C2324/200, Transcript of Proceedings [2001] AIRCTrans 673 (24 April 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C NO 23242 OF 2000

HIGHER EDUCATION CONTRACT OF EMPLOYMENT AWARD 1998

APPLICATION BY THE UNIVERSITY OF NEW
ENGLAND TO VARY RE RESPONDENCY TO THE AWARD

C2001/611

HIGHER EDUCATION CONTRACT OF EMPLOYMENT AWARD 1998

APPLICATION BY COMMUNITY AND PUBLIC
SECTOR UNION TO VARY RE SUBCLAUSE 4.1.2

C2001/594

HIGH EDUCATION CONTRACT OF EMPLOYMENT AWARD 1998

APPLICATION BY NATIONAL TERTIARY EDUCATION
INDUSTRY UNION TO VARY RE PROPERLY AND
CLEARLY EXPRESSING, WITHOUT AMBIGUITY OR
RISK OF CONFUSION, THE RELATIONSHIP
BETWEEN THE AWARD AND THE HECE AWARD

SYDNEY

2.12 PM, WEDNESDAY, 4 APRIL 2001

Continued from 27.2.01

PN399

THE SENIOR DEPUTY PRESIDENT: I don't believe there is any real variations to appearances this morning so we can proceed. On the adjournment of the previous occasion, as I should probably refresh your memories, I indicated that the purpose of today's hearing was essentially to let the parties make their submissions on the two union applications.

PN400

I noted that I had heard the parties more or less to a conclusion on the UNEs application, a very foolish way of putting it, I believe. If anybody has had any brilliant insights as to how the UNEs application should be dealt with I will obviously have to hear them on it but I think we can proceed with submissions and the unions would start first because it is their applications. Mr Mendelssohn?

PN401

MR MENDELSSOHN: Thank you, your Honour. I think since the CPSU application was lodged a couple of hours before the NTEU - - -

PN402

THE SENIOR DEPUTY PRESIDENT: It is the senior.

PN403

MR MENDELSSOHN: I will go first. These are, as of course your Honour has just said, applications by the two unions to vary the University of New England General Staff Interim Award 2000 by deleting the present subclause 4.1.2 which is in a subclause which says which awards the award supersedes. 4.1.2 is read in conjunction with the prelude and says:

PN404

This award supersedes the Higher Education Contract of Employment (HECE) Award 1998 in relation to general staff of the university.

PN405

The two applications of the unions which are in identical terms proposed to delete that to renumber the subclauses and to insert a new subclause 4.2:

PN406

This award is subject to the terms of the Higher Education Contract of Employment Award 1998 (the HECE Award) as varied from time to time and the HECE Award applies to the extent of any inconsistency.

PN407

Those applications are made, your Honour, essentially pursuant to subsection 2 of section 113 which says:

PN408

The Commission may and shall, if it considers it desirable for the purpose of removing ambiguity or uncertainty, vary an award.

PN409

We say that there is at least an uncertainty and the source of that uncertainty was ventilated on the previous occasion. My recollection, your Honour, is that on the previous occasion you declined to join the applications but agreed to have them heard concurrently since similar issues are rising in all of them and for that reason I do not intend to regurgitate in details everything I said.

PN410

THE SENIOR DEPUTY PRESIDENT: No, well that was the reason why they were heard concurrently, to avoid the need for anybody to do that.

PN411

MR MENDELSSOHN: All I propose to do, your Honour, in relation to the union applications is simply recap the points that I think were made on the last occasion that I feel are significant in relation to the union applications. As your Honour will recall, the source of the uncertainty derives from subsection 1 of section 148 which says that:

PN412

Subject to section 113 in any order of the Commission, an award dealing with particular matters continues in force until a new award is made dealing with the same matters.

PN413

I think it was generally conceded that, notwithstanding that the University of New England General Staff Award says that it supersedes the HECE Award, that if the HECE Award were to be varied, that that variation would have force with respect to general staff at the University of New England.

PN414

THE SENIOR DEPUTY PRESIDENT: Well, that is certainly an argument.

PN415

MR MENDELSSOHN: Yes, so that, in my submission, gives rise to an uncertainty and we say that it would be desirable to remove that uncertainty because, as things stand at the moment, the parties to the award and more particularly, employees whose employment is subject to the award, may be unclear as to which award the University of New England General Staff Award, insofar as it deals with the subject matter of the HECE Award, or the HECE Award itself, apply in a particular circumstance. So, for that reason, it is desirable to remove the uncertainty. We don't contend that there is any ambiguity in the award.

PN416

In relation to the university's application to vary the Higher Education Contract of Employment Award, Mr McAlpine, on the last occasion, developed a point which is highly significant and that is that the University of New England General Staff Award was made in partial simplification of the Higher Education General and Salary Staff Award 1989. In other words, as part of the item 51 review presently conducted by the Commission of the Higher Education General and Salary Staff Award.

PN417

To simplify the HECEs Award in a way that in affected the operation of another award would arguably be beyond the scope of item 51 and therefore of what the Commission is charged and empowered to do under item 51, or at the very least would be not consistent with the general award simplification principles which are that awards should be simplified and certainly nonallowable matters should be removed from them but that rights under awards should not be either enlarged or contracted as a result of the award simplification process.

PN418

THE SENIOR DEPUTY PRESIDENT: Perhaps its more a matter for Mr McAlpine but as I apprehend it, I am dealing or faced with an application under section 113 on behalf of the University of New England.

PN419

MR MENDELSSOHN: Yes.

PN420

THE SENIOR DEPUTY PRESIDENT: It almost accepts the fact that it can't be done under item 51.

PN421

MR MENDELSSOHN: Yes, but the point I was making, your Honour was that the University of New England General Staff Award was made under item 51 and the Commission in making that award and of course the Commission at that time was constituted by Commissioner Smith, but the Commission in making that award could not be taken to have contemplated doing any more than what the Commission is empowered to do under item 51 and that as a perhaps unintentional sideswipe effect on another award, could not have been taken to have been in the Commission's contemplation in making the University of New England General Staff Award.

PN422

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Meredith?

PN423

MR MEREDITH: Your Honour, we come prepared to respond to the grounds upon which the application is made and both applications and indeed the grounds of both applications that is the application marked by the CPSU and the NTU are identical. There are some four grounds listed and as I say, we have come prepared to respond to those grounds. I note that this argument that is being advanced with respect to the claimed limitation of power under item 51 etcetera, does not appear as one of the grounds upon which the application to vary made under section 113 is before this Commission.

PN424

THE SENIOR DEPUTY PRESIDENT: Yes, but it was raised on the previous occasion.

PN425

MR MEREDITH: I readily concede, your Honour the matters are somewhat intertwined but - - -

PN426

THE SENIOR DEPUTY PRESIDENT: If I have to deal with it in one area, I probably have to deal with it in the other area as well.

PN427

MR MEREDITH: Very well, your Honour, in which case we obviously would seek to revisit aspects of that matter as they were traversed in the early proceedings.

PN428

THE SENIOR DEPUTY PRESIDENT: That would be my unfortunate use of the words, more or less, will come back to bite me, Mr Meredith. I don't think I can stop you from responding at the appropriate time. Yes, Mr Mendelssohn?

PN429

MR MENDELSSOHN: Thank you, your Honour. Just if I may, make one response to what Mr Meredith just said, I would have thought that the argument that I was developing shortly before he rose was covered by ground four of the application - the variation sought by this application properly and clearly expresses without ambiguity or risk of confusion the relationship between the award and the HECE award.

PN430

THE SENIOR DEPUTY PRESIDENT: It may or it may not. I am satisfied that the argument is before the Commission and if Mr Meredith and Mr McAlpine want to continue it, I will hear them and I will hear you too, and Mr Burrell if he wants to buy into it.

PN431

MR MENDELSSOHN: Thank you, your Honour. I had in fact concluded that particular point. The other point which I submit is significant in relation to the two union applications, without, as I say going in detail to all the submissions made on the last occasion, is that because of the arguable effect of section 148 of the Act, there is an uncertainty. There are two alternative ways of dealing with that uncertainty before the Commission in these proceedings.

PN432

One is the application by the unions to vary the University of New England General Staff Award and the other is the application by the University to vary the Higher Education Contract of Employment Award by removing itself as a respondent with respect to its general staff. Certainly, if the Commission were to adopt either of those courses, it would remove the uncertainty and it is my submission that the desirable way to remove the uncertainty is to vary the University of New England General Staff Award and an important reason for that in my submission is the Higher Education Contract of Employment Award was made, as was canvassed in some detail on the last occasion by a Full Bench and that Full Bench was dealing initially with applications by the unions to vary the existing awards, not an application by the unions for a stand alone award and that proposal only emerged much later in the proceedings before the Full Bench and it was the course of action that the Full Bench decided to follow.

PN433

While that certainly does not act in any way as a bar to your Honour varying the Higher Education Contract of Employment Award in the manner sought by the University, in my submission, the Commission should exercise great caution in partially repealing in effect, an award that was made by a Full Bench of the Commission as a stand alone award applicable to the industry generally. As I say I am not suggesting that your Honour doesn't have power but I am submitting that there should be caution in adopting that sort of course. And that even if your Honour is not persuaded to grant the unions applications we submit that under no circumstances should the University's application be granted.

PN434

The final point I would wish to make is that as was I think canvassed reasonably adequately on the last occasion, there was no discussion before Commissioner Smith when he made the award about the present subclause 4.1.2 and while it is certainly open to the university to argue that the union has consented to it, there is a real issue as to what the unions consented to, as Mr McAlpine submitted on the previous occasion, and I adopt that submission, all the unions could be taken to consent to in the absence of any clear or express intention otherwise is to the legal effect of the award as made. That, of course, relates back to the section 148 argument.

PN435

So, for those reasons, and in the light of the other submissions made on the previous occasion, it is my submission that the Commission should grant the union applications to vary the University of New England General Staff Award in the manner sought. May it please the Commission.

PN436

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Mendelssohn.

PN437

MR McALPINE: Thank you, your Honour. I don't intend to add very much to what I said last time and perhaps just recap a few points. As Mr Mendelssohn said, the two applications under section 113 are identical in their form. We decided not to have an argument about which application should be granted or in what order. As Mr Mendelssohn said, it's an application under section 113. We acknowledge that the onus is on us to make out the grounds as to why our application should be granted however we say that onus is somewhat affected by section 113(2) which states the Commission may and shall, if it considers it desirable for the purpose of removing ambiguity or uncertainty, vary an award.

PN438

It seems in one sense these proceedings, if they prove absolutely nothing else, prove that there is an uncertainty because there are differing views I suspect honestly held by various people at various times all of whom at least claim to have some understanding of these matters about what the effect of the awards and the interaction between the awards is.

PN439

I suspect that if people at the bar table are uncertain or differ about the effect then a person seeking to enforce their rights which are at the moment stated in both awards may suffer also from an uncertainty or ambiguity about exactly - or certainly an uncertainty - which award is the award that has been breached and under which award they should seek an appropriate remedy. We say that although the onus is upon us to make out our application we say that the test of whether there is an uncertainty has been met and that the Commission then only has to consider whether it is desirable to remove that uncertainty and we say prima facie from the construction of the section really and as a question of common sense it is desirable to remove uncertainty unless there's some particularly good reason advanced as to why one should not.

PN440

In addition to that we say, if you like, an error has occurred in substance or in form, we say an error has occurred in a sense in form as described under section 111(1) in the alternate because we say that the form of the award or the form of that clause erroneously states the actual position in the sense that it is clear from the interaction of section 148 and 143 that while the University of New England continues to be a respondent to the HECE award in respect of general staff, that future variations to the HECE award will continue to apply yet the form of words in the University of New England General Staff Award doesn't reflect that fact. We say that an error in form has been made.

PN441

We also say that an error has been made because the purported effect was beyond the jurisdiction of the Commission. I am not saying, as a result of that, that the application before the Commission by the university is beyond the jurisdiction of the Commission, it is not, but the university rested its argument upon an assertion that what it was seeking to do was to more properly reflect the existing status quo. That was what they stated.

PN442

We say that is not correct and that the existing status quo is, firstly, in any case, future variations to the HECE award continue to apply at the University of New England to general staff. Secondly, in any case, the Commission had no - I actually should point at "we" collectively the parties, the parties had no business putting before the Commission a draft order under item 51 which purported to affect the operation of another award. As a result, the Commission was led into a position where it made an order under item 51 which was beyond its jurisdiction under item 51.

PN443

THE SENIOR DEPUTY PRESIDENT DUNCAN: Your argument is that if that were to be done it would have required at the time a 113 application directed to the HECE award.

PN444

MR McALPINE: Yes, and that 113 application and the item 51 could have been heard together and I can absolutely guarantee, your Honour, that had that section 113 application been before the Commission at the time then both that application and the form of words to which it points would have been the subject of argument before the Commission.

PN445

There is simply no way that certainly we would have consented go such a section 113 application. The ASU moreover, who are also a party, would need to have been advised as the other parties were advised of the proceedings under the Higher Education General & Salaried Staff Item 51 matter but the ASU was not advised of the application to vary the HECE Award. If, in effect, the university is saying this has already been done, then the Commission, even if it had had the jurisdiction, it would have been incumbent as a question of fairness for the university to put that application to the ASU as another party to the award.

PN446

THE SENIOR DEPUTY PRESIDENT: It raises a question - and I haven't refreshed my understanding of the two decisions of the Commissioners prior to me, Commissioners Smith and Lewin - it raises the general possibility that this simplification process, which it's been accepted has been done under Item 51, doesn't in fact require, when something like this is done, the incorporations of provisions from another award into the simplified or created institutional award, doesn't require a whole host of section 113 applications, or a section 113 application that covers a whole host of matters.

PN447

MR McALPINE: We, in the whole Item 51 process, and this is why I think these are unfortunate proceedings in one sense, we in the whole Item 51 process have not been seeking to, for example, move the provisions of the HECE Award into the simplified award. We have opposed that as a general proposition but in order to reach consent we have been prepared to go along with those provisions.

PN448

THE SENIOR DEPUTY PRESIDENT: They seem subject to the rider that it doesn't avoid future changes. I mean, that's what you have agreed to.

PN449

MR McALPINE: That's certainly correct, and in the other provisions, in the other awards, there is a statement, this award shall be read subject to the HECE Award. There is no question about that.

PN450

THE SENIOR DEPUTY PRESIDENT: Yes, that was the rider I meant.

PN451

MR McALPINE: Yes, so I don't want to canvass that issue at any length as to whether or not those provisions can be included. I suspect they can by consent but - - -

PN452

THE SENIOR DEPUTY PRESIDENT: As you say, it's not the time to go down that path.

PN453

MR McALPINE: We say, and I tried to come up with a three way, I think it's all the three options, between the two things. What happened, it seems to me in my experience there are three circumstances that you can describe that this sort of situation arises in. One is where there was a stated intention of the parties by consent and that that is given effect to in the award. I don't think it has been claimed that that's the case, that no submissions were made, that what we were doing here was in effect taking the University of New England out of the HECE Award in respect of general staff. No submissions to that effect were made to the Commission when the award was made, but we can have a situation where there is a stated intention to the parties and that's given legal effect in the award.

PN454

The second category which occurs from time to time is where the parties have their stated intention but it's not given effect in the award due to some drafting error or some legal error. The third category is that where there was no stated intention and there was no resultant effect and it seems to us that the third category is the category that we are in. There was no legal effect and the parties didn't purport that they had reached some in principle agreement which, as a result of some jurisdictional error, fell over. There was no stated intention and there was no legal effect.

PN455

We say that in the absence of any arguments on merit, more broadly about the inappropriateness of the University of New England being bound by the HECE Award or the peculiar circumstances at the University of New England, that it would be wholly inappropriate for the Commission to take one institution out of what was a fully arbitrated national award made by a Full Bench as a result of a provision in an interim award done under Item 51.

PN456

I think the Commission said at the end of the proceedings last time this is a bit of an imbroglio and I think the parties both in putting a proposal to the Commission, which the Commission had no jurisdiction to give effect to, and certainly ourselves in not having checked that provision, all the parties and particularly ourselves in that respect need to take some blame for what has happened in this matter. But that is a separate issue as to how the issue should be disposed of from now on.

PN457

We say that there is an uncertainty and that prima facie one or other of the applications, that is one or other of the applications from the university or ourselves, should be granted if the uncertainty is to be removed, but we say that there is no proper basis in merit for the granting of the university's application and under no circumstances should it be granted. We would prefer that none of the applications were granted rather than the university's application being granted, notwithstanding the uncertainty, because we say that that would in fact change the legal situation in a manner that would be prejudicial to our interest and to the interests of our members at the University of New England. If it please the Commission.

PN458

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr McAlpine. Mr Burrell?

PN459

MR BURRELL: Thank you, your Honour. Once again I'm not going to go through a lot of points that we made at previous hearings but I'm just going to respond to a couple of points that have just been raised by both Mr Mendelssohn and Mr McAlpine. I might just address some of the points that have just been made by Mr McAlpine first. Mr McAlpine seemed to rely heavily on some points about merit and I didn't hear much come from his side of the bar table on merits of why one of the respective union's applications should be granted.

PN460

Mr McAlpine stated that there was no stated intention by any of the parties, and in particular I'm sure he was addressing his comments to the University, of the effect that clause 4 in the application of the award would have when it was made. For a start I think it's pretty clear, in black and white, that it says, "Use of award supersedes the higher education contract of employment award in respect to general staff." It was pretty clear, it was in black and white. I think that pretty much states the intention of how the award was going to apply.

PN461

Once that award was made, and it was clear that was going to be what the status quo was at the university, that the university would have its own institution award, its own enterprise award that encompassed all terms and conditions of employment. We got that because we incorporated the HECE provisions, as part of the 51 review. The process went out in August, and I'll get to the item point that was raised by both Mr Mendelssohn and Mr McAlpine regarding item 51.

PN462

The other question that was raised that no comments were made by us at the time, or that we should have made a section 113 application at the time when it was made. First off, I would say that I really couldn't see that there was going to be any problem, or didn't realise the implications that section 148 might have when the award was finalised, and it wasn't until three months, four months later when we actually lodged our application to make a variation, that I realised the problem that could arise out of section 148 if a variation was made to HECE later on.

PN463

To say that if I had known probably back at that stage that if when our award was made and with HECE being included that there was going to be an issue that if HECE varied later on, a question about which award would apply, it's very hard to say what would happen in hindsight, but I'm sure that the university, or maybe one of the respective unions would have raised it at that particular time, but it wasn't something that was in the forefront, but we can't go back to what happened back then.

PN464

In relation to item 51, in all the decisions that I've read, and the principles and the translation period, and process and steps that are involved in item 51, I haven't come across anything anywhere that suggests that as part of the item 51 review, if you are reviewing an award, that in other terms of another award that might be affected on that system couldn't be incorporated into that award. I haven't seen anything and maybe if I'm wrong someone might correct me, but there's nothing that I've seen in any of the award simplification principles that suggest or limit an award that's been simplified just to that award, and not terms that are relevant at that stage.

PN465

I know for example, that item 51(3) does make some comments that when you are varying an award, that the Commission can also vary the award in relation to allowable award matters so the award is expressed in a way reasonably represents the entitlements of employees in respect of that matter. Matters that were affecting the employees at the time that we were going through to develop the general staff award and I think it was clearly articulated by Mr Meredith in our last proceedings, was that issues to deal with casual employment or fixed term employment in those periods were part of the underlying instruments, that they have obviously been dealt with by the HECE award which was a fully arbitrated award.

PN466

Those provisions still apply to the university and they were still conditions that were part of actually representing the entitlements of employees at the time. It seemed reasonable, not only to the university when we pursued it, but obviously also to Commissioner Smith in some of the decisions and statements that he made on transcript in other proceedings. There was no reason why not the HECE award could not be incorporated into the general staff award. There was no reason why it couldn't be done as part of the item 51 process. I have commented on that before, and that was commented before by Commissioner Smith when he was addressing issues in relation to HECE to do with the University of Queensland. I spoke of that last time.

PN467

Your Honour, in my respectful submission, it was very, very clear when the university went through the process and when the award was put up and when the award was made, the effect of what the university was seeking. As I said before, it was only some time later when I actually sat down and really realised as far as the implications of what section 148 could have. When the university General Staff Award was made to encompass all the terms, it was designed to be an independent award that would be sitting there by itself, and they were the terms and conditions in one instrument. That was consistent with the view expressed by Commissioner Smith as well.

PN468

The effect of section 148 later on really, I think, is the point which raises the uncertainty that if a variation - and I haven't been able to find anything that actually in any of the researches that I've been able to take, actually clearly defines how that section 148 would apply, but I would assume, just in general - - -

PN469

THE SENIOR DEPUTY PRESIDENT: Well, that's right, I'm not aware of anything which clearly states the position.

PN470

MR BURRELL: Yes, and I would just assume that as a variation is in effect making the award, and I think it was Mr Mendelssohn mentioned it before that as the variation was made through the HECE award as a result of section 148, it could be assumed by its wording that as it became a new award dealing with the same particular matters, it would in effect override.

PN471

THE SENIOR DEPUTY PRESIDENT: It depends a little on what is meant by supersede.

PN472

MR BURRELL: That's right, your Honour, and the idea was the superseding meant that the university General Staff Award, that was it, they were going to be the terms and conditions.

PN473

THE SENIOR DEPUTY PRESIDENT: I know what your position is.

PN474

MR BURRELL: Yes. One of the points that has been raised also was that some of the other universities, where the variation would make it consistent with what some of the other universities have as well, we would say in respect to that matter that all universities are different and that each university would have different requirements and that requirements of, say, a national institution or an institution such as the University of New South Wales, in metropolitan Sydney, might have some different requirements or different needs or different approaches, whatever they decide to do whether it be through awards, or through enterprise bargaining, or whatever the matter as compared to what the University of Western Australia does, or what the University of New England does.

PN475

The University of New England is situated in a small provincial city, of only about 25,000, I think it's the smallest city that's got a university campus in there, and we have over 1500 staff in total, about 1000 general staff, and when we created our award, whilst we used most of the test case standards that had been set, and that's where we rely on HECE Award provisions. We also included, as you are aware, which is another matter still before you for decision, your Honour, which is the stand down application and we made that which is obviously something different to what other institutions would have because that's something that was specific to our institution. What I'm getting to in this point is that we were trying to encompass, again, terms and conditions that reflected industry and the stuff that had been done in relation to where the test case standards, as a whole, or test case standards in industry which, in effect, I suppose, HECE could be seen as on one light but also to make sure that it was relevant to the university as well.

PN476

We don't see in any way that the way in which our award is constructed, the way in which it applies would have effect to an employee in any negative way. We also would state that the protests that we went through in developing the award and the form in which it is in is consistent with principles of the Act. It is consistent with award simplification principles or the award simplification process, we don't see any issues that arise out of that. In effect, the award has been made now and we are not looking back at what happened, part of the eye on the future process, the award is the matter before us now.

PN477

It is only an interim award, I understand that, but the only reason it's realistically an interim award is because of the matter of salaries and classifications which is being heard, also that's currently before the Commission as well. I think, at this stage, I might just rest because I know Mr Meredith is going to make some further comments and I might make some final comments after Mr Meredith has concluded. If it please the Commission.

PN478

THE SENIOR DEPUTY PRESIDENT: If Mr Meredith doesn't mind being followed up? It's your call, Mr Meredith.

PN479

MR MEREDITH: I can stand proof reading as well as the next person, your Honour. Perhaps some house keeping to commence. Notwithstanding the single mindedness of the question that I raised with respect to submissions by Mr Mendelssohn and then Mr McAlpine being confined to the grounds in support of the application, it's quite clear that we are dealing with parallel matters that have common cause. In those earlier proceedings, your Honour, in my submissions in reply to the submissions of Mr Mendelssohn and Mr McAlpine on the question of the HECE contract of employment terms being subject to an enterprise flexibility provision.

PN480

Mr McAlpine sought to establish the point that there was no such provision in the Contract of Employment Award as made by the Full Bench and that, by inference at least, it would be prejudicial to those general staff employees at the university if the modes of employment in the Contract of Employment Award were to be potentially capable of variation by way of an enterprise flexibility provision. I responded to that with the assertion at that time that I was aware of a decision by Commissioner Eames in the Northern Territory concerning the Northern Territory Public Service General Conditions of Service Award, 1987 and I was right on that point and, indeed, that decision of Commissioner Eames was subject to an appeal.

PN481

That appeal was heard before a Full Bench comprised of His Honour, Giudice J, His Honour Vice President McIntyre, and Commissioner Hodder. The decision of that Full Bench is print T1141, that's the decision that I had in mind in those earlier proceedings. The appeal considered three questions. Spread of ordinary hours, overtime to part time employees, and enterprise flexibility provisions. In simple terms, your Honour, the appeal bench upheld the decision of Commissioner Eames in not inserting an enterprise flexibility provision in that award as part of an item 51 review.

PN482

The other housekeeping matter that I should briefly go to. I also, in my submissions in reply, referred to a number of awards before Commissioner Hingley with respect to the Shop Distributive and Allied Employees Association. I asserted that there were more than one award in those proceedings before Commissioner Hingley. I'd simply confirm that while I'm on my feet now, your Honour, and that's print S3125. The awards that were being considered there were the Booksellers and Stationers Interim Award, 1994, the Food and Liquor Stores Interim Award, 1994, and the Victorian Shops Interim Award, 1994. This was going to the question of the consolidation of awards that may arise out of an item 51 review process.

PN483

Again, your Honour, and for the parties, that's print S3125 and I'm just noting that, as I had asserted, there were three awards, in fact, simultaneously being subject to review and a consolidated award emerged from that review of the three awards. The question of merit was raised, particularly by Mr McAlpine. In conclusion, Mr McAlpine asserted that it would be prejudicial to our interests and those of our members should the university's application to vary the Contract of Employment Award be granted. We are genuinely at a loss and, in my respectful submission, so should the Commission be, as to how that arises.

PN484

There certainly has been no material put before you to demonstrate in any plausible way the prejudice or the disadvantage that might arise to employees of the University of New England if their local award applies the extant standard of the Contract of Employment Award. Nothing has been put to you of any alleged particular employment practices of the university, nothing has been put to you of the incidence of fixed term employment at the University of New England.

PN485

So there is nothing before you to suggest that either union might reasonably have an apprehension or a well founded apprehension that the University of New England operates in such a way that if the Contract of Employment Award terms continue to be imported into the University of New England award that there would then be some further cause for concern or alarm on how the university might seek to apply those. Nothing has been put to you on that point. It's really open for you, I submit, to conclude that there is no demonstrable basis for any apprehension as to the university's ongoing application of the forms of fixed term employment that are comprehended at this stage both in the university's own general staff award and in the contract of employment award. The application that has been lodged by the university seeks quite expressly to remove the application of the contract of employment award from general staff at the University of New England.

PN486

If that application is granted the concerns that have been raised with respect to either the operation or the interaction of sections 143 and 148, or the operation of section 148 of its own terms, both of those issues are resolved. The application to vary as lodged by the university and indeed Mr Mendelssohn clearly recognises this. His words in effect were that the application made by the University will remove what he considers to be an ambiguity or uncertainty as far as the operation of section 148. I thought I had marked the note that I had taken - -

PN487

SENIOR DEPUTY PRESIDENT DUNCAN: I concede I did say words to that effect to save Mr Meredith searching further.

PN488

MR MEREDITH: The point wasn't comprehended by Mr McAlpine in his submissions but there seems some common view, notwithstanding the competing positions of the parties. There seems some common view amongst some of the parties that the university's application in the form that it has been made will deal with the potential, and I underline potential, operation of section 148.

PN489

I say potential because, as we have previously submitted, your Honour, and it was not challenged, the university went to some pains to ensure that between the first and the final draft of the proposed award that the terms had been varied to incorporate the later decision of the contract of employment full bench, and that's a decision in Print S2272 dated 5 January 2000. That's the decision that gives belated effect to a number of implementation issues that the parties had identified.

PN490

As I said in previous proceedings, the university has clean hands. The university ensured that between the first draft that had been circulated in early 2000 to the time of the final award being made that it had been varied to incorporate the final order that came from that January decision of the full bench. The university would also readily concede that were there to be some future variation to the contract of employment award - I should not say whether that is likely or unlikely, I simply say, were there to be some future variation to the contract of employment award the university would clearly see that as persuasive upon the operation of the New England University General Staff Award.

PN491

The university's actions thus far, and I repeat, that narrative is not challenged, the university's actions in framing the award that we say was consented to in most part by the parties give effect to what I submit would be the persuasive effect of any subsequent change to the HECE Award and the university's actions give effect because they have already demonstrated that they will do that.

PN492

They have demonstrated good faith and we say those facts should weigh considerably against consideration or acceptance of the submission that somehow the action or granting of the application brought by the university would be, as was submitted by Mr McAlpine, prejudicial to the interests of the union or its members. I repeat, there is nothing before you to demonstrate that and in the alternative you have demonstrated good faith of the university in its actions in updating and amending the draft award that finally was put before Commissioner Smith and it was made by Commissioner Smith and with the exception of some other matters we say was consented to by the parties.

PN493

The question of jurisdiction has been revisited this morning. I put submissions to you in the earlier proceedings and I won't tax everyone's patience and go through those again. Suffice to say you have a copy of an exhibit that was put to Commissioner Smith and accepted by Commissioner Smith that demonstrates that a number of pre-existing instruments and awards apply to the University of New England. Of those pre-existing awards and instruments, one that we have shown you went to casual employment, part-time employment, term employment and fixed term employment, was squarely before Commissioner Smith within the item 51 review process and properly before the Commission as part of the item 51 review process.

PN494

In drafting the award that was subsequently made, what the university has done is to seek to apply the latest standard in the contract of employment award to those pre-existing conditions that clearly were an integral part of the item 51 review. In my submission there is no merit whatsoever in the assertion that's been put that the Commission somehow wanted jurisdiction to consider the question of modes of employment and fixed term employment in making the university of New England General Staff Award 2000 to give effect to that part of the item 51 review of the Higher Education General and Salaries Staff Interim Award.

PN495

It was also submitted that it is desirable to remove an uncertainty. We agree with that and we say that's what we have done, that's what the university has done in the form of the application to vary that the university has submitted. We say that if that application be granted, the uncertainty is removed. I note that no party claims the situation to be anything stronger than uncertainty as opposed to ambiguity. But to the extent that section 113(2) directs you, your Honour, if you consider it necessary to remove an ambiguity. We say that is an argument that strongly supports the first application that is before you in these proceedings and that is the application brought by the University of New England.

PN496

The effect of that application, again as has been conceded by some of the parties, is to prevent the situation of there being some unforeseen future variation to the Contract of Employment Award that might then, for those terms, overtake the New England Award. Again in response to that, the university readily submits that if there ever were to be such further variation, that would be persuasive upon the university as far as the terms of its ongoing general staff award. Your Honour, I did wish to make one other point with respect to enterprise flexibility provisions. I have studied the original decision of the Full Bench in making the Contract of Employment Award.

PN497

The Bench certainly notes that it has carefully considered the terms of the award and considers that they are all allowable. I also note that the Bench notes in their decision that at the time that the first decision was made by the Bench in that award, that they did not have the advantage of the hospitality industry test case decision. The further point I would make is that, as has been submitted, the Contract of Employment Award, those proceedings originally commenced by way of section 113 application to vary a number of awards, the proceedings devolved to a point where the Bench determined that the making of a new award was the appropriate way to proceed.

PN498

I'm looking at the cover of the decision of the Bench of 11 May 1998, your Honour, that's with respect to the Contract of Employment Award. It's print Q0702. I note that it identifies that there has been a section 107 reference to a Full Bench. I note that there's a reference to section 99 notification of industrial disputes, section 99 notifications by the National Tertiary Education Industry Union and a section 113 application for variation by the Community and Public Sector Union. My point is the award that ultimately came - the Contract of Employment Award arose from both dispute notifications and applications to vary.

PN499

The original decision of the Bench was made in August 1997, which is of course four months prior to the hospitality industry test case decision, four months prior to the enunciation of principles as to what simplified awards will look like. I note also that the award arises again from section 99 notifications on an application under section 113 where, shall I say the reference to enterprise flexibility provisions is substantially less automatic and substantially less focused than is in the case of item 51. The enterprise flexibility provisions occur as part of the item 51 process.

PN500

There is still the discretion to the Commission member hearing it, but it is one of a number of matters that the Commission, in conducting an item 51 review, must address. I simply say less so out of a section 99 proceeding, less so out of section 113. I'm aware of the terms of section 143 that have some general reference. I simply make the point it's a less complex and less comprehensive code of matters for the Commission to address than is present in item 51. To that extent, the attention of all of the parties is, I submit, less taken towards that issue in a section 99 notification than the parties would be and are taken in an item 51 review process.

PN501

Your Honour, if as I submit, there is no demonstrable prejudice arising to members of either union, if as I submit, the only merit that has been attached by the unions to their identical applications to vary are that they are applications that would give effect to the outcome they would prefer in those related proceedings concerning the application by the University of New England, I submit that the lack of any support of evidence, exhibit, documentary, whatever that the unions have brought with respect to the claimed uncertainty in the minds of their members, with respect to their entitlements, I submit that no substantive merit at all and no material has been brought to support the application brought by both unions, either material going to the grounds as advised by the unions in their application, or material going in support of the somewhat broader submissions that have been put.

PN502

In my respectful submission, you are being asked to consider the identical applications to vary from no greater evidentiary position and from the position of no greater merit than they are applications to vary that would give effect to the preferred outcome that both unions seek in the application that has been lodged by the university itself. In my respectful submission, an application to vary an award is required to meet some sterner test than simply to give effect to a preferred philosophical or policy position and, I respectfully submit, an application to vary an award needs to carry some greater weight than merely redress what is now being bashfully conceded as representative error or the like at the time of the making of the University of New England Award.

PN503

It is a fact that in correspondence between the parties in early 2000 the question of the operation of the HECE award was raised. It is a fact that in subsequent discussions the university confirmed that its position was that it would seek to have those terms in the University of New England Award. I concede that in one of the organisations present here today there had been and there were some internal changes of personnel and officers, etcetera, in the latter part of the year 2000. If this were an unfair dismissal proceeding those circumstances might mitigate against representative error but I submit that's not reasonably open here and that's not a proper basis to seek to re-visit that which people chose not to look at, chose not to read and chose not to comprehend when it was in plain language before them.

PN504

Again, Mr Mendelssohn in his submissions in February made it quite clear he does not contend that the university in any way has sought to have been duplicitous or otherwise disreputable in how this matter was dealt with. The university considered that it had prepared and sought to finalise a comprehensive, site specific general staff conditions award, interim at this stage for reasons that I previously adverted to, that being that the question of salaries and classifications is to be separately settled.

PN505

It is in that respect only that the award is interim and I believe, your Honour, you will find transcript from Commissioner Smith in the latter part of 1999 where he makes it quite clear that he will make awards dealing with conditions on an individual site basis or an individual or regional basis and they will be interim pending the settlement of salaries and classifications matters.

PN506

The third point I'd make, your Honour, again to test an hypothesis we turn the facts around: should the university's application be successful, and we earnestly submit respectfully that there are no significant grounds we believe that have yet been put to you that should prevent the application from being granted, but should the application succeed there may be - and it's not been openly adverted to - there may be some apprehension in the minds of the other parties present that that might then be the beach-head at the University of New England for some further erosion or whittling down of the contract of employment standards.

PN507

We say that's not going to happen, we say that's not in the university's mind: but even if it were, there would only be two ways the university could do that separate to the bargaining stream. The only two ways the university or the employer might seek to do that within the award would be an enterprise flexibility arrangement which would require the consent of a union party or alternatively to seek to vary the award.

PN508

In either case obviously merit would have to be heard by the Commission and the parties would clearly have the opportunity to put competing views if such an application were ever made. I emphasise, it is not proposed, it is not foreshadowed, it is not contemplated by the university but if that scenario is perhaps the unseen reverse of some of the submissions that have been put I think it fairest to recognise it and to at least contemplate it in our submissions here today.

PN509

My final point, your Honour: it's also been asserted that separate to the question of modes of employment being a subject matter that was part of the item 51 review, it is nonetheless further asserted that somehow it is beyond jurisdiction out of an item 51 review to produce an award that may affect another award. We're not told how that is beyond jurisdiction, we're not taken to any authority to suggest that. We, in the alternative, submit that the effect of what is happening here is entirely consistent with principle 7 of the award simplification principles contained in Print P7500.

PN510

Principle 7, as the parties probably know, reads, I quote:

PN511

Award simplification does not involve a general review of the level of award entitlements. Despite this, entitlements coming within various items may be altered if a proper basis exists for doing so.

PN512

The relevant sections that are referred to there are items 51(6)(b) and (c). At item 51(6), (b) is a prescription dealing with prescribed work practices and (c):

PN513

That the award does not contain provisions that have the effect of restricting or hindering productivity.

PN514

Mr Burrell has already taken you to item 51(3) that the award is expressed in a way that reasonably represents the entitlements of employees in respect of matters as provided in the award as in force immediately before the end of the interim period. In force beyond the end of the interim period, the Higher Education General and Salaried Staff Interim Award called up a number of state award and instruments in New South Wales.

PN515

One of those we've taken you to, that instrument had provisions for casual, part-time, fixed-term and related employment, related modes of employment. The entitlement was there. That entitlement is subsequently qualified or modified by the finding of the Full Bench in making the Contract of Employment Award. What the university does, or what the university has done in bringing forward and in having the University of New England General Staff Award is clearly to give effect to item 51(3). There is a pre-existing entitlement to various modes of employment, they are allowable, they are proposed to be retained in the University of New England General Staff Award 2000 as made by Commissioner Smith last year.

PN516

They are proposed to be retained in an award specific to the University of New England as opposed to reside in some other instrument, that is another award. We say it is arguable at least that to deny the application to vary brought by the university would seem to us to run contrary to item 51(3) and we further say that the award that has been made is an award that will give, subject to the application for variation that the university has brought the award that has been made is an award that will be readily available and is now readily available to general staff employees at the University of New England at some Armidale some 550 kilometres away from here.

PN517

As Mr Burrell noted in his submissions on our best estimation the University of New England Campus at Armidale has the distinction perhaps of being the campus located in the smallest provincial city within Australia of those that have university campuses.

PN518

It has a stable workforce, Mr Burrell has remarked upon the size of the workforce and it's a workforce that is perhaps socially and industrially somewhat different from a comparable sized workforce in a capital city such as this. I'm told by Mr Burrell that with the exception of enterprise bargaining negotiations he rarely has dealings with or has contact with officers, for example, industrial officers or organisers of either union in Armidale. It is a fair step we would all concede that but that regular attendances, regular dialogue for example between Mr Burrell as industrial relations manager and an industrial officer or an organiser or the like of the union outside of enterprise bargaining negotiations is not common.

PN519

I attach no great weight to that, I simply report it as a matter that Mr Burrell had remarked upon to me because I had asked him the question. So we have a workforce located that distance away where we are seeking to have the award that's been made remain as it has been made and provide a single coherent comprehensive document available to all local managers and employees that clearly specifies their entitlements at this stage with respect to conditions but we would hope in the future subject to those other proceedings that it would be a document that would also specify salaries and classifications. We say all of that is consistent with item 51 and as has previously been submitted it's consistent with the principal aims and objects of the Workplace Relations Act. If it please the Commission.

PN520

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Meredith. There's a right of reply, it's the union application I'm dealing with. Mr McAlpine?

PN521

MR McALPINE: Thank you, your Honour. I will try and be very brief. The question of jurisdiction, the authority that I would rely upon is simply the proposition that the Commission has to have before it a matter in order to make an order about that matter. I'm sure the Commission as presently constituted would never go on such a flight of fancy but if as a result of something that Mr Mendelssohn said your Honour decided to make some variation to the Metal Industry Award at the end of these proceedings we would say and I don't know whether I could cite an authority, we would say that the Commission did not have jurisdiction to do that. As a question of fairness and as a question of law the Commission can only deal with the matters that it has before it.

PN522

There is as Mr Burrell says, we can have an argument to what extent the Commission could in an item 51 review bring in provisions from other awards and put them in, that's fair enough but we couldn't in an item 51 review repeal in part another award. We could if an application to vary that other award was before the Commission along with the item 51 review and the two matters were being heard together.

PN523

THE SENIOR DEPUTY PRESIDENT: Which happens.

PN524

MR McALPINE: Which happens, undoubtedly it happens. I think our union has been a party to those type of arrangements.

PN525

THE SENIOR DEPUTY PRESIDENT: Awards are set aside, subsidiary awards or not even subsidiary awards which have been taken in are set aside.

PN526

MR McALPINE: Yes, but when the Commission dealt with this matter it only had the item 51 review of the HEGGS Award in front of it. It had no jurisdiction, no jurisdiction at all to vary or repeal in fact in part the operation of the HECE Award. Mr Burrell says that the issue of the operation of section 143 and 148 wasn't addressed at the time the award was made. Up to a point that is our point. The issue of the interaction between the two awards which was allegedly a substantive change, was not addressed. It was not addressed by the Commission, it was not addressed by the parties.

PN527

In that context we say these proceedings which are - there has, despite a few remarks that have been made from time to time about the University of New England's particular characteristics, these arguments are not essentially about merit in terms of industrial merit on the ground, they are about what parties have done in the past and what the effect of various decisions of the Commission have been and should be in the future.

PN528

We say that in the absence of any particular statutory point the Commission shouldn't particularly be moved to do anything, but we say that what our argument has in its favour is all we are seeking to do is to remove an uncertainty without altering the status quo. We're not seeking to alter the status quo; that is the full extent of our application is to remove the uncertainty so that the status quo is maintained. That's why really, as a question of principle, we haven't canvassed a whole range of other issues about what the appropriate mode of award regulation is a the University of New England, but we actually don't think the other side have done that either.

PN529

Mr Burrell did speak briefly about the particular requirements of the HECE Award and he seemed to really want to have two bob each way on this one because on the one hand he was saying that the University of New England was quite different and that it was inappropriate, that the circumstances in relation to modes of employment might necessarily be quite different at the University of New England. Well, the actual provisions that have been incorporated and identical to the HECE provisions, so in making the award under Item 51 if the HECE Award were not, say, for example, using the statutory formulation suited to the needs of the particular workplace or enterprise, then that issue hasn't been addressed at all in the making of the General Staff Interim Award because the provisions are identical to the provisions in the HECE Award.

PN530

As to the question of award structure, what Mr Burrell and Mr Meredith are doing is they are essentially only three years after the Full Bench made the decision in the HECE Award, they're essentially trying to overturn that Full Bench decision here. The argument about the particularity of particular departments, institutions and all that, that was all run in the case. That was one of the reasons why the AHEIA vociferously opposed the making of the HECE Award, that there were particular circumstances that arose in particular institutions. To put it colloquially, the Full Bench didn't buy that and the Full Bench decided at the beginning of their decision making the award, they say:

PN531

The award shall be entitled the Higher Education Contract of Employment Award ...(reads)... in section 1 of this decision.

PN532

Those are essentially the national awards applying to both academic and general staff. The other thing that the Commission did, in the award itself, which of course is taken away by what the employers seek to do in this matter, is that they made the HECE Award a paramount award and they specifically said these provisions apply notwithstanding other provisions in other awards. So the modes of employment provisions which Mr Meredith referred to as existing in the underlying instruments that were incorporated into the HECE Award were largely rendered inoperative by this award itself and this award is meant to operate as a paramount award. By simply decanting the provisions into an interim award applying at one institution they lose that paramount character.

PN533

It is true that the first decision, the in principle decision that the Full Bench made in the HECE case which I think was August 1987 which is P4083, I think, was made before the hospitality decision, however the decision making the award was made after that, and in any case was made having regard to section 113A which is the Commission is commanded directly by the Act to, as far as it considers it necessary or desirable to do so, to insert enterprise flexibility provisions in awards. That provision was there when the HECE Award and the Full Bench did not do so.

PN534

The Full Bench doesn't go into any detail about why it did not do that but it is clear from the whole of the proceedings and the fierce opposition to the making of the award at every stage by the employers that it was important, in my view, that the award was going to apply, was going to apply everywhere, and was going to apply in a relatively unambiguous blanket way, given the considerable flexibility that was already built into it.

PN535

Reference was made to the simplification of the shops awards and how provisions of one award were put into another. I think just to re-state what I said earlier, that's perfectly appropriate provided the Commission has all of those matters before it. The Commission didn't have the HECE Award before it at the time. There was no declared intention by any of the parties to effect the operation of the HECE Award.

PN536

THE SENIOR DEPUTY PRESIDENT: Other than clause 4.

PN537

MR McALPINE: I think it's important that we can look at a draft, and I've dealt with draft awards and the like, but I think it's very important that in the context of, as I said, in not a consent award, it's a draft order presented in an Item 51 process, the Commission acting on its own motion, that all the unions can be held to, having consented to, is the legal effect unless the parties canvassed that issue. I only say this in response to what your Honour has said, we could have claimed that we looked at the provision and said, Well, that's a fairly stupid provision to put in the award but obviously it has no effect. It would be nice to say, you know, but if they want it they can have it.

PN538

That actually isn't the position, but in a sense it's exactly the same from the point of view of principle, intention and the law, it is exactly the same as that provision. The provision was ineffective. There was no proposal before, there was no proposal properly before the Commission to vary the HECE Award and its operation and we 'fessed up in terms of it being our error but we don't believe it's appropriate that we be held to something that was clearly beyond the jurisdiction of the Commission and which was not canvassed. As Mr Burrell says, the interaction under 148 and 143 hadn't occurred to them and wasn't canvassed in front of the Commission. We say our application does the least work that is necessary, which is to reflect the status quo and to remove an uncertainty in the award. If it please the Commission.

PN539

THE SENIOR DEPUTY PRESIDENT: Thanks, Mr McAlpine. Do you wish to say anything, Mr Mendelssohn?

PN540

MR MENDELSSOHN: Before I do, your Honour, Mr Burrell has indicated he wishes to make some final points. He did seek to reserve that right earlier so I'm happy for him to do that.

PN541

MR BURRELL: I just wanted to make a couple of brief comments if I can, your Honour, before Mr Mendelssohn. I just wanted to say that in our respectful submission that the status quo as it stands at the moment at the university, the University General Staff Award is a stand alone award and that the application fo the current clause 4.1.2 was clear in its terms and clear on its application. The uncertainty which could arise is a result of the wording and the potential application of section 148.

PN542

As has been stated by both Mr Meredith and Mr Mendelssohn, if the Commission was to grant the university's application to vary the HECE Award this would remove the uncertainty and in my respectful submission which ensure that the status quo remains. If it please the Commission.

PN543

THE SENIOR DEPUTY PRESIDENT: Very well, thank you.

PN544

MR MENDELSSOHN: I don't know that that gives Mr McAlpine any desire to make any further reply. Your Honour, Mr Burrell, at the outset of his submissions, said that the intention of the University of New England Award is clear because it says in black and white that it supersedes the Higher Education Contract of Employment Award. But he then proceeded to concede that he wasn't aware, or the university wasn't aware of any potential uncertainty through the arguable operation of section 148 at the time.

PN545

So two consequences, in my submission, flow from that concession by Mr Burrell. One is that that puts the university in effect in the same position as the unions, that none of the parties had really, at the time of the making of the University of New England General Staff Award, properly thought through all the implications of the formulation that is expressed in clause 4.1.2 of that award.

PN546

Second, that answers the question raised in the union's submissions earlier and particularly by Mr McAlpine in his initial submissions as to, well if the university intended the effect that it is claiming, why didn't it at the time propose or make application for a section 113 variation of the HECE Award, which would of course also have necessarily entailed putting the ASU on notice because even though it does not have coverage or membership of the University of New England, it is a party to the Higher Education Contract of Employment Award and has a legitimate interest in the disposition of that award.

PN547

So even if the variation would only apply at the University of New England, it would have required the ASU to be served with any application. But those questions, in my submission, are effectively answered by Mr Burrell's concession that the university itself did not have in its apprehension the potential section 148 problem and therefore the university, in that sense, was in a similar position to the unions. Mr McAlpine has already effectively dealt with this. But the point was made - - -

PN548

MR BURRELL: Sir, I just wanted to make - sorry, I don't normally interrupt advocates' final closing. I just wanted to make a point clear, that the university did actually inform the Australian Services Union of its application to vary the HECE Award.

PN549

THE SENIOR DEPUTY PRESIDENT: I see.

PN550

MR MENDELSSOHN: Yes, on this occasion.

PN551

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Mendelssohn is referring to the earlier occasion.

PN552

MR MENDELSSOHN: Yes. Both Mr Burrell and Mr Meredith went to some lengths to demonstrate that the Commission clearly has jurisdiction, or clearly had jurisdiction when making the University of New England General Staff Award, to incorporate the HECE Award provisions into it. But that is not what the, what might be called jurisdictional point that was being raised by the unions. The unions have not contended that the university of New England General Staff Award was not properly made.

PN553

Mr McAlpine said that the NTEU, as a matter of principle, were not happy with that approach of incorporating the HECE provisions, but they nevertheless consented to it in order to enable the general process of the award simplification to progress. But the issue is not whether the Commission properly made the University of New England General Staff Award. It is whether in making it, it could have intended a consequential effect on an award that was not before the Commission in the proceedings out of which it made the University of New England General Staff Award.

PN554

In my submission, print S3125 does not assist Mr Meredith because it doesn't go beyond supporting the proposition that if a number of awards are before the Commission in one item 51 review, then those awards can be consolidated. It doesn't have any implications for whether awards that are not part of that item 51 review can be in effect dragged into those proceedings. So in my submission, that decision of Commissioner Hingley does not assist Mr Meredith. As to the other decision to which Mr Meredith referred, I didn't get the print number, but it's the appeal to the Full Bench against a decision of Commissioner Eames in award simplification.

PN555

THE SENIOR DEPUTY PRESIDENT: T1141, according to my note.

PN556

MR MENDELSSOHN: Yes, T1141. In my submission, your Honour, it didn't, from what Mr Meredith - and I thank Mr Meredith for passing it across to me - but I simply cannot see the relevance of that decision. The only point that Mr Meredith seemed to be seeking to make was that the Full Bench did not disturb the Commissioner's decision not to insert an enterprise flexibility provision in the award. Frankly, your Honour, I fail to see the relevance of that to the issues before the Commission in these proceedings.

PN557

Mr Meredith very strongly put that there's no evidence or any other material before the Commission as to why there is a detriment to any general staff employees of the University of New England as a result of the HECE provisions being in the University of New England Award. We don't contend that. What we do contend is that there is potential detriment from the uncertainty that has arisen because of the possible effect of section 148. Mr McAlpine in his earlier submissions made the point that it could lead to confusion in the minds of employees as to what their entitlements were or from which instrument they arose. Mr McAlpine made, I think, the quite fair point, if there is some degree of dispute amongst the persons present at the bar table who are all, I would suggest, far more au fait with these sort of matters than the average general staff employee, there must necessarily be a reasonable apprehension of uncertainty on the part of employees.

PN558

On the previous occasion in the submissions relating to the university's application, I also made the point that if the university's application was successful then there would be no doubt it would require a variation of the University of New England General Staff Award if there was a subsequent beneficial alteration to the HECE award, whereas at present we would argue that such a variation would apply by force of section 148. So, in that sense, I submit that there is, if not - certainly we don't have witness statements on from individual members of the union saying: Oh, dear, I'm confused. In my submission, it is open to the Commission to see that there is potential detriment from a state of uncertainty which afflicts even the advocates at the bar table.

PN559

Certainly, Mr Meredith was quite correct, that I did openly concede that granting the university's application would remove any uncertainty but for the reasons I gave in my earlier submissions that it would be undesirable or not the best way of removing the uncertainty to accede to the university's application. Those are my submissions in reply, may it please the Commission.

PN560

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Mendelssohn. I reserve my decision. I adjourn this matter indefinitely.

ADJOURNED INDEFINITELY [11.21am]