C2001/5193, Transcript of Proceedings [2001] AIRCTrans 2916 (29 October 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C2001/5193

NTEIU

and

HOLMES COMMERCIAL COLLEGES (MELBOURNE)
LIMITED

Notification pursuant to Section 99 of the Act
of a dispute re wages and conditions of employment.

SYDNEY

9.05 AM, FRIDAY, 12 OCTOBER 2001

PN1

THE SENIOR DEPUTY PRESIDENT: Could I have appearances please.

PN2

MR R. THOMAS: I am appearing on behalf of the NTEU and with me MR R. HUTCHINS.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Thomas.

PN4

MS J. WHITECROSS: If the Commission pleases, I am from the Victorian Police Chamber of Commerce and Industry on behalf of Holmes Colleges. Appearing with me is MS M. BREZZI and MR A. CHANESMAN, if the Commission pleases.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Whitecross. Mr Thomas?

PN6

MR THOMAS: Thank you, your Honour. If the Commission pleases, this is an application by the NTEU under section 99 of the Workplace Relations Act seeking a finding of an industrial dispute between the National Tertiary Education Union and Holmes Commercial Colleges Limited who have campuses in Victoria, New South Wales and Queensland but whose head office is located at 185 Spring Street, Melbourne. The NTEU has cause to serve upon Holmes a claim for conditions and wages of employment by the Commission will have before them the R4 documentation which I will take you to.

PN7

There is the log of claims with the attached letter of demand dated 14 September 2001 addressed to the employer of Holmes Commercial Colleges (Melbourne) Limited at 185 Spring Street, signed by Mr Ted Murphy, the National Assistant Secretary of the NTEU. Attached to that is the lodgement document of registered post from Australia Post which shows that that log with a letter of demand was posted at South Melbourne post office on the same day, 14 September this year and be posted by Ms Maynard, an Administrative Officer with the union. As also required by the Act you will find attached to those documents a statement of service in relation to the mail being signed by Ms Maynard and also the document showing the person to have knowledge of cause of the posting the full set Mr Murphy, the National Assistant Secretary.

PN8

As stated they were posted on 14 September. There was no response received from Holmes within a seven day period and as such the NTEU filed an application under section 99 dispute notification dated 28 September 2001. You have all that documentation. NTEU believes is in order and in line with the requirements of the Workplace Relations Act. Holmes Commercial Colleges have been in existence for a considerable period of time, 1963 we believe, but in recent years have taken advantage of the deregulation of tertiary and higher education to expand inter-curriculum that has been the traditional preserve of universities. It is because of this that the NTEU seeks the finding of the dispute.

PN9

I have some documentation which I would like to table and despite the practicalities of tabling documentation with a video conference, your Honour, obviously we can refer to it here and we will then need to ensure it gets to you. The first document I would like to table is downloaded pages from the web page of James Cook University which has a link to Holmes Commercial Colleges. It comes under the web page heading of the ubiquitous www.jcu.edu.au/flbca which is the Faculty of Law Business and Career Paths/holmes. What this document shows, your Honour, is the relationship between James Cook University and Holmes Commercial Colleges where students enrolled at Holmes given access into the degree program of James Cook University. I don't know whether you want to document them as a title, or not.

PN10

THE SENIOR DEPUTY PRESIDENT: I suppose I probably should. Ms Whitecross, have you seen that document?

PN11

MS WHITECROSS: No, I haven't.

PN12

MR THOMAS: I have a copy for Holmes.

PN13

THE SENIOR DEPUTY PRESIDENT: What I will do, if Ms Whitecross has no objection to it, I will mark it.

PN14

MS WHITECROSS: I would appreciate it being marked.

PN15

THE SENIOR DEPUTY PRESIDENT: So what will I described it as, Mr Thomas? A downloaded web page?

PN16

MR THOMAS: Yes, it is the web page from the James Cook University referring to Holmes.

PN17

THE SENIOR DEPUTY PRESIDENT: I mark the web page from James Cook University referring to Holmes Commercial College, exhibit NTEU1.

EXHIBIT #NTEU1 WEB PAGE FROM JAMES COOK UNIVERSITY REFERRING TO HOLMES COMMERCIAL COLLEGE

PN18

MR THOMAS: If the Commission please, the NTEU rules as they currently stand. They established the eligibility of Holmes employees be members of the NTEU and the NTEU has in fact financial members employed by Holmes Commercial Colleges. I would like to tender the membership section of the NTEU rules and it is very comprehensive, it outlines all the categories of employees in and in connection tertiary education in Australia and subrule 6.1 has fairly exhaustive descriptions and classifications of all types of employees who are eligible to be members of the NTEU and we also subrule 6.9 which states:

PN19

Persons employed by any higher institution or employed in connection with higher education or associated research shall be eligible for membership of the union.

PN20

I would like to tender that membership.

PN21

THE SENIOR DEPUTY PRESIDENT: Does Ms Whitecross have a copy?

PN22

MR THOMAS: I have a copy to present to her.

PN23

THE SENIOR DEPUTY PRESIDENT: Very well. I will mark that, that copy is relevant. I will mark the extract from NTEU rules exhibit NTEU2.

EXHIBIT #NTEU2 EXTRACT FROM NTEU RULES

PN24

MR THOMAS: Thank you. Your Honour, in establishing the relationship between James Cook University and Holmes Commercial Colleges which give rise to the employment of Holmes, of people who are then employed in and in connection with higher education, we have evidence which, not wanting to compromise the commercial position of Holmes or that of their members, we would like to submit this evidence in confidence because obviously documents tendered are potentially then open to the public, so we seek your Honour's direction on this matter but we are prepared to table that in confidence.

PN25

THE SENIOR DEPUTY PRESIDENT: It is a document, is it?

PN26

MR THOMAS: Yes, it is a document.

PN27

THE SENIOR DEPUTY PRESIDENT: Has Ms Whitecross seen it?

PN28

MR THOMAS: I have a copy to give to her now. Obviously if there is any opposition but that is why I would like to tender it in confidence.

PN29

THE SENIOR DEPUTY PRESIDENT: Show it to her so she can take a position.

PN30

MR THOMAS: This document is called a retainer agreement and it is between James Cook University and Holmes Commercial Colleges (Melbourne) Limited. This establishes the relationship between James Cook and Holmes Commercial Colleges, it is a comprehensive agreement which goes to the engagement of Holmes to enter into a relationship to James Cook. Ostensibly what happens is students who are enrolled at Holmes, upon the successful completion of a program are then eligible to enter into and complete James Cook University degree programs and that Holmes specifically employs staff to deliver this curriculum albeit under the supervision and the guidance of James Cook University.

PN31

THE SENIOR DEPUTY PRESIDENT: All right, what is your attitude Ms Whitecross?

PN32

MS WHITECROSS: I have been instructed by my client that they would stress the urgency to keep this document confidential and not on the public record. I certainly will be giving access to a copy of that agreement further to my instructions but we certainly don't want to have it on the public record.

PN33

THE SENIOR DEPUTY PRESIDENT: All right then, subject to that I can mark it, is that the position?

PN34

MS WHITECROSS: Yes, thank you.

PN35

THE SENIOR DEPUTY PRESIDENT: All right then, I will mark the document being a retainer agreement between James Cook University and Holmes Commercial Colleges Limited exhibit NTEU3 and I direct that the whole of the document be treated as an exhibit in confidence, not to be released without further direction from the Commission.

EXHIBIT #NTEU3 RETAINER AGREEMENT BETWEEN JAMES COOK UNIVERSITY AND HOLMES COMMERCIAL COLLEGES LIMITED

PN36

MR THOMAS: Thank you. It is a little bit difficult to go through the details of that document without the Commission having a copy in front of them.

PN37

THE SENIOR DEPUTY PRESIDENT: I agree with that, I would not try it if I were you, Mr Thomas.

PN38

MR THOMAS: No, so it is there in confidence and we are of the view that this clearly illustrates that Holmes employed staff who are engaged directly with and connection with provision of higher education. We have financial members at Holmes, we believe we have the eligibility within our membership rules to certainly be service of the log of claims has been done in accordance with the requirements of the Act and depending on the position of Holmes themselves, we will be guided on further moves.

PN39

Just to foreshadow, I do have a statutory declaration which I would like to tender after Holmes have had the opportunity to address the Commission. It merely goes to the statement of the facts of the process of the servicing of the logs, eligibility rules and the relationship between Holmes and James Cook and annexed to them were the documents which have already been recorded by the Commission, the eligibility rules, the web page collection and obviously the confidence retainer agreement.

PN40

THE SENIOR DEPUTY PRESIDENT: All right, I will hear from you, Ms Whitecross.

PN41

MS WHITECROSS: With respect to the serving of the log of claims, my client acknowledges receipt of that claim and also rejects the claims contained therein. I would say from the outset that given the nature of events that I am about to outline that I have not received sufficient instruction on this matter. Indeed, whilst the college did receive the log of claims in the date period that Mr Thomas indicated, it was not until Friday afternoon that they had an appreciation, I would suggest, of the seriousness of the matter when they received a phone call to indicate that the hearing would be on this morning and indeed received the notification on Monday.

PN42

Ms Brezzi has had discussions with Mr Thomas earlier this week and subsequent to that contacted our office on Wednesday. I have had the opportunity of a ten minute conversation with her both on Wednesday and also today that has given me insufficient opportunity to form a position on this matter. I would say, however, that one of the areas that is under contention is whether there is an employment relationship between Holmes Colleges and the academic staff at that college.

PN43

I would suggest to you that whilst the academic staff are engaged in roles that the Union does have coverage and as Mr Thomas has indicated that there is that relationship with James Cook University, it is our contention that Holmes Colleges is not the employer. A commercial relationship exists with another company who is the employer of such staff. I would respectfully request that on the basis that my instructions are incomplete on the matter, that if we could have an adjournment, and I am not suggesting a lengthy time period, just a sufficient time period of 7 to 14 days of which I might have an opportunity to both get full instructions from my client and also have further discussions with the Union.

PN44

THE SENIOR DEPUTY PRESIDENT: All right, Mr Thomas, what do you say to that, simply the question for the adjournment, I mean?

PN45

MR THOMAS: If it is an adjournment requirement and that the adjournment is not too long, certainly the NTEU is well aware of the tightness of your Honour's diary, we would be prepared to accept an adjournment of no later than a week if that is possible, give or take a day to fit it into peoples' diaries. It is often the most difficult of tasks.

PN46

THE SENIOR DEPUTY PRESIDENT: Yes, you are right there, of course. All right, we will come back to how long the adjournment is in a moment. One thing I would like to get clear if it is possible, I note that it is claimed that this situation, I am using that word to be neutral, exists in three states. There is not question that it is only a Victorian connection and consequently section 493 and part 15 are relevant. It is a genuine inter-state dispute subject to what Ms Whitecross has said in reservation.

PN47

MR THOMAS: That is our view.

PN48

THE SENIOR DEPUTY PRESIDENT: That being the case, is the employer properly named in the letter of demand, Holmes Commercial Colleges (Melbourne) Limited? When I say "employer", Ms Whitecross, I have not forgotten what you have said but I am just trying to get as many details as we can sorted out.

PN49

MR THOMAS: We believe that that is the correct name because in the retainer agreement which is tabled in confidence the title page to that states:

PN50

Retainer agreement, James Cook University and Holmes Commercial Colleges (Melbourne) Limited.

PN51

Inside is the ACN, that ACN being 005085585. So given the status of a retainer agreement between two companies we obviously are of the view that that is the correct name.

PN52

THE SENIOR DEPUTY PRESIDENT: It is more a matter for Ms Whitecross actually. Do you have instructions on that, Ms Whitecross?

PN53

MS WHITECROSS: No, unfortunately I don't. I suppose the difficulty that I have is that until this morning I was unaware of the existence of a retainer agreement.

PN54

THE SENIOR DEPUTY PRESIDENT: I just raised that, it is purely a pedantisism at this stage and it is simply that the name of the company drew my attention. If it did not have Melbourne in brackets it would never have occurred to me to raise it with anybody. We will go off record while we organise the date for the adjourned hearing.

SHORT ADJOURNMENT [9.25am]

RESUMES [9.30am]

PN55

THE SENIOR DEPUTY PRESIDENT: Mr Thomas, I understand there is a further document which you would like to formally tender. What is it?

PN56

MR THOMAS: Thank you, this is a statutory declaration compiled and signed by myself. It is a statement as to my role and the service of the log of claims are made upon the employer. It goes to the eligibility rules and the authority contained within them and also it goes to the relationship that we see between Holmes and James Cook University and annexed to that statutory declaration are three documents which are the documents which have been tabled this morning. One, annexe A, is the eligibility rule, NTEU2, annexure B is the James Cook University web site, NTEU1, and annexure C is the retainer agreement which has been tabled in confidence as NTEU3.

PN57

THE SENIOR DEPUTY PRESIDENT: Very well, I will mark the statutory declaration and attachments of Ridian Thomas prepared for these proceedings exhibit NTEU4.

EXHIBIT #NTEU4 STATUTORY DECLARATION AND ATTACHMENTS OF RIDIAN THOMAS

PN58

THE SENIOR DEPUTY PRESIDENT: I note that the direction as to confidentiality extends to the annexure 3 to that statutory declaration. I direct that the Union forward to the Commission copies of all the documents that have been tabled in this video hearing this morning. I note what has been said about the paucity currently of instructions for Ms Whitecross and in that regard I am prepared to accept the application for adjournment. The matter will be adjourned until Wednesday 31 October next at 2 pm in Melbourne.

ADJOURNED UNTIL WEDNESDAY 31 OCTOBER 2001 [9.32am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #NTEU1 WEB PAGE FROM JAMES COOK UNIVERSITY REFERRING TO HOLMES COMMERCIAL COLLEGE PN18
EXHIBIT #NTEU2 EXTRACT FROM NTEU RULES PN24
EXHIBIT #NTEU3 RETAINER AGREEMENT BETWEEN JAMES COOK UNIVERSITY AND HOLMES COMMERCIAL COLLEGES LIMITED PN36
EXHIBIT #NTEU4 STATUTORY DECLARATION AND ATTACHMENTS OF RIDIAN THOMAS PN58