C0077/798, Transcript of Proceedings [2002] AIRCTrans 2175 (13 June 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS

O/N VT04219
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

MUNRO J

C No 00777 of 1998
C2002/2715

TAFE TEACHERS CONDITIONS OF EMPLOYMENT
(VICTORIA) INTERIM AWARD 1994

Review under Item 51, Schedule 5,
Transitional WROLA Act 1996 re conditions
of employment

TAFE TEACHERS CONDITIONS OF EMPLOYMENT
(VICTORIA) INTERIM AWARD 1994

Application under section 113 of the Act
to vary the above award

MELBOURNE

THURSDAY, 30 MAY 2002

Continued from 27.2.02

PN71

HIS HONOUR: I have listed these two matters together. The matter first called is a recently lodged application under section 113 of the Act to vary the award to insert the Safety Net Review Adjustment, it appears, for May 2001 and May 2002. That application was lodged on 27 May. The other matter is
C 00777 of 1998. It is an item 51 review of the TAFE Teachers Conditions of Employment (Victoria) Interim Award 1994. It was before the Commission last on 27 February. It was stood over till today, some three months later, to allow the parties to report on progress in finalising the simplification of the award. Is there any change to appearances?

PN72

MR COLLEY: No, your Honour.

PN73

MR WILLIAMS: No, your Honour.

PN74

HIS HONOUR: If not, could I commence by having - I will take the transcripts concurrently for both files but could I have a report on what is happening with the simplification matter.

PN75

MR COLLEY: If your Honour pleases. The parties, as you have just noted, have been working for the last three months in reviewing the award. They have produced a document which was e-mailed to your office yesterday and I have a hard copy of it for the file today, if I could hand that up. The only difference between those two documents, yesterday and today, your Honour, is that I have inserted page numbers for ease of reference and I have ensured at the top of the front page, so there could not be any confusion, that it is a draft as of today's date and still on a confidential and without prejudice basis.

PN76

That document represents the work of the parties to date and it is in almost complete form. The document, in the parties' view, complies with the requirements of item 51 of the WROLA Act. There are a couple of machinery type exercises yet to be completed. They should be completed relatively soon. One of those exercises is that there are a number of clauses in the award that operate facilitatively. They have not been compiled and placed in a convenient schedule or list, which is the preferred way to make this award easy to use for the practitioners of it.

PN77

The award itself has been formatted in accordance with the Commission guidelines, so it looks substantially different in its form from the existing award. There is still a little bit of work to be done on the arrangements clause so that various types of subclauses within the major parts are clearly identified. The award itself, in a number of clauses, has been updated with respect to things such as the anti-discrimination clause, an enterprise flexibility provision and wherever possible, your Honour, we have rewritten the terms of the award so that it is as best as we can draft it in plain English.

PN78

It is the intention of the parties, subject to guidance from the Commission, that the document is in a form for consideration by the Commission and its award simplification unit as appropriate, who might advise whether there are any issues of concern that require greater clarification or attention by the parties. For that purpose, your Honour, Mr Williams and myself would propose that there would be a further brief report back, perhaps by way of teleconference if that is more convenient, just to raise any of the issues that might have arisen in terms of the formatting of the award or which the parties have overlooked in the exercise to date.

PN79

HIS HONOUR: You are saying you think it is now in a form that is suitable to do that. When would you intend to have a completely final draft?

PN80

MR COLLEY: We could - subject to - perhaps by middle of next week, certainly, I think, by the end of next week, in terms of the facilitative provisions. The document, you will see, has still got some boxed items which are really there for the attention of drafting purposes. It won't take much longer to get that finalised.

PN81

HIS HONOUR: That is sufficient for my current purposes. Any consultation with any other unit will, I think, need to await the completion of the draft. Perhaps if I just run with a few questions at present. Why is it still referred to as an interim award? It was made as an interim award in 1994.

PN82

MR COLLEY: It doesn't need to, your Honour.

PN83

HIS HONOUR: Yes. So we could strike the reference to interim award on, in effect, the remaking of it. The employers in schedule 4, are they a current list?

PN84

MR COLLEY: Yes, your Honour, they are the current list and that is one of the things I would like to raise with you this morning. There are two employers on that list, that is the last page, number 15, University of Ballarat, and number 3, Chisholm Institute. They are new identities rather than amalgamations of former identities. They would be bound by transmission of business provisions of the Act but we are not sure whether they would be bound by the dispute finding and we are not sure of the technical details of can a respondency list to an award simply be updated to reflect that or should it go through a logging and a roping in type exercise.

PN85

HIS HONOUR: With whom was the dispute originally found?

PN86

MR COLLEY: It was found with named respondents. Several of those have amalgamated into continuing identities; that is, an existing respondent has taken over the functions of one or two other named respondents but in the case of Chisholm and in the case of the University of Ballarat, they were not named parties to the dispute finding nor named in the existing award.

PN87

HIS HONOUR: Is the University of Ballarat and Chisholm in any sense a hived off portion of the Department of Technical and Further Education or whatever it was at the time of the finding of dispute? Back in '94 you would have still had remnants of the Department of Education in this area, would you, or would you not?

PN88

MR COLLEY: In terms of the dispute finding, both the department itself and then the councils of each of the named institutes were the listed parties to the dispute. Whether the - - -

PN89

HIS HONOUR: Well, if the Department of Education was the named party, why is not the University of Ballarat and Chisholm Institute an assignee of part of the business of that Department of Education?

PN90

MR COLLEY: In our view, they certainly would be.

PN91

HIS HONOUR: Well, if it were to be consented to - let me deal with it this way. Section 149, as I understand it, is subject to order of the Commission. If it were consented to, I would order, pursuant to 149, that the persons bound by the award and named in the award included those two institutes because they are successors or assignee of a party to the dispute, that party being the umbrella employer at that time, although I can't remember whether or not the institutes - I think the institutes are individual employers, aren't they?

PN92

MR COLLEY: That is correct, your Honour.

PN93

HIS HONOUR: But I think it could probably be said that insofar as - if my memory again serves me correctly - some of the TAFE colleges are offshoots of once were educational institutions. If there is no issue likely to arise about them, I think it can be dealt with by that way and you might even technically log Chisholm and Ballarat with whatever is the old finding of dispute so as that they could be joined up - if you are prepared to do that - in one matter, although you would have to bring that dispute finding before me. It could be varied to include those two institutions if you haven't got a contemporary log served on them. How does a university come to be a TAFE college? It is, I take it.

PN94

MR COLLEY: The university itself was a pre-existing identity not bound by the award or the dispute finding but it absorbed a TAFE institute, which was the Ballarat School of Mines.

PN95

HIS HONOUR: I see. And the Ballarat School of Mines was conducted by the Department of Education, was it?

PN96

MR COLLEY: By its own council and service agreement with the Department of Education.

PN97

HIS HONOUR: But subject to the Minister's authority, wasn't it?

PN98

MR COLLEY: That is right. It is bound by the various acts of Parliament in terms of reporting and accountability.

PN99

HIS HONOUR: I thought the Minister originally over these institutes had a power of direction, did he not?

PN100

MR COLLEY: He does.

PN101

HIS HONOUR: Yes. He still does?

PN102

MR COLLEY: Still does.

PN103

HIS HONOUR: Is the Minister the party to the dispute or does it make no difference?

PN104

MR COLLEY: I can't remember off-hand, your Honour.

PN105

HIS HONOUR: Perhaps you could check that and at the next report back - certainly I would be disposed to take whatever shortcut, provided I can do so technically to make those institutes parties bound by the award. They have, in a sense, come within the compass of the original dispute if they accede to being so bound. I don't know that it makes much difference how I get there but I will formally use the power under 149, which I am of the opinion is available for that sort of a purpose, provided there is a valid basis for exercising it. Okay. Well, that covers those points. Perhaps that could be sorted out fairly rapidly.

PN106

Going through, clause 9, you have got enterprise flexibility provisions and then in that context you raise facilitative provisions, which you again raise at clause 13.3. I assume that the parties are aware that - if my memory serves me correctly - there is a guideline that requires there to be facilitative provisions but there is certainly a guideline that where there are facilitative provisions they should be relatively specific as to what can be facilitated and the procedure whereby it should be done.

PN107

If you are in any doubt about that, and I would hope that you are not, you could have a look at the Metal, Engineering and Associated Industries clauses, which is reasonably specific what changes can be made by what form of agency, namely, agreement between employer and employee is one category and agreement by a majority of employees in the workplace is another category, and so on, but it specifies also what part of the award may be varied. It has something to be said for it, that approach. It requires a little bit of attention to what it is that you are doing but the more vague and blurred your facilitative provisions are, firstly, the greater tension there is with the award itself but secondly, I think, the less likely you are to be able to use them, and they should be able to be used across a set of workplaces of this kind.

PN108

Dispute resolution procedure: clause 11 is a bit of a bottler. I have to say I wonder where it came from. You had better have a closer look at it, I suggest. I don't want to raise unnecessarily difficulties but it starts with, "The union and the institute shall be notified of cases involving dispute settling procedures." It is a pretty blurred description of what is a dispute, which at the end result, if you had a board of reference about it, would appear to be able to be made the subject of an award provision. 11.2, .3 and .4 are probably okay, subject to 11.4:

PN109

Disputes between the employers and employees shall be settled in accordance with the following procedures -

PN110

Disputes about what? I would have thought they would have to be at least disputes about matters arising under the award. If it is about the education policy in East Timor, it can't be - or even in Victoria. 11.4.1 has to be read down similarly in that way. Is the institute council meant to be in lower case? Everybody else seems to be in upper case. It belittles your institute councils a little bit to put them in lower case. 11.4.2:

PN111

The function of the board shall be to allow, approve, fix, determine or deal with a matter referred under 11.4.11.

PN112

If you look at section 131, I think it is, of the Act, if you are to have a board of reference it is has got to fix, determine, etcetera, something relatively specific. The way that clause is framed, it is either likely to be invalid or the determination of a board of reference, if you to agree to establish one, could be invalid or you could have boards of reference running around about things that really have not much to do with matters arising out of the award. My suggestion to you would be that you should tie it down relatively tightly to the matters that you would want a board of reference to determine.

PN113

11.4.1(vi) might have the words added to it, "as though it is a provision of this award". That is so as that the determination is treated as though it is a provision of the award. All that means, though, is that if there is a breach of the determination, it is the breach of the clause 11.4.1(vi); it is breached, not the determination itself. Similar words might be added to 4.1(vii). That is only a view off the top of my head but, in other words, if you are going to give the Commission a power of review, effectively the review shall be a determination and it shall be abided by as though it is a provision of the award in accordance with 11.4.

PN114

The same point about facilitative provisions applies to the box that is on 13.3. I think you would probably get by with the treatment of casual teachers but you may get queries if it is looked at closely. 15.4.5, is the performance appraisal process an established provision? Is that the way it reads at present?

PN115

MR COLLEY: It is, your Honour.

PN116

HIS HONOUR: I see. It seems pretty constrictive but I will pass over that for the time being. I can't see any reason why you can't have a performance appraisal matter as an allowable award matter and I suppose if you have agreed, it should be there. Rates of pay: casual teachers S1 and S2, those are standard rates to apply to casuals. The rates are a loaded up rate, are they, based upon some established standard? I see them towards the back - I have just forgotten - in the classifications, rates, salaries. I haven't got the numbered pages.

PN117

MR COLLEY: It is after clause 30.2, your Honour, the actual salary schedule.

PN118

HIS HONOUR: Yes, I have got it open. It is $26.80 and $36.90. Where do they come from, those rates, do you know off-hand?

PN119

MR COLLEY: They were historically derived from, I suppose, in lay person's terms, a paid rate for a particular number of hours depending on the sort of subject taught. They were converted in the mists of time to a day and a night rate because the time of day reflected in some ways the type of subject taught, and they have remained that way ever since. We have not attempted to convert that to an ordinary hourly rate of pay plus loading.

PN120

HIS HONOUR: I see. So, effectively, it is $26.80 per hour for whatever classification of - - -

PN121

MR COLLEY: That is right. They are not on a - - -

PN122

HIS HONOUR: Casual teacher is - it is a bit like the universities pattern. In fact, the rates look as though they might have been taken from university levels, unless memory serves me wrongly. I once fixed them.

PN123

MR COLLEY: They weren't taken from a university rate of pay.

PN124

HIS HONOUR: Weren't they? I see.

PN125

MR COLLEY: They were derived from days when there were particular subjects taught during the day and different sorts of subjects taught at night, and they were sessions and you were paid a rate of pay per session. In a more modern era but still in the dim past they were converted to a day and a night rate.

PN126

HIS HONOUR: Right. Well, that satisfies me on that point. Yes, I think your box in clause 18 about relocation is simply formatting. I think that probably covers the points that were of concern to me. Mr Williams, did you wish to add anything?

PN127

MR WILLIAMS: I think the report provided by Mr Colley has been comprehensive and does reflect where we have come to and to indicate that we are pretty close to a final document, your Honour.

PN128

HIS HONOUR: Yes. Thank you. I am grateful to the parties for having made the real progress that has been reported. I would urge them to continue. Simply because you have got the pay increases coming through shouldn't cause the iron to grow cold. Otherwise, you will find that you are in danger of a rush of blood to my head and you will get an award in a form that you won't have quite the same control over that you have if you do it yourselves. Could we go to the second leg of the matter, which is to vary the salaries schedules. How do you get to do both of them and why didn't you do the first one? What has been happening?

[10.40am]

PN129

MR COLLEY: Your Honour, the reason that - taking the second question first, the reason the 2001 wasn't done was simply that during that period of time the parties were engaged in a very intensive round of enterprise bargaining and their time and resources were diverted to that. The dollar amounts itself weren't particularly urgent for our members to receive because they were getting moneys elsewhere.

PN130

HIS HONOUR: Well, how do I do it - - -

PN131

MR COLLEY: In terms of joining - - -

PN132

HIS HONOUR: - - - given the arbitrated safety net adjustment principle that at least 12 months have elapsed since the rates in the award were increased in accordance with the safety net review May 2001 decision?

PN133

MR COLLEY: I don't have the current decision in front of me but there is a provision in that decision similar to last year's that where previous safety nets have not been applied for then, providing there is no increase in actual rates of pay for the employees proposed, then they may be combined.

PN134

HIS HONOUR: You are right, yes. I don't read these notes, Mr Colley, so - that is the next clause, yes, I see. Well, that answers that question. Are there any other clauses that I should be sensitive to?

PN135

MR COLLEY: No, your Honour.

PN136

HIS HONOUR: Can I trust that answer, Mr Colley?

PN137

MR COLLEY: You can, your Honour, we are not - - -

PN138

HIS HONOUR: I don't want to be guilty of heresy. I have got enough sins on my conscience at present I think to - - -

PN139

MR COLLEY: And the parties are certainly not trying to lead the Commission astray, your Honour, but I do need to point out that in the draft order submitted there is an actual calculation error. And I was guilty, your Honour, of trying to gain for my members an extra $52 a year.

PN140

HIS HONOUR: Which one is that?

PN141

MR COLLEY: All of the rates of pay are out by $52.

PN142

HIS HONOUR: Oh, dear. Have you got the substitute figures?

PN143

MR COLLEY: I added the 17 from last year with the 18 from this year and got 36, not 35.

PN144

HIS HONOUR: Well, that is understandable for a teacher. Have you got the substituted rates?

PN145

MR COLLEY: Not on me, your Honour, no.

PN146

HIS HONOUR: So, what, you deduct 52 from everything?

PN147

MR COLLEY: That is right, your Honour, but I have been told this morning there is some query with the T6 rate which I can't explain offhand. And with the - - -

PN148

HIS HONOUR: Well, perhaps what you might do is, you can give me a substituted order preferably by the close of business today and one that is agreed between you. My associate perhaps can give you a copy of the draft I have. The one thing I haven't done on this I think is take appearances clearly - particularly from you, Mr Williams; I assume that Mr Colley is appearing for the Australian Education Union, but are you appearing for the entirety of the - - -

PN149

MR WILLIAMS: I appear for the Victorian TAFE Association, your Honour, representing the respondents to the award.

PN150

HIS HONOUR: Yes. That is all respondents, is it?

PN151

MR WILLIAMS: Yes.

PN152

HIS HONOUR: Yes, thank you. Yes, I think my associate has that. Well, I take it that you are applying for the Commission to waive the 12 months requirements for variation of the award since the May 2000 review and, in relation to that application, I am prepared to grant it. I note that the requirement of principle 8(e) will be satisfied by the proposal to include in the schedule 1 the clause that is required by the decision. The award is expressed as to total minimum rate. Perhaps could I just go back; does that mean that in relation to the classification rates, they have also been set as properly adjusted minimum rates?

PN153

MR COLLEY: They were, your Honour, during - - -

PN154

HIS HONOUR: Some years ago, were they?

PN155

MR COLLEY: When the award was made as a first federal award, as an interim award by Commissioner Frawley in 1994, the pre-existing state award had been a paid rates award and in accordance with the requirements of the Act and the principles at the time, they had to be converted to a minimum rates award and go through a minimum rates adjustment process.

PN156

HIS HONOUR: I see, and it was done then, was it?

PN157

MR COLLEY: And that was done at that particular point in time.

PN158

HIS HONOUR: Yes. So there is no over-award element in them and they are set by reference - I didn't notice any metal industry comparator in the classification structure, but I am not sure how much that is essential.

PN159

MR COLLEY: It is not expressed in the award itself but in the material during that case - - -

PN160

HIS HONOUR: I see.

PN161

MR COLLEY: - - - the proper external comparison and relativities were demonstrated.

PN162

HIS HONOUR: Very well, yes. Did you wish to add anything, Mr Williams?

PN163

MR WILLIAMS: No, your Honour.

PN164

HIS HONOUR: Yes. Well, subject to verification of the classification and salary rates in relation to which I will require the applicant to submit by close of business this afternoon and email a copy of a revised draft order approved by Mr Williams. I will vary the award in the manner proposed. The variation is intended to give effect to the safety net review wages May 2001 and 2002 decisions, prints PR2001 and 2002 respectively.

PN165

The Commission has waived the requirement for the 12 months delay having regard to the explanation that was given, and to my acceptance that the variation will not result in an increase in the wage rates actually paid to employee, or increase the wage costs for employer. The conditions of the arbitrated safety net adjustments principle otherwise have been satisfied by the form of order proposed.

PN166

The order shall come into force from the first pay period to commence on or after 31 May 2002, and shall remain in force for a period of 12 months. The order will issue later today or tomorrow, dependent upon receipt of the draft order from Mr Colley. In relation to the other matter that I have listed simultaneously with this, 777 of 1998, I ask the parties to take into account the points that I have raised as they proceed to completion of their task of submitting a final draft.

PN167

In the meantime I will consult with the award simplification unit as to the formatting and completion of the simplification exercise. If that is likely to take an undue amount of time, I may simply complete the exercise myself on the basis of the final draft that is submitted by the parties. Some of the exchanges on transcript today will be part of that final draft. For instance, I will delete the reference to the interim award and make it a final award. After some eight years of operation it would appear to be relatively final.

PN168

As to the respondency clause, subject to the submission in due course of an application effectively countersigned or approved by the institute on behalf of - or association I think it is - on behalf of those two respondent employer institutes, I will make an order, or will exercise at least the power under section 149 by ordering that the respondents to the award include those two institutes. I will do so on the basis that I am satisfied that the institutes are effectively assignees or successors of part of a business generically conducted by the Department of Education or Minister as an employer and as a party to the original dispute.

PN169

If there is an application in appropriate form by consent also referring to the original dispute, I will have the file uplifted in order to add to the finding of dispute the names of those two parties as respondents. That might best be associated though with a formal demand, perhaps, to be made through Mr Williams in relation to the old log, a refusal of it, so that the technical basis of your finding is not in any doubt.

PN170

Sometimes these things can become too awkward later on if too many short cuts are taken. So it is best to have the foundations properly laid, and that will avoid the need for roping-in and alternative devices, and I would think would be sufficiently valid to stand scrutiny in the hopefully unlikely event that this ever needs to be undertaken. I think that completes the business, save perhaps only as to when the matter might next be listed subject to the receipt of the final document within perhaps, let me say, 10 working days.

PN171

I will give you 2 weeks for that. We will make it by Friday fortnight, whatever date that is. I will proceed and then arrange some form of perhaps video-conference with the parties, or tele-conference, with the object of finalising the matter if it can be. An alternative may be that I will send to you by e-mail an annotated version of the award in its final form with a request for comment. In that regard, are there any particular niceties? The draft that you have prepared, Mr Colley, what format is that in, do you know? Is it a word document?

PN172

MR COLLEY: It is a word document.

PN173

THE SENIOR DEPUTY PRESIDENT: A straight word document. And is that readily assimilable by your people, Mr Williams?

PN174

MR WILLIAMS: Yes, sir.

PN175

THE SENIOR DEPUTY PRESIDENT: We are finding difficulties with all sorts of people who have very dated word processing systems, or different ones. A document in rich text format can't be read by the AMWU and even some solicitors offices. I am told Freehills, the doyen of employer legal firms, has God knows what version of Word. They haven't been wasting any money on their word processing format.

PN176

One of my associates - perhaps I shouldn't be disclosing such secret matters, but the electronic lodgment age is going to be fraught with interest and difficulty, including people who can't open facsimiles when you send them because their computers crash. It should make for interesting excuses, I would have thought, because the facsimile is delivered in - what was it - a letter received is a misfortune, not a privilege, I think according to the common law.

PN177

Anyhow enough of that. I will stand the matter over. The parties will be advised as to when the hearing is resumed. Thank you.

ADJOURNED INDEFINITELY [10.55am]