C2002/1764, Transcript of Proceedings [2002] AIRCTrans 3624 (18 September 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N VT05545
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

C2002/1764, 2032, 4410,
4411, 4412, 4413, 4414,
4415, 4416, 4417, 4418,
4419, 4420, 4421, 4422,
4423, 4424, 4425, 4426,
4427, 4428, 4429, 4430,
4431, 4432, 4433

NATIONAL TERTIARY EDUCATION
INDUSTRY UNION

and

UNIVERSITY OF ADELAIDE and
OTHERS

Notifications pursuant to section 99 of the Act
of dispute re conditions of casual employees
and conditions of employment

HIGHER EDUCATION CONTRACT OF
EMPLOYMENT AWARD 1998

HIGHER EDUCATION GENERAL STAFF
SALARIES AND CLASSIFICATIONS
AWARD 2002

HIGHER EDUCATION WORKERS VICTORIA
(INTERIM) AWARD 1993

AUSTRALIAN UNIVERSITIES ACADEMIC AND
RELATED STAFF (SALARIES) AWARD 1987

AUSTRALIAN POST COMPULSORY AND
HIGHER EDUCATION ACADEMIC SALARIES
(CONSOLIDATED) AWARD 1989

UNIVERSITIES AND AFFILIATED INSTITUTIONS
ACADEMIC RESEARCH SALARIES (VICTORIAN AND
WESTERN AUSTRALIA) AWARD 1989

UNIVERSITIES AND POST COMPULSORY ACADEMIC
CONDITIONS AWARD 1999

VICTORIAN POST-COMPULSORY AND HIGHER
EDUCATION ACADEMIC AND TEACHING STAFF
(CONDITIONS OF EMPLOYMENT) INTERIM
AWARD 1990

SOUTH AUSTRALIAN POST COMPULSORY AND
HIGHER EDUCATION ACADEMIC STAFF
(CONDITIONS OF EMPLOYMENT) AWARD 1989

QUEENSLAND POST COMPULSORY AND HIGHER
EDUCATION ACADEMIC STAFF (CONDITIONS OF
EMPLOYMENT) AWARD 1988

NORTHERN TERRITORY UNIVERSITY ACADEMIC
AND RELATED STAFF (TERMS AND CONDITIONS
OF SERVICES) AWARD 1989

CURTIN UNIVERSITY OF TECHNOLOGY ACADEMIC
STAFF (CONDITIONS OF EMPLOYMENT) AWARD 1999

ACADEMIC STAFF (EDITH COWAN UNIVERSITY)
AWARD 1988

UNIVERSITY OF CANBERRA ACADEMIC STAFF
(CONDITIONS OF SERVICE) AWARD 1999

TASMANIAN STATE INSTITUTE OF TECHNOLOGY
ACADEMIC STAFF (CONDITIONS OF EMPLOYMENT)
INTERIM AWARD 1988

ACADEMIC STAFF (AUSTRALIAN MARITIME
COLLEGE) CONDITIONS OF EMPLOYMENT
AWARD 1999

ACADEMIC STAFF (BATCHELOR COLLEGE)
AWARD 1994

TEACHERS (ENGLISH LANGUAGE CENTRES OF
AUSTRALIAN UNIVERSITIES) CONDITIONS OF
EMPLOYMENT AWARD 1998

QUEENSLAND UNIVERSITIES (GENERAL
STAFF) INTERIM AWARD 2000

UNIVERSITY OF WESTERN SYDNEY (GENERAL
STAFF) (INTERIM) AWARD 1999

UNIVERSITY OF NEW ENGLAND GENERAL
STAFF (INTERIM) AWARD 2000

UNIVERSITY OF ADELAIDE GENERAL STAFF
(INTERIM) AWARD 2000

UNIVERSITY OF CANBERRA GENERAL STAFF
(INTERIM) AWARD 2001

AUSTRALIAN MARITIME COLLEGE (GENERAL
STAFF) AWARD 2002

Applications under section 113 of the Act
by National Tertiary Education Union to
vary above awards re casual employees

MELBOURNE

2.07 PM, FRIDAY, 30 AUGUST 2002

Continued from 15.7.02

PN154

MR K. McALPINE: I appear for the National Tertiary Education Industry with MR THOMAS and MS ROBERTS.

PN155

MR J. NUCIFORA: I appear for the Australian Services Union.

PN156

MR D. MENDELSSOHN: I appear for the CPSU, Community and Public Sector Union.

PN157

MS L. GALE: I appear for the Australian Education Union.

PN158

MR I. ARGALL: Appearing with me is MS PUGSLEY. We are both from the Australian Higher Education Industrial Association.

PN159

MR S. PILL: I appear with MR WAUGH, from the University of Melbourne. I continue my appearance in C No 2032/2002. I think it is technically necessary for me to seek leave in C Numbers 4410 to 4433/2002.

PN160

MR N. WAUGH: I appear for the University of Melbourne, with MR PILL.

PN161

THE DEPUTY PRESIDENT: Any objection to leave? Leave is granted. Thank you. Yes, Mr McAlpine.

PN162

MR McALPINE: Thank you, your Honour. This is a report back on discussions between the parties in C No 2002/1764. It is also the first hearing in relation to a number of other C numbers, arising from an application or applications to vary certain awards of the Commission, in the Higher Education Industry. In relation to the first matter which is the dispute arising from an industry wide ambit log, served in 1999 and further to that a letter setting out a series of claims served upon employers in March this year. In accordance with the directions, various directions and suggestions of the Commission over the past four months, I think it is, three months at least, the parties have been engaged in regular meetings and in regular exchanges of documents.

PN163

I think it is fair to say that both parties have been represented at sufficiently senior levels, that it is possible - it would have been possible on that count, at least, for them to reach agreement if there was much of a basis for agreement. I think the discussions have been reasonably frank and forthright and we don't contend that the discussions haven't been pursued by both sides in good faith. Having said that, that is, is that it hasn't been possible for the parties to reach agreement. It is not appropriate for me to go into any detail about the substance of those discussions because most of the documents exchanged and things said were in order to assist the process of negotiations, without prejudice. However, we didn't get to a position where there were any substantive proposals, by the employers, to amend the award safety net.

PN164

There were various responses to various proposals by the unions but there was no response that we could take forward in terms of working on a consent petition that could be brought to the Commission. So I think the parties understand each others position better than they did before but that is probably about as much progress as we are going to make. We think that the parties - it is our prediction and hope that the parties will, in fact, continue to discuss the matters privately and there is always the possibility that there may be some scope for narrowing differences or even coming up with consent positions but that is not - we don't consider that is at all likely and we think that given the discussions have been going on for some months now, conciliation in the sense that conciliation, facilitated by the Commission, is probably at an end. And that gives rise to the other matters before you today. We have indicated to the parties, I think, about a month ago across the table, that we intended to lodge an application to vary awards in higher education.

PN165

We have foreshadowed in broad terms and I don't say any more than that, that we have foreshadowed in broad terms the outline of the approach we were going to take, at meetings three or four weeks ago, with the major representative employer bodies and the reason for the lateness of those applications is that it was necessary for our national executive to consider those, last weekend and to finally determine the form of those applications. So that is why they were lodged as late as they were. But we thought it was appropriate that we try and lodge them before today's hearing, rather than having a separate hearing on some other day. If I take the Commission, now, to the documents that were lodged.

PN166

The documents that are lodged are a letter, a covering letter which includes an application for a reference to a Full Bench under section 107 of the act. There are some attachments to those documents - to that letter, I am sorry. And also attached to that letter is, of course, the application or the application under section 113 in relation to a series of awards. I didn't propose to take the Commission to the applications in any great detail. I don't know whether your Honour has had an opportunity to study it yet or look at it yet, but I thought I should just give a very brief outline of the character of those applications. The first two parts of the application relate to a proposal to increase the minimum loading in the industry to 30 per cent. At the moment, for academic staff, it is 20 per cent and for general staff there are various rates and the proposal is to lift any casual loading, below 30 per cent, up to 30 per cent.

PN167

The third part of the application is a proposal which would required the employer, in certain circumstances, to make an offer to casual employees based upon the length of service. The number of hours and weeks in which work is performed, based on a sliding scale, to make an offer to a casual employee, in those circumstances, for conversion to some other type of employment. The next part of the application deals, in a general way, with the question of shift penalties and overtime rates. And it is to insert a provision into various awards applicable to general staff, that employees engaged for casual work shouldn't be worse off than a non-casual employee in relation to overtime and penalty rates.

PN168

The fifth part of the application deals with a minimum and I should say, in fact - yes, the fifth part of the application deals with a minimum number of hours than an employee should be paid for, on each engagement as a casual employee. And so does the sixth one, the sixth one does, in relation to academic staff and provides for a four hour minimum with certain exceptions. And differently in some other awards, in relation to academic staff, the claim is merely a minimum payment, not for each engagement but a minimum payment on each day work is performed. The next one is, that is number seven, is an application for a new, either allowance or insertion into rates of pay which would be an allowance payable to a limited class of casual employees who, in recognition of the fact that they are required in addition to prepare for specific lectures and tutorials, for which they paid under the existing award, are required more broadly to maintain their currency in their academic discipline.

PN169

And our view is that full time employees are paid for that and are paid for that in their salary and casual employees receive no remuneration for that, despite being an inherent requirement of the work. Number eight is a claim in relation to work away from the normal place of employment, where e-mail or telephone consultation is required and we say that as a result of changes to technology the requirements on employees to undertake that type of work have significantly increased, particularly since the advent of e-mail, since the award was last reviewed in relation to rates of pay. Number nine is a fairly straightforward claim that an employee should be paid within 14 days of either the work being performed or a claim for payment being lodged by the employee.

PN170

And number 10, I won't take the Commission to it in too much detail, but number 10 seeks to amend the relevant salaries clauses and their is a drafting error, which the other side kindly drew to my attention, that to amend the salaries clauses, subclause (g) of the salaries clauses of those two awards which, I think, are respectively clauses 4 and 5. So it is subclauses 4(g) and 5(g) respectively. To include in a list of matters for which an academic should be paid separately from the preparation and marking, in relation to tutorials and lectures. That they should be - that if they perform this duty, that is attendance at lectures or other teaching activity conducted by other staff, they should be paid for that as a separate activity.

PN171

The structure of payment in the industry, for example, your Honour, is that if an employee delivers a one hour tutorial they are actually paid three hours for that, one hour for preparation, one hour for delivering the tutorial and one hour for associated marking and consultation. And that is, sort of, within the rate for that. And then there is a list in subclause (g) of those clauses which sets out other things, if you like, that fall outside that and we say there is an omission there, in that that list doesn't currently include the requirement to attend lectures given by other staff.

PN172

The last - the statement about the alternate position is that, in a sense, to reserve our position, it may be considered by the Commission appropriate that, although we have sought to vary a particular award in a particular way, we are saying in the alternate, the Commission might take the view that, in fact, the variation is right but the vehicle is wrong. In other words that there is - that one of the other awards, listed at the beginning of the application, is the award that should be appropriately amended. And that is really just to put the parties on notice that we are not - it is not stand or fall, part of our application that the variation has to be to the particular award.

PN173

So for example, returning to the first page of the application, there is a list of awards there which includes some awards for which there is no specific variation listed. And in a sense, that reflects the decision of the Bench in the Higher Education Contract of Employment Award, where the applications that went in initially, were to vary certain awards. And in fact the Commission, in the end, decided to make a new award instead of varying the awards. So what we are doing is basically saying well here are all the awards in the industry, here are the variations and where we think they should be made but, the Commission - in the alternate, the Commission might say, well in fact we will do it in some other way - - -

PN174

THE DEPUTY PRESIDENT: Yes, I understand that, yes.

PN175

MR McALPINE: The grounds are set out at the end of the application and I don't propose to - given what has gone before in these proceedings, I don't propose to take the Commission through those grounds unless the Commission has any questions now or later about that. Turning now to the question of the application for a Full Bench reference, I don't want to add too much to what has been set out in the letter. I hope the letter was reasonably clear. One point that I do want to emphasise, however, is that the matters that we are seeking to have referred to a Full Bench is a fairly broad list and that is because we think that, as a question jurisdiction, the Commission should be clearly - if it is Full Bench, the Commission should be jurisdictionally seized of the of the issue of casual employment in higher education.

PN176

Obviously what we are pressing, at this stage, are the matters set out in our application. However, during proceedings and taking of evidence, it may emerge that there are other issues that either the Commission thinks need to be remedied, in the safety net or that the parties want to put additional or maybe alternative positions and it may well be that some of the other unions, represented here, well want to put alternative positions to the Commission. So just - in a sense, I think, the Commission can do that anyway but out of an abundance of caution what we are seeking is not merely the reference of our application but, more broadly, the disputes insofar as they relate to casual employment, the disputes that are referred to in the letter.

PN177

And in particular we say and we say, in support of our application, the disputes and alleged - are actually still alleged disputes, that were before the Full Bench in the Higher Education Contract of Employment Award. And in particular, as I have set out in the letter, the Full Bench in the decision at Q0702, set out their concern about - they did it elsewhere in their decision, as well, but in particular they set out their concern about casual employment. They said that they expected the parties would continue to closely observe the level of casual employment and that if an acceleration of the use of casual employees, on work that is properly considered to be work of a continuing nature, with no effective provision for the movement of casuals to continuing basis. If evidence occurs of that, then they thought that they would further review their decision - the Commission should further review the decision they made on that point.

PN178

And to support that, without - and to support that and I want to limit what I am going to say about the attached documents, the attached documents do not prove that there is an acceleration of the use of casual employees on work that is properly to be considered work of a continuing nature. That is something that, we say, the evidence will show. But what we say the government reports and the statement by most of the employers, in this industry, which is the Australian Vice Chancellors Committee, state their own media release and attached table is an indication that, in fact, the level of casual employment has continued to rise, since the decision of the Full Bench in the Higher Education Contract of Employment Award.

PN179

So it will be our contention that, in fact, what the Full Bench expressed concern about happening, has happened and that in that sense, as well, we say the proceedings that we are proposing before a Full Bench, are in a sense a continuation or review of those proceedings. And that is the other reason that we seek to have those matters also referred to the Full Bench. In passing, obviously, it is entirely at the discretion of the President how a Full Bench is constituted but we would want to put on the record that we would consider that it was appropriate that there be some overlap between any Full Bench constituted to hear this matter and the original Full Bench that dealt with the - that made the Higher Education Contract of Employment Award. We think that would be useful to the Commission and to the parties, given that they heard extensive evidence about the use of casual employment, four years ago, in the industry and gave it some considerable consideration in reaching their decision.

PN180

So we have set out the grounds on which we think the application should be dealt with a Full Bench, in the public interest. My understanding is that the President's discretion is pretty much at large, in relation to that and that there is no clear or absolute definition of what the public interest is. However, we have set out a number of grounds there. Particularly, we would say that it will our contention and we think such evidence, as is available, already shows that over one third of all the employees, in this industry, are casual employees and that those casual employees many of them play a very central role. Arguably the most central role of a university is to teach and many, many of them are directly involved in that function.

PN181

So they are directly involved in the function of teaching in universities. We say that universities and the other associated employers, covered by this application, are a very important industry, a turnover of $9 billion, earn $2 billion in foreign exchange and I suppose I don't need to press too much the importance of universities to the cultural and social and economic life of the country. So we say that the importance of casual employees, in the industry, their number and the importance of the industry itself are all grounds why the matter should be referred to a Full Bench. We would also say that, given the importance of that application, it is clearly the case that what we are seeking here is not the application of some principle that the Commission has determined to these matters.

PN182

We say there are no principles which we - there are obviously persuasive decisions about various matters but there is no principles that we could point to if the matter was before a single Member and say, well the Commission has decided this and this, in general, in a way that is applicable to this industry. Obviously the decision about casual employment in the metal industry was an important decision but it was expressly a decision about the metal industry. And so we say, in relation to the matters that we are putting to the Commission, particularly the matters that go to the specificity of the industry, itself, that it is appropriate that the matter should be dealt with by a Full Bench. I am happy to answer any questions.

PN183

THE DEPUTY PRESIDENT: No that is fine, thanks Mr McAlpine. I am not sure of the extent of submissions that are intended by the other parties, however, I just might say at this stage, I have another matter which unfortunately didn't conclude before this matter began and the parties are actually in discussions at the moment. I may find it necessary to adjourn for a period of 15 to 20 minutes, at some stage during these proceedings, just to attend to the finalisation of that matter. So if I could just ask that the parties bear with me if that does occur. Yes, Mr Nucifora.

PN184

MR NUCIFORA: Your Honour, the ASU supports the broad principles that have been put by Mr McAlpine, on behalf of the NTEU. I must say that we haven't been directly involved in discussions, since the 2002/1764 was before you but we have been kept up to date by the parties. And while our union, in the fullness of time, may have a different emphasis on how the reformation of casual employment should be progressed, we certainly do not oppose and indeed, support the 107 application to a Full Bench. But as I say and we have indicated earlier in proceedings, that our union supports the broad thrust of the NTEU application and in the fullness of time we shall put, if there are specific areas of emphasis that we have in our areas of coverage, in particular general staff in Queensland and South Australia universities, then we would seek to put that before the Commission.

PN185

THE DEPUTY PRESIDENT: Thanks Mr Nucifora. Yes, Mr Mendelssohn.

PN186

MR MENDELSSOHN: Thank you, your Honour. First of all, the CPSU supports the application by the NTEU, for their claim, as embodied in the section 113 application and also the disputes, to be referred pursuant to section 107 to a Full Bench, essentially for the reasons given by Mr McAlpine and in particular the size of the industry, the importance of the industry to the economic, cultural and social life of the nation and also, in this day and age, the importance of the industry to Australia's foreign trade, in that it is an export industry, in the sense of significant numbers of overseas students studying in Australia.

PN187

And as the table, which is attached to the NTEUs letter, which is an extract of statistics from the Commonwealth Department of Employment - sorry, Education, Training and Youth Affairs, indicates there has been a significant increase, at least, between 1990 and 1999, in the number of casual employees in two categories, in particular, Teaching Only Academics and the category known as Other, which means essentially, non-academic or general staff in which this union has a particular interest.

PN188

There has not only been a significant increase in the number of casual employees but also in the proportion of casual employees as a total proportion of the full time equivalent workforce. And that, at least, raises the issue as to whether there is a problem there that needs to be addressed, in the manner sought by the NTEU or in some other manner which may be advanced by one or other of the other union parties. And I might indicate that it can be anticipated that the CPSU will, itself, be making an application which we will seek to have joined with the - and heard together with the NTEUs application whether that be by a Full Bench, as sought today, or by a single Member of the Commission.

PN189

And I would also, in supporting the application for a reference to a Full Bench, commend the remarks of Mr McAlpine in relation to the desirability of at least some overlap between the Full Bench which made the Higher Education Contract of Employment Award and any Full Bench which may be constituted in these matters. And essentially, for the same reasons as Mr McAlpine, which is set out in paragraph 5 of the NTEUs letter, which is an extract from the decision of the Full Bench in the Higher Education Contract of Employment case, in print Q0702. That Full Bench, as Mr McAlpine said, heard a significant amount of evidence in relation to casuals.

PN190

That, of course, would only take the matter up to approximately 1998 and there may have been significant developments since then but, nevertheless, that Full Bench was seized of the issue and to the extent that they, as the extract from the decision indicates, they saw the possibility that there may be some need in the future to look at the position again. And so we would certainly see that as being a - I will withdraw that. If the President were minded to grant the application to a Full Bench, we would certainly, without seeking to pre-empt what are the President's prerogatives, commend that course to him.

PN191

THE DEPUTY PRESIDENT: I will let him know that you are not seeking to do that Mr Mendelssohn.

[2.37pm]

PN192

MR MENDELSSOHN: And - yes, may it please the Commission.

PN193

THE DEPUTY PRESIDENT: Yes, thank you. Yes, Ms Gale.

PN194

MS GALE: Your Honour, the Australian Education Union has not participated actively or directly in the conciliation process but we have been kept appraised of developments by the other unions. We support the application for a reference to the Full Bench for all of the reasons set out by our colleagues from those other unions.

PN195

THE DEPUTY PRESIDENT: Thank you, Ms Gale. Yes, Mr Argall.

PN196

MR ARGALL: Thank you, your Honour. I don't have any issue with the summary Mr McAlpine gave of the discussions that have occurred between the parties. They are broadly indicative of what I believe has happened. Mr McAlpine has correctly suggested that we are - we were unable to reach a final agreement in relation to matters 1764 and 2032 previously before you. Whether or not conciliation is at an end though, I think, is a matter that is affected by the current series of matters subject to the application for Full Bench reference.

PN197

I should say at the outset that we agree with Mr McAlpine's assessment of the necessity for a Full Bench reference to be sought in those - in relation to the matters - I will get the numbers right, 4410 to 4433 of 2002 inclusive and what we say is that indeed section 107 makes it fairly clear what you should be doing about those applications once they have been made that is it is a matter for referral to the President for his consideration.

PN198

What is not clear though to me is just which matters in their entirety are being sought - are being subject to the 107 reference. The connection between 1764 and 2032 and these current matters, 4410 to 4433, is a little unclear in my mind. 1764 and 2032 were - they arose from letters of demand served upon universities by the NTEU when - in the early stages of the proceedings before the Commission when it was asked how they were to be dealt with Mr McAlpine I think made it clear that he was seeking that they be dealt with not as a separate and new dispute finding but as part of a dispute previously found in matter 31999 of 1999.

PN199

So it seems to me that 1764 and 2032 of 2002 are neither disputes nor necessarily directly related to award variation applications as are these and new matters before you so one of the questions I have is whether or not it is appropriate to refer those or merely the most recently applications to the Full Bench - to the President for consideration of a Full Bench reference and indeed if it does go to a Full Bench my position is that the question of whether conciliation is at an end about those matters is a matter for that Full Bench in some sense rather than for us here.

PN200

The - as Mr McAlpine has said, there are a number of awards listed at the beginning of their reference application and their applications for variation but not all of those awards are the subject of specific detailed applications for variation. Not all of those awards, it seems to me also, are awards to which all the unions here represented are parties and indeed I would include the NTEU in that I think. I think that the NTEU is not a party to at least one of these awards and maybe more of the awards.

PN201

Now there is a sort of a tablature I guess between which awards different unions are respondent to and which awards are the subject of specific application. Mr McAlpine has attempted to deal with this by referring to the statement made on page 12 of the application, these words:

PN202

In the alternate, application is made for variation to any or all of the awards listed at the head of this application in the same or similar terms mutatis mutandis as the foregoing proposed variations.

PN203

Now, I heard what Mr McAlpine said about that but I remain to be convinced that that does any work of any that is needed at all. It seems to me that it is open to the NTEU or indeed to any party to make new applications and seek to have them joined with these applications as Mr Mendelssohn has suggested the CPSU might. It is open to the NTEU at any stage to seek leave to vary its applications to include applications of variations of awards listed at the front of the document but not specifically referred to in the body.

PN204

And it seems to me that it would be a continuation of and an imprecision to allow us to pretend that there are applications before a Full Bench that are not actually formally being made at this stage. It might be made at a later stage. What we say is that it is appropriate for the NTEU to be specific as to the applications it is making so that the President - so that you can understand what is being sought, so that the President can understand what is being sought when he is giving his mind to the question of Full Bench reference and indeed so that a Full Bench can be precise in their understanding of what is being sought.

PN205

But equally importantly, so that the other parties can know what they are dealing with, and I see this as a question of precision in terms of application as having a direct bearing on issues of natural justice and the capacity of the other parties to properly respond to applications. So what I would say is that it may be that it is inappropriate to refer some of - even matters numbers 4410 to 4433 to a Full Bench because there may be - I take it that each of those refers specifically to one of the awards that are listed.

PN206

It may be that there was no extant application to vary that particular award and what we say that in those circumstances it is not appropriate for you, the President or a Full Bench to be dealing with something that isn't in fact an application. In terms of the - Mr McAlpine also suggested that he was wanting the general disputes about casual employment referred to the Full Bench and again I find that to be imprecise formulation and difficult to know what you are getting at there.

PN207

No doubt, sir, as is usual, the unions will be relying upon the ambit of earlier dispute findings. What - to the extent that those are relevant to the settlement of particular claims, those are already going to be before the Commission necessarily in dealing with these issues. I am not too sure what else he means by referring the general disputes and I don't think that is necessary to do so. Mr McAlpine and indeed Mr Mendelssohn made some reference to a link to a previous Full Bench finding in matter - well, in the decision in - it was numbered Q0702, a matter that I have some familiarity with.

PN208

This was a Full Bench matter that was concluded in 1998. I believe it is quite improper, I don't think I am putting it too strongly, to say it is improper to make a suggestion about how the President ought to exercise his discretion in the formation of a Full Bench to deal with this matter. We believe that this is a matter for the President but further the link between these particular matters that will be referred to the President for this decision and the matters that were dealt with in that previous matter that led to decision in Q702 have been, in our view, to be demonstrated yet.

PN209

These are not matters that we believe won't be subject to argument. Those sorts of issues are the very matters about which the merits of these arguments will take place and what we say then it is therefore an further inappropriate suggestion that the President ought to be influenced in the formation of a particular Full Bench by those considerations. We say that indeed the link between the issues that were referred to in the quotation Mr Mendelssohn read out and these issues is yet to be demonstrated.

PN210

That is one of the things the Commission will have to decide upon. We also say a similar thing about the documents submitted by the NTEU that apparently derive from the Australian Vice Chancellor's Committee. It seems to us to have no relation at all to anything other than perhaps the merits yet to be argued of any particular applications that the Commission is going to deal with.

PN211

We can't see why it is relevant or necessary and indeed we believe it to be improper to be presenting material that are probably in the nature of evidence at this stage unless they are evidence in support of the grounds for Full Bench referral which is - I am not quite too sure whether Mr McAlpine was suggesting that or not but if he was what we say is that the issues dealt with in the AVCC document and its attachment do not, in our view, go to any of the grounds advanced now in favour of referral to a Full Bench and therefore they are in fact matters will be have to be dealt with as evidence as to the merits of how the applications are subsequently dealt with and we believe that it is not appropriate for the NTEU or the other unions to put these documents forward at this stage and indeed we would prefer them to withdraw them and if they want to produce them in evidence later on in the merits of the case we believe they should do so.

PN212

Again we don't believe that they should constitute any particular reason why the President ought to favour - well, why the President's discretion about Full Bench reference ought to have, in any way, be exercised. Mr McAlpine also made some reference to the number of casuals in the system and so on and I say also the same things about that. Those statements are not evidence about the need for a Full Bench referral. They are evidence about the merits of the case and we believe that they ought to be put forward at an appropriate time with an opportunity for the parties to respond to them and the Commission to properly consider. If it please the Commission.

PN213

THE DEPUTY PRESIDENT: Thank you, Mr Argall. Yes, Mr Pill.

PN214

MR PILL: Thank you, your Honour. I will be relatively brief. Just on the question of conciliation or otherwise, as your Honour has before you an application to refer the matter to the Full Bench, in our submission, it is not appropriate to deal in any substantive way with the nature of the matter until such time as the section 107 application is determined and therefore I don't indeed to address you on the report back issues save to note that it was only on Wednesday evening that we have finally received a precise formulation of what it is that the NTEU is seeking by way of an award variation and I would also note that there are at least two other parties who have now signalled their intention to come to the table.

PN215

On the question of the 107 application I am instructed by my clients that they don't oppose the application made by the NTEU and I say that with two minor qualifications. Firstly, I support and adopt the submissions of Mr Argall insofar as they relate to C number 1764 of 2002 and C number 2032 of 2002. As Mr Argall said, those matters although under the cover of a purported section 99 dispute, when we came before the Commission it was made clear by Mr McAlpine that that wasn't what they were seeking.

PN216

They weren't seeking a new dispute and therefore they were seeking to rely on the old dispute and therefore it can't constitute a dispute nor does it constitute an alleged dispute. It is really a housekeeping matter, nothing substantive turns on it but as a matter of jurisdiction we would submit that the Commission doesn't have an alleged dispute or disputes before it in relation to those two C numbers.

PN217

The other minor qualification is that our position that we don't oppose should not be taken as any endorsement or acceptance of at least some of the grounds proposed by the NTEU in support of their application for a referral and in particular my clients did not accept the grounds set out at 14(5) and part of 6 of the letter sent to the Commission by Mr McAlpine on 28 August. I attempted to make some brief comments just about two of those grounds, firstly ground 5. What we say in relation to ground 5 which is - and your Honour can read it there:

PN218

The proceedings arising from the applications are in part a review of earlier Full Bench decisions.

PN219

And then it goes on and refers specifically to a particular Full Bench decision in print n print Q702 which is the decision which resulted in the making of the Higher Education Contract of Employment Award. It is, in our submission, inaccurate and incorrect to characterise this proceeding or any of these proceedings, as best we can tell what they are, as some sort of review of continuation of that matter. The specific matters referred in the HECE Award case, you have heard from the bar table that - well, you haven't been handed a copy of the case or the decision, you have heard from the bar table that there was some reference to casuals, that there was substantive evidence, you have heard that from the bar table.

PN220

The thrust, in my submission, of what was put by the Full Bench in that case was they rejected the claims that were made in relation to casual employment and part of the reason for that was that was not focus of the case. The whole focus or the primary focus of the case was fixed term employment and that is manifestly clear from the order which came out of it.

PN221

THE DEPUTY PRESIDENT: Yes, with respect, Mr Pill, I didn't hear it put that - by the unions that this was any sort of review or flow on from that particular case.

PN222

MR PILL: I am basing that comment, your Honour, on the words in the letter which state in part, "a review of earlier Full Bench decisions."

PN223

THE DEPUTY PRESIDENT: Yes.

PN224

MR PILL: The point being perhaps and it was referred to by Mr Argall that to the extent that it is relevant they are really going to matters that are going to be the subject of arbitration before the parties. There will be conflicting evidence about those sorts of matters but what we say is that the statement referred to there which has been taken from quotes was really just a recognition by the Full Bench that at some stage down the track the union paves to make an application to vary the award. It so obviously goes without saying - - -

PN225

THE DEPUTY PRESIDENT: Yes.

PN226

MR PILL: - - - that the Full Bench did say it and we acknowledge that but in our submission those comments are not relevant to the question of whether the matter should or should not be referred to the Full Bench. Just before I leave point 5, I advised my friend Mr McAlpine before we started that I intended to object to the AVCC document which is attached to the application to refer it to the Full Bench. As it is not evidence and as he hasn't sought to formally tender it, I didn't formally jump up and object but what I would say about is a couple of things.

PN227

Mr McAlpine indicated that it wasn't put forward as evidence of an acceleration of use of casual employees on work that is properly to be considered work of a continuing nature. Now, if that is the case, it doesn't have any relevance to the matters which would be in dispute in the arbitration but it certainly doesn't have any relevance to the question of whether there is sufficient public interest to refer this matter to a Full Bench.

PN228

Briefly in relation to point 6 of that letter or ground 6, at the second point, there is reference to:

PN229

This application raising new questions of principle which in the public interest should be dealt with by a Full Bench including but not limited to -

PN230

and I specifically place on the record our opposition to the second point which states:

PN231

The extent to which casual loading should in the higher education interest act as a disincentive to long term casual employment.

PN232

In our submission the Commission's view of that particular item is well known. It was extensively canvassed in the Metal Industry Casuals case and in part it was actually canvassed in the HECE Award case. As I say with those minor qualifications I am instructed not the oppose the section 107 application. Briefly, to the extent it is necessary, I would just like a couple of comments about the composition of the Full Bench.

PN233

THE DEPUTY PRESIDENT: I am sure the President is going to be grateful for all of these comments.

PN234

MR PILL: Well, I would endorse your comment, Deputy President. I notice my friends chose their words carefully but in our submission it is not a matter that it is appropriate for the parties to have any view expressed. The mere fact that it is expressed is implicitly seeking to fetter the President's discretion and even if it were appropriate, there is no reasonable basis to go back to that Full Bench. The only real link is the fact that that award - and we note that is not even an award that is specifically sought to be varied, that that award was made by a particular Full Bench and therefore because we have named that award in our application and not even named it as one of the specific ones that we want to vary, we should be going back to that particular Full Bench.

PN235

THE DEPUTY PRESIDENT: I think I can safely say that the President won't allow his discretion to be fettered on the matter, Mr Pill.

PN236

MR PILL: If the Commission pleases, those are my submissions.

PN237

THE DEPUTY PRESIDENT: If you don't mind, Mr McAlpine, I think I have this other matter to attend to now so before I hear you in response I might adjourn for a period of - to give myself a bit a time, maybe 25 past 3 if that is okay with the parties. If you don't mind, I will need the courtroom as well so I am sorry for the dislocation but - we will reconvene back in here at 25 past 3.

SHORT ADJOURNMENT [2.57pm]

RESUMED [3.23pm]

PN238

THE DEPUTY PRESIDENT: Just before you give your submissions in response, Mr McAlpine. If I can just understand you correctly, Mr Argall and Mr Pill, you are opposing the referral in matters C 1764/2002 and matter C 2032/2002 on the basis that arguable, in respect of those matters, there is no dispute. Is that a correct - - -

PN239

MR PILL: No dispute or alleged dispute and therefore no jurisdiction under section 107(2) either (a) or (b), but otherwise that is correct.

PN240

THE DEPUTY PRESIDENT: Yes, thank you.

PN241

MR ARGALL: And that is our position too, your Honour, but I think we went a little further, what I was saying, there are - that we would also oppose, for example, Full Bench reference of matter 4410 which is the Higher Education Contract of Employment Award which is not the subject of any specific application for variation by the NTEU.

PN242

THE DEPUTY PRESIDENT: Yes.

PN243

MR ARGALL: And indeed there may be some others there, I haven't been able to just go through them - - -

PN244

THE DEPUTY PRESIDENT: Yes.

PN245

MR ARGALL: - - - one by one but there is at least one and probably a few that we say it is also inappropriate to refer. Now, we could sort that out with the Full Bench, I guess.

PN246

THE DEPUTY PRESIDENT: Well, it may be that the Full Bench, if there was one constituted, would direct the parties to go away and put some specific draft orders together or something to that effect but I take your point.

PN247

MR ARGALL: Yes, thank you.

PN248

THE DEPUTY PRESIDENT: Yes, Mr McAlpine.

PN249

MR McALPINE: Thank you, your Honour. We think, in fact, there has been some discussion about fettering of discretion, we think that the parties who are trying to fetter the discretion, the employers, we think as a question of the fair and efficient progress of these matters the discretion of the Full Bench should not be fettered. We think it is appropriate to have the issue of casual employment in higher education and the nature of the safety net applicable to it referred to the Full Bench.

PN250

THE DEPUTY PRESIDENT: Yes. I don't think we should get too bogged down on the issue of fettering discretion, Mr McAlpine.

PN251

MR McALPINE: No, okay. So our aim, however it might be, if the Commission - if the President is minded to refer this matter to a Full Bench, our aim is to have the matter of the extant disputes and the alleged disputes that were before the Commission in the HECE Award, which are still alleged disputes on foot and those are the matters listed in our letter; in our covering letter, we are not seeking to have all the disputes underlying all the awards referred. What we are seeking to have is the disputes that the HECE Full Bench had before them, the alleged disputes that the HECE Full Bench had before them and our general industry log from 1999 insofar as it relates to higher education casual employment, those are the core issues that we see need to be referred to the Full Bench.

PN252

It just seemed to us that in the process the matters such as 1764 of 2002, it was appropriate to refer those to the Full Bench. If Mr Pill's argument is correct, nothing turns on that from our point of view. I mean it just - it doesn't - that doesn't lessen the breadth of the dispute.

PN253

THE DEPUTY PRESIDENT: Yes, I understand. Yes.

PN254

MR McALPINE: There was - Mr Argall pointed out that the NTEU was not respondent to one of the awards listed in the application, that is the Australian Maritime College Award, I assume, that is - our understanding is that that is the only award to which we are not a party. We actually have an application before the Commission at the moment to become a party to that award and we also have a dispute with the Australian Maritime College as well which one of the disputes that relates to general staff and relates to casual employment of general staff.

PN255

So, that is the basis on which we seek to do that. Yes, as I said, all the C numbers that we have listed in our covering letter are disputes, they are not award, they are disputes. The documents that we attached to the covering letter, we do rely upon for the proposition that there is a public interest. There is clearly, according to the association representing all the university employers, the only one that does, there is a significant increase in the level of casual employment in the industry and that that involves a large number of people.

PN256

Something was said about opposition to the second of - sorry, the second dot point in point 6 of our covering letter which is about whether or not, in the higher education industry, a casual loading should as a disincentive to long term casual employment. Now, our argument in relation to that is that that there are specific things, as distinct from the Metal Industry, which means that the casual loading should act as a disincentive. Now, I am not addressing the Commission on the merits of that, what I am saying is that that is a specific and different issue to the matter that was before the Metals Casuals Full Bench and that it raises questions which are in effect are different and that is why it is a matter on which the Commission hasn't formally deliberated.

PN257

THE DEPUTY PRESIDENT: Yes, I think, with respect though, it was raised in more than simply with respect to the Metal Industry decision, was it not, Mr Pill?

PN258

MR McALPINE: Yes, but - no, I suppose in response to what Mr Pill said, we don't remember that the Metals Full Bench said anything about the higher education industry and we say that its decision had a general caveat that what it was doing was making a decision about that industry.

PN259

THE DEPUTY PRESIDENT: Yes, Mr Pill.

PN260

MR PILL: My submission, your Honour, went to the question of whether a casual loading should act as a disincentive had been well traversed by the Commission and an example of that was in the Metal Industry case. I concede to my friend that the Metal Industry case did not comment on the higher education sector.

PN261

THE DEPUTY PRESIDENT: Yes.

PN262

MR McALPINE: And I think by way of elaboration, in reply in relation to that point, given that issue has been taken with it, we say that there are things about the operation of higher education institutions which mean that the safety net is almost inevitably ineffective and inadequate in relation to casual employees. We have alleged - when we have alleged, for example, that people in some circumstances don't get paid for three months after the work has been performed, we are told that, "Oh, well that is Department's fault, they haven't sent it to central admin."

PN263

Now, if - well, we say - obviously we say, well that is not our member's fault and that the person gave the claim to the university, we say that the devolution of authority and the way in which casual work is organised is such that it should be actively discouraged by the award safety net not just that it should be adequate but that recognising that it is very difficult to make it adequate, it should be actively discouraged and we would be arguing that on a different basis to the basis on which was argued in the Metals case.

PN264

THE DEPUTY PRESIDENT: yes.

[3.31pm]

PN265

MR McALPINE: So, that is all we are saying, is that we are saying that the way in which we wish to put that argument is different to the way it has been put to the Commission before and that is why we thought it was important that we drew the distinction that we are talking about our specific industry. And just the last point about the comments of Mr Mendelssohn and myself about the Full Bench it has been regular practice, I know, from employers and employees certainly in this industry and others, for example, that disputes get notified and in the covering letter it is said, you know, that this relates to a matter that was before Commissioner Eames two years ago and it may appropriate that the matter be referred to Commissioner Eames again given he is acquainted with the matter.

PN266

That is not an attempt to fetter the President or anyone else's discretion, it is simply providing the Commission with a useful and relevant fact to assist it in the efficient discharge of its functions and there is certainly no intention at this end of the table to fetter anyone's discretion. So I think that is all I want to say in reply.

PN267

THE DEPUTY PRESIDENT: Mo. Good. Thank you, Mr McAlpine. Mr Mendelssohn?

PN268

MR MENDELSSOHN: Nothing further to add, your Honour, except that Mr Nucifora asked me to convey his apologies for having to leave before the resumption.

PN269

THE DEPUTY PRESIDENT: Thank you. I think that is all. I will adjourn. I will be referring the matter to the President. Thank you.

ADJOURNED INDEFINITELY [3.33pm]