C9054/300, Transcript of Proceedings [2002] AIRCTrans 1122 (5 April 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C No 90543 of 2000

AUSTRALIAN EDUCATION UNION

and

CANBERRA INSTITUTE OF TECHNOLOGY

Notification pursuant to section 99 of the
Act of a dispute re ongoing and repetitive
exploitation of casual teachers

C2002/1456

ACT GOVERNMENT TECHNICAL AND FURTHER
EDUCATION TEACHERS SALARIES AND
CONDITIONS AWARD 1999

Application under section 113 of the
Act by Australian Education Union - ACT
Branch to vary the above award for insertion
of clause 14 - casual employment

SYDNEY

10.04 AM, WEDNESDAY, 20 MARCH 2002

Continued from 6.2.02 in Canberra

THIS HEARING WAS CONDUCTED BY VIDEO CONFERENCE IN SYDNEY

PN272

THE SENIOR DEPUTY PRESIDENT: Good morning everyone, could I have appearances, please?

PN273

MR P. MALONE: If it pleases, I appear on behalf of the AEU and with me is MR T. McNevin.

PN274

MR D. WORTHY: Your Honour, I appear for the Canberra Institute of Technology. Appearing with me is MS N. CAMERON.

PN275

THE SENIOR DEPUTY PRESIDENT: What's the position, Mr Malone?

PN276

MR MALONE: Thank you, your Honour. You have, of course, been dealing with this matter now for some 13 or 14 months. The position we're at, at this point, it was first advised to you on 8 March in our letter to you, in our joint submission to you in compliance with the direction from earlier this year. Subsequent to that, the parties have also lodged the section 113 consent award variation application.

PN277

Your Honour, in essence we have undertaken extensive consultation and negotiations and are in a position to be able to present a consent position to resolve the dispute. That resolution has three elements to it. Firstly, there is the proposed award variation which I won't go into detail at this point. May I say first, your Honour, that we would appreciate being able to put in brief the position as it is and then seek some informal off the record comments from yourself about progressing the matter further if that is agreeable to your Honour.

PN278

THE SENIOR DEPUTY PRESIDENT: Yes, that will be all right.

PN279

MR MALONE: So in terms of the award variation, certainly the parties are of the view that the elements of it, the clauses within it meet the requirements of the act and in particular section 89A of the act and we would certainly provide the details on that point in due course. Separate to the award variation, there were a couple of other issues, most notably the transition arrangements. If I could perhaps direct your Honour's attention to the 8 March submission, attachment C of that document.

PN280

THE SENIOR DEPUTY PRESIDENT: Yes.

PN281

MR MALONE: Points 14.3.4, 14.3.5 and 14.3.6, together with the transitional provisions of 14.3.8 have been removed from the proposed award variation but the parties have reached agreement on those issues by exchange by letters. The remaining point, what rested on the casually hourly rate, the union has agreed to not pursue that matter at this point in time but does reserve its right at some later point to follow that matter up, but it is no longer subject to either any formal agreement between the parties or within the award variation.

PN282

Your Honour, clearly this dispute has been a long one and it's one that the parties are quite relieved in one word that we have been able to reach agreement. It has taken considerable effort on both parties to negotiate and reach a compromise position. We are keen at this point to resolve the matter as expeditiously and as appropriately as possible. We have put forward the section 113 award variation, cognisant of the various issues associated with it.

PN283

Certainly in accordance with section 111(1)(b) and (1)(f) of the act, the Commission has power to make an award or order including one of the parties. We would be seeking your guidance as to the most appropriate means to proceed with that stage but in our view the variation sought does meet the requirements of the act and we would be seeking an order under section 111 to authorise the variation as put. At this stage, Commissioner, I believe that's all I need to say and I certainly, of course, would like CIT now to make their position.

PN284

THE SENIOR DEPUTY PRESIDENT: Very well, thank you, Mr Malone. Mr Worthy?

PN285

MR WORTHY: Your Honour, I can confirm what Mr Malone has put to you that the negotiated settlement involves a variation by consent of the award in the terms laid out in attachment A to the union's section 113 application but it also involves written agreement to the terms of various CIT policies and procedures that would govern the application of certain aspects of the new casual teacher employment arrangements. There are some aspects that are still being finalised between the parties but the bottom line is that those matters are agreed by the parties as matters to be settled under the terms of the current certified agreement.

PN286

Then there is the third dimension that Mr Malone referred to about the union's claim so far as it relates to the rate or loading for casual teachers and that at this point in time no conciliation or arbitration is sought by either party but we would request that this part of the dispute be adjourned and that it could be relisted at the request of either party at some point in the future. This is an integrated approach to resolving the basic matters that lay in dispute between the parties.

PN287

I note, your Honour, that the certified agreement as it stands is one that is read and applied in conjunction with the award. In this matter the award and the certified agreement will operate in conjunction with one another and that this provides a clear and effective set of enforceable rights and entitlements for resolving the matters in dispute. Just in summary of the resolutions that have been reached between the parties, your Honour, I'd submit that it represents a fair and reasonable balance between the CITs requirements for operation efficiency and flexibility and the interests of those employed as casual teachers and the options that are available to them in determining the type of ongoing employment contract between them and the CIT.

PN288

The outcomes that have been negotiated by the parties are specific to the circumstances of teaching and teacher employment within CIT and public service employment within the ACT Government Service. Just in brief summary again, your Honour, the employer supports the union's application and we ask that the award be varied in the terms sought by the union.

PN289

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Worthy. We'll go off record now.

OFF THE RECORD [10.14am]

RESUMES [10.43 am]

PN290

THE SENIOR DEPUTY PRESIDENT: Mr Malone?

PN291

MR MALONE: Thank you. Your Honour, we formally submit under section 113 of the Act that the Commission is empowered to vary the award as sought by the parties. If I could take you to attachment A of the application I would speak to each subclause within the clause variation. 14.3.1 we claim is allowable under 89A(6) of the Act say that the Commission may include in an award provisions that are incidental to the matters in subsection (2) and necessary for the effective operation of the award.

PN292

When we come to 14.3.2 this is the crux and 14.3.1 is incidental to the effective operation of 14.3.2. 14.3.2 we argue is clearly allowable under 89A(2)(r) in particular that's paragraph (a) of 14.3.2. I would at this point just briefly note one variation to the proposed variation. In 14.3.2(a) in the final sentence if we could amend this selection process to the selection process.

PN293

THE SENIOR DEPUTY PRESIDENT: Yes.

PN294

MR MALONE: Your Honour, we argue that the type of employment within an award ie in this sense casual employment and how one becomes able to move from casual employment to other forms of employment such as temporary or permanent is a fundamental aspect of this award and the processes described in this clause assist the parties to enable an effective career path within CIT.

PN295

Given that the subject matter of casual employment is clearly provided for within 89A(2)(r) we would argue that section 143(1)(b) has no application in that the issue is one that is properly placed within the award as opposed to an agreement at the enterprise level. In regards to 14.3.2(b)(c)(d) and (e) we argue that they are allowable under 89A(6) then in order for this clause to be effective these details do need to be in the award and they are clearly incidental to 14.3.2(a).

PN296

In relation to 14.3.3 we argue that this is allowable essentially under both 89A(2)(a) and also 89A(6). We say in terms of 89A(2)(a) insofar as this is a process which facilitates a career path within CIT and that is certainly the basis upon which the parties are jointly putting forward this proposal one of the bases. With regard to 14.3.4(a) we argue that it is allowable again under 89A(6) and possibly arguable under 89A(2)(g) and (h).

PN297

In regard to 14.3.4(b) we would again submit it is allowable under 89A(6). With regard to 14.3.5 we would also submit it is allowable under 89A(6) and we would also make reference to the T4991, the metals casual case. While the clause there specifically stated the employers were not to unreasonably oppose a decision we have taken not to insert that clause in the award but we did feel it appropriate a version of words which insures the fair operation of this clause.

PN298

14.3.6 we would argue is clearly permissible under 89A(2)(p) and also 89A(6). I would note that clause 9.3 of the current award makes specific reference in similar terms to be able to take disputes so that the operation of implementation of clause 9 to clause 10 of the award. Your Honour, that is all I wish to say at this stage.

PN299

THE SENIOR DEPUTY PRESIDENT: Very well, thank you, Mr Malone. Mr Worthy?

PN300

MR WORTHY: Your Honour, I would simply wish to reinforce or support what Mr Malone has put as to the terms of the award variation sought and the allowable nature of those provisions. In terms of section 143(1)(b) of the Act, your Honour, I did make a short statement on transcript when we commenced proceedings this morning on the employer's behalf to the effect that the outcome represented a fair and reasonable balance between operational requirements and the flexibility of needs of the institute as well as the interests of the casual teachers who are employed.

PN301

I just wanted to perhaps touch on that again to illustrate that the resolutions that the parties have come to have been constructed to take into account operation efficiency so there is nothing in the provisions that are before you which would restrict or hinder the efficient performance of work, and indeed, goes so far as to suggest that this outcome does in fact resolve some inefficiencies which I understand the parties had referred to in earlier proceedings in these matters and that is the rise of the level of casual employment of teachers in the institute and that has been recognised in earlier proceedings by both parties as an obstacle or problem for the operations of the institute.

PN302

These arrangements go some way to resolve those inefficiencies and again to reinforce the point that Mr Malone made that none of the provisions that are sought to go into the award are of a detail or process kind that can't be included, each of them is necessary and incidental to the operation of the clauses sought. If the Commission, pleases.

PN303

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Worthy. I will proceed immediately to a decision in the matter. This is an application to vary the ACT Government, Technical and Further Education Teachers Salaries and Conditions Award 1999 pursuant to section 113 of the Workplace Relations Act 1996. The variation would add additional matters relating to casual employment, it is consent variation. It arises in partial settlement of a long running dispute over casual employment at Canberra Institute of Technology.

PN304

The variation is solely concerned with the administration of casual employment and transfer between that form of employment and others. I therefore regard it as not altering the safety net which in this award already provides the casual employment. I'm satisfied by the argument of Mr Malone, supported by Mr Worthy that the subject matter of the variation is allowable variously under at least section 89A(2)(a) and (r) and it is in addition dealing with matters necessary and incidental to those paragraphs as is provided by section 89A(6).

PN305

I'm further satisfied that the terms of the variation comply with the requirements of section 143 of the Act. I will therefore order that the award be varied in accordance with the draft that had been referred to in proceedings this morning. The variation will take effect on and from the first pay period commencing after today's date. I note that this is a partial settlement and the records show that there are other matters agreed and handled in a different way and yet other matters which the parties wish to have stood over. I therefore stand matter C90543 of 2000 over generally with liberty to apply. I adjourn the Commission indefinitely, I wish you all good morning.

ADJOURNED INDEFINITELY [10.55am]