C2002/991, Transcript of Proceedings [2002] AIRCTrans 1208 (10 April 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, MLC Court 15 Adelaide St BRISBANE Qld 4000
(PO Box 38 Roma St Brisbane Qld 4003) Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HODDER

C2002/991

AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION

and

UNIVERSITY OF QUEENSLAND

Notification pursuant to Section 99 of the Act
of a dispute re roster arrangement for security
officers shift

BRISBANE

10.06 AM, WEDNESDAY, 6 MARCH 2002

Continued from 13.2.02

PN191

THE COMMISSIONER: Are there any changes in appearances, please?

PN192

MR M. McMAHON: I appear on behalf of the University of Queensland, and I also have with me today MR C. McCOWIE.

PN193

THE COMMISSIONER: Thank you. Mr Robinson, you're continuing your appearance?

PN194

MR ROBINSON: Yes, Commissioner. If the Commission pleases, there's been one discussion with the University where - or meeting where there's been a proposal put forward for restructure of Gatton Security. There is options being put forward within that and the grounds behind that proposal, or what they're relying on, of course, is the enterprise bargaining agreement, University of Queensland enterprise bargaining agreement general staff 1999. At clause 9, Restructuring and Managing Change, where it talks about any type of restructure that there be negotiations and a certain process and procedure is gone through.

PN195

The union has spoken to our members in relation to this document and about the clause in relation to the enterprise bargaining agreement. They are not in agreement. They have passed a resolution at a meeting recently and we sent a letter to Mr McClintock, the director of property and facilities, outlining the resolution that was passed at that meeting and basically, Commissioner, that resolution called for the University not to seek to avoid negotiations by inappropriately proceeding with the matter under clause 9 of the EB agreement.

PN196

THE COMMISSIONER: Just a question, then, Mr Robinson: your members carried a resolution - - -

PN197

MR ROBINSON: They did.

PN198

THE COMMISSIONER: - - - but in essence, did they have the power or the authority to carry a resolution which either supported or rejected elements of the certified agreement?

PN199

MR ROBINSON: We believe, Commissioner, that in the last hearing here that we had, there was a direction given for the parties to negotiate. We don't believe at this stage that this proposal that the University has tendered for the union and its members does really involve a real negotiation. It is - - -

PN200

THE COMMISSIONER: Well, it's a question of whether or not the University can rely upon any of the terms of the certified agreement to try and advance their position, which I assume, given that your organisation was a party to negotiating this, gave you some rights as well.

PN201

MR ROBINSON: Yes, Commissioner. We're saying that this is primarily a rostering situation and a rostering change - - -

PN202

THE COMMISSIONER: And it doesn't fall within clause 9.

PN203

MR ROBINSON: That's correct. Certainly, I may add, Commissioner, that we've been only too willing over a number of months to negotiate with the University and come to some agreement and settlement, but we believe that proceeding down this path at this stage will end us back in the Commission in the coming weeks because we believe that there won't be a positive outcome and a win/win for both sides, going down this path.

PN204

THE COMMISSIONER: Well, where do you get the view that rosters aren't part of clause 9?

PN205

MR ROBINSON: Well, primarily, Commissioner, originally it wasn't put forward as a restructuring proposal by the University, and the union is wondering now - - -

PN206

THE COMMISSIONER: Well, that was raised on the last occasion, as I recall.

PN207

MR ROBINSON: It was raised, but it wasn't raise in the entirety that it's been raised in this document in relation to the proposal and what the proposals involve.

PN208

THE COMMISSIONER: But doesn't that suggest you've got to go back to square one and work your way through clause 9?

PN209

MR ROBINSON: Well, our members have got problems with going down that path, Commissioner, and we can only - - -

PN210

THE COMMISSIONER: Well, I don't know. They might have problems, but you've got a certified agreement that you're a party to, and you just can't - because you like what's on one page and what not on the other, you can't just say, "Well, you know, we're not willing to do that." Either this certified agreement provides a vehicle for both parties to deal with this, or it doesn't. I want you to convince me that it doesn't.

PN211

MR ROBINSON: Well, certainly, Commissioner, I raised on the last occasion about the agreement, of course, that wasn't registered or not certified within this jurisdiction, but it was an agreement all the same which gave certain rights to our members, and of course in the first instance the University has disregarded that agreement and that is really in essence why our members are opposing - - -

PN212

THE COMMISSIONER: Did you produce that agreement to me last time?

PN213

MR ROBINSON: Yes, I think I did tender it as an exhibit.

PN214

THE COMMISSIONER: No, the unregistered agreement.

PN215

MR ROBINSON: The unregistered one. Have we got - - -

PN216

THE COMMISSIONER: I'll just see if I can find it. I see. So you rely upon ALHMWU exhibit 1 and the attached agreement. That obviously isn't enforceable in this Tribunal. You'll have to go somewhere else to have this enforced, if there was a need to have it enforced.

PN217

MR ROBINSON: Yes.

PN218

THE COMMISSIONER: But you say, then, that rosters fall outside of the scope of the certified agreement because of this unregistered agreement, don't you? Isn't that your point?

PN219

MR ROBINSON: Well, yes. We believe that primarily this was a rostering change and that there was in fact no need for restructuring proposed and certainly no need to go down the pathway that is guided by that clause within the EB agreement.

PN220

THE COMMISSIONER: Well, it seems to me that clause 7 of such unregistered agreement overrides anything else that you do unless - because its continued operation is until it's varied by agreement between the parties.

PN221

MR ROBINSON: That's correct, Commissioner.

PN222

THE COMMISSIONER: And is this the only vehicle you say by which the University can endeavour to deal with changes in rosters and so forth?

PN223

MR ROBINSON: Certainly we don't believe the University has the scope to go down clause 9 of the enterprise bargaining agreement for general staff, given that primarily this was a rostering change, or put forward as a rostering change in the first instance, and certainly the agreement that has been on foot, and there has been two such agreements, but this one that's been on foot - it's in front of you, Commissioner - it does the parties, especially the University, a disservice in relation to ignoring that - - -

PN224

THE COMMISSIONER: Did you respond to this correspondence? Did the secretary or whoever - who is Mr Nev Swan?

PN225

MR ROBINSON: Mr Nev Swan is here with us today.

PN226

THE COMMISSIONER: I see. Did Mr Swan or the union respond to that correspondence of 8 January 2002? I mean, that's where the changes to rosters were suggested by Mr McCowie and the last sentence of that correspondence says, "Would you please let me know if you agree to the above arrangements."

PN227

MR ROBINSON: I defer to Mr Swan - - -

PN228

THE COMMISSIONER: Yes.

PN229

MR SWAN: If it pleases the Commission - - -

PN230

THE COMMISSIONER: Mr Swan, has an appearance been entered for you?

PN231

MR SWAN: I beg your pardon?

PN232

MR ROBINSON: Yes.

PN233

THE COMMISSIONER: Was an appearance entered for you on the last occasion?

PN234

MR SWAN: Yes, it was.

PN235

THE COMMISSIONER: Yes, thank you.

PN236

MR SWAN: Yes, it was. Commissioner, yes, we did respond. We had a meeting with the University some weeks ago, and it became clear that the University wasn't prepared to negotiate any changes in the roster. Our members had made - - -

PN237

THE COMMISSIONER: Well, they weren't prepared to negotiate changes, but ones that they wanted, I assume.

PN238

MR SWAN: Yes.

PN239

THE COMMISSIONER: They weren't prepared to negotiate any that you might have wanted.

PN240

MR SWAN: Well, we've got an existing roster, Commissioner, and we feel that that's working well, but our members have indicated to me as late as a meeting yesterday that they're prepared to make changes to that roster and to make changes to the staffing levels. All we ask is for the University to sit around the table and negotiate.

PN241

THE COMMISSIONER: Well, isn't that what I told the parties to go away and do last time?

PN242

MR SWAN: Exactly, Commissioner.

PN243

THE COMMISSIONER: And what happened? Nothing?

PN244

MR SWAN: Nothing. Nothing.

PN245

THE COMMISSIONER: Why?

PN246

MR SWAN: Well, you'll have to ask the University that, Commissioner, because we've made it quite clear, and I've made it quite clear to the University that we're prepared to negotiate, prepared to agree to changes both to the staffing levels and the roster - - -

PN247

THE COMMISSIONER: That's agreed changes.

PN248

MR SWAN: Yes. And I attended - there's been only one meeting since the last hearing, Commissioner. I attended that meeting and was forwarded a proposal, quite a bulky proposal, for a restructure of Gatton Security under clause 9. My members said to me that before we make any decision on how to proceed with this matter, they wanted to see that proposal. They saw it yesterday. They came to the view that the University should sit down and negotiate. We're prepared to make some changes and agree to some changes, and - - -

PN249

THE COMMISSIONER: Have those suggested changes been notified to the University as yet?

PN250

MR SWAN: No, we haven't had an opportunity, because - - -

PN251

THE COMMISSIONER: Okay. So you only got that document yesterday.

PN252

MR SWAN: Yes. We got that document Wednesday last week.

PN253

THE COMMISSIONER: All right. That explains that. That answers my question, thank you.

PN254

MR SWAN: Thanks, Commissioner.

PN255

THE COMMISSIONER: Mr McMahon, I might just get a response from you at this stage.

PN256

MR McMAHON: Yes, Commissioner. If I could just address a few points. The comment was made that it's primarily a rostering issue. It does involve elements of rostering, but to say it's a rostering issue is to very much understate what it's about.

PN257

THE COMMISSIONER: Well, the problem you've got, though, isn't it, that you've got an unregistered agreement which in effect on its face, and you can disabuse me of that, but it seems to me to override the certified agreement.

PN258

MR McMAHON: Well, I'm not sure how an unregistered agreement can override a certified agreement, Commissioner.

PN259

THE COMMISSIONER: Well, why bother entering into them?

PN260

MR McMAHON: Well, Commissioner - - -

PN261

THE COMMISSIONER: What do you expect them to do?

PN262

MR McMAHON: Well, Commissioner, there is a history behind that agreement, and I'm not sure today is the right time to - we're not in a position to put evidence, but my understanding of that agreement, it was primarily to - if I could say, to ensure that there were no forced redundancies when properties and facilities at University of Queensland took over the operation of Gatton, so it was very much structured around existing people at the time.

PN263

THE COMMISSIONER: Well, why was it left open-ended in terms of its operation?

PN264

MR McMAHON: Well, Commissioner, again, there's been a history at the University where we have been able to reach agreement on change of rosters. We've been in negotiation now for some six months and we haven't been able to reach agreement.

PN265

THE COMMISSIONER: But you've got the union today saying that they're willing to make changes in terms of staffing levels and rostered hours; they've not had an opportunity to put that to the University.

PN266

MR McMAHON: Well, Commissioner, the reason we've gone down the formal process of clause 9 is that my understanding is there were discussions late last year in October and the university was of the view that it had reached an in principle agreement to implement some change which would address its concerns. That in turn led to Mr McCowie's letter belatedly on 8 January but resulting from those discussions. Then we got another e-mail back from Mr Swan saying, "Well, look, we agree that - to get rid of the double manning of shifts and reduce staffing levels, but we don't agree with eight hour shifts".

PN267

Then we have a subsequent meeting where that e-mail is then retracted saying, "No, we want to go back to the 1997 agreement", an agreement hasn't been enforced for some 12 months. You know, the union has allowed that to lapse while these discussions have been on-going, so Commissioner, the director of properties and facilities forms the view, and I believe quite rightly, saying, "Well, look, you've been involved in on-going discussions; you haven't reached any end point in this - - -

PN268

THE COMMISSIONER: Well, can I just make this point there. Based on what you just said, you're suggesting that the union for the last 12 months has allowed, in effect, variation to the agreement without objection.

PN269

MR McMAHON: That's correct, Commissioner.

PN270

THE COMMISSIONER: Well, that sounds very much to me like the agreement continues in operation and it has been varied by the agreement of the parties.

PN271

MR McMAHON: Well, we - in effect, that's what's been going on for the last 12 months. What's proposed in the restructure is something completely different to what's currently in place and the enterprise agreement does say that if you want to restructure and it involves classifications, it involves staffing levels, then there's an agreed process that you go down. The director, in my view quite rightly, says, "Look, you've been doing things informally for the last six months but you delivered me no result. I want to use clause 9. He'll be a party to that committee of review, and I want to take direct control of this".

PN272

Now, I understand what Mr Swan says there have been no further talks, but we did clearly state that we were seeking to rely on clause 9. We were going to set up some dates in late March and April where the committee would meet. That committee would include a representative from the ALHMWU. It would include a representative staff from Gatton, and we would sit down and discuss the proposal. What we've tried to do in the proposal is put all our budgetary reasons for seeking these changes, giving them a clear idea of the security operations at St Lucia and Ipswich which we say operate efficiently.

PN273

We've also tried to address the safety concerns that were raised by the union. We've had the safety unit at the University of Queensland look at the rosters we're proposing, and we've put the responses in writing to them. We've said, "Go away - - -

PN274

THE COMMISSIONER: Is that in that bundle of documents - - -

PN275

MR McMAHON: It is.

PN276

THE COMMISSIONER: - - - that Mr Swan proffered before.

PN277

MR McMAHON: That's right. What we've said to them is, "Go away and have a look at that document. Meet with your members. Any concerns, any issues, comes back to the change management committee. You'll have senior representatives of the university there that can make decisions on that, and we'll sit down and we'll discuss it". Now, at the end of the day, the enterprise agreement sets out a process; we either reach a consensus on it or we don't but I'm not compelling here today the ALHMWU to accept that proposal in total. If they have any rights under the enterprise agreement to oppose or any other instrument, so be it.

PN278

What I would suggest, Commissioner, is that they do have an avenue to raise these issues with senior people at the university. My advice or what I'd be seeking the Commission to do is to allow that process to happen. If the parties want to reserve any rights they may or may not have under any other instrument, then so be it, but if we were to come back in mid-April, I think the worst that can happen is at least we'd be very clear about what issues we disagree with, and we'd be very clear what we'd be seeking this Commission to do and I don't see any prejudice to either side of this if you allow that course to happen.

PN279

THE COMMISSIONER: Well, in the meantime, what do the parties say was ultimately going to happen with this agreement, this unregistered 2?

PN280

MR McMAHON: Well, hopefully, Commissioner, I would hope that we would be able to reach some resolution through clause 9 or we'd have something to replace it with. Now, I might be optimistic in that, but I would at least say, "Well, don't pre-judge or - at least allow that process to take place".

PN281

THE COMMISSIONER: But essentially though, this agreement remains on foot and you say that there have been some variations made to it by - now either - simply because people haven't resisted or acceded them, which seems to me need to in some way be confirmed as to what those arrangements were so that - because this document, it seems to me to have moved on a bit.

PN282

MR McMAHON: Well, it has. Insofar as it talks about rosters of individuals where they are scheduled to turn up on a certain day, there's been no change to that document. The document is more than a rostering arrangement. It involves levels of minimum manning. Insofar as the minimum manning is concerned, it hasn't strictly adhered to for the last 12 months.

PN283

THE COMMISSIONER: Well, maybe what the university should do is put to the union what they say have been the variations to this either by way of acquiescence or clear acceptance.

PN284

MR McMAHON: Well, I think it's pretty clear to both sides. There was a person whose name is on that roster, as I understand it, or as a part-timer - - -

PN285

THE COMMISSIONER: I haven't read it to that extent.

PN286

MR McMAHON: - - - who has not been replaced, on resignation from the university.

PN287

THE COMMISSIONER: Well, what the university is suggesting here is fairly significant in terms of change though, isn't it?

PN288

MR McMAHON: Under the proposal, yes.

PN289

THE COMMISSIONER: Yes.

PN290

MR McMAHON: It goes further than rosters; it goes to staffing levels and the classifications of persons engaged to perform that work.

PN291

THE COMMISSIONER: And that's not - is that covered within the terms of this unregistered agreement?

PN292

MR McMAHON: Well, to some extent, I believe that in terms of the manning, it is. Mr McCowie instructs me that the last part or the last dot point under 6 contemplates the university restructuring and - yes, sorry. When I said that the appointment or continuing appointment, the person wasn't replaced, Mr McCowie instructs me that that clause 6 covers that contingency so on those instructions, what's been done is consistent with the agreement.

PN293

THE COMMISSIONER: So we don't have variations to the agreement then? All you've had are some administration of matters which - - -

PN294

MR McMAHON: A person hasn't been replaced.

PN295

THE COMMISSIONER: - - - related to the - yes.

PN296

MR McMAHON: But in terms of the roster, it hasn't changed but in terms of the proposal that the university is putting under clause 9, it certainly goes further than rostering.

PN297

THE COMMISSIONER: But what are you saying? It's really a mixture of circumstances within clause 9 and this unregistered agreement?

PN298

MR McMAHON: That's right. In order to implement a new staffing or manning level, we'll need a new roster.

PN299

THE COMMISSIONER: So you'll want to rely on clause 9; the union says it doesn't apply whilst ever the agreement is place?

PN300

MR McMAHON: Well, Commissioner, I - - -

PN301

THE COMMISSIONER: Seems to me like you're both between a rock and a hard place.

PN302

MR McMAHON: Well, Commissioner, I think it - I would submit it's straight forward. If the certified agreement which is registered and has force under the Act, it would take precedence over an unregistered agreement.

PN303

THE COMMISSIONER: Oh, not unless it says that.

PN304

MR McMAHON: Well, it certainly does. I mean, it talks about - - -

PN305

THE COMMISSIONER: Well, it might here, but they could take this somewhere else and get this enforced.

PN306

MR McMAHON: Well, Commissioner, they haven't and - - -

PN307

THE COMMISSIONER: Well, that doesn't mean they won't.

PN308

MR McMAHON: Well, we can only deal with the facts as we know them today. I mean, the Commission can only deal with the circumstances that are presented before it at this point in time.

PN309

THE COMMISSIONER: Yes, well, I'm at a bit of a loss actually what the parties think the Commission can do.

PN310

MR McMAHON: Well, Commissioner, at this stage, I'm suggesting that if we allow the process under clause 9, the worst thing that can happen to the ALHMWU is they do indeed have discussions with senior management at the university, they do have the opportunity to put forward their concerns, and they will allow the university the opportunity to address those. Now - - -

PN311

THE COMMISSIONER: And what do we have, a status quo in terms of the current arrangements while that process goes on.

PN312

MR McMAHON: Well, the current rosters are not going to change. That's right, Commissioner. There are people that have been allocated certain rosters and certain hours of work while that process goes on.

PN313

THE COMMISSIONER: Consistent with the unregistered agreement?

PN314

MR McMAHON: That's right, Commissioner, and if we report back in a month, I mean, the worst thing that we can say is that we've narrowed the issues and we're clear about what we think this Commission - or what we want this Commission to do. Commissioner, I think that's the course I propose.

PN315

THE COMMISSIONER: Okay. All right.

PN316

MR McMAHON: I don't see any prejudice to either party.

PN317

THE COMMISSIONER: All right. Mr Robinson, what do you say to that?

PN318

MR ROBINSON: Yes, as far as prejudice to the union, we believe that the major point here is if we proceed down clause 9, there is a consultative procedure that's contained and it embodies in that clause, there won't be any real negotiation in relation to - things that we might bring to the table to settle this dispute. It will be, "Well, look, you've got to go down this procedure of restructuring and - - -

PN319

THE COMMISSIONER: So you're concerned that if you get - - -

PN320

MR ROBINSON: - - - managing change. It's consultative. We've consulted with you. Here we're going to implement it. Fair go".

PN321

THE COMMISSIONER: You're concerned if you get caught up in the processes under clause 9, you won't have any rights at the end of the day.

PN322

MR ROBINSON: There won't be any flexibility to negotiate a valid settlement for both - a win/win situation for both sides, Commissioner.

PN323

THE COMMISSIONER: Well, would you be willing to participate on this on the basis that it be without prejudice? If the other side is willing to - because what Mr McMahon seems to be suggesting to me is that the university, if it goes down the clause 9 route, will get an opportunity to explain their position and show the benefits of their position to the work force to the extent they might be happy to accept it. Now, Mr McMahon, I'd need to know that if the university is willing to do that, that what the union wants to do is come back here in a months time after you have gone through this process and be in a position to say what it wants to do, not be told that this is the fait accompli because you have been involved in a clause 9 process; because that's what it sounds like.

PN324

MR McMAHON: Yes, Commissioner, I understand their concerns. I mean, I don't want to premeditate what the Committee may or may not do, you know, in fact there is a wide ranging - - -

PN325

THE COMMISSIONER: Well, I'm a bit concerned about the last paragraph on page 5 - it seems to me that at the end of the day - - -

PN326

MR McMAHON: Which document, Commissioner are you referring to?

PN327

THE COMMISSIONER: I'm looking at the certified agreement, clause 9.

PN328

MR McMAHON: Okay. Yes.

PN329

THE COMMISSIONER: 9.2.3:

PN330

Final acceptance and expression of interest of these people rests with the relevant senior manager.

PN331

I just saw those as those words, I haven't read what goes before that to any great extent.

PN332

MR McMAHON: Well, I think the relevant part is clause 9.3, The Determination of the Committee:

PN333

... and the Committee must use its best endeavours to reach consensus on either accepting the proposal, calling for some modification or rejecting the proposal.

PN334

THE COMMISSIONER: Well, at the end of the day if you don't reach agreement by consensus how can the outcomes that you want to achieve be achieved?

PN335

MR McMAHON: Well, Commissioner, this clause has had a longstanding operation and many restructures have gone through it, more controversial than this one. At the end of the day we have always reached consensus and I would be hopeful that that's the spirit that we go into this. I mean I can never - we've never faced a situation where we haven't been able to accommodate that. But I would say this, that if the union's concern is that we're not going to listen or we just simply going to say take it or leave it, I would have thought that on the words of this clause they would be quite entitled to come back and say that we haven't used our best endeavours to reach a consensus. If we refuse to listen to them, if we refuse to discuss and talk and consider options, I would have thought that that would have given them - - -

PN336

THE COMMISSIONER: Well, it's the old story: you can lead a horse to water but you can't make it drink.

PN337

MR McMAHON: Well, Commissioner, again, I can only repeat we have had many restructures under this clause, some extremely difficult ones, some which involved significant numbers of university staff being sought to be retrenched and we have always been able to accommodate. I would say that at least if you had a report back I could say this: there would be no way under any scenario, if you were to schedule a report back and hear what happened in that process, that we would implement anything prior to doing that.

PN338

THE COMMISSIONER: Prior to doing what?

PN339

MR McMAHON: Well, implementing anything that may flow out of the clause 9. We could simply report back to the Commission and not implement anything until giving the union the opportunity to come back to the Commission and being clear what it wants this Commission to do.

PN340

THE COMMISSIONER: Yes, but that doesn't remove though the potential for whatever the university wants to be visited on these people, does it?

PN341

MR McMAHON: Commissioner, I - - -

PN342

THE COMMISSIONER: I mean, that's what Mr Robinson is concerned about. I mean, I'm sure you can understand his concerns too.

PN343

MR McMAHON: I can understand that too, Commissioner, but I've been in Committees where the university has been outnumbered in these things.

PN344

THE COMMISSIONER: I don't know what the make-up of this Committee will be but I find it hard to believe you would be outnumbered.

PN345

MR McMAHON: Well, in various committees where all the unions have an interest in it - - -

PN346

THE COMMISSIONER: When I look at this it seems to me that the numbers might be the other way.

PN347

MR McMAHON: Well, Commissioner, what I was stating is that there have been other committees where the university has been outnumbered, where there are four unions party to this agreement. Where a restructure cuts across all those unions - the numbers are five to four.

PN348

THE COMMISSIONER: Yes, but is that going to be the case here, or is it just the - - -

PN349

MR McMAHON: Well, it will be four, two, but all I'm saying is these things have never gone to a vote in practice. Now, I could never sit here and say that based on - you know, that will never ever happen because that would be me premeditating - - -

PN350

THE COMMISSIONER: No, I understand that.

PN351

MR McMAHON: - - - what the members of the Committee may or may not do. All I can say in practice is that these things haven't gone to a vote. The union here today has been party to those things, it has some experience in it. All I'm saying is that they can't point to past practice and say that that's the way the clause is being used. I can't sit here today and say I can premeditate what each member of those committees will or won't do after two weeks of talking.

PN352

THE COMMISSIONER: Well, if it comes back here obviously we would need then to look at the dispute settlement procedures, clause 31, and I notice that clause 31 subclause (e) and (f) and (g) would have some bearing.

PN353

MR McMAHON: Well, Commissioner, yes, I would - this is a matter that pertains - we're implementing clause 9, it's a matter in the agreement and there's a dispute about how it has or hasn't been applied.

PN354

THE COMMISSIONER: But at the moment you have got one body that will come into that kicking and screaming - being dragged in.

PN355

MR McMAHON: Well, Commissioner, at the end of the day it's an agreed process. I mean, I - what other options does the university - - -

PN356

THE COMMISSIONER: Well, it's a pity that you haven't got rid of this unregistered agreement.

PN357

MR McMAHON: Well, again, how does one do that without going through a formal process?

PN358

THE COMMISSIONER: Well, what you don't do is give someone, ad infinitum, in terms of an agreement - the way it was structured, I think, is your problem.

PN359

MR McMAHON: Well - - -

PN360

THE COMMISSIONER: It's easy to be smart with hindsight, I know, but open-ended, unregistered agreements always visit some pain on somebody.

PN361

MR McMAHON: I accept what you're saying, Commissioner, but again there is a history why that agreement is worded in the terms it is and if that - - -

PN362

THE COMMISSIONER: Maybe that will be another argument.

PN363

MR McMAHON: Yes, if that was a relevant issue then I would have to put some detailed evidence in about that, but I accept what the Commission is saying. At the end of the day, we have a system or a structure in place at Gatton that costs some $100,000 more than Ipswich to run. The university views them as the same, so senior people within the university are saying well, look, you have got a current system in there that is compelling us to roster people when we don't require them. You have got manning levels there that we don't need. We need to review that; that's the background against what this restructure proposal is seeking to review and change.

PN364

MR ROBINSON: If it pleases the Commission, I'd like to make a comment on that. Commissioner, we realise that and we've given an indication to the university that we're prepared to negotiate a roster and to negotiate the staffing levels. The clause 9 of the certified agreement we don't believe provides a framework for negotiation.

PN365

THE COMMISSIONER: Well, what do you say does, if that doesn't?

PN366

MR ROBINSON: It provides a framework for consultation and managing change; that's what it provides a framework for. It doesn't provide a framework for negotiation, that's where we're concerned about it. We don't want to set a precedent where every time we're in some dispute with the university over things like rosters or classification levels, they haul us off under the Changed Management clause where there is a committee made up of four university representatives and two union representatives. And I feel - if you link that with my concern that the university has shown a complete reluctance to negotiate. They have not negotiated in one instance in relation to this matter.

PN367

They have put up a proposal, our members have said we're not really happy with the proposal and they've told us well, changing their position in regards to the roster is not negotiable. And what they're trying to do is to dictate to our members and this union an outcome through this Changed Management Proposal, which doesn't provide a framework for negotiations. And all we want is for them to sit down and negotiate; that's all we've asked. That's what came out of the last Commission hearing, Commissioner, and yet they're still reluctant to sit down and negotiate.

PN368

THE COMMISSIONER: Well, we've got an argument about the intention of clause 9 now, Mr McMahon.

PN369

MR McMAHON: Well, Commissioner, I mean, what we're seeking to do, and it's quite evident in the proposal, is to decrease manning levels which would involve redundancies. We're seeking to reclassify people and we're seeking a new - to have a new roster system implemented.

PN370

THE COMMISSIONER: Well, I think possibly the first two might fall within restructure.

PN371

MR McMAHON: Well, I don't think there could be any argument about that. So in terms of - but then it's the impact upon the rosters which would flow from that is where the problem seems to be.

PN372

MR McMAHON: Well, again, if we've got no argument about two out of three, we're quite entitled to go down clause 9.

PN373

THE COMMISSIONER: Well, maybe you can run the two, but you can't run the three.

PN374

MR McMAHON: Well, they're integrated, Commissioner, because this is dealing with shift work arrangements.

PN375

THE COMMISSIONER: But doesn't the certified agreement make some provision for rosters?

PN376

MR McMAHON: No, it doesn't, Commissioner.

PN377

THE COMMISSIONER: So then you come back to a non-registered agreement.

PN378

MR McMAHON: Well, do go hand in hand, and if we are seeking to change manning levels, then we need to look at rosters. Now, if the union want to hold the position in the changed management committee, that is beyond the scope and power of the changed management committee.

PN379

THE COMMISSIONER: Well, I think while ever this unreached agreement is on foot, you have got a problem.

PN380

MR McMAHON: Well, Commissioner, all I am saying is that if we can sit down and go through the changed management committee process, if the university - - -

PN381

THE COMMISSIONER: Well, let's think about doing two things. Let's sit down - let's think about you people sitting down and negotiating what the union says it is willing to do arising out of yesterday; that would be a start. And then following that if there is no success there, you then your argument about running this through clause 9.

PN382

MR McMAHON: I understand that, Commissioner, but we have been discussing this for six months. We believe we reached an in-principle agreement - - -

PN383

THE COMMISSIONER: Well, I am going to give you a short timeframe to do it in. I am going to give you a week.

PN384

MR McMAHON: Yes, Commissioner.

PN385

THE COMMISSIONER: To negotiate - sit down and negotiate, and I mean negotiate with this people, about what they say they are willing to do.

PN386

MR McMAHON: Yes, but I must say on record that I - - -

PN387

THE COMMISSIONER: And then at the end of the week, if you have made no progress there we will see where we are.

PN388

MR McMAHON: Yes. But I want to reject the assertion that the university has not negotiated - - -

PN389

THE COMMISSIONER: Well, that is fine, but you see, they have not had an opportunity to negotiate what they say they are willing to do. It might even suit your plans, I don't know.

PN390

MR McMAHON: But they have their mind on two occasions, Commissioner, that is why we went down the formal process.

PN391

THE COMMISSIONER: All right, well, you see, in a week - you have got a week, both of you, to do something about this, and come back here and tell me about it, then we will see where we go, rather than lock anybody in to some other means.

PN392

MR McMAHON: Well, Commissioner, the other means is something under a certified agreement that has been agreed. Now, if we want to restructure any other part, I don't trot off to the Commission and say, look, we are outnumbered five/four we don't like it.

PN393

THE COMMISSIONER: I mean, look, that may not even be an issue at the end of the day. I mean, what I am trying to do is massage some sort of a means whereby you might be able to resolve this, because at the moment it seems to me like you have got a big heavy sledgehammer trying to crack a nut.

PN394

MR McMAHON: Well, Commissioner, we have been spinning wheels on this for six months.

PN395

THE COMMISSIONER: All right. Well, I will give you another week to spin some more wheels, and you come back here and then I might unspin both of your wheels, all right?

PN396

MR McMAHON: Yes, Commissioner.

PN397

THE COMMISSIONER: Mr Robinson?

PN398

MR ROBINSON: Yes, we are happy, Commissioner, to go down that path.

PN399

THE COMMISSIONER: Okay. All right, well, the parties can report back to the Commission at 10.30 am on 13 March as to what progress, if any, or what other propositions the parties want to put to the Commission. So if there is nothing further from the parties, I shall now adjourn these proceedings.

ADJOURNED UNTIL WEDNESDAY, 13 MARCH 2002 [10.40am]