C0034/698, Transcript of Proceedings [2002] AIRCTrans 3029 (7 August 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C No 00346 of 1998

HIGHER EDUCATION GENERAL AND SALARIED STAFF
(INTERIM) AWARD 1998

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

SYDNEY

11.15 AM, THURSDAY, 20 DECEMBER 2001

Continued from 19.11.01

PN24022

THE SENIOR DEPUTY PRESIDENT: Could I have appearances please? We will start with Sydney.

PN24023

MR D. MENDELSSOHN: May it please the Commission, I appear for the CPSU, the Community and Public Sector Union and with me in Perth is MR M. FINNEGAN.

PN24024

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Mendelssohn.

PN24025

MR M. WARBURTON: May it please the Commission I appear for the ALHMWU and appearing with me in Perth is MR J. WELCH and just for the Commission's clarity Mr Welch will be making submissions in relation to the merits of the award that is before you today and I'm here more as a sort of a brief if there are any issues raised in relation to the national issues or respondency issues.

PN24026

THE SENIOR DEPUTY PRESIDENT: So I will go to Mr Welch in the first place, Mr Warburton.

PN24027

MR WARBURTON: Thank you.

PN24028

THE SENIOR DEPUTY PRESIDENT: Very well. Melbourne?

PN24029

MR J. McALPINE: Yes, if it please the Commission I appear with MS E. FLOYD for the NTEU.

PN24030

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

PN24031

MR G. MEREDITH: If it please the Commission I appear for Edith Cowan University, Perth University and Murdoch University and also appearing with me from those universities are MS FRANZ, MS RICHARDSON and MS KEENAN.

PN24032

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Meredith. Any other appearances?

PN24033

MR C. PATNAM: I appear for the University of Western Australia. We acknowledge we are not a party to the award sought to be issued, your Honour. However we are certainly to be impacted by the outcome of these proceedings as we seek to negotiate an award for our own institution and the issues at stake here today are the same ones that are confronting the parties in the making or the determination of an award for the University of Western Australia.

PN24034

THE SENIOR DEPUTY PRESIDENT: Very well, Mr Patnam.

PN24035

MR J. WELCH: If it pleases the Commission I appear on behalf of the ALHMWU, also making appearances for the CFMEU, CEPU and the AMWU.

PN24036

THE SENIOR DEPUTY PRESIDENT: So it is the LHMU, the CFMEU, the CEPU and the AMWU?

PN24037

MR WELCH: Indeed, Commissioner.

PN24038

THE SENIOR DEPUTY PRESIDENT: I got them all. All right then, who is going first?

PN24039

MR MEREDITH: I would like to, your Honour.

PN24040

THE SENIOR DEPUTY PRESIDENT: Yes, I think that is appropriate. You are in effect the applicant.

PN24041

MR MEREDITH: As may be, your Honour. I was going to propose I think for the - in the interests of all the parties and the locations and indeed the Commission, I was in the first instance going to propose what I think might be a fairly uncontentious order of proceedings or order of dealing with matters and I would propose as follows. The first matter that I think might profitably be addressed is the question of respondency to the award and indeed the correspondence recently submitted by the NTEU and others that goes to that point.

PN24042

The second, the next matter I would seek to go to I would foreshadow that there are some amendments to the draft award that is before the Commission. They are relatively minor and again I don't believe that they will be contentious. They simply go to some matters that have been omitted from the draft. I would then propose that we proceed with the conditions matters in the order that they are shown in my correspondence to all of the parties of 25 October. Now, I simply propose that not because I think there's any special hierarchy, it is just a sequence that I think is current amongst the parties from that correspondence and beyond the sequence of matters in my correspondence I recognise that there are several other matters that have been raised in correspondence from the LHMU.

PN24043

Those go to an enterprise flexibility clause and to the payment of the 15 per cent loading for casual, a particular category of casual - I beg your pardon, a particular category of part-time employees. There are two further matters that are not identified by me in my correspondence of 25 October and there is also, I beg your pardon, your Honour, there is also the question of special rates as detailed in correspondence from the LHMU.

PN24044

THE SENIOR DEPUTY PRESIDENT: Now, I don't have or don't appear to have a copy of correspondence from the LHMU. That came from you, Mr Welch, did it?

PN24045

MR WELCH: It did, Commissioner. We provided that to you Friday last by facsimile.

PN24046

MR MEREDITH: Your Honour, is that dated 14 December?

PN24047

MR WELCH: It was a facsimile dated 14 December, your Honour.

PN24048

MR WARBURTON: Your Honour, I have it if you want to go and get a copy.

PN24049

THE SENIOR DEPUTY PRESIDENT: If you have got a copy that would help. All right then, if no one takes any exception to what Mr Meredith has proposed I intend to adopt that system of dealing with the matter. Were you meaning that it be discretely dealt with, Mr Meredith, ie we complete the whole of the case involving respondency for example before moving on to the amendments to the draft?

PN24050

MR MEREDITH: I'm sorry, your Honour, I didn't hear that quite clearly. I beg your pardon.

PN24051

THE SENIOR DEPUTY PRESIDENT: Do you propose that we deal with each of those items discretely, that is complete submissions on them before moving from the question of respondency to the amendments to the draft matter? Complete submissions.

PN24052

MR MEREDITH: Yes, I do, your Honour.

PN24053

THE SENIOR DEPUTY PRESIDENT: All right.

PN24054

MR McALPINE: Your Honour, Melbourne here.

PN24055

THE SENIOR DEPUTY PRESIDENT: Yes, Mr McAlpine.

PN24056

MR McALPINE: I would support Mr Meredith's proposal. I would propose as well if the parties agreed to, and I assure the parties that because this is a very well-worn path that our submissions in relation to these matters will be very brief because they are well known to the Commission as presently constituted and I was simply going to suggest that the issues raised in our correspondence, in other words also the question of jurisdiction of the Commission to make an order under item 51 also be included in that matter, those matters to be dealt with as a discrete issue at the beginning because they are really the issues that go to jurisdiction and the jurisdiction and respondency are in the first instance and depending on how we are from there just in terms of assisting the Commission it may be that given that we haven't actually been favoured with a copy of the draft order that we might even withdraw from the proceedings after that because we will not have anything - unfortunately we won't have anything useful to contribute in relation to the actual substantive provisions of the award and we also have every faith in the capacity of the advocates of the other unions to put submissions on those issues.

PN24057

So just in terms of us having less parties involved in the actual hearing, we would support Mr Meredith but we would also propose to very briefly, perhaps 2 or 3 minutes, deal with the other matters that are dealt with in our correspondence.

PN24058

THE SENIOR DEPUTY PRESIDENT: That sounds eminently sensible, Mr McAlpine. Subject to that addition as it were I propose to adopt the order that has been set out by Mr Meredith and will therefore deal with questions of respondency and jurisdiction as a discrete matter. Now, I'm at a loss as to who to invite to go first in this matter. Perhaps it should be the NTEU.

PN24059

MR McALPINE: If the other parties are happy with that I'm happy to proceed, your Honour.

PN24060

THE SENIOR DEPUTY PRESIDENT: Very well, Mr McAlpine, please do so.

PN24061

MR McALPINE: As I said these are matters that have been, these are very well-trodden matters that have been dealt with in these proceedings, that is the item 51 review of the HEGSS Award and as we understand it from the listing and otherwise the only matter the Commission has before it today is the item 51 review of the HEGSS Award. We've received a copy in response partly to our letter. We've received a response from Mr Pill and I don't propose to specifically address that letter.

PN24062

As I've said we've seen no copy of the draft award and as set out in our correspondence of 18 December to the Commission which was provided to the other parties we say that as a party to these proceedings, that is the simplification of the HEGSS Award, it would be a breach of natural justice for the Commission to make that award without us having received and had the opportunity to have a look at a copy of the draft order proposed and an opportunity to make submissions about that draft order. So that is our first submission.

PN24063

Our second submission is that which is an issue that we which to continue to pursue is the issue that was raised in the proceedings under the heading of the HEGSS Award relating to the Maritime College Award and the HEGSS Award in the decision of your Honour of 21 November and those matters have not yet led to the making of orders and Mr Pill suggests that because those matters have been determined by your Honour, those are not matters that should be entertained today. We say that they can be entertained. The Commission has not issued any orders yet in those matters but we don't intend to go to that at any great length.

PN24064

We say that the Commission cannot make an award under an item 51 review and we rely on the submissions that we've made in relation to that matter at paragraph 22477 to 22687 and the other submissions and discussion between the parties between 2 and 4 October 2001. We say that the issues that were traversed in that are the same as the issues in this case. As I said as we understand it having not seen a copy of the draft order these are simply proceedings under item 51. There is no application for the making of an award which would give rise to various other considerations about other disputes and other parties to the award and we took the Commission to those issues in some detail and I don't propose to repeat that unless the Commission thought that was particularly necessary.

PN24065

We say in relation to the HEGSS Award of course that we are a party to the award and we respectfully disagree with your Honour's interpretation of clause 4 of the award and we rely again on the submissions made at paragraphs 6945 to 7030 of the transcript, the submissions that we made at that point about the proper interpretation of clause 4 of the award. An additional point which perhaps distinguishes this matter from the Maritime College matter is that there is a dispute finding involving general staff dated 20 February 1989 which should be on the HEGSS file which records a dispute finding between FAUSA and to which the NTEU is the successor and Curtin University of Technology and Murdoch University which of course goes to general staff.

PN24066

That is one of the disputes underpinning the HEGSS Award. Now, that it seems to me following the line of logic that your Honour does in your decisions about this matter, that does not materially, from that point of view that does not materially affect the matter because your Honour has found that the operative provision for determining respondency is to be found in schedule B to the HEGSS Award and that that operates irrespective of the actual dispute findings but we say it is a material difference between the Maritime College case where it is probable that there wasn't a dispute underpinning the HEGSS Award between the NTEU or its predecessors and the Maritime College whereas we say clearly one of the disputes that is found at the top of the HEGSS Award is a dispute between FAUSA and Curtin and Murdoch which goes to general staff.

PN24067

We also say we have, and I don't think the parties represented here today would disagree with us on this, but we have a substantial membership at the three universities. We also note or guess from the appearances today and from a draft about 19 months ago, which is the last draft that we say of this award, that it is proposed that CEPU, the CFMEU and the AMWU are proposed to be parties. We support them being parties to this award but our position is not that they should not be parties to this award but we repeat our earlier statements that if it is a question of jurisdiction the question of consent must be relevant and that it is not possible for both those parties to be included and for us not to be included in as parties to the award.

PN24068

We say that on the basis that none of those unions are listed in schedule B of the HEGSS Award as being relevant respondents according to your Honour's findings at any of these universities. Having said that we support those unions being a party, we support those unions being a party to the award. We are certainly not seeking to stand in the way. We say the solution to that inconsistency is that we should be entitled to be parties to the award as well and just for completeness in light of the earlier - and these are matters that have been dealt with before but just for completeness in light of our earlier submissions we say it is necessary for there to be an application under the Act, under the Workplace Relations Act for the making of the new award and for those parties and ourselves to be appropriately parties to any new award made.

PN24069

We don't intend to make any submissions in relation to the content of the award although to the extent that the award deals with salaries and classifications less there be no misunderstanding the formal position of the NTEU is that we oppose the inclusion of salaries and classifications in the award but we don't intend to make any submissions on that matter today if it please the Commission.

PN24070

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

PN24071

MR MEREDITH: Thank you, your Honour. I will commence with one aspect in the latter part of Mr McAlpine's submissions. He asserted or submitted that the CFMEU, AMWU and I believe he also said the CEPU were not shown in the relevant schedule of HEGSS as being recognised in respect of the universities proposed to be parties to the draft award. That is simply incorrect. Schedule B of the HEGSS Award, the last page of schedule B, I'm looking, your Honour, at a consolidated print of the HEGSS Award as provided by the Commission up to 24 December 1998.

PN24072

The last part of schedule B, because it is in alphabetical order, details Western Australia and it shows Curtin, Murdoch, the University of Western Australia and was then the Western Australian College of Advanced Education which has become Edith Cowan University and the unions shown against each of those institutions are the SPSF which of course has become the Community and Public Sector Union, the LHMU here today, the PGEU Plumbers and Gas Fitters as I understand it which is now part of the CEPU. The next union shown is OPDU which I understand to be the Operative Painters and Decorators Union and I would also understand that that union is now part of the CFMEU.

PN24073

The next union shown, the next set of initials shown is the ETU, the former Electrical Trades Union, now part of the CEPU. The final set of initials shown in the print I'm looking at are the PKIU, the former Printing and Kindred Industries Union now as I understand it part of the AMWU. Now, I appreciate it may be embarrassing for Mr McAlpine for me to give him a lecture on trade union history in a public forum but that is precisely what has happened here. The unions shown against the universities in Western Australia at the time of the making of the HEGSS Award have all variously become component parts of the unions that we recognise amongst the proposed respondents to the draft award that is before you. They are my submissions on that point there.

PN24074

THE SENIOR DEPUTY PRESIDENT: Very well.

PN24075

MR MEREDITH: More generally, your Honour, I say there are five deficiencies in the position that the NTEU seek to bring forward. The first thing I say, not that it perhaps weighs profoundly but the first thing that I say is that the written material they have submitted is out of time and to that extent it is inconsistent and not in compliance with the direction you so clearly gave to the parties at the telephone hearing on 19 November and I note that Ms Floyd who was a party in that hearing of 19 November is present in the proceedings today.

PN24076

Your direction was unambiguous. The parties are to serve on the Commission and the other parties no later than 5 days prior to the hearing any materials upon which they rely. The parties - the further point I make is that the material or late material submitted by the NTEU is incomplete. In that proper correspondence from the correspondence and from the submissions Mr McAlpine seeks to rely upon various paragraphs of the transcript of earlier proceedings. I appreciate that he may not feel required to tender the transcript. In my case, your Honour, the correspondence from the NTEU which is dated 18 December was received at our office in Melbourne at approximately 4 o'clock in the afternoon.

PN24077

It was about 30 minutes after I had left the Melbourne office to proceed to the airport to get a plane to Perth and amongst the other materials that I've brought with me, your Honour, I did not bring my full set of transcript of these proceedings. I don't know the precise contents of the paragraphs of transcript that Mr McAlpine refers to and that he has further sought to rely upon in his submissions here this morning. So again I say the material that has been submitted is not only out of time and to that extent not in compliance with your direction it is also incomplete and to that extent again is not in compliance with your direction.

PN24078

More generally, your Honour, I would say that the correspondence as submitted by the union and indeed as conceded by Mr McAlpine in his submissions is nothing more than a re-agitation of material and a position that the union has put in proceedings going back at least to 1999. I refer to the decision of Commissioner Smith in August of 1999. That is - sorry, your Honour, I don't have the print number immediately in front of me but you also refer to that decision of Commissioner Smith in your decision of 21 November. Commissioner Smith dealt with the question of whether an institutional award could be made in August 1999 in print R8312.

PN24079

The NTEU in the first instance sought to appeal that decision and then withdrew their appeal following an unsuccessful application for a stay. I say that the whole flavour of the correspondence and the submissions that have been put are nothing more than a re-agitation of matters that have previously been put. They've been put by the NTEU in those proceedings before Commissioner Smith that led to Commissioner Smith's decision of August 1999. They were put to you in the hearing at first instance concerning the Maritime College. They were put to you again when the NTEU sought to have you review that Maritime College decision pursuant to section 111(1)(c) and they were put again in the final stages of the proceedings before you in the week of 2 October.

PN24080

On each occasion those submissions have not been accepted by the Commission as variously constituted and I simply submit, your Honour, that there is no good purpose, there is nothing served and there is no weight in what is freely conceded to be submissions that are familiar to the parties and submissions that have been well tried and failed in the past. The final thing I say it was submitted by Ms Floyd on 19 November that the circumstances with respect to the proposed Western Australian award are factually different and can be distinguished from the circumstances of the Maritime College.

PN24081

That submission appears to rely now upon the advice that there was a pre-existing dispute notification as at some point in 1988 between FAUSA, formerly the Federation of Australian University Staff Associations, and two of the three respondents - I beg your pardon, two of the three proposed respondents. Now, the first point I say is that I submit that FAUSA as the Federation of Australian University Staff Associations was an association whose eligibility rules extended to academic staff and if I'm wrong on that point I simply note that the rules for that organisation at the time have not been supplied to support the inference that the NTEU would seek to have you draw from the pre-existence of that dispute.

PN24082

The second point I make is if it be true that there was a dispute found and that FAUSA could cover general staff at those universities it does nothing to change the terms of schedule B of the HEGSS Award and the test that has been established by yourself, your Honour, is that for a union to properly be eligible to be a respondent to an institutional or regional award that may issue from the item 51 review, that union or that organisation needs to be shown against the appropriate institution at schedule B. We have tendered a draft award that identifies all of the unions shown against the three universities proposed to be respondent.

PN24083

There is nothing sinister in the fact that we have included unions of which Mr McAlpine apparently had no knowledge but that we have not included the NTEU. We have not included the NTEU because they are not shown at schedule B and to that extent there is nothing factually or materially different from the circumstances here and the circumstances at the Maritime College and to that extent the submissions that were put to you on 19 November in my respectful submission cannot be relied upon.

PN24084

For all of those reasons, your Honour, the fact that the material is late, the fact that the material is incomplete, the fact that the material does not go to any material difference as was asserted in November would be established. The fact that the material in aggregate does nothing more than seek to re-agitate the question that has been heard and determined on four occasions, for all of those reasons, your Honour, I submit that the material not be accepted and we simply proceed further with the other substantive matters on questions of conditions. If it please the Commission.

PN24085

THE SENIOR DEPUTY PRESIDENT: Very well, Mr Meredith. I will go now to observing an order that I have done previously in these matters. I will go now to Mr Mendelssohn.

PN24086

MR MENDELSSOHN: Thank you, your Honour. I have only a couple of brief points because the matters that have been raised by Mr McAlpine have, in the main, already been dealt with in decisions of your Honour and unless your Honour's decisions are overruled, I am content to rely on those. The only points I wish to make is, first of all, Mr McAlpine put it that it would probably not be disagreed that the NTEIU has substantial membership amongst general staff at the three universities in question. I certainly am quite prepared to acknowledge that the NTEIU has membership amongst general staff. I'm certainly not satisfied on the information I have that the extent of that membership could properly be described as "substantial" and I simply need, for reasons your Honour may well understand, to place that on the record.

PN24087

The fact that the NTEIU does have general staff membership at the three universities, or the fact that a predecessor organisation of the NTEIU had a dispute finding against any of the universities in question with respect to general staff, is not the issue. The issue is whether the predecessor body of the NTEIU is listed against any of the three universities in schedule B, that being on the interpretation of clause 4 of the HEGSS award, that your Honour has found in earlier decisions to be correct, being the test as to whether a union can be a party to an award made in simplification, or in partial simplification of the HEGSS award in relation to a particular institution, or institutions. May it please the Commission.

PN24088

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Mendelssohn. Mr Patnam, do you have anything on this matter?

PN24089

MR PATNAM: Yes, your Honour, just very briefly and it is very much in accord with the correspondence from Mr Pill of 19 December. We say that the Commission has already heard the NTEIU on this issue and it as Mr McAlpine pointed out the matter is well trodden and, we say, has been determined and that is in your decision of 21 November and we would say that it is inappropriate for the Commission to hear, or hear further submissions in relation to the matter, having already traversed that ground. That is all we would say on that, your Honour.

PN24090

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Welch.

PN24091

MR WELCH: Thank you, your Honour. I don't think there are any submissions from me so I would refer it to Mr Warburton, who may.

PN24092

MR WARBURTON: We don't have any submissions to make.

PN24093

THE SENIOR DEPUTY PRESIDENT: Very well, thank you, Mr Warburton, Mr Welch. Have I overlooked anyone? I don't believe I have. Mr McAlpine, a brief reply.

PN24094

MR McALPINE: Yes, I will be brief. I'm interested in Mr Meredith's remarks about material being late. We say and not effectively better late than never. We are parties to these proceedings and we have not received a copy of the award that is proposed to be made, or anything else from any of the parties, so our point about natural justice is a very serious point on which we seek to rely on these proceedings. We did wait to receive a copy of the draft order and then it appeared that none would be forthcoming within the 5-day limit and then we wrote a short letter seeking to rely on transcript in these proceedings - the transcript in these proceedings - which we assume the parties have, or have access to.

PN24095

Mr Meredith said that: these arguments had all been put to Commissioner Smith. In fact, I think the jurisdictional argument has only been put in recent times and the question of clause 4, the proper interpretation, of course, was not a matter that was determined, except in I think initially July this year, so the matters that we are putting forward as the most serious matters in these proceedings are not matters that have been the subject of rulings over a period of years, although there have been three decisions of your Honour in relation to them and we acknowledge that. We say that obviously given our position in these proceedings we have to consider whether we wish to take this matter further.

PN24096

Our understanding is and our advice is that the decisions in relation to the Maritime College has not yet led to the making of an order. An order which would be an order which we as an organisation appeal and the matter - the general decision of 21 November is also a matter that has not led yet to the making of an order which could be appealed. These proceedings might lead to the making of an order which could be appealed and, obviously, in the context if we were to take the matter further with in the Commission, then, it would be an argument put against us that we had not placed on the record the basis of our dissent from what is being proposed today. We have tried to do that in a way that causes no inconvenience to the Commission and the other parties, so we say it is not a matter yet that we be able to take it any further within the Commission, until and unless an order is issued and in that context we are making submissions on a matter that, as Mr Meredith quite correctly states, is a matter that has been agitated for some months. I think that is all I wish to say on those matters, if it please the Commission.

PN24097

THE SENIOR DEPUTY PRESIDENT: Very well, thank you, Mr McAlpine. Consistent with rulings I have made in the past the NTEIU being bound by the HEGSS award as it stands at the present time in relation to particular institutions, is entitled to see draft awards, or other documents that affect the HEGSS award, so that I would direct the applicant in this matter to serve a copy of the proposed award on the NTEIU within 10 days. So far as the arguments that are put on other matters are concerned, I first of all recognise that the NTEIU must maintain its position and that is noted.

PN24098

I'm satisfied that with one exception all of the matters that have been raised by the NTEIU on this occasion have been raised previously and dealt with in my earlier decisions involving the Australian Maritime College and the more general decision which appears as Print PR 911627. The matter which may not have been directly dealt with before is the fact that there exists - although I believe it has - is the fact that there exists a dispute finding involving the three universities in the present application, or their predecessors and it is said that that was not the case with regard to the Australian Maritime Industry.

PN24099

I accept the proposition that has been advanced from several quarters this morning that it is not the dispute finding which is the issue, it is the naming of predecessor unions in schedule B to the HEGSS award as it presently stands, which is the issue. I accept by default at the present time the fact that the unions named and referred to as the AMWU, the CEPU and the CFMEU are identified, or at least their predecessors are identified in the relevant schedule to the HEGSS award. That is all I intend to say on the matter at the present time. I'm prepared now to proceed with the second item in the order of progress outlined earlier. Yes?

PN24100

MR McALPINE: Melbourne here.

PN24101

THE SENIOR DEPUTY PRESIDENT: Yes, Mr McAlpine.

PN24102

MR McALPINE: On that basis and given we are not in a position to make much of a contribution about the substantive merits of the award, we would seek two things. Firstly, we would seek a direction giving us the opportunity to make any submissions about the award that we may wish to make when we do receive a copy of the proposed award and, secondly, in any case we would seek to withdraw from the proceedings at this time.

PN24103

THE SENIOR DEPUTY PRESIDENT: Yes. I think it is appropriate that you be given the opportunity to make submissions. I will direct that you have 28 days from the - I'm thinking of the season - 28 days from today, or from the receipt of the draft award to make submissions on the - what you would call the merits of the conditions, is that right?

PN24104

MR McALPINE: The substantive merits of the provisions, yes.

PN24105

THE SENIOR DEPUTY PRESIDENT: Yes. I note your application to withdraw and appreciate it and grant it.

PN24106

MR McALPINE: Thank you, your Honour.

PN24107

THE SENIOR DEPUTY PRESIDENT: Please turn off the lights. All right then, Mr Meredith, I think it is back to you.

PN24108

MR MEREDITH: Thank you, your Honour. I think the next matter I had advised was simply to foreshadow several amendments - - -

PN24109

THE SENIOR DEPUTY PRESIDENT: That is correct.

PN24110

MR MEREDITH: Very briefly, your Honour, those two matters are - we have had raised with us by the AMWU the question of apprenticeship salaries, or salary rates for apprentices. We did not include those in the draft as tendered. It pure and simple was an omission on my part and in part I think I have assumed that none of the respondent employers, in fact employ apprentices. At least one of the respondent universities does employ perhaps one apprentice. We have no in principle difficulty with, or objection to the inclusion of apprentice wage rates. We would propose to amend the draft as tendered and provide for the appropriate wage rates for apprentices and those rates will be calculated by reference to as a percentage of the proposed ATW3 rate, which is the tradesmens' rate in the draft award.

PN24111

The second matter I advise your Honour is at the time that we tendered the draft award, that is in late October, there was an application pending in other proceedings dealing with the inclusion in several university general staff awards of the provision for unpaid parental leave for eligible casual employees. We at the time - and I mean at the time that the draft award was submitted - we were by no means certain of the manner in which that application might ultimately be pressed. That matter of course has now been dealt with in separate proceedings before you and the test case standard as of May of this year has been incorporated into those various university general staff awards. I simply foreshadow that I would propose to also amend the draft as tendered and the second amendment I refer to would be to incorporate the test case standard of May of this year with respect to eligible casual employees being entitled to unpaid maternity and paternity and other forms of parental leave.

PN24112

THE SENIOR DEPUTY PRESIDENT: And that is all?

PN24113

MR MEREDITH: I don't believe I - that is all your Honour, yes.

PN24114

PN24115

THE SENIOR DEPUTY PRESIDENT: Very well. Well, we will stay with that. Does anybody have anything to say against the incorporation of both those items as amendments to the draft? That being the case I will just raise one thing that has intrigued me a little bit. The title of the award, could I suggest lead to some - the proposed title to the award could perhaps lead to some confusion in people who are not directly aware of the situation in WA. Western Australian Universities General Staff Award 2001 in its very terms, includes the University of Western Australia.

PN24116

MR MENDELSSOHN: And potentially perhaps also your Honour the University of Notre Dame.

PN24117

THE SENIOR DEPUTY PRESIDENT: Yes, that is true too, that is true.

PN24118

MR WARBURTON: Your Honour, it has happened before you took over carriage of this case, the Queensland Universities Award was made and it does not cover University of Queensland.

PN24119

THE SENIOR DEPUTY PRESIDENT: No, that is right. That is right, there is a precedent for this.

PN24120

MR MENDELSSOHN: Paul Griffith's University or James Cook - - -

PN24121

MR WARBURTON: Or James Cook or the other universities.

PN24122

THE SENIOR DEPUTY PRESIDENT: Yes. Well, look, I have raised it. I'm certainly not going to raise it as an objection that I have and in the light of what Mr Warburton has said if we follow precedent, then, there is a precedent set. All right, we will pass on from that. They are the only amendments - they are the only amendments which I note - - -

PN24123

MR MEREDITH: My apologies, your Honour, I'm not trying to cut across you. Yes, they are the only amendments that we would propose.

PN24124

THE SENIOR DEPUTY PRESIDENT: Very well. Does anybody else have any proposed amendments, or if they arise, they arise under the discussion about conditions? I will pass from the amendments - these formal amendments - to the next stage of proceedings which is, if my notes are correct, conditions matters, raised in the letter of 25 October and added to by something that has been raised this morning. Mr Meredith.

PN24125

MR MEREDITH: Indeed, your Honour, and the first of these matters from the letter of the 25th is the proposed payment of shift loadings to employees eligible for additional annual leave. Now, it might assist the proceedings if the LHMU spoke in the first instance of this matter, only because I think - I would hope that the LHMU can provide us with a relatively cogent outline of the areas of concern because there is some tension between overlapping some underlying State awards, but it might be helpful for your Honour to hear from the LHMU on this matter and I would seek to then put a position on behalf of the proposed respondent to the award.

PN24126

THE SENIOR DEPUTY PRESIDENT: Well, if you have got no difficulty, Mr Welch, I will hear you.

PN24127

MR WELCH: That is helpful, your Honour. Our view is very simply this. The leave loadings provisions that were provided for in some of the base awards clearly are superior to those which are proposed to identify in the current draft. It is our view that this process is not intended to reduce conditions and that is clearly expressed in item 51. We therefore have sought two draft clauses to cover the areas which were matters of contention. Specifically, there are a number of awards which provide for improved loadings for people who are employed on rosters.

PN24128

We sought to draft three clauses identified in the documents provided to you as leave loading clauses 31.4.2(a), (b) and (c). These cover two particular base awards. The Gardeners' Award, the Cleaners and Caretakers and the Building Trades Government Award, where the leave loadings were significantly better. It is our view that simply to produce an homogenised, if I can put it that way, and therefore simplified and less beneficial 17_ per cent loading across the board, is actually to reduce the conditions of our members from the point of which the simplification began. We would therefore submit that our clauses actually allow for the benefits which were in place prior to this process beginning to continue for our members and for the members of the other unions that would otherwise be covered.

PN24129

THE SENIOR DEPUTY PRESIDENT: Can the clauses be seen as extending the benefit?

PN24130

MR WELCH: Well, they extend the benefit that would exist for those people prior to and which were taken into HEGSS and would allow them to continue into the future. They are not meant to simply be a savings clause.

PN24131

THE SENIOR DEPUTY PRESIDENT: I rather meant: do the proposed drafts preserve the existing benefit for the people who are currently entitled to it under the State provision?

PN24132

MR WELCH: Yes, they do, Commissioner. Your Honour, it is intent that these clauses mirror the clauses of the original base awards. They are not intended to extend to any new individuals.

PN24133

THE SENIOR DEPUTY PRESIDENT: Well, yes, right, that was the answer that I was seeking. Yes, Mr Mendelssohn.

PN24134

MR MENDELSSOHN: Thank you, your Honour. Unless Mr Finnegan has anything to add, I basically support the position of the LHMU in this matter. The intention of the item 51 review is as Mr Welch said, not to reduce employee entitlements and in my submission that should properly be seen as the entitlements of employees who, by the nature of the work they performed, were subject to one of the underlying instruments in HEGSS, not to individuals who through some now defunct - under now some defunct instrument perhaps enjoyed some particular benefit. But if for example the Gardeners Award was incorporated into the HEGSS award and it provided for a particular condition which was enjoyed by gardeners, but not by other categories of staff employed in the university, then, gardeners in my submission should continue to enjoy that benefit.

PN24135

It should not be confined to the individuals who happen to be gardeners at the present time. It should go with the work and the only thing - the only disagreement in a sense that I have with Mr Welch is that in his proposed clauses, I would prefer to see the entitlement defined in terms of the types of work, rather than by eligibility for membership of a particular union, because we are talking about award entitlements which apply to particular types of work and union eligibility rules potentially can change and that would have the potential to either expand, or contract the entitlement, depending on which way the union rules went, either expanding or contracting, and it should in my opinion properly go with the type of work being performed, but otherwise I support the submissions of Mr Welch.

PN24136

THE SENIOR DEPUTY PRESIDENT: Very well. Is there anybody else who wishes to speak in support of Mr Welch's proposal? That being the case I will go to you, Mr Meredith.

PN24137

MR MEREDITH: Thank you, your Honour. In a way, your Honour, I submit that the competing views on this issue really are perhaps a micro ..... for some deep-seated differences between various parties on the form and the nature of award simplification and to that extent some of what I think may be traversed in considering this issue will probably re-emerge in considering other issues. Your Honour, we say that in 1994 each of the three respondent unions entered into a certified agreement with various parties, but in each case including the ALHMWU, and that 1994 agreement for each of the three universities proposed to be respondent instituted the 10-level DWM structure about which you have heard so much in other proceedings. It instituted a set of local wage rates with a common wage rate at the trade equivalent and to various extents those 1994 certified agreements formally absorbed a number of specific money allowances, or dollar allowances for particular categories of employees doing particular forms of work.

PN24138

Now, all of this you have heard your Honour in those other proceedings of a national character regarding the HEGSS award. In addition, in those 1994 agreements, each of the three universities in various ways, sought to standardise many of the key conditions matters. Now, it has been separately put to you, your Honour, that the 1990 - in the case of Western Australia it was 1994. In most other states it was 1993, but the wage rates and the structure inserted in 1993, or '94, can be taken through to the year 2001, adjusted by available safety net adjustments and form a legitimate salary safety net for award purposes across the higher education sector. You have heard in general terms of the absorption of allowances, of the standardisation of hours and other matters, all of which the parties separately consented to in those national proceedings and, ultimately, you found in favour of that model in your decision of 21 November.

PN24139

Now, what I'm simply saying, your Honour, is that the first part of that 1994 series of enterprise agreements sought to institute a new classification and salary structure and within that with varying degrees of formality, formally absorbed into that salary rate particular types of allowances. Secondly, a number of conditions matters across different and disparate occupational groups were standardised at each of the three universities. If you go to my correspondence of 12 December, your Honour, the first attachment to that correspondence is a document unsigned, which is headed: General Staff Statistics.

PN24140

Your Honour, I compiled those figures from - I compiled that document from figures supplied to me by Ms Franz, Ms Richardson and Ms Keenan and they represent a snapshot of the current population at the universities. I have chosen to express the aggregate total as a percentage of the general staff population and it clearly shows that trades and cleaning as identifiable components of the general staff population across the three universities comprise slightly less than 4_ per cent. Now, I readily anticipate, your Honour, that it may be argued - or if the figure is so small, any potential cost implication of anything that might be sought is indeed quite minor, and I would accept that the dollar cost could well be quite small. The administrative and the organisational cost however would be profoundly larger - and I will return to that in further submissions.

PN24141

Now, attachment 2 in those materials that I submitted last week is an extract from the 1994 Curtin University Certified Agreement. Your Honour, you will have a copy of the entire agreement in the materials that AHEIA tendered in the national matter that you heard. It is one of the series of certified agreements - the first generation certified agreements - that instituted the 10 level structure, and we have tendered copies of all of the agreements for all of the universities that are members of AHEIA in the four volumes of papers that we tendered initially to Commission Smith in late 2000. So to that extent, your Honour, although I have chosen to provide excerpts only because I'm seeking to limit the amount of paper we are all shuffling and I have sought to limit those excerpts to the subject matter before you in these proceedings, you do have access if you choose, to copies of the complete agreements for each of the three universities.

PN24142

Your Honour, proceeding then in the first instance to the Curtin Agreement, if you go to clause 5 of the Curtin Agreement, which is numbered page 3 in the extract of Curtin. Clause 5 is headed: Relationship Of Parent Award. And the preamble reads, I quote:

PN24143

The terms and conditions as described in this agreement replace the terms and conditions ...(reads)... the conditions of employment as prescribed in this agreement shall apply.

PN24144

Quite clearly, when the agreement is in conflict with the award the, the agreement prevails. If I can then take you to clause 20 of the Curtin - the extract of the Curtin - which is numbered page 12 - and you will see, your Honour, a clear listing of allowances under the heading: Allowances At Clause 20. It specifies:

PN24145

Allowances that are to be paid.

PN24146

And then further down in the text of clause 20:

PN24147

The following allowances are absorbed.

PN24148

I simply take you to that, your Honour, in confirmation of what I have previously submitted of the process of the 1993, or 1994 agreements formally absorbing allowances in varying formal extents. With respect to annual leave and shift work payments if I can then take you to clause 26, which is numbered page 21, clause 26 is headed shift work and part 5 or para 5 of clause 26 reads:

PN24149

An employee engaged on shift work who is rostered to work at least 11 Sundays and/or public holidays throughout the year shall be allowed 37.5 hours leave per annum in addition to the entitlement to annual recreation leave set out in clause 27.

PN24150

Then at para 6:

PN24151

Additional leave prescribed by subclauses (3) and (4) -

PN24152

I beg your pardon, your Honour, I've misled you there. That simply is talking of a separate entitlement. I will simply leave it at my reference to numbered clause 5. So it is an additional week of annual leave for shift workers. Then if you go over the page to the next page of the extract it is numbered clause 27 annual leave and if you go over one further page to numbered page 23 clause 8, paragraph 8 of what is clause 27 annual leave reads:

PN24153

Permanent employees shall be paid an annual leave loading and the loading shall be calculated on the employees' salary at the date the leave is taken with respect to a maximum of 20 days annual leave provided the maximum amount is as set out.

PN24154

The maximum amount in that schedule seen as referred to does not go to additional days or additional weeks. It simply goes to the method of calculation, your Honour. My point here is that at Curtin University it is quite clear that in the 1994 agreement that instituted wage rates and classification structures that have subsequently been consented to as the basis for a safety net by the LHMU and the other unions here present that not only did that '94 agreement establish that classification structure and those salaries, it absorbed varying allowances and it standardised conditions matters and all of that in my respectful submission, all of that features in the acceptance by the employing universities proposed to be respondent to this award of the wage rates that went into that 1994 agreement and I will return to this theme with some of the other conditions matters that are in dispute, your Honour.

PN24155

In my submission it is quite clear the 1994 certified agreement at Curtin in the first instance which overrides the instrument called up in HEGSS does provide 5 weeks leave for shift workers and limits annual leave loading payments to 4 weeks and, your Honour, very briefly it is precisely the same with respect to Edith Cowan University and to Murdoch University. In the extracts from the Edith Cowan University General Staff Restructuring Agreement again there's a - page 4 clause 7 application to award there is an equivalent provision that:

PN24156

Where the terms of this agreement are in conflict with the provisions of the various appropriate industrial awards the conditions of employment as prescribed in schedule 9 of this agreement shall apply.

PN24157

Again the agreement overrides the award in the event of conflict and in the ECU Award you need to go a little further into the extract, your Honour. Towards the end at numbered page 52 clause numbered 5 shift work, I should emphasise, your Honour, that the clause I'm taking you to does come from schedule 9 of the Edith Cowan Agreement of 1994, so clause 5 shift work, para C I quote:

PN24158

An employee goes on shift work who is rostered to work 11 or more Sundays and/or public holidays shall receive an additional 5 working days of annual recreation leave.

PN24159

So again for shift workers a fifth week of leave and then over the page, your Honour, to numbered page 53 the heading is clause 6 annual recreation leave and it is in identical terms to those at the Curtin Agreement, your Honour. At para G:

PN24160

Subject to subclause (g)(6) of this an employee shall be paid a loading of 17_ per cent immediately prior to the Christmas close-down.

PN24161

G(2):

PN24162

Subject to subclause (g)(5) the loading is paid on a maximum of 4 weeks annual leave or 5 weeks in the case of shift workers who are granted an additional week's penalty leave.

PN24163

So at Edith Cowan University it is 5 weeks annual leave and annual leave loading is paid for the fifth.

PN24164

THE SENIOR DEPUTY PRESIDENT: Which differs from Curtin.

PN24165

MR MEREDITH: It does, your Honour, yes it does and if I can then take you to the third extract which is from the Murdoch University Agreement. At the relevant clause it is clause 32 shift work which you will find towards the back of the extract from the Murdoch Agreement. It is numbered page 20 of 97.

PN24166

THE SENIOR DEPUTY PRESIDENT: Yes.

PN24167

MR MEREDITH: It is page 20 of 97 is the latter part of the clause, clause 20 annual leave and I've included all of 20 annual leave but at part 10, again 17_ per cent annual leave loading on a maximum of 4 weeks leave.

PN24168

THE SENIOR DEPUTY PRESIDENT: Which is the same as Curtin.

PN24169

MR MEREDITH: Yes, it is, your Honour, and if I can then still proceed to numbered page 41 which is the clause dealing with shift work, clause 32. At H(2) it seems there's reference to the provision of accumulating the extra leave for shift workers who have - well I will read the clause:

PN24170

Subject to agreement between the university and the employee work performed during the ordinary roster -

PN24171

I beg your pardon, I'm sorry, your Honour, I've made a mistake there. I've taken you to additional leave for weekend work. I'm sorry, your Honour, it is over the page. It is subclause (d) at the top of page 42:

PN24172

An employee engaged on shift work who is rostered to work regularly on Saturdays and on Sundays and/or holidays referred to in clause 15 shall be allowed 1 week's leave annually in addition to the normal entitlement of annual leave.

PN24173

My apologies for this, your Honour, I'm getting myself a little bit out of sequence here. Back at page 20, the extract I've already taken you to, the annual leave loading is 4 weeks, a maximum of 4 weeks. Now, two points emerge from this in my submission, your Honour. It has been treated slightly differently at each of the three universities and it has been done so by agreement between the university and various unions including the LHMU continually since 1994 and it forms part of the basis of settling on a wage rate that is consented to by all of the parties present as the basis for a safety net salary within and for the proposed award.

PN24174

The salary that is proposed in the award, and I don't propose to make substantive submissions on salary matters, I simply inform you, your Honour, the salaries that are proposed in the draft award are constructed from the formula that was put to you as a consent matter by the parties including the LHMU in the national proceedings and you subsequently found for that construct in your decision of 21 November. So it is treated slightly differently but it is absorbed in varying degrees at each of the three universities and I say in varying degrees because the position at two of the three has been that 17_ per cent only is paid for 4 weeks.

PN24175

At the third university 17_ per cent only is paid for 5 weeks. What is being claimed is 20 per cent for 5 weeks. What we have proposed in our draft award is 17.5 per cent for 5 weeks. It is a measured and in the view of the respondent universities it is an acceptable and a proper consistent standard that we would propose to put into a safety net award but we say that to seek to revert to paying 20 per cent averaged for 5 weeks is to some extent seeking to reawaken a matter that was negotiated and paid for in the wage rates that went into the 1994 agreement.

PN24176

I note Mr Mendelssohn's submissions about how it might better be identified which employees such an allowance might apply to. I don't think there is any more efficacious way to do it and the difficulty I have with the way that it is being done is that what we seem to say is that for most purposes you are a higher education worker classified 1, 2, 3, 4, 5, 6 or 7, save that if 12 years ago your predecessor was doing the same work but was called a gardener and was considered to be tied to the gardeners' award as opposed to the higher education workers' structure and the wage rates that go to that, well we will seek to reinsert for you as a gardener 20 per cent across 5 weeks even though we agreed to its deletion in 1994 when higher wage rates and a better classification structure came into play.

PN24177

For that reason, your Honour, we oppose the level of payment that is sought by the LHMU in these proceedings. We say that it does amount to double-dipping because we say that it is a matter that is quite clearly absorbed and has continued to be absorbed in successive enterprise agreements since 1994 and thus it is part of the matrix of matters that led to the acceptance of the acceptance by all parties of a classification salary structure in 1994. The way we propose to treat it in the draft award is that employees shift workers who work shifts across the majority of the year are entitled to a fifth week of recreation leave and for that fifth week they are entitled to be paid the annual leave loading.

PN24178

THE SENIOR DEPUTY PRESIDENT: Very well.

PN24179

MR MEREDITH: That is the extent of my submissions, your Honour.

PN24180

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Patnam, do you have anything to contribute on this matter?

PN24181

MR PATNAM: Yes, just briefly, your Honour, thank you. Your Honour, if it was the University of Western Australia Award that was before you this morning it would be the same issue that was being argued. We would adopt and support the submissions of Mr Meredith in the matter. We certainly agree that the flavour of this matter is going to be the flavour of the other matters that you hear about today and we would support a proposition that the nature of the proposed provisions are of the safety net character and that those are the provisions that the Commission should adopt in issuing this award. Thank you, sir.

PN24182

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Welch, a brief reply?

PN24183

MR WELCH: Yes, your Honour. I would simply say we are simply attempting to do no more than reflect in the new award the conditions which existed previously. Mr Meredith did not I note question that that is in fact the case. He simply sought to suggest that the fact that we had entered into or that all of the unions had entered into certified agreements which moved away from the conditions which were identified in the originating HEGSS had in some way precluded us from having access to those conditions in the simplified award in the future.

PN24184

We say that those conditions in this, what is an underpinning award, should still continue. There is no reason for conditions to be withdrawn or taken away from our individual members. Further we would suggest that it has not been the case that the matrix which went to creating the HEW levels which were before you previously included the leave loading question and therefore we would suggest that that does not play a role in the formula which has come to make up the salary level for which we had decision on previously. I would simply say with reference to the question of costs and administration that is a red herring.

PN24185

These are all relatively large institutions who certainly have a capacity to carry out the relatively simple administrative tasks that are necessary to provide loading for a relatively small group of staff as is identified by Mr Meredith and clearly the cost indication is relatively negligible. So we would suggest that it is absolutely necessary to reflect the conditions which existed in the previous HEGSS and which have not been changed subsequently to reflect them or close as will be necessary.

PN24186

THE SENIOR DEPUTY PRESIDENT: Thank you. We will move to the second one.

PN24187

MR MEREDITH: That would be?

PN24188

THE SENIOR DEPUTY PRESIDENT: The standardising of hours of work with the consequential effect upon regimes for a 38 hour week at clause 15.1.

PN24189

MR MEREDITH: I'm happy to proceed first, your Honour, but again it might, I mean it might make for a more concentrated proceedings if the LHMU were to go first on this one.

PN24190

MR WELCH: Yes, your Honour. Some of the substance of the dispute have I think already been canvassed because the key question for us here is whether or not these are clearly identified conditions in the original HEGSS and whether they should continue into the simplified HEGSS. It is quite clear that a number of the base awards, the gardeners, the cleaners and caretakers, engineering trades, building trades, all clearly identify rostered days off as being available to individual employees. We have taken our wording in the main from the cleaners and caretakers award though we've been mindful of the differences that there are in some of the other awards in framing our clause.

PN24191

We accept that they were based on awards which were 38 hour awards and not the 37_ which is perceived in this award. However we would say simply this. The fact that an agreement has been reached between the two parties that this be a 37_ hour award should not reduce the conditions in other areas which exist for members and mainly in this case the RDOs. We simply say that we have agreed with the other party that this should be 37_ hours. We don't say that we would wish to change the pre-existing condition that RDOs be available for members.

PN24192

THE SENIOR DEPUTY PRESIDENT: Very well, thank you, Mr Welch. Mr Mendelssohn?

PN24193

MR MENDELSSOHN: Your Honour, I support the submissions of Mr Welch. The only thing I would wish to add is that in relation to the salaries and classifications arbitration which your Honour heard through the greater part of this year and on which your Honour gave your decision on 21 November of this year certainly - and I'm quite happy to be proven wrong on this if Mr Meredith can point me to either the relevant extracts of the transcript or the relevant portion of your Honour's decision, but certainly it was clearly put to your Honour that absorption of allowances at various institutions was a part of the justification for the salary rates that were being proposed and part of the justification for there being some differential in salary rates was that different allowances were absorbed at different universities.

PN24194

It is not my recollection that standardisation of other conditions was part of that and as I say I may be wrong about that but that is not my recollection and in for example clause 20 of the Edith Cowan University Agreement it clearly states that:

PN24195

In addition to the rates prescribed in schedule B the following allowances shall be paid to employees.

PN24196

Then a list of allowances is specified and that is at page 12 of that agreement and it clearly says:

PN24197

The following allowances are absorbed.

PN24198

And similarly in the Curtin University Agreement, there is at paragraph 8.8, which is on the numbered page 5 of that agreement. It states:

PN24199

The following allowances shall be absorbed.

PN24200

And then lists the number of specified allowances. I was unable to locate a comparable clause in the Murdoch Agreement, but in my submission, unless the type of allowance or entitlement that Mr Welch is pressing for is in the nature of one of the allowances which is stated as having been absorbed, then, it has not been absorbed. May it please the Commission.

PN24201

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Meredith.

PN24202

MR MEREDITH: Thank you, your Honour. As I recall, we are talking about hours of work.

PN24203

THE SENIOR DEPUTY PRESIDENT: That is right.

PN24204

MR MEREDITH: Each of the agreements that I previously referred to do indeed adopt as a standard a 37_ hours per week for all general staff employees. That has remained the case again at each university continuously since 1994. Prior to those agreements being certified in 1994, there were indeed a range relating to hours right across the three universities and across particular occupational groups within the general staff work-force at each of the universities. It is the case, your Honour, that at each of the three universities proposed to the respondent, rostered days off, or flexi time which allows for rostered days off, has constantly remained in place in the period since 1994.

PN24205

What we say is that having agreed to standard hours of 37_ some 8 years ago, or 9 years - I beg your pardon, 7 or 8 years ago - and having agreed to continuing subsequent enterprise agreements that provide for rostered days off, or flexi time, it is simply inappropriate to now seek to re-insert into a safety net award that which has been regulated by certified agreement in the period since 1994. On that point I might briefly seek some brief confirmation from, in the first instance, Ms Richards of Murdoch University on the reality of Murdoch University with respect to rostered days off, or if you prefer, flexi time since 1994.

PN24206

MS RICHARDS: Thank you, your Honour. I'm the employee manager at Murdoch University. My time at the university post-dates the first certified agreement, but I would like to comment on what really happens now and, that is, that the staff that we are referring to have a 37_ hour week, but they also enjoy what they continue to call "rostered days off", but which in fact is rolled into what the rest of the university would refer to as "flexi time". So there was a translation from the old classification system which you may remember as C something, public service, that went across to the newly agreed salaries under the DWM classification, so they were all translated - they all benefit from that and continue to enjoy the rostered day off, and also had a reduction in their working hours from 38 to 37. Thank you - but in relation to it, yes.

PN24207

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Richards. Mr Meredith.

PN24208

MR MEREDITH: I'm happy to provide further comment from the representatives of each of the other universities if that would assist you, your Honour.

PN24209

THE SENIOR DEPUTY PRESIDENT: Only if it was a different - if it is the same as what Murdoch does, then, I will simply note that.

PN24210

MR MEREDITH: Well, it is the same, your Honour.

PN24211

THE SENIOR DEPUTY PRESIDENT: Very well, there is no need to - - -

PN24212

MR MEREDITH: I mean, what we are saying is - it is across the three universities. It is not simply a theoretical exercise to assert that it is a matter consistent with item 51 that is best left to - an individual in agreement - that has been the practice continuously since the hours were standardised at 37_. We say that it is a matter of individual process and a matter that is properly - that properly continues to be regulated by enterprise agreement and each of the three respondents. No more, no less.

PN24213

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Mr Patnam.

PN24214

MR PATNAM: Yes, thank you, your Honour. Your Honour, again, we would support the submissions put forward particularly by Mr Meredith and indicate to you that the matter that we are considering here is certainly a matter that is an issue at the moment between the University of Western Australia and the unions as we progress our discussions around our own institutional awards. What we would say is that the blue collar staff have enjoyed the benefits of a 37_ hour week since 1994 and this has been reflected, certainly in WA, and each of the three subsequent certified agreements covering general staff made since the original section 134 agreement in 1994 and, clearly, 37_ hours is now the standard for general staff in this State.

PN24215

The provisions that the ALHMWU seek to have inserted have their origins in underpinning State trades-type awards and whilst they reside in those particular awards that in itself is not to say that those provisions are relevant, or appropriate to the tertiary institutions, and certainly no argument has been put forward on that basis. The rostered day off is synonymous with the 38-hour week of the underpinning award and if the union wants, it can assist in its approach with this simplification and it should also advocate the inclusion of the 38-hour week in conjunction with its contention that the RDOs should be brought forward to this award. In so doing, I would suggest it might also like to turn its attention to the implications of its arguments then on the pay scales that have been advanced.

PN24216

We say that the union cannot have it both ways and we say that the Commission should give force in this award to the hours that are now the standard in the institutions and the attendant provisions reflecting the working of those hours. Those being the ones advanced in the draft award. Thank you, your Honour.

PN24217

THE SENIOR DEPUTY PRESIDENT: Very well, Mr Welch.

PN24218

MR WELCH: Thank you, your Honour. If I could start by saying that we are very pleased that Mr Patnam is able to identify areas where he thinks we should be making particular submissions, but we are perfectly happy to make our own. We would say that the award that we are seeking to make would create a right, not a manner of consent. Effectively, it would allow our members the right to have those rostered days off, not matters of consent as are dealt with in the certified agreements. Those certified agreements are time limited. This award will not be in that sense, therefore, they are different things. We would suggest that our members should continue to have the right which was envisaged when HEGSS was created and should not be limited by that which they have agreed to subsequently.

PN24219

I would further say that the linkage that is created between the question of a 37_ hour week and the question of RDOs, is not correct. From our point of view they are distinct and separate things. We do agree to a 37_ hour week. We do not agree to RDOs being taken out of the award. Plainly, it is our view that these rights that our members have from the original HEGSS should not be diminished at this point. This is an underpinning award and should not be simply replicating that which have been agreed or consented to as parts of certified agreements subsequently.

PN24220

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Welch.

PN24221

MR WARBURTON: Your Honour, perhaps if I could just - - -

PN24222

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Warburton.

PN24223

MR WARBURTON: Because the other parties are raising in particular our consenting to rates that were adopted in the national salaries case, I would just like to make a short statement. Notwithstanding the adoption of the 1993 agreement rates as minimum rates in the national HEGSS case, I just want to make it clear that the ALHMWU has not and never has consented to the adoption of those agreements as a whole as the appropriate safety net and that seems to be the argument that is now being developed by the employers. The rates that were adopted - the rates and classifications that were adopted, were adopted because they had been through the SEP process and that that was justification for them being properly fixed minimum rates.

PN24224

For the employers to now argue that all other conditions, or the conditions that they particularly want to choose, should also be brought into the conditions awards because they have some remote linkage to the rates that were adopted we say is incorrect, and I just wanted to put that on record. If it please the Commission.

PN24225

THE SENIOR DEPUTY PRESIDENT: Very well.

PN24226

MR MENDELSSOHN: Might I also say something?

PN24227

MR MEREDITH: Your Honour, I apologise, can I make one further comment on this matter? Simply, in looking again at the draft clause that is tendered by the LHMU, looking particularly at clause 19.10 where there is the provision of - specifies the actual number of minutes per day. Now, I have to assume when it talks about 24 minutes per day we are working back to a 38-hour week quantum. 24 minutes per day, 2 hours per week, it seems that, perhaps unconsciously, in the draft clause that the LHMU brings forward to seek to insert in a safety net award an RDO provision, it is, in fact, constructed around the 38-hour week regime, when separately we are told that the union does consent to the safety net regime of hours of 37 and a half.

PN24228

I mean, there is an obvious, perhaps unintentional, contradiction between the two positions.

PN24229

MR WELCH: Your Honour, if I could say - and I apologise to the Commission, that clause should not have been included in our submission and I take the point that is made that clearly it would create an internal contradiction, it wasn't our intention to do so and I apologise. It is an administrative error on our part, which I take responsibility.

PN24230

THE SENIOR DEPUTY PRESIDENT: So you say you amend your proposal by striking out 19.10?

PN24231

MR WELCH: Yes, your Honour, simply renumber the following two paragraphs.

PN24232

THE SENIOR DEPUTY PRESIDENT: The others, yes. Mr Mendelssohn, you had something to say?

PN24233

MR MENDELSSOHN: Yes, I just - yes, your Honour, in my submission, what is actually happening now under the certified agreements is irrelevant and the only relevant issues are, first of all, whether the provision that the LHMU is now seeking to have inserted is to be found in one of the underlying instruments to the HEGSS Award applicable to one of - to at least one of the - the universities proposed to be bound by the proposed award. If the answer to that question is "yes" then the second question that, in my submission, is relevant is: is it one of the matters that can properly be said to have been absorbed in setting the salary rates which your Honour approved in your Honour's decision of 21 November 2001?

PN24234

THE SENIOR DEPUTY PRESIDENT: Yes, very well. I will move to the next item, which is the payment of - - -

PN24235

MR MEREDITH: Your Honour - - -

PN24236

THE SENIOR DEPUTY PRESIDENT: - - - the payment of higher duties in place of a mixed functions allowance at clause 22.1, and - - -

PN24237

MR MEREDITH: Your Honour, before - - -

PN24238

THE SENIOR DEPUTY PRESIDENT: - - - and in view of what has been happening so far I think it might be as well if I go straight to you, Mr Welch.

PN24239

MR WELCH: Thank you, your Honour. I would certainly say that the clause that we propose very simply deals with, again, an attempt to reflect that which exists in the current awards and I refer to clause 24 of the gardeners, clause 18 of the cleaners and caretakers, clause 7 of the engineering trades. It is clearly envisaged in all of these awards that employees would have access to higher duties after 2 hours. That is, in my experience, common to awards covering the sorts of agreements that the ALHMU have been representing and is distinct from the awards covering many of the, if I can put it this way, white collar areas, which have had distinct higher duties clauses referring to 5 days.

PN24240

I don't want to go over the arguments but clearly we believe that conditions should not be reduced or removed which are reliable and clearly it would be a significant damage to our members if they were instead to receive higher duties after 5 days rather than 2 hours as has been the case under the previous award and is common in many of the awards in the area.

PN24241

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

PN24242

MR MENDELSSOHN: I support the submissions of Mr Welch on this matter, your Honour, and in my submission this is actually a clear cut case of a matter which on no reasonable view could be said to have been absorbed into salary rates and has been consented to by other universities in other awards which certainly are in the pipeline, not those that have been made already.

PN24243

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Meredith?

PN24244

MR MEREDITH: I understood the latter part of Mr Mendelssohn's submissions there to be some reference to matters concerning other universities. I didn't quite hear all of it, your Honour, but to the extent that this may or may not be a matter present in other conditions awards that have been made is in my - whether it or isn't, in either case it simply is demonstration of the variety that has occurred across the country and is of no greater relevance than that, in my submission.

PN24245

Your Honour, again the position here is that in each of the original 1994 agreements, in the case of Curtin University you will find at clause 21 on page number 12, at Edith Cowan University it is clause 9 numbered page 55, at Murdoch University it is clause 34, numbered pages 42 and 43. In each of the agreements, your Honour, there is a higher duties provision that applies to all employees and it is the higher duties provision that allows payment of higher duties after 5 days. Again, we say it forms part of the composite agreement that the parties signed in 1994.

PN24246

It forms part of the composite agreement that installed a classification and wages structure that you have separately endorsed. To argue - you know, to test the hypothesis by reversing it, your Honour, if you were persuaded by the submissions by the LHMU you would then have a position where you may well have two HEW3 employees employed at any of the three universities, one of whom works in accounts payable or student records or enrolments or somewhere else, and one of whom is a gardener.

PN24247

When the person who - and both of whom work 37 and a half hours per week as their core hours, both of whom have the same salary range, both of whom have the same provisions with respect to salary advancement or pay point progression, both of whom have the same classification descriptors for the work that they perform. One of whom can be required to work in a higher position and after 5 days will be paid the appropriate percentum of higher duties allowance, one of whom may work 2 hours in a higher position and then be paid continuously for the rest of that day or any subsequent period.

PN24248

It promotes inefficiency. It is an impediment of efficiency. It is obsolete and indeed against item 51.6(c) it hinders productivity and it is further - it is clearly unfair. Your Honour, how could you reasonably allow that situation to arise, most particularly when, as we have submitted with some of the other matters, it forms part of the composite of standardising allowances, rates, classification structures and conditions? With all due respect to what has been put to you previously, to say that somehow conditions never formed part of the considerations in the minds of the parties in 1994 is to ignore the material that is in front of everyone.

PN24249

It is to choose not to read what is in those 1994 agreements and what has remained in place continuously ever since on some of the subject matters. You cannot - with respect, you cannot now desegregate that and say: well, even if conditions did form part of the '94 agreement and even if we did standardise some you can no longer rely upon that, even though that standardisation has been constant since 1994. I mean, that is the kernel of this, your Honour. With respect to higher duties it is a matter for which there has been one uniformed standard across each of the three employer universities continuously since 1994.

PN24250

We say to now seek to re-characterise people as higher education workers except for the purposes of higher duties or mixed functions, in which case they revert to being cleaners or trade occupations or other categories of people, and in which case they have a separate entitlement to that which applies to those others in the same classification structure and who are paid the same wage rate to work the same weekly hours, I mean, it is just a nonsense, with all due respect, and it is not only iniquitous, we say there is a degree of - the union is perhaps being somewhat disingenuous in putting arguments upon this costs draft. It did form part of the negotiations signed off by unions and employers in '94. It has remained constant since '94. It formed part of the consideration and the agreement that was reached on a wage rate to apply, and to go back now is no more or less in my submission than to double-dip.

PN24251

On that point I will make subsequent submissions on the framework agreement that was broken nationally between AHEIA and the ACTU and the specific references in that framework agreement to double-dipping on productivity, or related matters. But I will save that until we conclude on these issues, otherwise - I mean, I will sum up what I will say on that point subsequently, your Honour, will I would submit be relevant to a number of these conditions matters. But on higher duties we say that is the reality that has applied continuously since '94 and it formed part of those considerations in 1994 which you have subsequently accepted as the basis for a legitimate safety net salary and classification structure. If it please the Commission.

PN24252

THE SENIOR DEPUTY PRESIDENT: I'm a bit concerned that I may have been wrong in that conclusion on the basis of the arguments that the universities are advancing now. The conclusion I came to that they were properly fixed minimum rates was based on work value considerations and the reference to the "leading hand allowance" is a work value-related matter - well, certainly, it can be argued that it is - but some of these conditions which are now said to be part of the fixation of the rates in 1993 and 1994, are not work value matters. Indeed, if I were to accept the argument that is being put, it could be argued that it destroys the validity of a finding I came to quite recently. I would like you to consider that and at the appropriate time you might care to respond to that, Mr Meredith.

PN24253

MR MEREDITH: I'm quite happy to respond - - -

PN24254

THE SENIOR DEPUTY PRESIDENT: We will move on in the meantime.

PN24255

MR MEREDITH: Your Honour, before we move to the next matter I am uncertain how the video hearing procedures operate and I'm uncertain what time constraints you may have in mind in Sydney, given that it is 10 o'clock here so, presumably, it is 2 o'clock in Sydney.

PN24256

THE SENIOR DEPUTY PRESIDENT: 1 o'clock.

PN24257

MR MEREDITH: I beg your pardon, I can't count either. Your Honour, is it feasible for there to be a brief break in the proceedings? I mean, I would think that we are probably, I think, likely to conclude sooner rather than later, but I think a 5 minute break might be of assistance to some of the parties at least, if that is possible with the technology.

PN24258

THE SENIOR DEPUTY PRESIDENT: Well, we can leave the technology in place and simply vacate the room, that is the simplest thing to do, but in view of the time that it is here and hoping that your assessment that: it will be sooner rather than later, bears fruit, Mr Meredith. I propose adjourning for half an hour so that we can attend to a bite of lunch over here.

PN24259

MR WELCH: Your Honour, could I suggest that we do that after we conclude this matter, as I would wish to make further reference to the question of higher duties, but I'm happy to - - -

PN24260

THE SENIOR DEPUTY PRESIDENT: No, we will break now. We have interrupted you, Mr Welch. When we resume we will come straight to you.

PN24261

MR WELCH: Thank you, your Honour.

PN24262

MR MENDELSSOHN: Thank you, your Honour.

PN24263

THE SENIOR DEPUTY PRESIDENT: I adjourn for 30 minutes.

LUNCHEON ADJOURNMENT [1.00pm]

RESUMED [1.35pm]

PN24264

THE SENIOR DEPUTY PRESIDENT: Mr Welch.

PN24265

MR PATNAM: It is Patnam from the University of Western Australia. Perhaps I could respond after Mr Meredith has now concluded before Mr Welch.

PN24266

THE SENIOR DEPUTY PRESIDENT: Yes, yes, correct.

PN24267

MR PATNAM: Just consistent with our proceedings to date.

PN24268

THE SENIOR DEPUTY PRESIDENT: That is right, Mr Patnam, no, you are quite right.

PN24269

MR PATNAM: Well, your Honour, certainly, ..... what was said before the break - however, I think what needs to be pointed out, or touched on at least at this point is that the issue of structural efficiency in the institution was not dealt with via the HEGSS award, or via the underpinning awards, if you like. Structural efficiency in the institution was progressed through the various agreements made at that time and starting in '94 were those original section 134 agreements.

PN24270

So it is not that Mr Welch is proposing to bring forth provisions from those underpinning awards that can be said to be structural efficient, because clearly it wasn't appropriate, or even I would suggest possible, for the parties to address structural efficiency via that HEGSS award. The appropriate way for them to do it was through the agreement making process. It would have been an extremely difficult and cumbersome process to have tried to further that cause by way of looking at the award and with that in mind what we say is that what the ALHMWU is progressing, or proposing to bring to this award, is not structurally efficient.

PN24271

It does not further productivity, or efficiency, or skill enhancement and it does not remove impediment for those objectives. What is before you are structurally efficient arrangements that the parties have put in place as part of that exercise in 1994 and those are the provisions that we say you should adopt in issuing an award in this matter. Thank you.

PN24272

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Patnam. Mr Welch.

PN24273

MR WELCH: Thank you, your Honour. I just wish to make a few points in response to that which has been said. It is suggested by both Mr Meredith and subsequently by Mr Patnam that in some ways these clauses are going to lead to some significant impediment to efficiency. I would suggest that that is clearly incorrect. It is clearly the case that in many private sector awards, higher duties are paid on differential hours, or clauses. Two different groups of workers. It is not structurally inefficient for that to take place. This is a process whereby as well we are simply looking at the conditions that did exist and whether they are allowable and whether they should therefore continue to exist. We don't wish to enter into a further debate or discussion because there is no agreement from our side that there should be a change - there has been no agreement that there should be a change and we would suggest that the conditions should - or the proposed clause that we have made, should be included and that it does not in any way create an impediment to efficiency on the part of any of the employers.

PN24274

THE SENIOR DEPUTY PRESIDENT: Thank you. The next item that I can identify is - it is number 4 for our purposes:

PN24275

It has also been put in previous discussions between the parties that there is an entitlement ...(reads)... in event of retrenchments or redundancy.

PN24276

Who will lead on that?

PN24277

MR MENDELSSOHN: Well, that is an issue that is relevant both to the CPSU and the ALHMWU and the parties and the other unions which Mr Welch is - - -

PN24278

MR MEREDITH: Your Honour, can you hear me for a moment? Excuse me - - -

PN24279

THE SENIOR DEPUTY PRESIDENT: Mr Mendelssohn was speaking.

PN24280

MR MEREDITH: And we can barely hear him, your Honour.

PN24281

THE SENIOR DEPUTY PRESIDENT: I see.

PN24282

MR MEREDITH: If it is possible can he move closer to the microphone.

PN24283

THE SENIOR DEPUTY PRESIDENT: Not much.

PN24284

MR MENDELSSOHN: Not really.

PN24285

MR MEREDITH: That is better.

PN24286

MR MENDELSSOHN: Is it? Well, what I was saying was that the issue is one which is of importance, both to the CPSU and to the ALHMWU and the other unions which Mr Welch is representing, but the arguments which Mr Welch will be putting on behalf of those parties and the arguments which I will be putting are on a somewhat different basis, but it perhaps might be still logical if Mr Welch goes first, although I'm happy enough to, simply from the point of view that he will be, I believe, addressing specifically the general order itself, whereas, I will be more addressing the implications of the general order for some of the underlying awards.

PN24287

THE SENIOR DEPUTY PRESIDENT: I see. All right, then, well, we will go that way. Mr Welch, will you lead off?

PN24288

MR WELCH: Sorry, your Honour. Your Honour, I was going to suggest that alternatively that Mr Mendelssohn could go first, simply because we are - though the arguments are different, we do support the argument that will be put by Mr Mendelssohn, and ours would therefore logically come after the arguments that he makes, I believe.

PN24289

MR MENDELSSOHN: I'm not sure that that is right, but I am happy to lead off.

PN24290

THE SENIOR DEPUTY PRESIDENT: Well, I think if you will, we will get started.

PN24291

MR MENDELSSOHN: Yes. Now, the general order that is referred to - it is a document which I filed under cover of a letter dated 14 December, your Honour.

PN24292

THE SENIOR DEPUTY PRESIDENT: Yes.

PN24293

MR MENDELSSOHN: It is an order of a kind known in the West Australian industrial relations system as a, "general order", and it is made pursuant to I think it is section 50 - yes, section 50 of the Industrial Relations Act 1979 of the State of Western Australia. It is section 50 and there was an extract from section 50 in the material submitted by Mr Welch and it empowers the Western Australian Commission in court session to make particular sorts of orders that are applicable to either - throughout the State of Western Australia or to specified classes or employees employed under named awards and the general order is found in volume 69 of the Western Australian Industrial Gazette at page 517 and the reasons for decision of the Commission in court session in making that general order are found in volume 69 of the Western Australian Industrial Gazette at page 1383.

PN24294

I also filed that admittedly late in terms of your Honour's direction but I would still seek leave to rely on that as I did on the same day as I filed a fax copy to Mr Meredith so he has had it for at least a couple of days. I think I filed that under - I think it was Tuesday so that it would have ben under cover of letter dated 19 December.

PN24295

THE SENIOR DEPUTY PRESIDENT: Yes, I believe I received that but I just can't put my finger on it.

PN24296

MR MENDELSSOHN: Unfortunately I only have - - -

PN24297

THE SENIOR DEPUTY PRESIDENT: I have it, 18 December, that will be the one I'm sure.

PN24298

MR MENDELSSOHN: 18 December, yes, thank you. Now, what the general order just by way of general background, what the general order does is make provision for certain procedures relating to redeployment and retraining to employees employed within the Western Australian public sector as defined in clause 2 of the order to those employees in the Western Australian Government Public Sector employed under awards listed in schedule B and a number of the awards which are of interest to - particular are relevant to Mr Welch and the parties he represents are listed in that schedule and Mr Welch will no doubt take your Honour to those when he makes his submissions.

PN24299

The awards under which most of the CPSU members are employed are not listed in that schedule. The order was made as your Honour can see at page 519 of volume 69 of the WAIG on 3 February 1989 which was prior to the making of the HEGSS Award which was later in the year 1989. So the general order at least with respect to the awards listed in schedule B was in force at the time of the making of the HEGSS Award.

PN24300

THE SENIOR DEPUTY PRESIDENT: I must interrupt you, Mr Mendelssohn. I can't find the general order. I can find the decision.

PN24301

MR MENDELSSOHN: I do have additional copies of the general order, your Honour.

PN24302

THE SENIOR DEPUTY PRESIDENT: If you would be so good. It should have come with the letter of 14 December shouldn't it?

PN24303

MR MENDELSSOHN: Yes, your Honour, along with the three awards that I - - -

PN24304

THE SENIOR DEPUTY PRESIDENT: Yes, you have referred to there. I can find those awards but I just can't find that order. Anyway we've remedied that.

PN24305

MR MENDELSSOHN: Now, so far as the CPSU is concerned the three awards which apply to most of the members of the CPSU at the three universities which would be bound to the proposed award are first of all the Salaried Officers of Murdoch University Award 1984 which applies obviously to employees of Murdoch University in the salary classification specified in that award. The Tertiary Education Non-Academic Salaried Staff (Colleges) Award 1981 which was subsequently renamed the Western Australian Colleges of Advanced Education Non-Academic Salaried Staff Award and that is the underlying instrument which applies to employees named in the salary clauses of it at Edith Cowan University and the third award is the Salaried Staff Western Australian Institute of Technology Award 1985 and that is the underlying award applying to Curtin University of Technology.

PN24306

Now, each of those awards, your Honour, has what is called an adjustments and variations clause and for example that is clause 39 of the Salaried Officers of Murdoch University Award which is found at page 1944 of volume 64 WAIG commencing at 1931 and the clause 39 of the Salaried Officers of Murdoch University Award says:

PN24307

As far as practicable (1) the general conditions of service prescribed in this award will be varied in accordance with variations made to similar conditions of service operating in the public service of Western Australia.

PN24308

Then paragraph (2) is not presently relevant but I would particularly draw your Honour's attention to the words:

PN24309

Conditions of service prescribed in this award will be varied in accordance with variations made to similar conditions of service operating in the public service of Western Australia.

PN24310

And that is the words "operating in the public service of Western Australia" that I would particularly seek to rely on for reasons I will explain and in the second award, the Tertiary Education Non-Academic Salaried Staff Award, as found in the WAIG of 25 March 1981 commencing at page 315, the adjustments and variations clause is clause 32 and - - -

PN24311

THE SENIOR DEPUTY PRESIDENT: It is identical words.

PN24312

MR MENDELSSOHN: Which is in identical words and in the Salaried Staff Western Australian Institute of Technology Award in 66 WAIG 1179 the relevant clause is clause 35 which is - - -

PN24313

THE SENIOR DEPUTY PRESIDENT: Similar.

PN24314

MR MENDELSSOHN: Which is, yes, it is similar. It says:

PN24315

As far as practicable and by agreement between the association and the council the general conditions of service prescribed in this award will be varied in accordance -

PN24316

but the crucial words in my submission are identical -

PN24317

in accordance with variations made to similar conditions of service operating in the Public Service of Western Australia.

PN24318

In each of those awards at clauses 7 and 8 of the Salaried Officers of Murdoch University Award, at clause 9 of the Tertiary Education Non-Academic Staff Colleges Award and in clause 12 of the Salaried Staff of Western Australian Institute of Technology Award there is a clause dealing with the contract of employment including termination of employees. So to the extent that the general order deals with termination of employees there is so far in my submission a relationship. Now, if I may take your Honour to the reasons for decision of the Full Bench of the Western Australian Commission in court session in 69 WAIG 1383.

PN24319

In the second column of page 1383 in the fourth full paragraph of that column the Full Bench say:

PN24320

As previously stated, the application seeks to formalise the policy that has operated since July 1986 with respect to employees in the Public Sector covered by awards and industrial agreements of this Commission -

PN24321

and the critical - if I may stop there I am about to come to what I submit are the critical words -

PN24322

and within the Public Service by virtue of Notices pursuant to the Public Service Act.

PN24323

So in my submission that is a clear finding by a Full Bench of the Western Australian Commission sitting in Court session that the terms of the general order which so then make applicable to the award specified in schedule B of that order had already been operating since 1986 in the Public Service by virtue of Notices, with a capital "N", pursuant to the Public Service Act. So in my submission the provisions so far as they are allowable of the general order were in terms of the adjustments and variations clause of each of the three awards operating in the Public Service and related to a matter or a condition of service that is dealt with in each of the three awards, namely termination of employment.

PN24324

It is my submission that the only part of the general order which is now allowable in a Federal Award is clause 6(2) which prescribes redundancy or severance pay, and severance pay which is clearly in excess of the TCR standard. It is my submission that by virtue of the adjustments and variations clause in each of the three awards, and the finding of the Full Bench to which I took your Honour, that the provisions of the general - that are to be found in the general order had been - were - had been imported into these three awards, in fact even prior to the general order itself being made and therefore were properly seen to be part of these awards at the time they were incorporated into the HEGSS Award.

PN24325

In fairness, I should draw your Honour's attention to a variation to the Salaried Officers of Murdoch University Award made on 27 April 1988 to incorporate redundancy provisions which were to be operative until 31 December 1990. That is found in volume 68 WAIG 1222. I believe I did append that to the - yes, I did append that to the back of the Salaried Officers of Murdoch University Award which is before your Honour. In my submission, that does not detract from the effect of the variation - the adjustments and variations clause. Those are my submissions in relation to that issue so far as they affect the persons employed within the scope of those three awards, your Honour.

PN24326

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Welch?

PN24327

MR MEREDITH: Your Honour, I just had a brief word with Mr Welch, and with his agreement there were certain parts of Mr Mendelssohn's submissions that we weren't quite able to hear. The last part of his submission with respect to a variation of the Murdoch University Award and we did not clearly hear the full names of the three awards that he referred to initially as awards that have the cross-referencing clause. Your Honour, with your forbearance could Mr Mendelssohn simply repeat or precis those parts of his submissions?

PN24328

MR MENDELSSOHN: Yes. Well, my reference to the variation - the end to the variation of the Murdoch University Award was simply to draw his Honour's attention to the existence of that variation and that I was - and that I had appended it to the copy of the award that I filed in the Commission. The names of the three awards - and I will also - perhaps, if it assists I am happy to give the WAIG references as well, would that be - I am wondering, your Honour, whether that would be of assistance to Mr Meredith?

PN24329

THE SENIOR DEPUTY PRESIDENT: Well, these are all awards that are nominated in the letter of 14 December which I presume went to the parties as well as the Commission.

PN24330

MR MENDELSSOHN: No, well - well, actually, your Honour, what I gave - what I did send to Mr Meredith actually a couple of days before 14 December was a copy of the general order because he said he didn't have that and I also, of course, faxed to him the reasons for decision, but I didn't send him the actual awards because after discussion I understood Mr Meredith already had access to them.

PN24331

THE SENIOR DEPUTY PRESIDENT: All right. Well, you had best name them again.

PN24332

MR MENDELSSOHN: The Salaried Officers of Murdoch University Award 1984; The Tertiary Education Non-Academic Salaried Staff (Colleges) Award 1981, which was subsequently renamed the WA CAEs Non-Academic Salaried Staff Award; the Salaried Staff Western Australian Institute of Technology Award 1985.

PN24333

THE SENIOR DEPUTY PRESIDENT: Does that complete your information, Mr Meredith?

PN24334

MR MEREDITH: Yes, your Honour.

PN24335

THE SENIOR DEPUTY PRESIDENT: Very well, Mr Welch?

PN24336

MR WELCH: Yes, your Honour. Obviously we would support the submissions made by Mr Mendelssohn. We contend that the general order number 1329 of 1988 had the impact of varying the awards identified in schedule B of the order to include all of the terms of the general order. But clearly, as has been said by Mr Mendelssohn, some of the matters are no longer relevant or allowable matters but there are sections specifically relating to the question of redundancy which are. We state that a general order of the West Australian Industrial Relations Commission has certain powers and those powers are identified in the excerpts of the West Australian Industrial Relations Act which I provided in our submissions.

PN24337

If I can take your Honour to section 50 paragraph 4, it states as follows:

PN24338

A general order applying to or with respect to employees of the kind referred to in subsection (3)(a) may add to or vary all awards and industrial agreements or may be limited in its effect to such awards and industrial agreements or awards or industrial agreements as may be specified in the general order.

PN24339

It is quite clear, therefore, that it has the power to vary awards. This award specifically in schedule B identifies a number of awards to which the general order will have effect. Listed amongst those are the Building Trades Government Award, the Catering Employees and Tea Attendants Award, Cleaning and Caretakers Award, Engineering Government Printing Office Award, Engineering Trades Government Award. All of these clearly were varied to the effect that they had the contents of the general order taken into the award and they were then subsequently taken into HEGSS.

PN24340

Further, there is no suggestion anywhere in the general order that the general order will apply to those awards in part by only relating to specific groups of individuals who are covered by those awards. It was never the intention that that should be so. Rather, it simply varied the award as a whole. Therefore, we contend that this variation of these awards by general order had the effect when HEGSS was created of taking all of those conditions for those individual awards into HEGSS. As we said previously, this process is not intended to reduce conditions. It is not intended to strip away conditions which previously existed and, therefore, we would contend that those conditions should continue to be part of the new award.

PN24341

We have also indicated to the Commission that we wish to call a witness who has been able to attend today, Ms Sharon Jackson. We would therefore wish to call her as a witness to deal with this matter. We did provide a witness statement to the Commission previously yesterday evening because we weren't clear whether Ms Jackson would be able to be with us because of her new role as a Federal Member of Parliament, we weren't clear that she would be able to attend but she has been able to do so, so I would ask that I be able to admit her as our witness.

PN24342

THE SENIOR DEPUTY PRESIDENT: All right then. Well, you have notified everybody that you were doing this so I see no difficulty about that.

PN24343

MR WELCH: If I could ask a practical question, I am not quite sure how to arrange this in terms of the set out of the room.

PN24344

THE SENIOR DEPUTY PRESIDENT: Yes, that will be a difficulty. I don't think the camera is actually set up. The best thing would be for Ms Jackson to sit, if there is a seat to be made available, on the opposite side of the bar table to you, Mr Welch.

PN24345

MR WELCH: Okay. Could I suggest - - -

PN24346

THE SENIOR DEPUTY PRESIDENT: Or at - is Mr Meredith moving? I have seen Ms Jackson sit down, haven't I?

PN24347

MS ..........: Yes.

PN24348

MR WELCH: If I could suggest as well, your Honour, that it may be helpful ..... in terms of introducing the evidence if I provide copies of the witness statement with - which Ms Jackson provided us with and which we have provided to you, Ms Jackson could then read that into evidence and then if the - if Mr Meredith has any further questions upon that we can deal with that so we don't unnecessarily take up Ms Jackson's time.

PN24349

THE SENIOR DEPUTY PRESIDENT: Yes, I have no difficulty with that but Ms Jackson should either be sworn or affirmed if she is giving evidence.

PN24350

MR WELCH: There is - - -

PN24351

THE SENIOR DEPUTY PRESIDENT: So we will have that done from this end and - - -

PN24352

MR WELCH: Okay.

PN24353

THE SENIOR DEPUTY PRESIDENT: - - - can I suggest that an affirmation the easiest thing to operate under in these circumstances. You have no objection to an affirmation, Ms Jackson, do you?

PN24354

MS JACKSON: No, that is actually my preference, your Honour.

PN24355

THE SENIOR DEPUTY PRESIDENT: Good, thank you.

<SHARON MARIE JACKSON, AFFIRMED

PN24356

MR MEREDITH: Your Honour, I have not - - -

PN24357

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Welch?

PN24358

MR MEREDITH: Your Honour, I have not yet seen a copy of the witness statement.

PN24359

THE SENIOR DEPUTY PRESIDENT: I see. Do you have copies there, Mr Welch?

PN24360

MR WELCH: Yes, I have provided Mr Meredith with one. Unfortunately I wasn't aware that he was going to be in Perth so I faxed it to his office yesterday, so until this morning he hasn't had sight of it.

PN24361

THE SENIOR DEPUTY PRESIDENT: I don't think it has reached the Commission.

PN24362

MR WELCH: We faxed it yesterday evening, West Australian time it would have been about 5.30 because I wasn't clear from that point as to whether Ms Jackson would be able to attend.

PN24363

THE SENIOR DEPUTY PRESIDENT: Yes.

PN24364

MR WELCH: We therefore did fax a copy. Could I suggest that since Ms Jackson is intending to read it into evidence that if there are any matters which Mr Meredith wishes to take issue with he can cross-examine her about them?

PN24365

THE SENIOR DEPUTY PRESIDENT: Yes, he has a document - - -

PN24366

MR MENDELSSOHN: Well, I can make my copy available to your Honour if that helps.

PN24367

THE SENIOR DEPUTY PRESIDENT: Thank you, that will help. Go ahead, Mr Welch.

<EXAMINATION-IN-CHIEF BY MR WELCH

PN24368

MR WELCH: Well, I think it would suitable if we ask Ms Jackson to read her evidence into - - -

PN24369

THE SENIOR DEPUTY PRESIDENT: Very well, it is not very long, is it? No, it isn't. No, that is satisfactory, go ahead.

PN24370

THE WITNESS: Thank you:

PN24371

I, Sharon Marie Jackson, of Unit 1, 232A Alberton Highway, Gosnells in the State of Western Australia do solemnly and sincerely declare that, one, I was the assistant branch secretary in the West Australia branch of the Australia Liquor, Hospitality and Miscellaneous Workers Union from May 1990 until 29 November 2001. I was employed by the ALHMWU for over 15 years, commencing on 3 February 1986. I have extensive knowledge of the awards and agreements and industrial activities of the ALHMWU. Two, I was the industrial officer of the ALHMWU when the West Australian Government Employees Redeployment, Retraining and Redundancy General Order was made in 1989 by the West Australian Industrial Relations Commission. The general order reflected the terms and entitlements for public sector workers where their positions were made redundant. The provisions of the award reflected the actual treatment of public sector workers in a redundancy situation that had been applied as policy from mid-1986. Three, the scope of the general order encompassed a number of State Awards applying to public sector workers, the Cleaners and Caretakers (Government) Award No 32 of 1975 and the Gardeners Government Award No 16 of 1983, were included in the schedule of West Australian Industrial Commission awards. Four, I am familiar with the Cleaners and Caretakers (Government) Award, No 32 of 1975, and the Gardeners Government Award, No 16 of 1983. These awards apply to a variety of callings and have application across the West Australian public sector. Five, these awards apply to persons employed in the relevant callings by universities and higher educational institutions until the making of the Higher Education General and Salaried Staff (Interim) Award 1989. Six, the HEGSS award was made subsequent to the making of the general order.

**** SHARON MARIE JACKSON XN MR WELCH

A specific undertaking at the time of the making of the award was the retention of all existing terms and conditions of employment. Seven, a provision was included into the HEGSS award which expressly provided that provisions of the awards that had applied prior to the HEGSS award would continue to apply after the making of HEGSS. Eight, I do not recall any negotiation, discussion or agreement concerning altering, or excluding the redundancy entitlements from applying under the HEGSS award, or that the making of the HEGSS award would reduce the employees redundancy entitlements. Indeed, if there had been any such proposal, there would have been substantial disputation between the parties.

PN24372

That is my statement.

PN24373

THE SENIOR DEPUTY PRESIDENT: Thank you. Do you have any further questions, Mr Welch?

PN24374

MR WELCH: Not at this time, your Honour.

PN24375

THE SENIOR DEPUTY PRESIDENT: Do you, Mr Mendelssohn?

PN24376

MR MENDELSSOHN: No, your Honour.

PN24377

THE SENIOR DEPUTY PRESIDENT: I think it comes to you, Mr Meredith.

PN24378

MR MEREDITH: Thank you, your Honour.

<CROSS-EXAMINATION BY MR MEREDITH [2.15pm]

**** SHARON MARIE JACKSON XXN MR MEREDITH

PN24379

MR MEREDITH: Ms Jackson, my name is Greg Meredith, I represent the Higher Education Industrial Association which represents Murdoch and Edith Cowan Universities. You were an industrial officer with the West Australian branch of the Miscellaneous Workers Union for quite some period of time. Can you tell the Commission what was your involvement with the Higher Education Sector when you were an industrial officer?---I was the industrial officer - principal industrial officer, if I can describe it that way, for the industrial section at - of the union and I had dealings with all of the award matters that were proceeding in the Federal Commission. So apart from extensively dealing with the awards in the State Commission I was also involved in the - in the preparation of the awards and the making of the HEGSS award.

PN24380

In that time did you commonly attend the universities for discussion with management?---Well, over that extensive period of time I have from time to time been involved specifically in negotiations, however, there were also many years where I instead received reports from organisers and/or other staff directly involved in negotiations.

PN24381

Now, you say in your statement that you are familiar with the general order?---Yes.

PN24382

The general order specifies in paragraph 1 under the heading: Scope, the general order of - I quote:

PN24383

This order shall apply to all employees employed by the Government of Western Australia in the public sector as defined in clause 2.

PN24384

Do you recall that part of the general order?---Yes, I do.

PN24385

So who employs the general staff at Edith Cowan University?---The universities.

**** SHARON MARIE JACKSON XXN MR MEREDITH

PN24386

Who employs the general staff at Murdoch University?---Murdoch University.

PN24387

And at Curtin University?---Curtin University.

PN24388

Are you sure of that?---Well, that's my belief.

PN24389

Does the Government of Western Australia employ the general staff at Edith Cowan University?---No.

PN24390

What about Murdoch University?---No, they do not.

PN24391

What about Curtin?---No, they do not.

PN24392

If the Government of Western Australia does not employ these people - the general staff at the three universities - how can the general order have application to them?---The general order has application to the awards that were - these people were employed under and the respondents to those relevant State Awards include the employer bodies, or at least the proceeding bodies, the employers.

PN24393

Does not the general order limit itself in its own terms by the scope of the general order, and that scope is the passage I read to you before that applies to all the employees employed by the Government of Western Australia?---I accept that it applies to the employees of the West Australian Public Sector and, as I indicated in my witness statement it was the - the general policy applied to public sector workers from mid-1986 and in that my use of the term "public sector", I'm not only talking about those employees specifically of the West Australian Government, but those employees of the broader public sector, including universities. These were the terms and entitlements applied to them.

**** SHARON MARIE JACKSON XXN MR MEREDITH

PN24394

That is not what I asked you. What I asked you was: does not the scope of the order in its own terms, does not it limit it to employees employed by the Government of Western Australia in the public sector?---No, but that is what the scope says.

PN24395

So you agree with me then that it does - the general order is limited by its own terms to employees of the Government of Western Australia employed in the public sector?---That's what it says.

PN24396

So you seem to agree that people employed at the three universities are not employed by the Government of Western Australia?---They are not.

PN24397

Right. Are you familiar with the - I note that it did occur during the time that you were employed with the union - are you familiar with the Higher Education Contract Of Employment Award?---The - - -

PN24398

"HECE Award" as it is commonly called?---This is the interim award you are referring to, or are you referring to some other document?

PN24399

I don't know, I'm referring to a different award to the HEGSS award as it is part of the General Staff Award, I'm referring to the Higher Education Contract of Employment Award, first made in 1998?---I believe I am but I prefer to have a copy of it so I can confirm that.

PN24400

Well, I have provided a copy of extracts from that award in the materials that I submitted on 12 December, your Honour.

PN24401

THE SENIOR DEPUTY PRESIDENT: Yes, you did.

PN24402

MR MEREDITH: The question of the status of universities and whether they are agencies of the State was considered by the Full Bench and arbitrated with the HECE Award. Are you familiar with that award?---No, I can't say that I am familiar with the specifics of that.

**** SHARON MARIE JACKSON XXN MR MEREDITH

PN24403

Well, I put it to you that - - -

PN24404

MR MENDELSSOHN: Well, objection - objection, your Honour. If the witness has said she is not familiar with it, how can Mr Meredith then properly put questions relating to what the Full Bench said in their decision to this witness?

PN24405

THE SENIOR DEPUTY PRESIDENT: Yes.

PN24406

MR MENDELSSOHN: It is a matter for submissions in - - -

PN24407

THE SENIOR DEPUTY PRESIDENT: It probably is a matter for submissions in any event, Mr Mendelssohn.

PN24408

MR MEREDITH: Indeed, your Honour. Returning to the general order, are you familiar with the printed reasons for decision that Mr Welch has referred to?---Yes, I am. I couldn't recite them word-for-word but I am familiar with them and have read them.

PN24409

Would you accept that throughout the reasons for decision the words "public sector" commonly appear?---Yes.

PN24410

So do you say that the employees of these three universities, although they are not employees of the Government, do you say that they are employees of a public sector?---I believe they're employees in the public sector.

PN24411

To conclude, what would you say to the suggestion that universities are independent public authorities? Would you accept that as a definition of a university?---I - I don't think I understand the sort of direction of the question.

**** SHARON MARIE JACKSON XXN MR MEREDITH

PN24412

Well, don't worry about the direction, perhaps just answer the question - - - ?---Well, no, I don't understand what you're asking me.

PN24413

I am asking you if you would disagree with the definition of university as an independent public authority?---If independent means they have their own management committee I accept they have their management and they are public authorities.

PN24414

Do you agree that they are independent?---Again I'm not meaning to be difficult. I'm not sure what you mean by independent. I believe they are still governed by the general policies of the government of the day and to that extent their independence would be somewhat curtailed but as to what extent they have over the management of their day-to-day affairs or their academic, you know, program I suspect that is decided by whatever the appropriate chancery committee is.

PN24415

What areas of the university do you think the government of today does regulate?---I would have thought funding, general standards.

PN24416

General standards of?---Conduct.

PN24417

But universities, aren't they commonly governed by a council or a senate?---I'm not an expert on the government of universities in Western Australia.

PN24418

I think that will conclude my cross-examination, your Honour, but I will obviously seek to put further submissions with respect to the material that I have tendered.

PN24419

THE SENIOR DEPUTY PRESIDENT: Yes. Now, Mr Patnam, do you have any cross-examination?

**** SHARON MARIE JACKSON XXN MR MEREDITH

PN24420

MR PATNAM: No cross-examination, your Honour.

PN24421

THE SENIOR DEPUTY PRESIDENT: Do you have any re - - -

PN24422

MR WELCH: If I could ask - - -

PN24423

THE SENIOR DEPUTY PRESIDENT: Who is that?

PN24424

MR WELCH: Sorry, Mr Welch.

PN24425

THE SENIOR DEPUTY PRESIDENT: Yes, well you have got a right of re-examination, Mr Welch.

PN24426

MR WELCH: If I could ask a couple of questions.

<RE-EXAMINATION BY MR WELCH [2.21pm]

PN24427

MS WELCH: Ms Jackson, could I ask do you believe that the terms of the general order applied to the award set out in schedule B?---Yes.

PN24428

And do you believe that the general order had the effect of varying all of the awards listed in schedule B in their totality to introduce the general order?---Yes.

PN24429

Can I ask whether you were aware that at the time that HECEA was introduced that ECU was not a university but I believe a college - - -?---College of advanced education, that is correct.

PN24430

Okay, I don't have any further questions?---Thank you.

**** SHARON MARIE JACKSON RXN MR WELCH

PN24431

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Jackson?---Thank you, your Honour.

<THE WITNESS WITHDREW [2.22pm]

PN24432

THE SENIOR DEPUTY PRESIDENT: Now, Mr Welch, you had the floor before. Are you - - -

PN24433

MR WELCH: I believe, sir, if I can just sorry, your Honour, just refer to my notes. I believe I have concluded.

PN24434

THE SENIOR DEPUTY PRESIDENT: Very well.

PN24435

MR WELCH: Yes, if I could just say one final thing. I believe that the point of calling Ms Jackson was to in part at least show that there had been no discussions or suggestions to the effect that a general order would not apply to universities through HEGSS. That had not been anybody's understanding at the time that HEGSS was created. In fact those people who were involved in the creation believed that all of the terms of the general order applied to the individual awards and therefore to HEGSS and that that would - - -

PN24436

THE SENIOR DEPUTY PRESIDENT: Very well.

PN24437

MR FINNEGAN: Your Honour, Mark Finnegan CPSU in Perth. I would if it is at all possible like to add something to Mr Mendelssohn's submission on this matter. Do I have leave to do so very quickly?

PN24438

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Finnegan, you do.

PN24439

MR FINNEGAN: I will be very quick, sir. In the schedule of awards affected by the general order you will find an award referred to as the Colleges Award.

PN24440

THE SENIOR DEPUTY PRESIDENT: The what award?

PN24441

MR FINNEGAN: Colleges, sir.

PN24442

THE SENIOR DEPUTY PRESIDENT: Colleges, yes.

PN24443

MR FINNEGAN: Community Colleges Award. One of the respondents to that award was the Kalgoorlie College of Education. I'm not too sure if that title is correct. I will check that title. Sir, the Kalgoorlie College was certainly an instrumentality of the state. Its award is referred to in the general order. Kalgoorlie College, sir, was subsequently absorbed as a separate campus of Curtin University and became I believe among other things the Curtin University School of Mines in Kalgoorlie.

PN24444

So I would submit with respect, sir, that those people who were employed by the Kalgoorlie College which was absorbed and became part of the Curtin University were certainly affected by the general order and as a consequence as a minima those people's conditions were so at the time of the absorption into HEGSS, sir.

PN24445

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Meredith?

PN24446

MR MEREDITH: Thank you, your Honour. I concur with that part of Mr Mendelssohn's submission where as I heard it he concedes that a large, in fact the majority if not the entirety of the general order would by any application of the tests within the Workplace Relations Act be considered to be not allowable save for subclause (2) or para (2) of clause 6 which specifies the severance payment that people, employees might be entitled to receive in the event of redundancy or retrenchment. To that extent it is allowable in as much as it deals with severance payment as opposed to the other processes that are within the general order going to consultation requirements, redeployment, etcetera.

PN24447

Having said that however and to that extent, your Honour, I should add that the quantum of payment that is proposed there is not necessarily a profound difficulty or a profound concern to the three universities given that there are in place separate redundancy agreements at the universities where severance entitlements of the order contemplated in the general order that we are referring to are known to the universities. So the position that we take is not particularly prompted by a concern about the potential cost effect of such an order flowing through. The position we take is inspired by a much more fundamental in our respectful submission, a much weightier set of facts.

PN24448

Your Honour, I've already in my brief cross-examination of Ms Jackson, I've gone to the terms of the order itself and there at clause 1 at the clause headed scope:

PN24449

The order shall apply to all employees employed by the Government of Western Australia in the Public Sector as defined in clause 2.

PN24450

At clause 2 definition public sector is defined, I quote:

PN24451

Means all state government departments, trading concerns, instrumentalities, agencies or statutory bodies established by or under the law of this state ...(reads)... regional bodies.

PN24452

I note that a higher education institution or university or educational institution is not referred to anywhere in that definition of public sector but even if it was it would not remove the first impediment to the submissions that are being put by the LHMU and CPSU and that first impediment in my submission is again back at clause 1 under the heading scope:

PN24453

The order shall apply to all employees employed by the Government of Western Australia.

PN24454

Now, Ms Jackson has confirmed that to the best of her extensive knowledge the general staff employed at the three universities are not employed by the Government of Western Australia. We do not dispute that a number of public sector - - -

PN24455

THE SENIOR DEPUTY PRESIDENT: We are not hearing you, Mr Meredith. We lost you, Mr Meredith, at the point where you had made reference to clause 1 scope of the general order and what that order should apply to.

PN24456

MR MEREDITH: The order applies by its own terms to employees employed by the Government of Western Australia and it was the clear evidence of Ms Jackson, both in her statement, in her evidence-in-chief and more particularly in my brief cross-examination of Ms Jackson, that it is not being contended that the general staff employed at the three universities concerned are, or have ever been, employees of the Government of Western Australia. Now, it goes further than that, your Honour, in that there is also - at clause 1 under the heading: Scope, the Public Sector is defined in clause 2.

PN24457

In clause 2 of the general order the definitions there is an extensive listing of bodies and authorities and agencies which are taken to be or to be comprehended in the term "Public Sector" but I note that neither higher education institutions nor universities are referred to in the definition of "Public Sector". Now, I say that the fact that a number of awards which have application to some of the general staff at some of these three universities, the fact that some of those awards appeared in the schedule attached to the general order, does no more than simply confirm that a number of Public Sector related awards, State Awards, apply to the terms and conditions of employment of some categories of general staff employed at the three universities and gave a code and gave a framework of the regulation of their terms and conditions and entitlements in their employment.

PN24458

That in itself, however, cannot, I respectfully submit, cannot possibly be read up, as it were, to allow the general staff of the three universities to meet the first criteria that the general order imposes. That first criteria is that - criterion, I beg your pardon - is that they are employees employed by the Government of Western Australia. Now, I started to put some questions to Ms Jackson with respect to the findings of the Full Bench of this Commission concerning the Higher Education Contract of Employment Award. I have attached an extract of that Full Bench decision with the materials that I submitted last week.

PN24459

THE SENIOR DEPUTY PRESIDENT: Yes.

PN24460

MR MEREDITH: The relevant part of the decision that I rely upon, your Honour, commences at the second page of - I beg your pardon, the third page of the extract, at item 2.3, under the heading: Are Universities Agencies of the States And Therefore Shielded by the Implied Limitation on Commonwealth Legislative Powers? Very briefly, your Honour, in the latter stages of what had been a vigorously contested nationally determined and arbitrated matter concerning contract of employment in the higher education sector, in the latter stages of those proceedings it was put by AHEIA that universities might be seen as agencies of the State and therefore the implied limitation on the authority of this Commission to go to matters of redundancy, severance, etcetera.

PN24461

A brief submission was put to that effect by AHEIA. AHEIA at the time then subsequently sought to withdraw that brief submission. Having been ventilated before the Full Bench the Full Bench chose in this arbitrated decision to give some lengthy and detailed consideration to this argument. All of section 2.3, 2.3.1 and 2.3.2 and 2.3.3, are all consideration by the Full Bench and at 2.3.4 conclusions of whether an Australian university is an agency of the State. Now, whilst that particular aspect of the HECEA case may not have been the best possible moment for this association, nonetheless the finding of the bench on this matter is unequivocal and unambiguous.

PN24462

The finding of the bench is that universities are indeed independent - I beg your pardon. Under the heading of 2.3.4, your Honour: Conclusions on Whether an Australian University is an Agency of the State, you will find just above that heading the sentence:

PN24463

Universities are a form of self-governing public authority.

PN24464

I am quoting again:

PN24465

Universities exercising public duties have some part of the membership of their Government body appointed by the relevant Minister of State. Usually some members of the State Parliament are included in the membership of that body. University statutes are usually subject to some form of approval, dissent or disallowance by the State executive. However, in a number of instances that process does not involve the executive council of the particular State.

PN24466

Your Honour, I don't propose to make extensive reference to the material that I have submitted. That may well, I think, tax the patience of all of the parties. I would, however, refer you and the parties to item 4 of 2.3.1 which does, I think, give a neat precis of the key criteria to be considered. I am quoting from item 4:

PN24467

The key test for an agency of the State is whether through it the Government carries out a Government function. Universities are not so engaged. Universities are ...(reads)... for the purpose of the first limb of the implied limitation.

PN24468

It goes on on that page down through items 5, 6, 7, 8, etcetera, considering each of those indicia of an agency of the State.

PN24469

THE SENIOR DEPUTY PRESIDENT: I do point out to you that that is the submission of the NTEU and CPSU, it is not the Full Bench.

PN24470

MR MEREDITH: Indeed not. Indeed not, and it is returned to in the conclusions of the bench at 2.3.4, your Honour.

PN24471

THE SENIOR DEPUTY PRESIDENT: Very well. Yes?

PN24472

MR MEREDITH: Well, if I can take you, your Honour, to the last paragraph of section 2.3.4 and it is the second sentence which commences after a quotation from the case of Greig v University of Edinburgh, the sentence commences:

PN24473

However -

PN24474

and I am quoting -

PN24475

the principles stated in that decision -

PN24476

that is Greig v University of Edinburgh -

PN24477

and in Clarke gave concrete legal effect to characteristics of universities that were always associated ...(reads)... to each of the relevant factors outlined in the conclusion of section 2.3.3 above -

PN24478

they are those relevant indicia that I noted briefly, your Honour -

PN24479

a university is not properly to be regarded as an agency of the State for the purposes of the implied limitation on Commonwealth's legislative power and the award making power in relation to universities. It follows that the Commission's jurisdiction is not limited in the ways declared in re AEU.

PN24480

Your Honour, in a nationally arbitrated matter of considerable import across the higher education sector it was put and considered by a Full Bench whether universities are agencies of the State, whether the persons - and I say it is relatively open to paraphrase the words "agencies of the State" to the extent that it extends to whether persons employed in universities are public servants.

PN24481

What I submit is that that bench considered a substantial amount of precedent case law all shown in the extract that I have tendered and came to the blunt conclusion that universities are not agencies of the state. Therefore as had been briefly contended by my association there was no impediment to the Federal Commission proceeding to deal with matters of severance, retrenchments, redundancies within the proposed award. It is not enough to note that the terms of the general order of themselves limit the redundancy to general order to employees of the Government of Western Australia in the public sector.

PN24482

It is further notable in my submission that this precise question has come squarely before a Full Bench of this Commission and the finding of that Bench is that universities are not agencies of the state and that the employees of universities it follows cannot be employees of the Government of Western Australia employed in the public sector. Now, there's been no evidence put to advise whether redundancies have been processed in accord with the terms of the general order or whether redundancies at universities have been processed by way of terms contained in certified agreements.

PN24483

Nothing has been put to you on that point, your Honour, but it wouldn't matter either way in my respectful submission. The assumption that because a number of awards appeared in a schedule and that schedule gives effect to a general order which applies to employees of the government in the public sector, that relationship cannot of itself somehow turn some of the employees as comprehended in the terms of those awards into employees of the government when clearly they are not and they never have been. The most you can make of it, your Honour, in my respectful submission is with respect to Edith Cowan University which commenced prior to becoming Edith Cowan University and I submit this conscious of some onus upon me to put submissions in good faith and to inform the Commission and/or parties where that may be relevant.

PN24484

Edith Cowan University prior to its being established as a university operated as the Western Australian College of Advanced Education and prior to operating as the Western Australian College of Advanced Education Edith Cowan University in fact was a series of teacher training colleges, some five colleges operating at different locations across metropolitan Perth. Now, a certain amount of this I have put in separate proceedings on another matter concerning Edith Cowan University in proceedings some time ago before Commissioner O'Connor.

PN24485

Now, I would not dispute that at the time that Edith Cowan University in fact did not exist and instead there were five teacher training colleges, I would not dispute that at that time the employees of the Department of Education in the State of Western Australia who were operating and performing all of the functions at those teacher training colleges, they may well have been direct employees of the Department of Education just as police and teachers and others would still be direct employees of particular state departments. However the fact that that was their status when the university did not exist and when there were five teacher training colleges, that cannot carry on, their status as direct employees cannot carry on when the university was officially granted status by the relevant national authority to award higher education degrees and to teach particular - implement particular faculties and schools and operate as a university.

PN24486

When Edith Cowan University began as a university from the former College of Advanced Education and from the former teachers training colleges the status of the people employed at the university cannot possibly in my respectful submission somehow continue to be seen as the status of a direct employee of the Government of Western Australia. This is not a transmission of business argument in the sense commonly associated with the operation of a buoyancy line-up. I am conceding that at one point a decade and a half ago parts of what are now Edith Cowan University were operating as teacher training colleges.

PN24487

It then moved to become a college of advanced education and it then subsequently became the university and at the time that it became the university as has been found by the bench in the extracts that I've taken you to at the time that it became the university it became an independent self-governing authority. It has varying relationships with varying arms of government both in terms of funding and in terms of reporting etcetera and they are traversed in the extract that I have tendered but that does not detract from the fact that Edith Cowan University as with Murdoch and Curtin Universities as universities are independent, self-governing authorities that meet particular public aims but do so at their own initiative and do so subject to their own internal governments, they are not and cannot in my respectful submission be seen to be public servants or employees of the Government of Western Australia.

PN24488

That is the extent of my submissions if it please the Commission.

PN24489

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Meredith. Mr Patnam?

PN24490

MR PATNAM: Yes, thank you, your Honour. I will continue to be brief. We would adopt the submissions made by Mr Meredith and perhaps make one or two additions there. If I can take you to the scope clause of the general order where Mr Meredith has pointed out that it is a prerequisite that the order applies to employees employed by the Government of Western Australia and indeed that those employees of the university are not employed by the Government of Western Australia but in addition it also requires that clause 2 definitions of this order under awards of the Western Australian Industrial Relations Commission and clearly the award in question, the HEGSS Award, is not an award of the Western Australian Industrial Relations Commission.

PN24491

So we say that in addition to the requirement to be employed by the government and further there's a requirement that the award be that of the Western Australian Industrial Relations Commission. Now, your Honour, I would also take you to section 50 of the Workplace Relations - sorry, the WA Industrial Relations Act as provided by Mr Welch and at paragraph 4 and I will quote states:

PN24492

That a general order applying to or with respect to employees of the kind referred to in subsection (3)(a) may add to or vary all awards and industrial agreements ...(reads)... general order.

PN24493

Now, quite clearly it is that, the application at that part of the act that has been invoked by the Commission in court session in limiting the application of the order to employees of the Government of Western Australia. They've utilised that provision under the Act and limited the effect of the general order to employees of the Government of Western Australia and that would seem to be quite deliberate in the wording. Frequently and throughout the order it also refers to the public sector and to the reasons advanced by Mr Meredith and would also say that employees of the universities are not employees of the public sector in addition to not being employees of the government.

PN24494

So for those reasons we say that a general order would not have application to employees of the university and that the Commission should not be persuaded to incorporate those provisions to the extent that they are allowable into the proposed award. Thank you.

PN24495

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Patnam. Mr Mendelssohn, do you have anything in reply?

PN24496

MR MENDELSSOHN: Very little, your Honour, and might I suggest that Mr Welch also be given a right of reply.

PN24497

THE SENIOR DEPUTY PRESIDENT: Yes.

PN24498

MR MENDELSSOHN: Because on my understanding of what Mr Meredith and Mr Patnam put they deal with the position of the persons employed under the awards listed in the general order itself whereas my argument was based on the adjustments and variations clauses in the awards which apply to CPSU members and in my submission nothing was put in reply to that argument. So either your Honour is persuaded by the argument or your Honour is not persuaded by the argument but there is nevertheless something which I should draw the Commission's attention to and that is simply factual information.

PN24499

It is relevant to what has been put by Mr Meredith and Mr Patnam, the dates on which particular instruments were incorporated into the HEGSS Award. I am afraid I don't have the print number because I didn't - with me, but on 18 October 1989 the three awards with which I dealt, the Salaried Officers of Murdoch University Award, the Tertiary Education Non-Academic Salaried Staff Award, by then known as the WA CAEs Non-Academic Salaried Staff Award, and the Salaried Staff Western Australian Institute of Technology Award, were incorporated into the HEGSS Award, as were, on the same date, the Cleaners and Caretakers Government Award, the Gardeners Government Award and the Government Engineering and Building Trades Foreman and Sub-Foreman Award, all of which are awards specified in the schedule to the general order.

PN24500

On 19 December 1989, roughly 2 - well, almost exactly 2 months later, the Buildings Trades Government Award, the Engineering Trades Government Award and the - yes, sorry, and those two awards were also incorporated into the HEGSS Award. In my submission, the relevant point is what - in terms of the argument about whether universities are agencies of the State, those dates are quite important, particularly as they relate to Edith Cowan University, because even if what Mr Meredith says is correct in terms of universities a college of advanced education was in a different position to a full fledged university.

PN24501

In my submission, that even if what is now Edith Cowan University was a college of advanced education at the time those awards were incorporated into HEGSS and not a collection - a disparate collection of teacher education institutions, nevertheless a college of - employees of a college of advanced education, in my submission, are employees of the Government of the State employed in terms of the definition of "Public Sector" in clause 2 of the general order, in what is arguably an instrumentality, an agency, or a statutory body, of the State Government established under a law of the State.

PN24502

So while it has to be conceded that the Full Bench of this Commission has found that universities are not agencies of the State, in my submission, those arguments can't be extended to colleges of advanced education. If Edith Cowan University was a college of advanced education still at the time that the awards applicable to it were incorporated into the HEGSS Award, that, in my submission, has implications for the awards with - which are specified in the schedule to the general order.

PN24503

As I have said, those awards are not the awards with which I am primarily concerned and, in my submission, no reply has been made to my argument on that, may it please the Commission.

PN24504

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Welch?

PN24505

MR WELCH: Yes, your Honour, just wish to make a few points with reference to the submissions by Mr Meredith and Mr Patnam. I would say this, that we know the general order exists, and that does not appear to be a matter of disagreement. It clearly refers to a number of awards, that is schedule B, the list of awards to which this order applies. Mr Patnam helpfully took us - and I apologise for going a third time to clause 4 of division 3, it clearly indicates that it may be limited - a general order may be limited in its effect to such awards and industrial agreements or awards or industrial agreements as may be specified.

PN24506

That is what is specified. What is specified is it has the effect of varying the awards that are listed in schedule B at the point of which HEGSS was created in October 1989, therefore the terms of the general award had, in effect, been incorporated into those individual State Awards by the general order. That being so - and we heard Ms Jackson say that it was her understanding as an industrial officer at the time of the creation of HEGSS and somebody who had extensive knowledge of the creation of HEGSS and also of the general order, that it was her understanding that at the time the general order applied across each individual award and was not limited and further that it applied in the universities.

PN24507

We state very clearly, therefore, that the general order should be - or the conditions of the general order should be taken into the new award because it should not be that these conditions are lost to individuals by the process of simplification.

PN24508

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Welch. The next matter is the one that I can't identify. It would appear that we have dealt with the four specific matters identified in Mr Meredith's letter of 25 October 2001, but there is some other point outstanding, is there not?

PN24509

MR WELCH: Special allowances.

PN24510

MR MEREDITH: There are several, your Honour. They are an enterprise - proposed enterprise flexibility clause, alternative wording proposed by the LHMU in their letter, and a clause dealing with special rates and allowances - special rates and provisions. The proposed enterprise flexibility clause is - comes after the proposed new clause 9.1.2 and the special rates and provisions is proposed clause 28, again in the LHMU correspondence.

PN24511

THE SENIOR DEPUTY PRESIDENT: Yes. Well, yes, the proposed enterprise flexibility clause I have found in the LHMUs correspondence. Shall we deal with that? That would be another one that you would start, Mr Welch, I suggest.

PN24512

MR WELCH: Thank you, your Honour. In the original award simplification decision dealing with the Hospitality Industry Accommodation Hotels Resorts and Gaming Award, a standard clause was adopted with reference to enterprise flexibility provisions. However, in the Industrial Catering Cleaning and Incidental Services simplification process in front of Vice President Ross a further - or amended clause was accepted as being appropriate and that is the clause which we have proposed for insertion at 9.1.2, I believe, from my submissions.

PN24513

THE SENIOR DEPUTY PRESIDENT: Yes, that is right.

PN24514

MR WELCH: The effect of our proposal is to add a further sentence which states that during the - in addition to the consultative stage, during the consultative process, the employer shall keep the employees informed about the proposed agreement and the implications it may have in relation to their terms and conditions. We would simply say a couple of things briefly. Firstly, it seems to us that this updating, in effect, may set a - an enhanced standard which we can now apply in enterprise flexibility clauses.

PN24515

We believe that simply if an employer is engaged in a process of changing an award by agreement, surely it is appropriate for the employer to both consult and explain the implications of the process, specifically in the context of employers who have a wide variety of compasses, some not in metropolitan Perth. I believe there is one in Bunbury and one in Kalgoorlie. Therefore, it is important that the staff understand the implications of what is taking place.

PN24516

In the decision that - of VP Ross it was clear that the respondent in that matter consented to the alternate clause, that being the CCI and moreover I believe they echoed the submission that we are making in this matter. We would simply suggest that it causes no great onus on the employer and adds greatly to the benefit of the individual workers being clear about what is taking place.

PN24517

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Mendelssohn?

PN24518

MR MENDELSSOHN: For the reasons given by Mr Welch we support the addition of that clause. It simply enables employees to nominate somebody to represent them, which may include a union, and - - -

PN24519

THE SENIOR DEPUTY PRESIDENT: Well, that is already proposed.

PN24520

MR MENDELSSOHN: Yes. And - yes, but we see it as being innocuous, your Honour, and no reason not to include it.

PN24521

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Meredith?

PN24522

MR MEREDITH: Thank you, your Honour. I think the first thing is to go briefly to the clause 9 that is in the draft award, and that is the proposed enterprise flexibility provision. At 9.1.1 in the draft award the requirement is that a consultative mechanism and procedure appropriate to the size, structure and needs of the university will be established. At 9.1.2:

PN24523

For the purposes of the consultative process general staff may nominate a union or another employee of the university to represent them.

PN24524

Your Honour, we can't - we genuinely cannot see why, if a consultative mechanism and procedure that is appropriate to the size and structure and needs, if that has been established we simply cannot see what further purpose is served by then having a further requirement that during the consultative process the employer shall keep the employees informed about the proposed agreement and the implication that it may have in relation to their terms and conditions.

PN24525

Now, we consider it is - whilst in some ways relatively low level - we consider that it is implicitly contradictory to the first part of the clause. Secondly, I don't know that the circumstances in, as I understand it, the industrial catering and cleaning industry. I don't know how immediately comparable or relevant they would be to the circumstances of the general operating environment in the higher education sector up here in what your Honour is going to interpret up here in Western Australia for reasons that are concerned in this application - I beg your pardon, your Honour - concerned with the proposed - with the draft award that has been tendered.

PN24526

We cannot see that there is any particular necessity been established for the university to advise employees of the - as is proposed - to advise employees of the proposed agreement and the implications it may have and, indeed, I do see a weakness in that particular wording and the weakness that I see is that if there is some - if the parties are in negotiation - and there may or may not be immediate agreement - but if the parties are in negotiation about a particular enterprise flexibility matter, as for example in the higher education sector it might be that a university wants to explore other forms of hours of work, or other potentially shift work, or other arrangements, to deal with the seasonal peak in processing student enrolments and related matters usually in the period February to late March. If the university has 21,000 students, 20,500 of them will enrol between late February and early March.

PN24527

Now, it may be - and this is purely hypothetical - it may be that the university wishes to come to some more efficient arrangement in allowing effectively for short-term shift work, or short-term variation of hours, or whatever, to allow for greater resources on hand to deal with that processing. I mean, the university might also want to engage casual employees, potentially at the expense of existing employees to deal with that sort of seasonal workload. Now, it seems to me that the employers version of the implications of that arrangement might well be in conflict with the union, or the employees version of the implications of - the implications, terms and conditions of such a temporary change.

PN24528

Now, I'm not trying to be particularly imaginative, or creative here your Honour, but I can see from experience - not just within this higher education sector - I can see that if the parties are in negotiation, I can see the genuine potential for separate debate over the accuracy with which one party might advise all parties of the implications, or the outcome of what is in negotiation. So I do see that as a genuine structural weakness in the wording, but beyond that, we are not persuaded that there is some demonstrated need to impose a further layer, if you will, or a further stage in what is intended to be a relatively straightforward consultative process designed to allow the parties to formalise an agreement they may reach.

PN24529

So we don't consider it necessarily in the same vein as some of the other matters that have been traversed in the proceedings thus far today, but we genuinely do not see that it adds anything to the process. I do see a potential for debate between the parties when one party is charged with informing the membership of the other party of the implications, or the -in effect, the matter that is in negotiation. I should also concede that I recognise that the form of words that are brought forward here are a modified and to that extent a lesser version of words and drafts that have been discussed between the parties in negotiations in earlier months. So to that extent I recognise that the union has moved somewhat the position it had previously advised, but we still have these concerns about proposed wording.

PN24530

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Patnam.

PN24531

MR PATNAM: Yes, thank you, your Honour. This matter is also one that is at issue between the unions and UWA in terms of that institutional award that we would be seeking. I think we would just simply adopt the submissions put by Mr Meredith in that respect. There is nothing further we can add.

PN24532

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Welch, do you have anything in reply?

PN24533

MR WELCH: Very briefly, your Honour, I will simply say that to characterise our proposal as creating an extra layer, or part to the procedure is to, I would suggest, mis-characterise it. We are simply requesting that as a process takes place people be properly and duly informed about what is taking place and that clearly seems to me to be an equitable and sensible approach to any process. It is clearly a wording which has been before the Commission in terms of VP Ross before and considered to be broadly acceptable and we provide the same wording as in the Industrial Cleaners Award.

PN24534

We would suggest that it is sensible, good practice which causes no difficulty to the employer. Moreover, it may well resolve difficulties by ensuring clarity going through a process and it gets around the difficulty as well whereby if any dialogue is taking place with a group of - or with a trade union that other individuals are also aware at the workplace about what is taking place and there is no problem about their not being required to be members.

PN24535

THE SENIOR DEPUTY PRESIDENT: Very well, thank you, Mr Welch. I might advise the parties that I have an other matter at 3.30 eastern summer time, which I will have to get to at some point. I note that the next item I think that we have to deal with is, "University Allowances", is that right?

PN24536

MR MEREDITH: That is correct, special rates.

PN24537

MR WARBURTON: Your Honour, perhaps if I could just before I go. I have to have another appointment I have to leave to, so I will leave it in the hands of Mr Welch and make my apologies.

PN24538

THE SENIOR DEPUTY PRESIDENT: Very well, thank you, Mr Warburton.

PN24539

MR WARBURTON: Thank you.

PN24540

MR MEREDITH: Your Honour, there is one other matter that I have overlooked. I apologise, particularly in view of what you said of your commitment. It is at the second-last page of the correspondence from the ALHMWU. It is proposed clause 28.2, Catering And Tea Attendants, and it proposes the payment of a 15 per cent loading for part-time catering and tea attendants.

PN24541

THE SENIOR DEPUTY PRESIDENT: Yes.

PN24542

MR WELCH: If I - Commissioner, I had seen that in the context of the special allowances, and I'm happy to deal with it in one group because it seems that - well, the arguments which we will be proposing for the inclusion of the special allowances will relate to this clause also, there may be direct reference to it.

PN24543

THE SENIOR DEPUTY PRESIDENT: Do we - is it going to be required that we work through these allowances one by one?

PN24544

MR WELCH: I hadn't intended, your Honour. I had intended to deal with it as one group. Our contention is that they would be taken up as a group rather than individually and we would be looking for a decision on that basis.

PN24545

THE SENIOR DEPUTY PRESIDENT: I see. All right then, well, perhaps we should devote a little bit of time off the record to what we will do if we run out of time today.

OFF THE RECORD

RESUMED [3.15pm]

PN24546

THE SENIOR DEPUTY PRESIDENT: Yes, we will deal now with university allowances, including the catering and tea attendants matter. Mr Welch?

PN24547

MR WELCH: Thank you, your Honour. As I said, we are seeking to move these as a group, as it were, rather than breaking down and looking at each individual allowance. Our view is that while we are aware that there were allowances in place which were to cover work of a regular nature or activities carried out or allowances covering regular events, which were taken into the HEW structures and the formula which went to those. However, it is our contention that this left out a range of allowances which were not included as part of that process and which cover, if I can put it this way, irregular or unusual events and duties, such as, for instance - I don't go to all of them - but for instance, work in a dust ..... atmosphere or confined space allowances are not something that one would anticipate would take place on a daily or weekly or, for that matter, a regular monthly basis on behalf of any employee.

PN24548

Therefore, these allowances did not become, if I can use the term, rolled up into the HEW levels and structure. We have sought to provide clauses which reflect these allowances and these allowances all come from the original base awards. In the main from the Building and Trades Award but some from the Engineering Trades Award. We have sought to exclude those which are non-allowable due to their occupational health and safety character or - and also we have sought to help simplify the process by creating clauses where there is a crossover between the two awards.

PN24549

We have sought to provide clauses which cover the areas identified by those clauses together - sorry, by both awards together. We have also sought to exclude those things which - from the base awards, which do not take place in higher education as clearly there are some references in the base awards to activities, for instance, taking place by plumbers on ships and I am not aware that that is an activity regularly undertaken at any universities. So we have sought to exclude matters of that sought.

PN24550

So what we have are a set of awards - sorry, a set of clauses seeking to deal with allowances which existed in the base awards which we would therefore argue should not cease to exist because we are going through an award simplification process, and it is clear from item 51 that we should not be looking to reduce conditions. We have simply sought to provide simplified clauses covering all of these allowances. The matter of the catering and tea room attendants, we believe - although - that this would be appropriate.

PN24551

There is a specific clause, clause - I believe it is 12.2, which provides for a 15 per cent loading to be paid to staff employed on a part-time basis under that award. It is an award which we believe has reference to the universities. So in conclusion we would simply say that we would seek that these awards be reflected in the new award as they were conditions that existed prior to this process beginning.

PN24552

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Welch. Mr Mendelssohn?

PN24553

MR MENDELSSOHN: Thank you, your Honour. I think this one is going to be basically re-run of the earlier matters that we dealt with, such as the standardisation of hours, the mixed functions and the loading for shift workers. If I may take as my starting point for what will be a very brief submission your Honour's decision of 21 November in the salaries and classifications arbitration where part of your - the basis of your approval for the salary rates as proposed were that certain allowances of a work value related nature, such as the leading hand allowance, were absorbed into rates - into the salary rates at the time of the implementation of the HEW structure.

PN24554

In my submission, if the allowances proposed are found in one of the instruments incorporated into HEGSS then employees in those types of work should continue to receive them unless it can be identified as an allowance which was absorbed into the salary rate at the time of the implementation process and is of a work value nature. In the allowances absorbed clauses of the agreements, which Mr Meredith took your Honour to earlier, clearly some of the allowances that were absorbed were of a work value nature, such as leading hand allowances and supervision allowances and allowances for holding particular sorts of qualifications. Other allowances absorbed, such as laundry allowances, were clearly not of a work value nature.

PN24555

On my very quick scrutiny, because I don't actually have the - if I may put it this way - the Trades and Maintenance Awards before me, but on a very quick scrutiny the types of allowances being proposed by Mr Welch are generally not allowances which were specified in the enterprise agreements as having been absorbed and most of them appear - well, a number of them do appear to be of a work value related nature in that they relate to performing work in unpleasant - - -

PN24556

THE SENIOR DEPUTY PRESIDENT: Conditions.

PN24557

MR MENDELSSOHN: - - - conditions which affects the difficulty and degree of skill required in performing the work, but on my quick scrutiny they are not allowances which were specified as being absorbed into the salary rate when the rates in the certified agreements were struck.

PN24558

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Meredith?

PN24559

MR MEREDITH: Thank you, your Honour. With respect to the 15 per cent loading for tea and catering employees - I will make sure I have got the right term there - we say two things with respect to that. Firstly, that allowance is indeed expressly absorbed in the agreements that I have tendered - the catering and tea attendants, I apologise for the delay there, your Honour. That allowance is specifically absorbed in the extract - as shown the extract of certified agreement for Edith Cowan University. You will find that, your Honour, at page numbered 5, clause 8.8: Allowance Absorption. You will see there 15 per cent loading for part-time catering employees.

PN24560

That allowance, we say, is expressly absorbed at Edith Cowan University, at least. More generally we say that the provision is obsolete. I am advised by the representative for each of the three universities ..... that they do not employ people that could be in any way identified as falling within the definition as it was in that former award. So we simply say it is obsolete. There remains - were it to be retained, there remains, in my submission, the broader equity point of why - despite the fact that the allowance is absorbed formally at least at one university, why you would nonetheless continue to pay a particular loading to some part-time employees and not to others. I am not certain whether we are still on camera for you in Sydney, your Honour.

PN24561

THE SENIOR DEPUTY PRESIDENT: Yes, you are.

PN24562

MR MEREDITH: Right. With respect to the special rates, those also are expressly absorbed at the - as shown in the extract of certified agreement for Curtin University, and you will find that at numbered page 12 of the extract for Curtin University. You will see, under the heading: Allowances, then the following allowances are absorbed. The last of the allowances that are absorbed are special rates.

PN24563

THE SENIOR DEPUTY PRESIDENT: You say Curtin?

PN24564

MR MEREDITH: Yes, I do, the first of the three - yes, the first three extracts from the 1994 certified agreements. Clause 20, page number 12, Curtin University.

PN24565

THE SENIOR DEPUTY PRESIDENT: Yes. Clause 20.

PN24566

MR MEREDITH: Numbered page 12 of the extract - - -

PN24567

THE SENIOR DEPUTY PRESIDENT: I see it, yes, it is the last item in the list.

PN24568

MR MEREDITH: Yes, indeed. Now, where that takes us, your Honour, is that we say that the part-time - the particular part-time loading, or part-time tea attendants is obsolete in that we don't employ any people that could be found to have come from that classification from that underlying award, and with respect to the special rates we say in the first instance that at Curtin University they are absorbed and have been since 1994 and I still say that in absorbing those allowances in 1994, it formed part of the agreed position that was reached with respect to the salary to apply. More generally, with respect to the special rates we say that they - in a large part they are obsolete.

PN24569

It might be your Honour that this might be an area where there could be some further correspondence between the union and the universities, or myself, but the proposed clause 28, the special rates and allowances, 28.1.1, Swing Scaffold. We know of no university that employs anyone, or even possesses a swing scaffold, or a bosun's chair. 28.1.3, Work In A Dust Laden Atmosphere. In fact, the way that is written, it is a dust laden atmosphere in a joiner's shop where dust extractors are not provided. We don't have those, your Honour.

PN24570

Sewer work, none of the universities here presently employ plumbers directly. Their plumbing work, such as it may be, is done by external contract. Well Work. We don't know of any well on any campus of any of the universities that is over 9 metres in depth. But 28.1.7, Permit Work. Again, we don't employ plumbers. 28.1.0, Plumbers On Sewerage Work, the same again. 28.1.13, Flint Co. We are genuinely uncertain what that is. We think that is - again, it's a compound, or a term that is perhaps obsolete. 28.1.15, Stonemason on Wall. We don't employ any stonemasons, your Honour. 18.1.18, Spray Application Painters. We don't employ any painters, your Honour.

PN24571

So it might be that there could perhaps be some further discussion between the parties identifying which, of any of these particular circumstances that are recognised in the allowances, in fact, exist at the universities. Now, had we received this material some 5 days prior to the hearing we would have been better placed to propose that there be some dialogue. That didn't happen, so we weren't able to do it. More generally, your Honour, I demonstrated that at Curtin University that allowance was expressly absorbed. I have not demonstrated that it was expressly absorbed at Murdoch or Edith Cowan University, but my submission remains that if, at Curtin University, a particular wage rate was agreed in 1994, put into place by way of certified agreement at the Curtin University, it expressly comprehended the absorption of those allowances.

PN24572

You might be persuaded to find that the same featured in the wage rate that was agreed at the other universities, but I won't press that submission. Instead, when we conclude on this point I would want to put some further brief remarks with respect to your earlier commentary to me regarding the structural efficiency principle. With respect to the special rates, we say a substantial number of them are genuinely obsolete in that they have no application at the universities concerned and we further say that at one of the three universities they are expressly absorbed. That is all we wish to say on that one, your Honour.

PN24573

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Meredith. Mr Patnam.

PN24574

MR PATNAM: Yes, thank you, your Honour. Again, we support the submissions of Mr Meredith on behalf of the institutions. Your Honour, these allowances have their origins in the various State Trades Awards that underpin the HEGSS awards and that in itself is not sufficient to be able to say that the allowances therefore have relevance or application to the institutions and, indeed, I believe it would be incumbent upon the union to bring that evidence because, clearly, the submissions of Mr Meredith have been that indeed a significant number of the allowances sought do not have application. In that respect I note that there would seem to be a preparedness on behalf of the institutions to have further discussion about that and perhaps I should move my submission to that point.

PN24575

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Welch, is there anything you want to say on that?

PN24576

MR WELCH: Well, just to make a couple of quick points, your Honour. The suggestion is that a number of the clauses are obsolete because currently the university do not employ people in particular categories because, in effect, the work has been contracted out to external providers of that service. Clearly, that is a time limited process and there is no guarantee that the university will always continue to be in that situation. Therefore, to suggest that those clauses could not have application would simply be incorrect.

PN24577

The university decided to bring back in-house the catering services for instance, then clearly, the Catering and Tea Rooms Award clause could have application, though we are clearly happy to sit down with the university and look at whether or not any of the clauses that we have proposed are genuinely obsolete, but we would not accept that they are obsolete because they are infrequently used, or because the individual areas are currently matters of external contracting because, clearly, they could come back in-house.

PN24578

I further say that while, as Mr Meredith identifies, there appears to be absorption into the Curtin agreement, clearly it wasn't the case in the other enterprise agreements, or moreover, as Mr Mendelssohn said previously - and I would certainly support his submission - in coming to conclusions in the HEW matter, certain allowances with a work value were considered. I'm not aware that allowances such as these would have been considered for the purposes of coming to conclusions on the salary rates and structure appropriate. Therefore, we would say that in deciding on the final state, or outcome of this award, one would be considering whether or not these conditions existed prior in the HEGSS, which clearly they did, because all of these awards were taken into HEGSS.

PN24579

Whether or not they could have application - and we would argue that they certainly could do - and that in the main they continue so to do and are therefore not obsolete and that they have not played a role, as I say, in determining the salary levels in the HEW structure. We are happy to sit down and look with the universities if there is a willingness on their part at whether any of these are genuinely obsolete and, if they are, then clearly we are happy to simplify this process, but we would submit that they are not obsolete because they are not currently in use because that does not envisage that they may not be in use in the future.

PN24580

THE SENIOR DEPUTY PRESIDENT: Very well. I will in case we overlook it, direct that the parties enter discussions on the ALHMWUs claim in relation to allowances in general with a view in particular to establishing by agreement whether or not some, or any, or all are obsolete. Now, Mr Meredith, you wanted to address me on the question I raised earlier today.

PN24581

MR MEREDITH: Your Honour, it may be that in the submissions that I put - some of the earlier matters I may have sought to go too far too fast. If my submissions were interpreted by yourself, your Honour, as suggesting that I was - if I was claiming that the Commission, as presently constituted, had considered the standardisation of allowance - standardisation of conditions as a component part of the salary model that you have accepted as properly set minimum rates, I have, perhaps, expressed it too ambitiously or too expansively.

PN24582

What I do say, your Honour, is that, as Mr Patnam has put to you, it has been clearly demonstrated in the proceedings both before yourself and before Commissioner Smith that across the higher education industry sector in the early 1990s the process of structural efficiency, as we understand it, did not occur through an award stream but occurred through an agreement stream.

PN24583

THE SENIOR DEPUTY PRESIDENT: Well, I found that, in effect.

PN24584

MR MEREDITH: You have found that, indeed, your Honour, in your decision and I was, in fact, going to briefly go to some parts of your decision, particularly those on - at para 15 at page 11 where you note, I quote:

PN24585

There is no doubt in my mind that the process adopted is in accord with the structural efficiency principle.

PN24586

THE SENIOR DEPUTY PRESIDENT: Yes.

PN24587

MR MEREDITH: And for that matter the minimum rates adjustment process. The process you are talking of there was both the classification structure, the incremental progression, as part of the DWM exercise. What we further say, your Honour, is that the structural efficiency principle, amongst other things, enjoined the industrial parties to explore ways of removing impediments to multi-skilling, to standardising conditions where practicable and where appropriate, and to enhancing workplace efficiency generally and, indeed, to the - implement the introduction and the adoption of skill based classification structures that allow for career progression.

PN24588

Now, we say that all of those things have been done through the period 1993 and in this State in Western Australia in 1994 with those section 134 agreements that were put in place. I do not retreat from my earlier submission that in the minds of the parties, most particularly in the minds of the employing universities, the agreement that was reached in '94 went to the adoption of a skills based classification structure, the translation of existing employees into that structure on terms that were guaranteed to be no less favourable than the terms of which - the terms of employment and the wages that employees received at the time.

PN24589

As you know, from other proceedings, employees were translated to the new structure on the basis of where their position was properly located within the 10 level skills structure - the 10 level classification structure established by the DWM model. In addition to that, the universities proposed to be respondent to this award quite consciously sought to - and again cognisant of the structural efficiency principle, they sought to standardise conditions matters to allow for increased multi-skilling, to allow for career progression.

PN24590

What we have been essentially debating over this morning, in my submission, is in standardising those conditions matters can the clock somehow be turned back on that? With all due respect, your Honour, we still say, no, it can't. We say it would be totally antithetical to the structural efficiency principle, for example, to reintroduce a regime of a separate system of mixed functions versus higher duties for something less than 5 per cent of the work-force when a common higher duties regime has been in place since 1994.

PN24591

We say that it would be inconsistent, in our respectful submission, with the terms of item 51 to require award regulation of rostered days off when rostered days off have been the subject of ongoing enterprise bargaining agreement since 1994. We say that, with all respect, the LHMU cannot in good faith consent to an award that proposes 37 and a half hours per week but maintain that there must nonetheless also be award regulation of a rostered day off mechanism that is routed exclusively in a 38-hour week implementation proposal. We say that not only can you not do that, we would further say that that again is totally antithetical to the structural efficiency principle.

PN24592

THE SENIOR DEPUTY PRESIDENT: Very well.

PN24593

MR MEREDITH: To the extent that I may have expansively put the position in my earlier submissions, I did not seek to infer that the Commission as constituted had made some determination on the standardisation of conditions matters as part of the salary structure. I concede that I may have overstated that position and I withdraw any suggestion that may have been drawn from my comments, asserting that the Commission as constituted had said that. But the employers, the three employing universities proposed to be parties to this award, certainly know and understand that they did do that in their 1994 agreements.

PN24594

THE SENIOR DEPUTY PRESIDENT: Very well.

PN24595

MR MEREDITH: And it was paid for in the agreed wage rate. If it please the Commission.

PN24596

THE SENIOR DEPUTY PRESIDENT: Thank you. As far as I'm aware, that completes submissions in this matter.

PN24597

MR MEREDITH: Yes.

PN24598

MR WELCH: Indeed, your Honour.

PN24599

THE SENIOR DEPUTY PRESIDENT: Good. Well, subject to the parties taking the discussions I have already directed and informing me of their outcome within - how much time do you need, bearing in mind the time of the year?

PN24600

MR MEREDITH: Your Honour, you proposed 28 days earlier to the NTEU as far as anything they may wish to put so 28 days might be a - - -

PN24601

THE SENIOR DEPUTY PRESIDENT: Might be the standard, yes.

PN24602

MR MEREDITH: - - - would that be a practical time line?

PN24603

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, 28 days from today in relation to that, to reporting by correspondence, hopefully, the outcome of the discussions between the unions and the universities involved on the matter of special rates and the catering and tea attendant loading. Other than that I, at this point, would reserve my decision. Before I leave, am I correct in my assumption that following a ruling on those matters that have been dealt with today, the draft submitted, subject to what might come out of that consideration, is an agreed draft?

PN24604

MR MENDELSSOHN: Well, that is my understanding.

PN24605

MR MEREDITH: That is our understanding, your Honour.

PN24606

MR WELCH: That is our understanding as well, your Honour.

PN24607

MR MENDELSSOHN: Yes.

PN24608

THE SENIOR DEPUTY PRESIDENT: Well, that is the understanding of everybody concerned, so I am glad to hear it. All right - - -

PN24609

MR MEREDITH: Your Honour, on that - - -

PN24610

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Meredith?

PN24611

MR MEREDITH: Thank you, your Honour. Does that then mean that subject to the settling of these conditions matters there would then be no particular impediment to the award being issued given that the salaries and other matters are agreed?

PN24612

THE SENIOR DEPUTY PRESIDENT: That is correct.

PN24613

MR MEREDITH: Thank you, your Honour.

PN24614

THE SENIOR DEPUTY PRESIDENT: I adjourn this matter indefinitely. I adjourn the Commission until 4.45 eastern summer time.

ADJOURNED INDEFINITELY [3.48pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

SHARON MARIE JACKSON, AFFIRMED PN24356
EXAMINATION-IN-CHIEF BY MR WELCH PN24368
CROSS-EXAMINATION BY MR MEREDITH PN24379
RE-EXAMINATION BY MR WELCH PN24427
WITNESS WITHDREW PN24432