C2001/3938, Transcript of Proceedings [2001] AIRCTrans 3453 (11 December 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C2001/3938

AUSTRALIAN EDUCATION UNION

and

THE COUNCIL OF EAST GIPPSLAND
INSTITUTE OF TECHNICAL AND
FURTHER EDUCATION

Notification pursuant to section 99 of
the Act of a dispute re employment and
classification of certain persons -
report back

SYDNEY

9.30 AM, MONDAY, 26 NOVEMBER 2001

Continued from 31.10.2001

Hearing Continuing

PN608

THE SENIOR DEPUTY PRESIDENT: Good morning, everybody. I note that Mr Colley continues his appearance for the AEU, Mr Williams for Vic TAFE, and Mr Griffiths for the East Gippsland Institute. The purpose of the listing this morning is for a report on the matter. I do acknowledge receipt of an e-mail within the last few days from Mr Williams of a memorandum of understanding. What purpose it has got will no doubt emerge this morning. I will take my usual course and go to the applicant first, which is yourself, Mr Colley. Where are we at?

PN609

MR COLLEY: Thank you, your Honour. I do have with me today MR G. BARCLAY. I want to make that clear for the record.

PN610

Your Honour, the Institute and the union did meet on 20 November last, the purpose for which was to explore the scope for enterprise bargaining that might exist between the Institute and the union in relation to this dispute. At that meeting the Institute tabled the MOU that you referred to earlier as a basis for commencing discussions, if you like, between the parties on this issue.

PN611

The AEU firmly put the view that the MOU provided no basis for enterprise bargaining in relation to this class of employees and so provided no basis for resolution of the dispute, and we did so on a number of fundamental issues, if you like, and they were these. That the proposed MOU would result in a separate and distinct enterprise agreement, that is, separate and distinct from ..... employees and from teacher employees enterprise agreements that currently exist; that the basis for enterprise bargaining was to provide terms and conditions of employment largely reflective of the existing status quo; that there was an appeal mechanism in there for those employees as agreed by not being classified as teachers, but the AEU had no basis for any confidence that the appeal mechanism would be effective, and lastly an attempt by the employer to deny use of material for legal remedy that said that occurred.

PN612

Your Honour, that being said, it was the AEUs firm view that enterprise bargaining was the appropriate way to go in which these matters could be discussed, but our view was that these people are teachers. The Teachers Enterprise Agreement applies if the employer had concerns about particular matters whereby the agreement as the under pinning award might have been too restrictive, then they could be sorted through perhaps in an enterprise bargaining context, that is, varying the existing enterprise agreements, but that issue did not find favour with the Institute because their fundamental position, and they'll correct me if I am wrong, is that when all is said and done these people just simply are not teachers, and there will be no attempt to bargain with any premises you've established which would equate these people with teachers.

PN613

Your Honour, the AEU has given some thought to a number of questions which you raised in an off the record conversation last report back, particularly as to the issue of how far conciliation might further go and what role the Commission might have in gaining or seeking further evidence as to the number of items that were still boxed in the agreed statement of facts which has become, I think it's exhibit Joint Statement 1.

PN614

THE SENIOR DEPUTY PRESIDENT: Yes.

PN615

MR COLLEY: Your Honour, we do see that those boxed items can constitute a way for the Commission to further progress this matter. Those boxed items, although they appear in several places throughout that exhibit, essentially reflect the same concerns, and that is that I think there are about four, and if I can paraphrase what those four issues might be, and they are that these employees instruct/train in the ..... but do not teach per the Teachers Award. There's a disagreement about the extent of the development of curriculum materials. There is a disagreement about whether these employees utilise innovative and flexible delivery strategies, and there's a dispute about involvement in moderation.

PN616

Your Honour, we would say some mechanism by which the Commission could take evidence in relation to those matters. Your Honour, the AEU does note it is getting somewhat late in the year. If I'm right, the Institute has a close down period commencing on or about 21 December, but I could be wrong by a few days there, and won't be open till the first week of January. That puts some constraints on evidence taking, and subject to what Mr Williams or Mr Griffiths might say, we would be seeking perhaps this matter be adjourned for the rest of the year and relisted in the second half of January next year for directions as to the taking of further evidence.

PN617

THE SENIOR DEPUTY PRESIDENT: Very well. That completes your report, Mr Colley, doesn't it?

PN618

MR COLLEY: Yes, your Honour.

PN619

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Williams?

PN620

MR WILLIAMS: Thank you, your Honour. As Mr Colley has pointed out, we met on 20 November. We would have to say from East Gippsland's perspective we were disappointed with the outcome of the meeting. We believe, and it's been reaffirmed today with what Mr Colley has put before you, that the exploratory work that the AEU were going to do on an EB as potential for an enterprise bargain has actually taken us right back to square one because what we proposed with this memorandum was what we thought would have been a way forward, but the AEUs position is that, no, these people are teachers and should be employed pursuant to the Teachers Enterprise Bargain. So that process of drafting that memorandum didn't lead to any satisfaction.

PN621

The point that we would make about what Mr Colley said about not having any, I suppose, faith in the process, was that our proposition was let's do an enterprise bargain for this group of people who in our view are distinct from the teaching workforce at East Gippsland, but if at the conclusion of that where people could compare what are apples with apples, people could, if they chose to say, look, I think I'm inappropriately classified, they should be classified first but pursuant to the Teachers Agreement and the Teachers Award.

PN622

We proposed a reclassification process which had ultimate appeal rights involving the Commission with the Commission having the ability to resolve the matter because the dispute resolution procedure that could be enacted if the classification was not granted by the Institute, and the employees still held the view that they should be classified as a teacher could be resolved by our draft memorandum of understanding pursuant to a dispute resolution procedure which would be included within this proposed agreement and would be identical to the dispute resolution procedure in the Teachers existing enterprise agreement which provides that the Commission can arbitrate the matter. So we felt that there should have been faith in the process because ultimately the Commission should have been in that arbitral role if a reclassification wasn't granted and we're still pursued by an individual.

PN623

Secondly, in relation to the discussions, Mr Colley indicated to you that their preference was to have these people employed pursuant to the teachers EB, but with the ability for East Gippsland to propose variations to that agreement to perhaps emulate some of their concerns particularly in relation to the work load issues related to the existing enterprise agreement and Teachers Award applying in the area.

PN624

We explored that issue with the AEU and said that that was a fundamental issue to us and we needed some indication of what level of flexibility there would be in relation to those issues, and the response that we got was non-definitive, and that while we're simply prepared to talk about - when we actually put practical applications on the table in an without prejudice way, just trying to explore the sense of the AEUs position, we had no confidence that they were prepared to move in that way at all, but in any event, that wouldn't have addressed our fundamental issue, and that is that these people are not teachers.

PN625

The position that the AEU has put to you as a potential way forward, we don't agree with at this point in time. We think it could potentially be a piecemeal approach and not take the parties much closer to a resolution of the dispute. East Gippsland at the moment is considering its options that it may be able to put on the table that may provide for a more fulsome process, but in looking at that what it wishes to do is it needs or wishes to consult with its counsel and the committee of counsel that overviews staffing matters.

PN626

Counsel is scheduled to meet this evening, and Mr Griffiths advises me that the recommendation to counsel will be a further meeting of the group of counsellors that overview the staffing issues from a government's perspective the next Monday. We would like the opportunity to explore with them both the AEUs position they put today, but any other potential options that we may be able to bring forward that might lead to a fulsome resolution of the dispute, and what we would propose is that today's hearing be adjourned to a report-back prior to Christmas, preferably after Monday, 10 December, so that's a fortnight away, rather than to today putting forward directions hearings occurring in January, and so we would request, your Honour, that we would be afforded that opportunity to consult with counsel and come back to you, and in any event if that proved to be not worthwhile, it in no way prejudices what the AEU has put before you. I think that's all I wish to say, your Honour, unless Mr Griffith wishes to add anything.

PN627

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Williams. Mr Griffith, do you have anything to add?

PN628

MR GRIFFITH: Not at this stage, thank you, your Honour.

PN629

MR COLLEY: Your Honour, the AEU doesn't have any problem with the proposal of Mr Williams, namely, the opportunity for Institute management to consult with its counsel tonight. If I heard rightly, a further meeting of a subcommittee perhaps was it next Monday, which will be 3 December, and then a report-back some time I think, was it, the week beginning 10 December.

PN630

The only reason the AEU was proposing a directions hearing was that we were mindful of the constraints upon the Commission's time, and unless things were, if you like, pencilled in at a reasonably early time, we go into next year very rapidly, and so I would like some opportunity to look at scheduling matters next year. Mr Williams proposal doesn't do that at this stage, but it certainly doesn't foreclose on it. May I suggest that we go off the record briefly to explore that scheduling idea?

PN631

THE SENIOR DEPUTY PRESIDENT: All right, we'll do that, if that's agreeable to you, Mr Griffith and Mr Williams?

PN632

MR GRIFFITHS: Yes.

PN633

MR WILLIAMS: Yes, your Honour.

SHORT ADJOURNMENT [9.45pm]

RESUMES [9.50am]

PN634

THE SENIOR DEPUTY PRESIDENT: The parties have conferred as to the further progress of this matter and I will adjourn it for a further report until Tuesday, 11 December next at 4.15 pm. It will be a telephone report. Thank you everybody for this morning's contribution. I now adjourn accordingly.

ADJOURNED UNTIL TUESDAY, 11 DECEMBER 2001 [9.51am]