honour to adopt a very literal in the narrow sense interpretation should in my submission be declined on that basis. Unless there are any other matters your Honour wishes to hear from me those are my submissions.

PN23485

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you, Mr Mendelssohn.

PN23486

MR SANDLER: It is me, your Honour. That side of the table which has been referred to like Brutus in the speech of Anthony, he said nobody said I was honourable but I am sure it was implied.

PN23487

THE SENIOR DEPUTY PRESIDENT: It could be called the exceptional end, Mr Sandler.

PN23488

MR SANDLER: Exactly. Well, contrary to popular belief perhaps my client is. There are a number of areas agreement even though what we are seeking is different to the agreed position which has been put by the remaining parties incorporating whatever differences they have. Just by way of introduction a few remarks, your Honour. Obviously the Commission has the task of simplifying the HEGSS Award under item 51.

PN23489

The HEGSS Award, your Honour, is a unique award I would submit and the uniqueness of that award is probably best captured by Commissioner Lewin way back in February 1999 before he escaped. That is how it appears to me in any event. But on the first page by way of introduction, and that is at tab - it is probably easier to refer to MEREDITH23. I think that decision is at tab 18 of MEREDITH23.

PN23490

THE SENIOR DEPUTY PRESIDENT: Yes.

PN23491

MR SANDLER: I would submit that the remarks of Commissioner Lewin in the introduction those remarks are quite important and pertinent to what the Commission is faced with in this matter. Just to quote briefly Commissioner Lewin said the following in the third paragraph:

PN23492

The HEGSS Award is a broad and complex application to non academic employment in the tertiary sector. It ...(reads)... persons bound by it.

PN23493

Those remarks were made in 1999 and I would submit to you that those remarks are extremely pertinent today in the task that is facing the Commission. There is I would submit a real question as to whether the HEGSS Award is capable of simplification pursuant to the paid rates review in the conventional sense because we are not dealing with a conventional award here. There is not, as in the paid rates review, and I believe that is what the Full Bench had in mind, your conventional award with one set of rates, various classifications and terms and conditions common to all parties.

PN23494

This is an aspect that I will develop later in the submission. So the Commission is faced, I would submit, with an unconventional award. The proceedings before the Commission have been extensive. The evidence has been voluminous. We have reached a point where the parties have exhausted all their evidence and perhaps themselves in the process. But we would submit that everything that there is to say about the simplification of the award has been said. If there is anything out there, and we hope there is not, but if there is anything out there it should remain out there. This is it we would say and it has been a full on exercise.

PN23495

At the commencement of these proceedings the University of New South Wales made a number of claims which I must just take you to and the relevant aspects of our submissions regarding what emerge as we predicted it. Firstly we said that our evidence would demonstrate firstly that there is no national industry which general staff fall into and that universities even in general staff are diverse and that the University of New South Wales is different to other universities insofar as general staff are concerned.

PN23496

Well, I will demonstrate that we have gone - we have established that not only through our evidence but through the evidence of numerous parties to these proceedings. We also in submissions said that there were differences between the work performed by general staff at the University of New South Wales and the work performed by general staff at other universities and I would submit that we established that as well.

PN23497

We also submitted that an updated HEWV Award incorporating safety net increases represents properly fixed minimum rates award and is consistent with the decisions of the Full Bench in the various matters which is why we adopted that particular structure and I will elaborate on that and develop that during the course of the submissions. You have heard over the past day and a half what is called the agreed position, although within the agreed position there is some disagreement particularly on the institutional award aspect, and a draft award has been presented to you in relation to that.

PN23498

There are some commonalities, as I have said, which we have with what has been put to you. The first I suppose is that we accept unequivocally that there was as proper - that the structural efficiency exercise as represented by the DWM process and culminating in the DWM report was a full and proper structural efficiency exercise. We endorse the 10 level structure with a relativity at 3.1 and we endorse the relativities proposed by the DWM report as they found their way into the HEWV Award.

PN23499

Finally, we are in agreement with at least - to the extent that abstaining does not count, we are in agreement with the majority of the parties around this table about institutional awards and that is evident from the application that we have made. The application that the university has made at B1 has a number of components to it and it is important that I simply describe those to your Honour. Firstly, the application is - there is an application to rescind the respondency of the University of New South Wales from the HEGSS Award and that is the application made to set aside or vary an award and there are grounds on which that is set out.

PN23500

Secondly, there is an application to have a new award made under section 111(1)(b) of the Workplace Relations Act which we have termed the University of New South Wales General Staff Salaries Award. Then there is the draft award which we filed on 20 October. That draft order has a number of components to it. We have structured the draft award in a way which encapsulates all terms and conditions which we say are relevant to rates of pay. It is not our submission, and subject to anything the Commission might put to me, that we go through an arbitration on hours of work and the various machinations.

PN23501

We have put those in the award for the sake of completeness and we would say that those provisions operate, as I understand it, they are based on HEW. But the key aspect of the award which we have put to you is in fact the classifications, descriptors, the rates of pay and relativities as they appear in that award. Simply put, your Honour, what the university has done is that it has taken the HEWV Award and updated the rates of pay in that award to include the various safety net increases that have taken place.

PN23502

We have operated on the assumption that the minimum rates of pay provisions in that award are properly fixed minimum rates and that the relativities in those rates of pay were properly arrived at and we would say that the basis for that is the acceptance of the DWM report. So essentially our proposal is based on a view that the most appropriate, and we would say the only manner in which this Commission can as a matter of law give effect to that structural efficiency exercise which took place in the early 90s, is through the adoption of the HEWV Award rates, classification structure and relativities updated for safety net increases.

PN23503

We would say that obviously implicit in our application for an institutional award and the deletion of our respondency from the HEGSS Award is a view that the most appropriate method of simplifying the HEGSS Award is by creating institutional awards. We say this can be done under item 51 as a matter of law and we submit that - and I will develop that as well, that the evidence overwhelmingly supports institutional awards, and in developing that I will try not to repeat too much of what Mr Britt has put to you.

PN23504

The relevant principles, we say there are a number of relevant principles which I will not take you to at length but obviously the paid rates review in the supplementary decision are critical for this exercise and you have been taken to those at length and I will only refer to one or two parts of those decisions. But item 51 is not read alone. The important aspect of the approach under item 54B is that the Commission may vary the award so it provides for minimum rates of pay consistent with sections 88A and 88B of the principle Act and I would say that those provisions are critical for this exercise because they in a sense give guidance to the Commission as to the correct or most appropriate manner to proceed with this very difficult task having regard to the framework of the legislation and the overriding objectives of the legislation.

PN23505

Clearly I would submit to you that the thrust of the Workplace Relations Act as reflected not only in 88A and B but also in the objects under section 3 is to establish a system of agreement making which is supported by minimum or safety net awards. In very simple terms that is the thrust of the Act and therefore under section 88A awards firstly have to act as a safety net of fair minimum wages and conditions of employment that is set out at item B.

PN23506

Secondly, they are to be simplified and suited to the efficient performance of work according to the needs of the particular workplaces or enterprises. That is a key element of how the Commission is to approach this and that is to focus on the efficient performance of work according to the needs of the particular workplace. It does not have an industry focus. It has a particular workplace focus. In doing so the Commission is required to exercise its powers in relation to making and varying awards in a way which encourages the making of agreements between employers and employees at the workplace or enterprise level.

PN23507

In this particular instance I suppose on one view we are working backwards because the parties do not need encouragement in terms of agreement making. They have a long history of agreement making and that history started in 1993. On one level or aspect of the exercise is to find the award which really fits what has already happened, so it is not as if in putting the - in developing the safety net one is hoping that as a result of that development the parties will then go off and make arrangements. We are really trying to give legislative effect to what has already taken place.

PN23508

Section 88B requires the Commission to perform its functions in a way which furthers the objects of the Act and it must perform its functions in that way. The objects of the Act are set out section 3, as I have said, and again section 3B is important because it talks about ensuring that the primary responsibility for determining affecting the relationship between employers and employees rests with the employer and the employees at the workplace or enterprise level.

PN23509

And object D, which requires the - which says that it provides the means for wages and conditions of employment to be determined as far as possible by the agreement of employees and employers at the workplace or enterprise level upon the foundation of minimum standards. That is another important point that I will develop through the course of these submissions, is that we are talking about a safety net. We are not talking about the ideal all encompassing scenario.

PN23510

We are looking at a minimum standard which will underpin bargaining within the framework of the Workplace Relations Act in a way which allow bargaining to continue as it has done. As I have said, the thrust of the Act is directed towards the workplace or enterprise and not the industry and that is clearly the flavour of the provisions I have taken you to. We would say in relation to the HEGSS Award that although it is an award I would endorse what Mr Britt has said, it is an award - it is an office stationery award in a sense in that that is all it is. It is not an award properly made in the true sense as far as the University of New South Wales is concerned.

PN23511

It is merely an appendage of New South Wales industrial instruments which bind the university either specifically or with other institutions as far as we are concerned. And consequently in dealing with our application we say that it would be appropriate and correct for the Commission to apply a first award or new award principles which have been established and I can take you to those principles. Item D of the new award principles perhaps - or first award principles, if I can be at a bit of a liberty to have the Commission a copy of the same principles seeing I am referring to them I might as well.

PN23512

THE SENIOR DEPUTY PRESIDENT: Yes, I will take them. Thanks, Mr Sandler.

PN23513

MR SANDLER: So item A which refers to relevant minimum wage rates in other awards provided the wage rates have been adjusted for national wage case decisions and are consistent with the decision of the 1989 wage case, we say that is very important because the logical award in that regard we would say is the HEWV Award. Alternatively we would submit that if one applied the principles of the paid rates review then again this Commission need go no further than HEWV.

PN23514

If one looks at those principles then we would say the HEWV Award meets principles 2, 3 and 4 of that decision. Perhaps I can refer to that decision, your Honour. That is at tab 3 of the ..... materials. It is schedule A to the decision. We say that - I will not take you through those in detail, but principles 2, 3 and 4 which you have been taken to today, again we say that the HEWV Award meets those requirements of the principles and therefore in simplifying the HEGSS Award one could and should adopt the rates and classifications that are in the HEWV Award.

PN23515

We say that the position that we put to this Commission is supported by the evidence that has been before this Commission over the past few months and perhaps I should spend some time, your Honour, just taking you to the salient points of the evidence as we see it. I would ask leave to hand up a table.

[2.55pm]

EXHIBIT #B12 TABLE HEADED UNSW EVIDENCE TABLE

PN23516

MR SANDLER: This table is an analysis of the evidence presented by the university in relation to what it put in its statements which were adopted, how this was challenged and to the extent of any challenge what answers were given. I do not intend taking the - I will refer to this during the course of the submissions, but we would say if you accept our analysis that the vast majority of our statement evidence was not challenged and where it was challenged we say it stood up to cross-examination.

PN23517

What this establishes is that from our point of view we put comprehensive and detailed material to the Commission which has largely gone unchallenged and certainly it has not been damaged when it has been challenged and we say therefore it stands. There are a number of matters which we say this evidence demonstrates. Firstly we say, as I have said already, it is the evidence of the University of New South Wales and other universities that an award restructuring exercise to place between 1990 and 1993 with the Commission's assistance which was of the quality and detail which would satisfy the requirements of the structural efficiency principles, so we say in short the work was done and I do not intend to take to you that.

PN23518

Mr Pill, Mr Moorhouse and Mr Britt have gone there and I would adopt their analysis of what took place and it is clear from the evidence that what happened in 1990 to 1993 was that the structural efficiency exercise was done and that a set of classifications, descriptors, rates and relativities were developed, and that was the DWM exercise which culminated in the DWM report. And that is the 10 level structure which you probably use to count when you cannot sleep at night instead of sheep, but that is what we say.

PN23519

In fact we would say that the agreed position of the parties other than ourselves is on our view an endorsement of the DWM report and the 10 level structure with its rates and relativities and the fact that a review of the descriptors has been agreed to does not detract from this endorsement when you consider the limited nature of the review that has been proposed. So we say that firstly the structural efficiency principle has been met.

PN23520

We say from there the logical path or progression where this Commission should look is to the HEWV Award. I probably described the HEWV Award to you as a chameleon award as a result of these proceedings because like a chameleon the various parties to the award change colour depending on the circumstances and certainly it has an interesting history and that interesting history I would submit is not over here.

PN23521

What I propose handing to you is an analysis of what we submit is the key evidence which we say demonstrates that the HEWV award operates firstly as a properly fixed minimum rates award and secondly, that it also operates as a safety net in principle. I ask leave to hand up this table.

EXHIBIT #B13 DOCUMENT ENTITLED EVIDENCE OF HEWV AWARD AS PROPERLY FIXED MINIMUM RATES AWARD SAFETY NET

PN23522

MR SANDLER: I do not intend to take you to every piece of the transcript but what we say that the evidence - and the evidence is not only from the University of New South Wales, although as I have indicated, we say our evidence in relation to this has not suffered any challenge. There is extensive evidence from Monash, from the ANU, University of Queensland, University of Western Australia, nearly all the main universities, Melbourne and even evidence we say from the NTEU itself under cross-examination which we submit demonstrates a number of things.

PN23523

Firstly we say that the evidence without doubt is that the DWM report and structure - the structure in the DWM report, and that is the classifications, the descriptors, the rates, the relativities, were inserted into the HEWV Award and that is in evidence of people like Andrew Picouleau. There has been evidence of Elizabeth Bare and others in statement form and in cross-examination. Secondly, we say that the HEWV Award is a properly fixed minimum rates award. It has minimum rates which according to the evidence operate as minimum rates.

PN23524

In other words, you cannot earn less than what is in the HEWV Award, those rates operate as minimum rates, and that the parties to the HEWV Award, which include parties at this stable, have on numerous occasions, most notably in 1993 when the award was made and in 1996, stated to this Commission on transcript that the award is indeed a minimum rates award. Whatever the background or the underlying motives or objectives that the parties might have sought to achieve at the time, the fact of the matter is they have regarded and put to this tribunal that this award is a minimum rates award and that this award, I would submit to you, satisfies the various principles of the Commission.

PN23525

In exhibit AP9 which is the exhibit to Andrew Picouleau's affidavit and it also appears in the cross-examination of Mr McAlpine that I have referred to, the NTEU as it is today, tracked the award and put it up as the minimum rates award. Mr McAlpine was asked, "So you are giving interim approval to the interim award are you?" and he said, "Yes". I will have something to say about that interim approval in a few minutes.

PN23526

But what we say is that the evidence before this Commission about the making of the HEWV Award and its characters, the minimum rates award, the time it was made it was without doubt and again, as I have said, it adopted the DWM structure. If one had any doubt as to the character of the HEWV Award in 1993 one only has to look at MEREDITH22 and the way in which an agreed national award was put to Commissioner Smith and while it did not go forward it is a clear indication as to the legitimate status, we would submit, of the HEWV Award.

PN23527

In that transcript, MEREDITH22, Mr McAlpine sketches the history of the HEWV Award and makes it clear that the rates in the HEWV were based on a set of relativities and descriptors developed by DWM and he says:

PN23528

However we say it is clear that what they did develop was a set of minimum rates, relativities consistent with the Metal Industry Award and that is ...(reads)... the level 3 rate in the award.

PN23529

The Commissioner later on says to Mr McAlpine:

PN23530

But in any event what you are saying is that at certain key levels those levels are directly referable to other appropriate levels and a minimum rates award?

PN23531

And the answer to that is yes. Later on the Commissioner says to Mr McAlpine:

PN23532

Look, I am sorry, just a moment. The classification structure is not contained in the HEGSS Award, is it? It is contained in the HEWV Award?

PN23533

The answer to that is yes -

PN23534

So the structure is taken from the HEWV Award ...(reads)... and they are adjusted for the second $8 increase.

PN23535

The reason I have called the HEWV Award the chameleon award is because it changes colour - or the parties. Rather than the award change colour I would say the parties change colour depending on the circumstances. But we say and submit that the HEWV Award is a proper minimum rates award of this Commission and it has operated as such and has been recognised as such since it was made in 1993.

PN23536

We say that the NTEU has shadow boxed with HEWV since 1993 but the truth is that it has always accepted HEWV as a minimum rates award despite the somewhat peculiar savings clause and we would submit that the savings clause in the HEWV Award does not detract from the minimum rates nature of the award. We would submit that there is an issue of credibility when it comes to HEWV and that the NTEU, because that is the only opposition to HEWV operating as a minimum rates award we would say in terms of the evidence, that what was put in evidence and in submission by the NTEU in relation to HEWV that by stating it does not necessarily accept the rates as some kind of safety device, we would say that might have been well and good in 1993 but eight years have gone past and not one variation to that award has been sought in respect of those rates.

PN23537

How long can you not necessarily accept things for? It regarded it as a minimum rates award when you compare what was said, as I have taken you to, in 1996. Again we would submit that in terms of credibility one only has to look at the agreed position before you today. We heard from Mr McAlpine in submission, from the unions about how section 134 agreement rates could not be used. We heard plenty of evidence that award restructuring did not take place and was not reflected in the agreements and Mr McCulloch had a lot to say about that and how that compares with what is put to you today on the basis on how it is put to you is, we say, an interesting shift.

PN23538

We submit that the HEWV based proposal should be preferred over what I call the section 134 proposal but the proposal which has been agreed by the majority of the other parties to this proceeding and there are a number of reasons that we would say support this. Firstly we say that HEWV already applies and operates as a minimum rates award to universities in Victoria. It is in the industry sector and we would say it is more logical to extend it to the remainder of the sector and there is in fact authority and I do not have it with me.

PN23539

I can provide it to the Commission and that is the decision of Senior Deputy President Polites where award rates and a classification structure was - from Victoria was inserted into a New South Wales award. I have the reference for it but I do not - - -

PN23540

THE SENIOR DEPUTY PRESIDENT: Give me the reference.

PN23541

MR SANDLER: It is - if the Commission will bear with me - it is print R8467. Mr Pill has corrected me. It is a decision of Senior Deputy President Marsh which was handed up to you yesterday. So there is a precedent for Victorian structures to be adopted elsewhere. We say that HEWV has operated well as a minimum rates award for eight years with no difficulty and that certainly has been the evidence before this Commission. Numerous witnesses, particularly those from the Victorian universities but also from other universities gave evidence as to the low level of disputation, the fact that they operated well with HEWV and they regarded it as working well.

PN23542

Certainly Mr Picouleau, Ms Bare gave that evidence. I have already said that the third reason is that the rates represent properly fixed minimum rates and we say that they do and I will deal with what Mr Mendelssohn had to say later on. We say that the HEWV Award adopted the DWM structure and therefore it reflects the structural efficiency exercise of the early 90s which we say adequately met what was required of the parties but which was not inserted into the HEGSS Award.

PN23543

Our final reason is that we say HEWV clearly operates as either a designated or relevant award to give effect to section 88A and 88B. In other words, it operates as a safety net for bargaining at least in Victoria and we say it is capable of operating as a safety net in relation to the other universities nationally. They did not use it as that it was not a relevant award and they had difficulty, we would say confidently it could operate as a designated award under the Act.

PN23544

It is capable of that, clearly, and in doing so it would give effect to section 88A and 88B and that is providing that set of minimum standards to facilitate agreement making at the enterprise level. Our reliance on HEWV is based on a view that as a matter of law the Commission cannot use rates from a certified agreement in simplifying the HEGSS Award under item 51 and we say that is what you are being asked to do. And we say that that question was fairly and squarely dealt with by item 15 of the paid rates review where the Full Bench said that rates in expired certified agreements could not be used to simplify awards.

PN23545

We would submit that there is good reason for that. It does not fit within the conceptual framework of the Workplace Relations Act, which is having awards in the true sense and proper sense, underpinning enterprise bargaining. What you would be doing is you would effectively be having bargaining, underpinning bargaining. Therefore again referring back to section 88A, 88B of the Act and the principle objects at 3D, it is clear that agreements must be underpinned by awards and not by expired agreements.

PN23546

THE SENIOR DEPUTY PRESIDENT: The HEW Vic Award rates predated the 134 agreements, did they, or did they not come from them?

PN23547

MR McALPINE: They did predate between six and 15 months I think.

PN23548

THE SENIOR DEPUTY PRESIDENT: They did predate, yes. Yes, very well.

PN23549

MR SANDLER: As I understand the HEW Vic Award rates were the rates in the DWM report.

PN23550

THE SENIOR DEPUTY PRESIDENT: At the time.

PN23551

MR SANDLER: At the time.

PN23552

THE SENIOR DEPUTY PRESIDENT: Yes.

PN23553

MR SANDLER: We say the position put by the other parties that what you are being asked to do is not to adopt agreement rates but to adopt a position which was arrived at before the agreements were made, as I understand it, is in a sense semantics because the only source for the proposal is the section 134 agreements. That is overwhelmingly reflected we say in the evidence presented to the Commission by the various universities and they have said that DWM proposals essentially went into the 134 agreements.

PN23554

That is what happened to the structural efficiency exercise. That is where it went and so the nexus between the 134 agreements and the simplification of the award along that proposal we would say is clear. The submissions which were put to you initially or put to the Commission all refer back to those agreements and one only has to look at ANU1, for example, to see what the Commission is being asked to do is to give effect to what could have gone into award but what ended up in an agreement.

PN23555

That is an unfortunate fact of history but it does not get us past whether or not in accordance with the principles for simplifying the award the Commission can do that and we say that there is a simpler route and the simpler route, if there is any doubt, there is a simpler route, that is the route we have gone and we do not shy away from the fact that it is a simpler route and that is to use HEWV.

PN23556

The adoption of HEWV, the point has been made that there is going to be - it is not going to have any financial effect, it is not going to prejudice parties in their bargaining. One might on one view say that the section 134 agreements are a step up from the HEWV rates, but the similarities are - or the differences are not so great as to, I would submit, have an impact, or have any impact on the parties when they are bargaining.

PN23557

So we would say that the logical and obvious and legally correct instrument to refer to and to use as part of the simplification process is the HEWV Award. It is there, it exists, and as I have said, the evidence as to how it operates is set out in the document given to you is clear and extensive.

PN23558

THE SENIOR DEPUTY PRESIDENT: I might interrupt you there. I will take a short adjournment. I do intend to sit until half past four unless other circumstances make it wise to do something else. I will adjourn until half past three.

SHORT ADJOURNMENT [3.20pm]

RESUMED [3.38pm]

PN23559

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Sandler.

PN23560

MR SANDLER: As the Commission pleases. Turning now to the question of the award which we say is an institutional award and why an award should be made separately for UNSW which encapsulates the position of Mr Britt's clients as well, namely, the institutional award. There are a number of matters that I would like to deal with in a preliminary sense. Firstly yesterday, if I understood him correctly, it was submitted by Mr McAlpine that in this item 51 review you are restricted to the review and there are no other applications concurrent with the review before the Commission.

PN23561

Well, we say this is not the case. We made an application and it is clear from the documentation we filed on 20 October that we have made an application under section 111(1)(b) and also an application for variation under section 113 and that this has been before the Commission for nearly a year. So if there is some procedural or jurisdictional impediment on that basis and if the Commission finds that - and I will deal with whether or not we say that you can.

PN23562

You do have a jurisdiction under item 51 but if you did not and there needed to be applications then we say our application is in and it is before the Commission and the Commission can deal with it. We say that the paid rates review expressly states that other applications can be made as part of the review and again if you go to the paid rates review decision, which I think if I can refer you to it without necessarily - the Commission necessarily opening the file. But it is the final sentence under paragraph 20. It is the final part which says:

PN23563

We add that although item 51 reviews are conducted by the Commission a party to an award may request the ...(reads)... for the Commission's discretion.

PN23564

And that follows from the applications were made. It is open to the Commission to deal with the application as part of the review. It is a matter for the Commission's discretion and we say to the extent that the Commission will consider exercising its discretion to deal with our application in an application sense, we say a number of things why your discretion should be exercised in our favour.

PN23565

Firstly we would argue that it is implicit in our participation in the proceedings that there is acceptance by the Commission that it will deal with our application. If we are not correct we submit that your discretion should now be exercised in our favour with regard to the following matters. Firstly we say there would be significant costs to run our application here. We would say have participated in these proceedings fully and that all the issues regarding the university have been fully vented. Our application has been there. Our witnesses have been available for cross-examination. It is fully vented.

PN23566

We would say it is not open to the unions to say that they still want the opportunity to challenge the University of New South Wales in relation to any application - or the application. They have had that opportunity and so, as I have said earlier, all evidence is before you in that regard and we would say that if you feel that you have to exercise your discretion in relation to our application then you should do so.

PN23567

It is submitted again that the Commission does not have the jurisdiction to make institutional awards under item 51. You were given an authority on which the NTEU relies and we say it is clear that the Commission does have the jurisdiction to make institutional awards under item 51. Firstly we say that the High Court decision to which you have been taken, without repeating at length in ad nauseam what Mr Britt has said, it is just not on point. It is not what the High Court was asked to deal with and it is not what it dealt with.

PN23568

The High Court had specific questions of law which it was asked to consider and those questions of law related to the validity of section 3 of WROLA and its relationship with item 50 and 51. In relation to item 51, it is only 51(1), (2) and (3) that was part of the consideration of the High Court. The High Court did not consider or deal with the question as whether in an item 51 review the Commission can make awards, can or cannot make awards, that was not before the High Court.

PN23569

So we say the authority is not on point and that we would say that the Commission can make institutional awards. Again, the paid rates review decision, it is clearly contemplated in that decision and Mr Britt took you to the quote under relativities which we would endorse. It is clear from the decisions that you have been referred to that new awards have been made as part of this process and that as part of the process parties have been made respondents, have been deleted from their respondency and had awards made in relation to them.

PN23570

There are three decisions of this Commission which we say have favoured the making of enterprise awards as the most appropriate method of simplifying HEGSS and it is implicit from those decisions, one, that you can do that, and secondly, we say that that is support from the Commission that the most appropriate method of dealing with HEGSS would be to have enterprise based awards. You have been taken to the decision of Commissioner Lewin and you have also been taken to the decision of Commissioner Smith by Mr Britt and I do not intend to really take you to those passages. But it is clear when those two Commissioners were dealing with HEGSS that as far as they were concerned the making of enterprise awards was considered, I would submit to you, a preferable way to go and it is clear from those decisions.

PN23571

There is one other decision which has not been referred to and that is the University of New England General Staff Interim Award 2000, a decision you will no doubt be aware of, your Honour. At clause 19 in granting the application for an institutional award the Commission refers to the decision of Lewin and I would submit that is endorsement for his view and in fact the outcome in this decision is consistent with what we say the Commission can and should do.

PN23572

Turning to the evidence, and you have been given a fair amount of evidence in relation to institutional awards, we have also prepared a table. Sorry, I should have tendered your decision or the decision in the University of New England.

PN23573

THE SENIOR DEPUTY PRESIDENT: Yes, I would not mark it in any event. I do not mark prints of the Commission that are handed up.

EXHIBIT #B14 DOCUMENT ENTITLED EVIDENCE SUPPORTING INSTITUTIONAL AWARDS

PN23574

MR SANDLER: What we have done again is to go to where we say some of the significant areas of evidence in relation to support for institutional awards this should be read with the document submitted by Mr Britt, but from my client's point of view the most telling evidence is that of Mr Bateman who devoted a number of paragraphs in both his statements to setting out in detail why and how the university was different from other universities, that it had its own unique characteristics, that even though - that the mix of general staff was diverse and different to other universities that even where you have the same title the work that is general staff would do would often be different and again he made those statements in relation to universities generally as well.

PN23575

In paragraphs 19, 20, 21, 22 and 23 - sorry, and 22, are all paragraphs which we say 19, 20, 21, 22, if one looks at B12 and paragraphs 3, 4, 5 - sorry, paragraphs, yes, 19, 20, 21, 22 and the paragraphs in his first affidavit, Mr Bateman was not challenged about what he said about the nature of the University of New South Wales and why it was different and how it was different and how general staff performed their work and the kind of work that was done.

PN23576

There was no challenge to Mr Bateman on that and we say that is significant. Certainly significant as far as the university in terms of what it put in detailed evidence in relation to its own uniqueness to support an institutional award in relation to itself. We say that evidence primarily by Mr Bateman but also some very detailed evidence of Dr Jane Morrison under cross-examination I think from Mr Britt and from Mr Pill, questions about the differences between various universities was detailed and again we say was not challenged.

PN23577

So our case, if I can confine it to our case in relation to our university, we say as far as putting it forward, our evidence about the validity of an institutional award based on the character, nature of the work performed by general staff has gone unchallenged. If one reads Mr Bateman's evidence with the evidence of Mr McCulloch which appears at point 7, Mr McCulloch's cross-examination that I referred to here was really myself putting to Mr McCulloch what Mr Bateman had said in his evidence and Mr McCulloch did not agree. You will see that in brackets - well, not in brackets, in point 3, that he has agreed in essence in relation to the University of New South Wales and supported much of what Mr Bateman has said.

PN23578

Then the university's case, we would say the university's evidence is strengthened by evidence from other universities where under cross-examination those giving evidence in relation to those universities again supported what Mr Bateman said and supported what New South Wales had put. As I have said, there is the detailed - Mr Britt has supplied you with the quotations. I have simply referred to what I consider the salient parts of the transcript.

PN23579

In relation to the University of New South Wales two other further documents that I wish to hand as exhibits. The first is a table of the New South Wales awards and agreements which are incorporated in the HEGSS Award and the second are the HEGSS - a table which illustrate the HEGSS instruments affecting New South Wales and what they relate to.

EXHIBIT #B15 DOCUMENT ENTITLED NEW SOUTH WALES AWARDS AND AGREEMENT INCORPORATED IN THE HEGSS AWARD

EXHIBIT #B16 DOCUMENT ENTITLED HEGSS INSTRUMENTS AFFECTING THE UNIVERSITY OF NEW SOUTH WALES

PN23580

MR SANDLER: As I have indicated to your Honour, these two tables show which of the various components of the HEGSS Award apply to New South Wales. I am instructed it is accurate, I would think it is but there may be an additional two. The second document is a bit more descriptive in terms of those instruments which apply to the University of New South Wales. The point about these two tables is what it illustrates is that industrial regulation of general staff at New South Wales was until 1993, we would submit, even though from 89 to 93 under the guise of the federal award, it was State and institutional based. That is what we say it was.

PN23581

Post 1993 it was institutional based because from 1993 we moved into certified agreements and have been there ever since. That is a relevant consideration. As far as the University of New South Wales is concerned there is no issue of breaking up a national award because there is no national award in the ordinary sense and these two documents go to show this. We say that the HEGSS Award does not operate as a national award and that there are no national terms and conditions.

PN23582

Secondly, as has been pointed out to you earlier in the submission, the HEGSS Award is not a national award by virtue of the existence of the HEWV Award. So we would say that since 1993 there has been no national regulation of universities, no national award regulation. We would say there has never been national award regulation of universities. We would submit that the Commission should make an institutional award for the University of New South Wales for a number of reasons.

PN23583

Firstly, we say that the University of New South Wales is different from other universities. It has different general staff roles and work even though general staff may have similar titles and that this has clearly been established by the evidence by the university and the evidence of other universities. Secondly, we say that there is no need to regulate the employment of general staff nationally because there is no national labour market for general staff at universities. And again we say that that is our evidence, it has been unchallenged and it has been supported by the evidence of other witnesses.

PN23584

Thirdly, we would say, as I have said earlier, there has been no national regulation of general staff at the university. The HEGSS Award was never a national award and we have been in certified agreements since 1993. The status quo at the university is institutional, and as I have said earlier, if one looks at the making of new awards or first awards the status quo is an important consideration.

PN23585

Fourthly, we would submit that the paid rates review decisions permit the making of institutional awards and the decision of Commissioner Lewin and Commissioner Smith and yourself should be followed in the review together with the other decisions referred to by Mr Britt. Fifthly, we would say and submit that there is a long history of enterprise bargaining at the University of New South Wales and that the objects of section 88A and B of the Workplace Relations Act are better met by an institutional award as opposed to a national award because this reflects the industrial reality of what the university and unions do.

PN23586

We say following the decisions referred to you by Mr Britt in relation to the making of first awards or new awards that a first award should be made and can be made, or alternatively, the HEGSS Award can be simplified as we have put it. In terms of first awards I would refer you to the decision of Commissioner Larkin at tab 20 of the materials provided to you by Mr Britt.

[4.02pm]

PN23587

We would say that the evidence is open in favour of an institutional award for the University of New South Wales and the other universities, Mr Britt's clients, is overwhelming. There are a number of other matters. In relation to increments, I am not going to take you at length through what has already been said, save to say that the University of New South Wales supports and adopts the submissions made in relation to increments by Mr Britt, Mr Pill, Mr Moorhouse and Mr Mendelssohn.

PN23588

The draft award which has been filed as part of the university's application contains within it and incremental - well, not an incremental. It contains within it a clause which allows for progression along the orders of Commissioner Smith and Commissioner Hingley. It is consistent with those orders and that appears in our draft award at 11.2.

PN23589

THE SENIOR DEPUTY PRESIDENT: 11.2?

PN23590

MR SANDLER: 11.2 of our draft award. It provides for progression from one's work value salary point to another within classifications, but it adopts the draft orders in those decisions. There are a number of other matters that I feel I should deal with in the context of what has been put to you by way of agreed position. In relation to the proposed review of descriptors we say that we oppose the review of the DWM descriptors primarily because we say it is not appropriate to review those descriptors having regard to the purpose of item 51 and in particular sections 88A and 88B of the Workplace Relations Act.

PN23591

As I have said, the objects of the Act is to establish a safety net of minimum conditions which will facilitate bargaining at the enterprise level and it is our submission that adopting the DWM descriptors as is in their current form will facilitate this. We would submit that the DWM descriptors are an adequate safety net for bargaining and the evidence is that they work well in their original form at some universities, for example, at Monash and at Melbourne, while at other universities such as the University of New South Wales, the University of Western Australia, secondary or enhanced descriptors have been developed which operate in conjunction with DWM descriptors via the enterprise agreement process.

PN23592

So we say that the descriptors in their form, that is precisely the role envisaged by the objects, by section 88A and B of the Act. In other words, they are capable of being the safety net and operating effectively as minimum conditions and we do not say that they operate as a safety net that they are ideal or they cannot be improved upon. But what we do say is that for the purposes of a minimum rates award where agreement making is well established amongst all parties, that the proper place to improve the DWM descriptors is in enterprise bargaining and on an institution by institutional basis because the modifications that will be made as demonstrated by my client in its evidence really need to reflect the character of the university and the nature of the work performed by general staff at that university, and that has been the evidence of the University of New South Wales, firstly, that the nature of the work done differs, and secondly, that the enhanced descriptors were developed in order to more accurately reflect what went on at the institution.

PN23593

That, I understand, was the evidence of Mr Farrelly from Western Australia as well. So we say that the proper place for the exercise of improving, modernising, changing the descriptors is in the agreement making process and not in the item 51 review. It does not need to happen to give effect to the objects of the Act. A number of submissions were made to you yesterday by Mr McAlpine who put forward a number of reasons as to why the Commission should not break up, as he put it, the HEGSS Award.

PN23594

Firstly he put it that there is an onus on the parties who want to break up an award to justify it otherwise it should remain intact. We do not agree that there is on onus. To the extent that there is evidence as to why the HEGSS Award should be simplified on institutional - by the making of institutional awards we say the evidence is overwhelming, absolutely overwhelming, and the evidence which suggests that it ought to remain as a single award we say is silent. I cannot recall any evidence from any witness which says we think it is a good idea.

PN23595

I am stretching now to think of what Mr McCulloch and Mr McAlpine said. Perhaps with the exception of them, the only two witnesses. But no witness from an institution came to this Commission saying you need to keep this as a national award. Mr McAlpine secondly relies on the agreement of the parties in the 1989, 1993 process and says you agreed and therefore you should not break your agreement, which coming from the NTEU based on the evidence in these proceedings I can only describe as cute because the NTEU is prepared to agree to one thing and is prepared to sign agreements knowing that parties on the other side ..... Mr McCulloch correctly, the parties on the other side believe that something was happening when he well knew that that was not the case.

PN23596

In any event, we say we did not enter into an iron clad agreement. It was not irrevocable and 10 years have past and we have changed our mind and we are entitled to change our position to the extent that we had a fixed view of things in 1993. We would say we did not have a fixed view, but again there is little evidence. I cannot really take that much further. Mr McAlpine said that the rates and relativities in the DWM report were derived from a national source, nationally derived and nationally derived.

PN23597

We say, well, in the context of the Workplace Relations Act where a safety net for enterprise bargaining is the focus and where there are institutional differences, based on the evidence that has been put to this Commission it is far more logical and appropriate given the objects of the Act which focuses on the enterprise again to have enterprise based awards underpinning the bargaining which does take place on an enterprise level.

PN23598

The final point made by Mr McAlpine was that the employers in these proceedings have not made it clear why they want institutional awards and a view has been put that perhaps the reason for that is to make life difficult for the union when it seeks to vary the award or make changes to the award on a national basis. We say to that two things. Firstly, it was never suggested or put to any of our witnesses that that was their motive and there has been plenty of opportunity for that.

PN23599

Secondly, we say we have cogently advanced the reasons why certainly our university seeks an institutional award. Mr Bateman did that at length and I would submit that based on the evidence put by Mr Britt other universities did likewise. It is quite clear why universities want institutional awards, namely, that the focus is on the workplace and they see the underpinning award in the context and circumstances of HEGSS as more properly being on an institutional basis to reflect what happens industrially.

PN23600

Turning to Mr Mendelssohn, he made submissions about the HEWV rates about their not being properly fixed. Our answer to that is that there is no evidence of what happened in Victoria and the opportunity for the union has come and gone to put that evidence in and so we really cannot take that further. In relation to HEWV we say that Mr Mendelssohn's union was there in 1993 when the HEWV Award was made, they were a party to it.

PN23601

THE SENIOR DEPUTY PRESIDENT: Although I think it is fair to say that if the Commission has to be satisfied that they were properly fixed there is a certain element on somebody to show that they were. The Commission can hardly define for itself whether they were properly fixed or not.

PN23602

MR SANDLER: That is correct. Well, in relation to that, your Honour, we would say that the work was done at DWM and that HEWV, we submit, really picked up the DWM and that is where the work was done. For all those reasons we would ask that our application, one, to be removed from the respondents of HEGSS, secondly, to have an award made on the basis of which we have put. We would seek that the Commission make that application in relation to the University of New South Wales. Subject to any questions?

PN23603

THE SENIOR DEPUTY PRESIDENT: No, Mr Sandler. Thank you.

PN23604

MR SANDLER: Those are our submissions?

PN23605

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Mendelssohn.

PN23606

MR MENDELSSOHN: Yes, I think the agreement is that the replies will go in reverse order, so the order in which the submissions were made so presumably Mr Sandler will have another go at the right of the unions.

PN23607

MR MEREDITH: Keep the Commission on its toes.

PN23608

MR MENDELSSOHN: There is not a lot that I have to say in reply to Mr Sandler but there are three or four points, your Honour. Just taking them a little out of order, Mr Sandler put it that the University of New South Wales opposes the review of the DWM descriptors that is contained as paragraph 5 in the otherwise agreed position which is now exhibit ANU23.

PN23609

A very simple response to that, your Honour, would be that the University of New South Wales cannot be compelled to participate in any such review if it chooses not to be involved, but if any application were made or any arbitration were to take place that would affect the University of New South Wales thought it at that point would be entitled to be heard in relation to that. So so far as Mr Sandler's submissions in that regard go I would submit that it simply requires - - -

PN23610

THE SENIOR DEPUTY PRESIDENT: Well, in one sense I agree with you in that it is not something easily seen as arising under an item 51 review, but far important than that, it is part of an agreement that parties have come to. It is an agreement that parties have come to. It is on the record.

PN23611

MR MENDELSSOHN: Yes, yes.

PN23612

THE SENIOR DEPUTY PRESIDENT: The Commission is not called on to do anything more.

PN23613

MR MENDELSSOHN: No, it is an agreement - - -

PN23614

THE SENIOR DEPUTY PRESIDENT: I think I am invited to note that there is an agreement.

PN23615

MR MENDELSSOHN: Yes, and we may come - - -

PN23616

THE SENIOR DEPUTY PRESIDENT: I have done that and worse in my time. I think I can satisfactorily do that.

PN23617

MR MENDELSSOHN: Yes, and we may come back to you at some stage - - -

PN23618

THE SENIOR DEPUTY PRESIDENT: You may make an application.

PN23619

MR MENDELSSOHN: That is correct. But there is no suggestion on the part of those parties who have agreed to conduct the review that we are going to attempt to conscript Mr Sandler's client - - -

PN23620

THE SENIOR DEPUTY PRESIDENT: Yes, for the very reason that I have indicated, that there will need to be an application if something is done.

PN23621

MR MENDELSSOHN: Yes, but if any application is made which would affect the interest of Mr Sandler's client they will at that point of course be entitled to be heard.

PN23622

THE SENIOR DEPUTY PRESIDENT: To be heard, yes.

PN23623

MR MENDELSSOHN: Now, Mr Sandler went to some length to try and demonstrate that the rates in the Higher Education Workers Victoria Award are in fact properly fixed minimum rates and what I would say in response to that, your Honour, is that apart from what might be described as some admissions made from the bar table by Mr McAlpine back in 1996 in proceedings under the former Act and which have only come into this matter as an exhibit tendered by the AHEIA for a different purpose, namely, exhibit MEREDITH22, apart from that there is no evidence in these proceedings going to the question of how the rates in the HEWV Award were fixed.

PN23624

Going back to something your Honour raised with me in my earlier submissions, if I may clarify what I said there at that time, that in fact there is no evidence before the Commission concerning whether or not any allowances were absorbed in setting the Higher Education Workers Victoria Award rates.

PN23625

THE SENIOR DEPUTY PRESIDENT: I see, yes. You are being specific about that award.

PN23626

MR MENDELSSOHN: Yes.

PN23627

THE SENIOR DEPUTY PRESIDENT: Yes. You say it is different here. There is evidence.

PN23628

MR MENDELSSOHN: Yes, and there is evidence. I did not identify all of it separately in the index that I handed up which is exhibit CPSU12, but certainly Mr Farrelly gave evidence of the leading hand allowance being absorbed at the University of Western Australia. Mr Pearson gave evidence in relation to the University of Southern Queensland. Mr Hunter and I believe Mr Munro as well gave evidence in relation to the University of Newcastle, one from the union's side and one from the employer's side.

PN23629

Mr Fox I recollect gave evidence in relation to the University of Technology Sydney. That is not exhausted but certainly there is evidence that allowances but not necessarily the same allowances at every institution were absorbed into the rate. So whether or not the Higher Education Workers Victoria rates are appropriate in the context of that award, in my submission it would be inappropriate to transfer those rates to the HEGSS Award because they do not comprehend the absorption of allowances and that relates then to Vice President Ross's decision in the Industrial Catering Award.

PN23630

In relation to Mr Sandler's exhibit B12, the table of University of New South Wales evidence, while what Mr Sandler submitted about that exhibit may be correct the evidence to which that exhibit points goes to matters such as the appropriateness of the DWM structure and matters of that kind, not to whether rates found in the Higher Education Workers Victoria Award were properly fixed rates. Admittedly I am going a bit from recollection here but I do not recollect any witness brought by the University of New South Wales giving any evidence about the rates in the Higher Education Workers Victoria Award, but certainly a number of them gave extensive evidence about the DWM structure and the DWM descriptors, which of course are found in the Higher Education Workers Victoria Award.

PN23631

If one looks at the DWM report which is behind tab 7 in the agreed chronology document that was handed up at the beginning of these proceedings, one will find that as far as I can read, I might have missed something, it is a lengthy report, but I cannot recall reading anything in that report which proposes a set of rates. It surveys rates. It compares rates. It proposes a structure. It proposes relativities within that structure. It proposes various ranges for various levels but it does not actually propose a set of rates appropriate to that structure and so to the extent that - - -

PN23632

THE SENIOR DEPUTY PRESIDENT: It proposes a rate for the key classification rate, does it not?

PN23633

MR MENDELSSOHN: No, it does not.

PN23634

THE SENIOR DEPUTY PRESIDENT: It does not?

PN23635

MR MENDELSSOHN: Not to my recollection, your Honour. I stand to be corrected if somebody can find it but it does identify level 3.1 as being the - - -

PN23636

THE SENIOR DEPUTY PRESIDENT: Appropriate classification.

PN23637

MR MENDELSSOHN: To compare with the C10 in the metals award.

PN23638

THE SENIOR DEPUTY PRESIDENT: Yes.

PN23639

MR MENDELSSOHN: Yes, but as to whether the C10 rate should be used it does not go so far as that.

PN23640

THE SENIOR DEPUTY PRESIDENT: Well, where did they come from?

PN23641

MR MENDELSSOHN: The rates were negotiated on an institution by institution basis.

PN23642

THE SENIOR DEPUTY PRESIDENT: Which is why there are these slight differences.

PN23643

MR MENDELSSOHN: Yes, and in my submission those slight differences are warranted by the fact that the allowances were quite commonly absorbed into the rates but necessarily the same allowances in the case of each institution, although there was a reasonable commonality I believe, and I am not putting it higher than that, than my belief, on a State by State basis but certainly not across the country.

PN23644

That goes to the other point of Mr Sandler's to which I would reply that where Mr Sandler says that the source of the rates proposed by the parties other than his client is the section 134 agreements, in fact the case of the unions that I represent and also the other parties at the bar table who are party to the general agreement is that that is where those rates ended up, that it was not the source of the rates. The source of the rates was an attempt to find rates to fit the DWM structure which emerged out of the SEP process.

PN23645

THE SENIOR DEPUTY PRESIDENT: Yes. I have noted that from the submissions earlier, that distinction. It is quite an important one I suggest.

PN23646

MR MENDELSSOHN: May it please the Commission, those are my submissions in reply.

PN23647

THE SENIOR DEPUTY PRESIDENT: Very well. Well, no-one has a mind to finish today, do they? No, well, that was answer enough.

PN23648

MR MEREDITH: I think it might be taxing to the reasonable levels of endurance for all parties.

PN23649

THE SENIOR DEPUTY PRESIDENT: Indeed. Indeed, Mr Meredith. I will adjourn now until 9.30 am tomorrow morning.

ADJOURNED UNTIL THURSDAY, 4 OCTOBER 2001 [4.28pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CPSU12 INDEX OF WITNESS EVIDENCE GOING TO THE DEVELOPMENT AND IMPLEMENTATION OF THE DWM STRUCTURE PN23401
EXHIBIT #CPSU13 INDEX OF EVIDENCE DEALING WITH PAY POINT PROGRESSION WITHIN A CLASSIFICATION LEVEL PN23459
EXHIBIT #CPSU14 LIST OF AUTHORITIES RELEVANT TO PAY POINT PROGRESSION PN23459
EXHIBIT #CPSU15 COMPENDIUM OF NSW AWARDS PN23474
EXHIBIT #B12 TABLE HEADED UNSW EVIDENCE TABLE PN23516
EXHIBIT #B13 DOCUMENT ENTITLED EVIDENCE OF HEWV AWARD AS PROPERLY FIXED MINIMUM RATES AWARD SAFETY NET PN23522
EXHIBIT #B14 DOCUMENT ENTITLED EVIDENCE SUPPORTING INSTITUTIONAL AWARDS PN23574
EXHIBIT #B15 DOCUMENT ENTITLED NEW SOUTH WALES AWARDS AND AGREEMENT INCORPORATED IN THE HEGSS AWARD PN23580
EXHIBIT #B16 DOCUMENT ENTITLED HEGSS INSTRUMENTS AFFECTING THE UNIVERSITY OF NEW SOUTH WALES PN23580