C9054/300, Transcript of Proceedings [2002] AIRCTrans 556 (22 February 2002)

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TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DEEGAN

C No 90543 of 2000

AUSTRALIAN EDUCATION UNION

and

CANBERRA INSTITUTE OF TECHNOLOGY

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

CANBERRA

10.03 AM, WEDNESDAY, 6 FEBRUARY 2002

Continued from 8.1.02
Before Senior Deputy President Duncan

PN72

THE COMMISSIONER: Yes. I gather they are the same appearances as last time before SDP Duncan, is that right? Good. Mr Worthy, yes?

PN73

MR WORTHY: Commissioner, I should make one adjustment. Appearing with me will be MR G. JOHNSTON and MR A. O'LEARY.

PN74

THE COMMISSIONER: Thank you, Mr Worthy. Yes, Mr Malone.

PN75

MR MALONE: Thank you, Commissioner. Just given the nature of this hearing I thought I would provide a brief summary of why we are here today. This section 99 dispute was first notified to the Commission on 6 December 2000 although its origins can be traced back as far as case number 90134 of 1993. The matter was part heard on 8 March 2001 by Senior Deputy President Duncan and 8 January 2002. At the hearing on 8 January the parties summarised the substantial areas of dispute over a proposed agreement on the engagement of teaching staff including casuals.

PN76
The Commissioner directed the parties to confer over areas of dispute prior to a conciliation conference set down for 20 March 2002. From the transcript the terms of that direction at PN71 was that:

PN77

I direct the parties to confer with the aim of producing differences and to produce a joint document detailing those differences and giving a short summary background to the dispute. This document is to be prepared and filed with the Commission not later than 8 March 2002 and I appoint 20 March 2002 in Canberra for conciliation based on the document that has been field.

PN78
At that hearing on 8 January there was no indication from the employer that they intended to change the status quo for the employment arrangements of staff prior to the conciliation. Earlier on in that hearing at transcript PN65 at the conclusion of my submissions I stated:

PN79

So, your Honour, that very briefly just summarises the areas that remain in dispute between us and it is certainly useful - your conciliatory assistance will be of use to progress these issues from here.

PN80

The Senior Deputy President then turned to Mr Worthy and Mr Worthy stated:

PN81

Your Honour, in terms of a summary of where the parties are at and the areas of disagreement I think Mr Malone has covered the points that I was going to flag so I don't think I need to go over those.

PN82

And then he proceeded to comment on a couple of other points. From those quotes, Commissioner, it was my understanding that the parties had agreed to a conciliatory process by this Commission and certainly the end result of that hearing was the directive that we prepared a document and meet for conciliation on the issues in dispute on 20 March. At the very least, the union would have expected at that time that the institute advise us that they had any intention to proceed with the implementation of a policy which is in dispute prior to those conciliation hearings - conference.

PN83

At the conclusion of the hearing on 8 January I gave the institute a series of dates that I would be available starting from 31 January in order to confer as directed. They indicated no concern over starting on 31 January and indeed indicated that they would get back to my colleague, Mr McNevin, to confirm which dates would be acceptable. I was on leave until 30 January and when I returned on that date there had been no confirmation of the meetings. However, the next day, on 31 January, we discovered on the inline staff information service of the institute a new engagement of teaching staff policy.

PN84

After some discussions with some members it became clear that the institute was already implementing this new policy but had not seen fit to inform the union of such. As a consequence, late on 31 January, I wrote to Senior Deputy President Duncan requesting an urgent hearing and faxed a copy to the senior management in CIT on the morning of Friday, 1 February. On Friday I was advised that Senior Deputy President Duncan was unavailable so I then requested that the matter be reallocated to deal with the issues solely of this policy. Also on 1 February we emailed to our members within CIT indicating the actions we had taken.

PN85

At 9.50 am on Monday, 4 February I received a fax dated 1 February from the institute formally advising the union of the new arrangements for the employment of teachers. At 11.53 on the same day I received a faxed copy of the institute's letter to SDP Duncan dated 4 February. In order that the engagement of teaching staff policy may be formally on the record, Commissioner, might I submit as exhibit the letter dated 31 January 2002 from the AEU to Senior Deputy President Duncan.

PN86

THE COMMISSIONER: All right. That will AEU3, as I understand it.

EXHIBIT #AEU3 LETTER FROM AEU TO SDP DUNCAN DATED 31/1/02

PN87

THE COMMISSIONER: Yes, thank you.

PN88

MR MALONE: The letter the institute faxed in reply to AEU3 to SDP Duncan, as I said, was received on Monday, 4 February and again, as I wish to comment specifically about the letter, I would submit it as exhibit.

PN89

THE COMMISSIONER: It will be AEU4.

EXHIBIT #AEU4 LETTER FROM CIT TO SDP DUNCAN DATED 4/2/02

PN90

MR MALONE: I refer firstly to paragraph 2 of this letter and I will read it:

PN91

Firstly I do not believe that the institute has ignored the direction of the Commission in implementing the above policy. It is my understanding that the Commission required the parties to meet prior to the conciliation conference due on 20 March 2002 to clarify the points of difference and produce a joint document detailing those differences. It has always been the institute's intention to meet with Mr Malone to discuss these differences and to that end I have asked him to contact me to arrange a suitable time. Copy of letter sent to Mr Malone attached.

PN92

And then paragraph 7, which is the third last one on the second page:

PN93

The institute recognises that the implementation of this policy will not resolve the entire casual employment dispute as there is still the issue of how to deal with casuals who work for less than 10 hours per week. This issue will, as agreed, remain the subject of ongoing discussions with the AEU. However, the policy will deal with staff working a regular number of hours per week and ensure that they receive appropriate remuneration and entitlements to reflect the true nature of their employment.

PN94

Now, Commissioner, my understanding of conciliation is indeed for the parties to negotiate over what are the appropriate remuneration and entitlements of the teachers subject to this case. What this letter actually says is that the CIT had made their decision about what the appropriate entitlements are. There has been no negotiation through the auspices of this Commission over it, even though they indicated they would on the 20 March. And now they seem to indicate that the only issue that they will actually discuss are about casuals who work less than 10 hours per week.

PN95

That, Commissioner, with respect, is not the purpose of the conciliation. What the institute have basically done is said, "We have our view, you have your view. Our view is the correct and appropriate remuneration and entitlements and we'll implement it." The union disputes that and we will go through in detail exactly why. This letter, particularly those two paragraphs, really beg the question over what it is that the institute is now really prepared to conciliate about. Paragraph 3 of the letter states:

PN96

In relation to the implementation of the engagement of teaching staff policy the institute has recognised through the course of our ongoing discussions with the AEU that the casualisation of the institute's workforce was having an adverse impact on business operations.

PN97

Now, Commissioner, it is heartening that after many years of discussion, debate, the institute is recognising that the usage of casuals within the CIT is inappropriate, and we agree with that principle. However, we are in disagreement over what the best solution is and those issues were to have been negotiated, discussed as part of the conciliation process. Paragraph 5 of this letter states:

PN98

I believe that Mr Malone's objection to the implementation of this policy relates to the capping of casual employment to an average of 10 hours per week rather than capping the number of hours a casual employee can perform. The intention of the institute is to offer those hours under a more regular employment arrangement being either permanent or temporary. Given that this is supposedly what the union has been seeking I am disappointed that the AEU has raised this objection to the implementation of this policy.

PN99

Again, Commissioner, there were many issues over which the position of the union and the position of CIT differed and they were summarised in brief on 8 January before Senior Deputy President Duncan. We certainly wish to improve the employment practices with regard to casual teachers within CIT, but we are in disagreement over the method. And that should be properly a matter of conciliation, but if the CIT is in fact saying it does not wish to conciliate on the dispute then it is properly a matter to be arbitrated before this Commission and a decision made based on evidence presented by both parties.

PN100

That is not the purpose of today's hearing. That is a matter that should occur at some point further down the track.

PN101

So, really it begs the question then, "What is today's hearing about?" and, "What is the AEU seeking?" As in accordance with section 111(1)(b) of the Act the AEU is seeking an order that CIT rescind the new engagement of teaching staff policy immediately, and that the status quo employment arrangements remain in place until such time as this dispute is resolved by conciliation or arbitration.

PN102

The union submits that an order of this nature is within the power of the Commission and will permit the conciliation and/or the arbitration process to continue on a proper basis. Today's hearing is not about a substantive hearing of the party's respective positions about their claims, but it is about the Commission deciding if it is fair and reasonable for the Institute to implement its position unilaterally while the parties are meant to be involved in genuine conciliation. One other possible avenue of power that the Commission may see fit to use on this matter resides in section 127 of the Act.

PN103

The union submits that under the definition of industrial action provided in section 4 of the Act given the context of this dispute that the implementation of this policy is indeed industrial action being undertaken by the employer in order to further its position in the negotiations. While we have not formally made an application under section 127 for an order to - for the industrial action to cease I note that section 127(2) of the Act permits the Industrial Commission to make an order on its own motion to direct that the industrial action stop.

PN104

Given that that is what the union is seeking obviously it is incumbent on us to explain why such an order should be granted. Firstly, CIT's implementation of this new policy makes a mockery of any real intent to conciliate and prejudices those negotiations entirely in the employer's favour. I would like to pass forward a document which compares the position of AEU and CIT positions on 13 December and 4 February 2002.

PN105

THE COMMISSIONER: So, this is just a table prepared by you, Mr Malone?

PN106

MR MALONE: That is correct.

PN107

THE COMMISSIONER: So, it may not necessarily be accepted by the CIT that it - - -

PN108

MR MALONE: That is correct, yes.

PN109

THE COMMISSIONER: Right. That is all right, so long as we understand what it is that we have. AEU5.

EXHIBIT #AEU5 AEU AND CIT POSITIONS ON 13/12/01 AND 04/02/02

PN110

MR MALONE: All this table does attempt to do, and granted one can always make errors in judgment about it, but it is really just to in a succinct form place what the AEU is seeking compared with what CIT have now implemented.

PN111

THE COMMISSIONER: Well, the first document - the first table or column with the numbers in it, is that - that is what you are seeking - - -

PN112

MR MALONE: That is right.

PN113

THE COMMISSIONER: - - - not what is currently there? So, it is - the numbers are something - - -

PN114

MR MALONE: The AEU claim is based on the award variation.

PN115

THE COMMISSIONER: Right. An award variation?

PN116

MR MALONE: Yes. And that numbering is in relation to the award.

PN117

THE COMMISSIONER: Yes, go ahead, Mr Malone.

PN118

MR MALONE: Firstly, I will not attempt to talk to all of this document, but I will talk to the significant points. Firstly, 14.3.3 at the bottom of page 1. What the union claim seeks is that those casual teachers who choose to seek a more secure form of employment within CIT after meeting certain criteria and those criteria go to 14.3.4 which is once they have been employed for a total of 432 daylight equivalent teaching hours and as stated there. We have one proposal which allows people if you like to opt in once they meet certain criteria. CIT's proposal on the other hand has just said, the Institute will not employ any casual staff for more than an average of 10 teaching hours per week except in exceptional circumstances.

PN119

Now, I am not here today to argue the position of either case. What I am here to say is, that is a very substantial point of difference between the parties. It is one which I excepted to be negotiating with the Institute about under the auspices of this Commission on 20 March. I did not expect that in the interim the Institute would merely implement its position.

PN120

I turn also to 14.3.6. This is an issue that the union has sought in terms of gaining some further security for casual teachers in terms of being permitted a break in service for certain purposes. That is not addressed at all in the CIT policy, and it begs a question, "Does it now mean that CIT is prepared to negotiate about that or not?" "Are they only prepared to negotiate about that in regard to casual teachers who work under 10 hours a week?" If that is the case that is again not our position and we would have expected the right to present evidence to this Commission appropriately or in conciliation to attempt to reach an alternative arrangement.

PN121

14.3.7, our claim is about the right of on-going casual teachers who are in fact not casual by any true definition of the word but who have on-going work with the CIT over a reasonable period of time, and that once they meet certain criteria they have the right to request conversion to permanency. We wish to negotiate an entitlement. The management have in their policy conferred it as essentially discretionary powers as it currently is for the CIT.

PN122

Now, again, does that mean that issue is off the table? We are not - they are not going to negotiate that. I do not know, but certainly the implication of their policy is very clear. They have a different view. They have held that consistently and they - I cannot see where there is room for further negotiation given their implementation of that view.

PN123

14.3.10, that claim of the union deals with the existing long-term casual teachers within CIT who have already worked regularly within the Institute for a number of years whom we say should be - need to be addressed and need to be - they need an adequate industrial solution to their circumstance. It is not addressed in CIT's policy. Their position it would appear that there is no need to do so, and again I ask the question, "Are they intending to negotiate that further or not?" But even if - that question aside, again this is an issue of very great substance. It is an issue that should be if we remain in dispute after conciliation the subject of evidence before this Commission. It is not something which should be pre-empted by the unilateral action of the employer.

PN124

Clause 18, the casual hourly rates. The union has sought a revision of the load - the calculation, the formula for the calculation of the hourly rate within the award. Originally CIT had put up an alternative formula and now their policy implements something without any reference other than what is stated there. Now, again, it is an issue which remains in dispute. It is an issue that has been part of the dispute before you today, and one which we expected to be discussing in conciliation on 20 March.

PN125

One global difference which again is a matter of evidence and substantial argument is that CIT by doing this are implementing it purely as a management prerogative. Our fundamental aim has been to secure an award safety net protection on this issue, and that the actions of the Institute completely pre-empt that issue.

PN126

So, to summarise that section of the argument. What we are saying is, we understood in January that we were entering into a conciliation process on 20 March which would discuss all of the issues in dispute and that we would attempt to negotiate them in good faith, and if we failed then the parties would have a fair opportunity to present their cases before this Commission. The actions of the CIT in implementing its position prior to that process occurring in our view is completely pre-emptive, but equally, it is unfair to that process. And if not a breach of the letter of the directive by Senior Deputy President Duncan, it is certainly a breach in spirit of that directive.

PN127

Another reason that I would suggest that the order the union is seeking should be granted is that there are some issues in their policy concerning temporary employment and the outside employment policy which we say are in conflict with the Public Sector Management Act or, if not in conflict, go beyond what is required within that Act and should again be the subject of negotiation because in our view they have negative impacts.

PN128

I refer to AEU3 and page 2 of the attached document. At the top it says:

PN129

Temporary employment should be used where -

PN130

and three dot points. Under section 106 of the Public Sector Management Act it states, the Power to Engage Employees heading, it states:

PN131

Subject to subsection 2, a Chief Executive of an Admin Unit may engage a person for temporary employment where he or she is satisfied (a) that there is no officer available in the service with the expertise...

PN132

PN133

etcetera, or:

PN134

That assistance of a temporary nature is required for the performance of urgent or specialised work in that unit.

PN135

I can provide, just for reference if you like, Commissioner, a copy of that. That, Commissioner, is the power under which temporary employees may be permitted. There is no reference in that to, temporary employment should be used where programs are funded under competitive tendering. There is no reference in that to, temporary employment should be used where reductions in funding, perhaps, or a change in a school mix is referred but not the reduction in funding.

PN136

What I am suggesting, Commissioner, is that there is an issue which again should be discussed between the parties and if necessary formally determined as to whether or not this policy is actually in conflict with the provisions of the Public Sector Management Act and if so, whether it should be changed. I am again not here to prevent detailed argument on that point but I am saying, it is a point and it is something that the parties should be considering.

PN137

Secondly, in the CIT policy of point 2, where it says:

PN138

There are two forms of employment and managers need to carefully consider their operational requirements before deciding to offer short term employment, one category, long term employment work is temporary in nature and will not exceed a period of greater than five years.

PN139

Now, section 108 of the Public Sector Management Act which is in the same sheet I just passed forward states that, yes, in section 108(1):

PN140

Subject to subsection 2 a person may be engaged for a fixed term to perform the duties of a position having an existing classification for a period not exceeding five years.

PN141

Subsection 2 then says:

PN142

A person shall not be engaged under subsection 1 to perform the duties of a position for a period of 12 months or longer unless the principal relevant staff organisation in relation to that position has been consulted in connection with the temporary employment of the persons for a fixed term in that position.

PN143

Now, there is nothing in the CIT's policy which makes any reference to the point 108(2), that they are to actually seek consultation with the union for contracts beyond five years. Again, that is something which needs to be considered by the parties and it needs to be properly conciliated and/or arbitrated if necessary.

PN144

Finally, Commissioner, on this element I would also refer to section 244 of the Public Sector Management Act. Section 244 of the Act refers to second jobs. An officer basically must seek approval in order to gain extra work but it is specifically an officer and an officer within the Act is defined as a permanent employee and it does not apply to temporary employees who are defined as both contract and casual. That point is specifically confirmed under the Public Sector Management Standards which are also attached to the document that I just handed up, which, under part 2, Conflict of Interest, indicate, section 244 under paragraph 1, Application.

PN145

Section 244 of the Act which provides the legal requirement to obtain prior approval before commencing a second job applies only to officers, not employees.

PN146

Now, I refer to the CIT Policy which is on page 3 and under the heading, Staff Selection and Allocation of Work, paragraph 3, it states:

PN147

All staff are required to comply with the Institute's outside employment policy.

PN148

And by that, I take it to mean that temporaries and casuals will all be required to seek permission for an outside job.

PN149

THE COMMISSIONER: Is that the Institute's Outside Employment Policy, is it?

PN150

MR MALONE: Yes.

PN151

THE COMMISSIONER: Permission has to be sought?

PN152

MR MALONE: Yes. They can correct it if I am wrong - - -

PN153

THE COMMISSIONER: Go on.

PN154

MR MALONE: - - - but that is how I understand it, yes.

PN155

THE COMMISSIONER: All right, go ahead.

PN156

MR MALONE: Now, that is an issue which has been also in dispute for some time. I will provide copies of correspondence between the Institute and the AEU, a series of letters from 30 October 2001, 5 November 2001, 19 November 2001 and 23 November 2001 dealing with this particular issue.

PN157

THE COMMISSIONER: I mark those AEU6.

EXHIBIT #AEU6 COPIES OF CORRESPONDENCE BETWEEN THE INSTITUTE AND THE AEU DATED 30/10/01, 5/11/01, 19/11/01 AND 23/11/01

PN158

MR MALONE: Now, Commissioner, to cut a long story short, we say that because of the Act, casuals and temporaries should not be required to seek formal approval for a second job. The Institute has consistently maintained, at least since November - October, when we raised it formally, that while the Act - that they would see the Act as a minimum application so that they can add to it to make it apply, if they wish, to other employees. Now, that may be a poor summary, I am sure they will correct me if I am wrong. But basically they view it as the prerogative of CIT to apply that policy on outside employment to all staff because it is in the interests, in their view, of the good management for CIT.

PN159

Now, again, today, I am not here to debate that issue but what I am here to say is a substantive issue and it is an issue which should not be permitted to just occur without, again, the parties talking about it, conciliating it and if necessary having the opportunity to put formal argument to you. Another reason why I believe the order that the union is seeking should be granted is, this issue has been ongoing since at least '93 but if we are generous, since 2000.

PN160

One has to ask why the rush now for CIT to implement this policy when it knows we are in dispute over many elements of it. Why do it when we are just about to enter into formal conciliation about it. They can only answer that. I unfortunately can only see it from our perspective, that it will severely undermine our position within those negotiations and it advantages them. It is a real issue, it is one we have been pushing and we want it addressed but we want it addressed properly.

PN161

Finally, Commissioner, the fourth reason that I submit the union order should be granted is that the implementation of this new policy is already creating problems and it is likely to cause greater industrial disputation. Now, Commissioner, on this point, I have a witness, Mr Graham Jansen who has prepared an affidavit. Unfortunately, given the circumstances, I have not been able to provide a copy of that affidavit to the CIT. Given the nature of this hearing, I believe it is important that this evidence be given but I am at your - and I believe the CIT would like to comment on that point.

PN162

THE COMMISSIONER: Mr Worthy.

PN163

MR WORTHY: Commissioner, I only found out this morning just before this hearing started that the union intended to bring a witness and it has been mentioned that we have not seen this affidavit and on those grounds I have reservations about whether the witness should be allowed to participate in these proceedings.

PN164

My other concern is that I feel that Mr Malone has strayed well beyond the scope of the dispute matter that is before the Commission and is now talking about issues of administration, of various policies and practices associated with the engagement and deployment of people in the Institute. They are not part of the claim nor the dispute that is before Senior Deputy President Duncan and for those reasons I object to these proceedings being taken off on a tangent and the use of a witness which we have no prior knowledge or awareness of.

PN165

THE COMMISSIONER: Mr Worthy. Mr Malone, have you yet given a copy of the affidavit to Mr Worthy?

PN166

MR MALONE: No, Commissioner.

PN167

THE COMMISSIONER: All right. Well, let us hold off on that till we see what Mr Worthy's and the CIT's attitude is to the entire matter before us and if I feel additional evidence is necessary for me to decide what I am going to do, then we will come back to the matter.

PN168

MR MALONE: In relation to that, then, Commissioner, all I would say that if the affidavit is enough, simply is then I would seek to simply make some further submissions.

PN169

THE COMMISSIONER: Mr Worthy.

PN170

MR WORTHY: Thank you, Commissioner. Mr Malone gave you a brief background to the matters that are currently before the Commission, the history of discussions over the past 12 months aimed at addressing this issue of the levels of casual employment within the Institute. Much of discussions during last year and certainly the subject of proceedings before the Senior Deputy President in March last year was to address individual cases or concerns, and the parties worked through those and dealt with them with the intent that they would then move on and address this longer term issue of casualisation of the workforce.

PN171

Discussions shifted to that longer term issue in the latter part of last year and one of the outcomes of that was the union putting to the Institute a specific award claim and that was done - that was apparently provided to the Institute in June of last year and this is confirmed in a letter of Mr Malone to the Institute dated 4 December.

PN172

This specific award claim that the union is in fact identified in the left hand column of the table provided in AEU5 by the union and as Mr Malone has outlined, these matters are now the subject of proceedings before Senior President Duncan with formal conciliation to occur on 20 March with the parties to undertake the task of documenting and detailing their points of difference prior to that date, so that that would provide a basis for the conciliation and perhaps arbitration if that was needed at some point.

PN173

Mr Malone has indicated that one of the basic points of agreement that the parties have between them in addressing this issue is that the level of casualisation, if you like, of the CIT teaching workforce needs to be reduced. That is a common point between them. The union is seeking an award based solution, as mentioned by Mr Malone, by establishing a new safety net entitlement for casuals to convert in their claim to permanent employment in certain circumstances. That approach is based on the standard or the arrangements introduced by the Full Bench in the Metal Industry Award in 2000.

PN174

The award variation sought by the union does not go to issues about the types of employment contracts, or the proportion of each type of contract in the CIT's overall workforce. It goes to what might be future award based rights for those people who are employed as casuals in certain circumstances.

PN175

Now, the CIT's policy approach, Commissioner, is outlined in general terms in Mr O'Leary's letter to the Senior Deputy President and I believe a copy to yourself prior to today's proceedings, and I do not believe that has been tabled by Mr Malone in his exhibits as we would cross over here.

PN176

THE COMMISSIONER: I think it was - AEU4?

PN177

MR WORTHY: I am sorry, it is. It is in AEU4.

PN178

THE COMMISSIONER: Yes.

PN179

MR WORTHY: There was also the letter from Mr O'Leary to the union which was dated 1 February, which sets out the Institute's policy approach, to which is attached a copy of the policy itself and the explanatory guidelines.

PN180

THE COMMISSIONER: That is also attached to the letter to SDP Duncan?

PN181

MR WORTHY: It is, Commissioner. What I would like to do is to table this letter to Mr Malone with the attachments which, although they might duplicate some of what Mr Malone has already put forward as an exhibit in its own right.

PN182

THE COMMISSIONER: Right. All right, thank you. Do you want them marked separately, Mr Worthy?

PN183

MR WORTHY: I think it would help, Commissioner.

PN184

THE COMMISSIONER: Yes, the letter encloses two other documents, so we will make it CIT1.

EXHIBIT #CIT1 LETTER FROM MR O'LEARY TO MR MALONE WITH ATTACHMENTS

PN185

MR WORTHY: Commissioner, in the main, the policy issued by the Institute requires an increased discipline and rigour, if you like, for managers in deciding their requirements for different types of employment under the Public Sector Management Act and also in accordance with provisions underneath the - made underneath the CIT legislation. Just briefly, as Mr Malone has touched on the employment options that are available under the Public Sector Management Act are permanent employment of a full or part time nature, temporary employment for fixed term periods, or casual employment, and it is for agencies to determine their requirements according to operational circumstance and need.

PN186

Permanent employment, under the Public Service legislation requires appointment to an office and that can only be made on the basis of a mandatory open merit selection process and it is within these parameters, as I have indicated, that the number of staff engaged in different categories of an agency, including the CIT, are determined as matters according to operational requirements.

PN187

The effect of this policy as it has been now presented and put out, on casual employment in the Institute, is summarised in Mr O'Leary's letter to Mr Malone, which is CIT1. Firstly, the casual employment is not to be used where more than 10 teaching hours per week is required. Where more than 10 teaching hours per week is required, then the employment to be offered should be offered on a permanent or fixed term basis, with some scope for the relevant Dean to approve casual employment contracts involving more than 10 hours if the periods of employment would be for one semester or less over the year, or where there were exceptional circumstances and the employment was to continue for more than one semester in the year. So there is some latitude to deal with things on a case by case basis.

PN188

Now, for the basic problem, if you like, that the Institute is trying to resolve in this approach is to reduce the level of casualisation that exists in the workforce, an aim which is shared in a policy sense with the union. The Institute has recognised that the level of casualisation as it presently stands is having an adverse impact on its business operations and the aim of this policy is to seek to arrest that and put in place some basis, some benchmark, which would require managers to think carefully, more carefully, about the type of employment they need.

PN189

In addition, the Institute has provided an additional budget funding of $800,000 to assist Faculties with the increased cost of offering permanent and temporary employment contracts, instead of casual employment. In short, Commissioner, some of the differences that you would find between casual teaching contracts and fixed term employment are that casual contracts are for teaching specific classes on a weekly basis. There is no duty statement attached to it, as I understand. Of course, there is a loading of some kind in lieu of leave entitlements whereas permanent or fixed term teachers are engaged against duty statements.

PN190

They are required to teach an average number of hours that is not limited to specific classes and, of course, they are entitled to paid leave, but there are other elements that come with that form of employment, such as non-teaching time and when you look at the effects of converting casual employment into permanent or fixed term temporary employment, you would find that there is no disadvantage to an employee who was offered and accepts that type of employment contract.

PN191

In fact, you would find that there would be additional salary up to around 35 per cent that might be associated with converting from casual to fixed term or permanent employment. Of course, a teacher who accepts a permanent or fixed term employment contract is also, because of the changes in the nature of the employment, is able to assist with broader educational tasks within the Institute, so there are no disadvantages to the employees. In fact, it could be argued, Commissioner, that there are financial advantages and there are also efficiency and operational advantages to the Institute.

PN192

So, the policy and administrative changes that have been put in place require simply a more rigorous approach to determining an appropriate use of the employment options for the Institute's requirements in the coming year. They reduce the inappropriate use of casual teacher employment and, as a policy response, it is an holistic one. It is not a piecemeal approach because to deal with changes in casual employment also requires consideration of changes that may be needed in permanent or fixed term employment arrangements.

PN193

As I understand it, Commissioner, the union has previously acknowledged in discussions with the Institute that it can exercise management prerogative to decide its workforce structure and using the employment options that are available to it under legislation. And, as I understand it, that acknowledgment was conveyed in the course of discussions on 12 and 17 December.

PN194

Now, in the documentation that has been provided to the Commission and to the union, the Institute has made clear that it does not recognise that implementation of this policy resolves the entire casual employment issue. The Institute will still require casual teachers and whether those who are engaged on a regular or systematic basis over some period of time, should or should not have the right or opportunity to move into more permanent employment, is the matter that is before the Commission and the conciliation or arbitration proceedings that might flow from the proceedings before the Senior Deputy President.

PN195

So, there is no prejudice to the AEU's application, in our view. The CIT's revised policy approach to determining a more appropriate mix of employment types which, as I have said, is aimed at reducing the overall levels of casual employment, does not prejudice or pre-empt the union's application for an award variation, but deals with the future rights of those who would be employed as casual workers.

PN196

As I stated, there is no disadvantage to the affected staff. An order sought in the form by the union to rescind its new policy would, in effect, require the Commission to intervene in arrangements that are well established under the Public Sector Management Act and CIT legislation but, in broad terms, under the Public Sector Management Act and that these apply generally across the ACT Government service.

PN197

They are matters which are within the management prerogative to decide on a year to year basis, which is the practice, the status quo if you like, to determine its employment requirements according to operational needs. The CIT policy in fact is practical application to requirements as I mentioned of the act and associated policy guidelines that apply across the service so an order of this kind presumably would mean that pre-existing policies and practices should apply for an indefinite period.

PN198

At face value it would seem to require the CIT to cease using a benchmark of some kind, in this instance ten hours per week, of teaching requirement in order to make decisions about whether to offer casual or fixed term employment recognising again that under the policy arrangement casual employment contracts of more than ten hours are not prevented, only that they be justified according to operational requirements and the availability of qualified people for particular casual teaching jobs.

PN199

Prima facie, Commissioner, such an order would have the effect of requiring existing unacceptable high levels of casual employment to continue so it raises a number of questions. Would it require the CIT to employ people in casual or temporary employment in the same proportion as in previous years and therefore interfere with its right to determine its employment requirements based on efficiency, would it have any practical effect unless it determined the grounds upon which the institute must decide its requirements for different kinds of employment, would it require the institute to rescind offers of fixed term employment that are accepted by people.

PN200

Further, Commissioner, it should not be expected that determination of the union's claim for an award variation and in fact the overall settlement of this casual employment issue is one that shall happen quickly and it was acknowledged by the Senior Deputy President in the video conference in January that this was a complex issue. It was even noted in passing, if you like Commissioner, that there may be wider implications for the tertiary sector as a whole.

PN201

It is also noted in the hearing that since the union seeks a change to the safety net standard of the award some special case may need to be run and that there may also be threshold issues about the allowability of some aspects of the award variation that it seeks. If that was found to be the case, Commissioner then full resolution of this issue may require some element of award variation coupled with changes to the current certified agreement of the institute. Given the specific nature of the claim for an award variation to establish rights for people who are employed as casuals on a regular and systematic basis, given that that is the union's claim before the Commission that is the claim that is being dealt with in the conciliation and arbitration proceedings.

PN202

We would submit that the institute's policy decision - a guide to decisions about the types of employment that it will require or utilise for the coming year. There is not pre-emptal prejudice in any of the discussions that would take place prior to conciliation or matters that might be addressed during conciliation nor in fact any arbitration that might follow. Mr Malone has raised what he believes to be a number of concerns about the policy approach in light of provisions within the Public Service Act - it is probably the Public Sector Management Act.

PN203

He has raised issues about some difficulties that implementing this policy might involve in an administrative sense and alluded to the fact that - well, made the statement that this may lead to some future industrial problems and in that context has a witness at hand who is involved in the proceedings here this morning to make some statement. I believe those issues, as I indicated earlier, Commissioner, are well and truly outside the parameters of the dispute matter that is currently before the Senior Deputy President. If Mr Malone has concerns about those then they need to be addressed as a separate issue.

PN204

On those grounds, Commissioner, we would suggest that no order needs to be made as sought by the union. This issue about whether or not such an action is industrial action of a kind contemplated under section 127 of the act - well, I would refute that it is industrial action. It is the exercise of a management prerogative. Whether the union has a view that that has been exercised to its disadvantage or advantage, I think, is another thing and in summary would simply indicate that there is no need for an order or, if there was one in the form sought by the union, it raises problems and may not necessarily address the fundamental issue that the union has concerns about.

PN205

THE COMMISSIONER: Thank you, Mr Worthy. Mr Malone?

PN206

MR MALONE: Thank you, Commissioner. There are a number of points obviously were raised by Mr Worthy. I would start first with the comments about the nature of the dispute and linking that with possible evidence of Mr Jansen. As I pointed out particularly through exhibit AEU 5 - it was not an exhibit, Commissioner, but a table.

PN207

THE COMMISSIONER: A table, yes. It is an exhibit.

PN208
MR MALONE: Yes. The issues which are subject to the dispute before Senior Deputy President Duncan are effected and include the issues being implemented by CIT through its new policy. I find it unsustainable to suggest that somehow they are different. Clearly what we were seeking and what they are implementing are part of that dispute. On the original transcript of the hearing of 8 March 2001, at PN37, his Honour summarises the circumstances of the party and he notes that the dispute involving individuals is settled by the acceptance subject to certain conditions by the AEU and further I understand the institute accepts those conditions.

PN209
At PN14, the last sentence at the bottom of the page, I state the fourth condition is that the parties will continue to negotiate an agreement on the engagement of teaching staff including casuals. It has always been clear, both from transcript and documents etcetera, that the engagement of teaching staff including the casuals is part of this dispute. The actions of CIT in implementing its policy are tantamount or integral to that dispute. We are not going outside any parameters.

PN210

Secondly, CIT argued that the policy itself was acceptable - well, had latitude in the policy providing additional money. There was no disadvantage to employees. That, Commissioner, brings me to the evidence of Mr Jansen. It is precisely on that point that Mr Jansen's evidence goes. He is a band 2 teacher, has responsibility for implementing this policy and his evidence will go to comments about the efficacy or appropriateness of implementing that policy as a manager involved in doing so. I could see two ways of proceeding with that. I could simply make the submissions - - -

PN211

THE COMMISSIONER: I think perhaps what you will do is give Mr Worthy a copy of the affidavit. I will adjourn for five minutes - how long is it? I know how long five minutes is, Mr Malone, I want to know how long the affidavit is.

PN212

MR MALONE: I am sorry.

PN213

THE COMMISSIONER: A couple of pages?

PN214

MR MALONE: Five.

PN215

THE COMMISSIONER: Well, give it to Mr Worthy and I will adjourn for five minutes. Mr Worthy, you take some instructions whether you oppose the evidence and when we come back I might look at it depending on what you have got to say. We will adjourn.

SHORT ADJOURNMENT [11.15am]

RESUMED [11.26am]

PN216

THE COMMISSIONER: Mr Worthy?

PN217

MR WORTHY: Commissioner, having had a look at the statement that is being supplied by the union I have to report back that there is no change in the position that we take, that it is beyond the scope of the specific matters that are before the Commission. It is concerned with matters that go to the administration of a policy and its effects on managers, concerns that managers might have and the like. If it was to be admitted, Commissioner, I would - and in some respects it does not perhaps - it elaborates a bit on some of the matters which Mr Malone has raised which I claim are outside the scope of the matters that are before the Commission in this instance, but if it was admitted, Commissioner, I would request some time to consider it properly and perhaps respond in writing.

PN218

THE COMMISSIONER: All right. Thank you, Mr Worthy. Before we bother about whether or not that particular affidavit is going to be admitted into evidence, Mr Worthy, can you tell me if the CIT were so close to promulgating this policy, which I gather they must have been if it was all ready to go at the end of January, why wasn't Senior Deputy President Duncan told this on 8 January in the conference?

PN219

MR WORTHY: Commissioner, I am not sure exactly where the management process was at that point, but that was a short video conference which focussed itself on the union's application to vary the award and the terms of that award and the issues that need to be dealt with. So, the focus was purely on that issue about the award application and it did not go to any broader aspects of employment practice or employment policy that may have been mentioned in the very early but short proceedings of March last year.

PN220

THE COMMISSIONER: It seems from the transcript, Mr Worthy that Mr Malone said at one stage in answer to a question about the way his suggested award provision would work, a question from the Senior Deputy President, it says:

PN221

It's my understanding, and I'm sure they'd correct it if I'm wrong, the proposal would actually prevent, that you are not permitted, the managers in CIT would not be permitted to employ a casual teacher for longer than 10 hours per week.

PN222

Now, nothing was said, as I understand it, to say, well, we intend to do that anyway.

PN223

MR WORTHY: Not on that day, Commissioner.

PN224

THE COMMISSIONER: No.

PN225

MR WORTHY: I mean, I did mention that in the discussions between the parties in December, which were the run-up to that, that point was discussed, it was acknowledged that management does have not only prerogative, perhaps a responsibility to determine its employment needs on a year to year basis.

PN226

THE COMMISSIONER: Well, it just seems to me that had SDP Duncan been told that some aspects of matters that were certainly impacting on whatever the union were after were going to be implemented in any case by the CIT at the end of January he may have listed the matter for before 20 March.

PN227

MR WORTHY: He may have, Commissioner.

PN228

THE COMMISSIONER: Yes.

PN229

MR WORTHY: But in part that timing was also determined by leave.

PN230

THE COMMISSIONER: Is it not - I mean, are not the CIT about to start teaching?

PN231

MR WORTHY: I have just been advised, Commissioner, that in fact there was no decision as at 8 January to proceed to do - - -

PN232

THE COMMISSIONER: So, the decision with the - the policy was developed from scratch since 8 January.

PN233

MR WORTHY: No, Commissioner.

PN234

THE COMMISSIONER: No.

PN235

MR WORTHY: But the concept, if you like, was part of on-going discussions.

PN236

THE COMMISSIONER: I see.

PN237

MR WORTHY: But the focus - - -

PN238

THE COMMISSIONER: But as at 8 January the CIT had not taken the decision that they were going to implement this new policy prior to this semester's teaching commencing.

PN239

MR WORTHY: As I understand it - no, we had not.

PN240

THE COMMISSIONER: We had not?

PN241

MR WORTHY: No, Commissioner.

PN242

THE COMMISSIONER: Where did you get the money? From the budget? That was quick, was it not? The extra money that you got.

PN243

MR O'LEARY: Yes, may I speak?

PN244

THE COMMISSIONER: Yes.

PN245

MR O'LEARY: Haydon O'Leary. What actually happened is in the lead-up to last year when we made the proposal to the union we had worked out a mechanism for adjusting the budget to set that money aside. I had a discussion with the Director about the financial arrangements. The Director was on leave from just before Christmas until 18 January. After 8 January I developed a particular policy, took a proposal to the Director's Advisory Committee, and then waited until the return of the Director on 18th and asked him whether he wanted to go ahead with that policy or whether he just wanted to set the whole issue aside, and he said at that stage, given that we had worked out how to make the adjustments to the budget that we should go ahead.

PN246

THE COMMISSIONER: Then it comes back to my other question. Are you not about to commence your next semester's teaching?

PN247

MR O'LEARY: Absolutely.

PN248

THE COMMISSIONER: When is that to start?

PN249

MR O'LEARY: On the 11th.

PN250

THE COMMISSIONER: Of February?

PN251

MR O'LEARY: Yes. But many - - -

PN252

THE COMMISSIONER: So, have you not - - -

PN253

MR O'LEARY: - - - faculties do not start until the 18th.

PN254

THE COMMISSIONER: All right. But how can you get teachers under different employment arrangements between now and 11 or 18 February if you are going to make them permanent or temporary instead of casual when it has to be advertised and done on a merit system?

PN255

MR O'LEARY: No, under the arrangements which we have you can make short-term appointments up to a year off a temporary register. We already maintain temporary registers for the appointment of casuals. We have adjusted the delegations arrangements so that we actually believe that the appointment processes for putting somebody on for a one semester period will actually require less administrative issues than to put people on as a casual, because to put them on as a casual they have to be employed against individual classes. All of this action has to occur during this period anyway. The arrangement now is they can employ people for a block of time rather than having to employ them against individual classes.

PN256

THE COMMISSIONER: I see.

PN257

MR O'LEARY: So, there needs to be no advertising. There have already been advertisements for the casual register which has to be maintained under the present arrangements.

PN258

THE COMMISSIONER: And you can make temporary employments from the casual register?

PN259

MR O'LEARY: For up to a period of a year.

PN260

THE COMMISSIONER: And how long have you been able to do that?

PN261

MR O'LEARY: For some period of time. We have never - we have used it for administrative staff. I have never appreciated that it could actually be done for teaching staff.

PN262

THE COMMISSIONER: Right.

PN263

MR O'LEARY: Because as an ex Head of Department myself I am just so used to the way we always did it.

PN264

THE COMMISSIONER: The problem I have is, I do not wish to get involved in this dispute. I want the matter to go back to SDP Duncan. I am reluctant, however, to allow what appears to be a new policy which will impact and which by the CIT's own admission has a major effect on the dispute between the union and the CIT about the employment of casuals. And then it says, "Obviously, this decision by the Institute will have a major impact on our discussions surrounding the employment of casual teachers," and that is my problem.

PN265

I do not believe in Senior Deputy President Duncan's absence that anything should happen, and considering he is back next week I cannot see the problem with me just saying - not saying, rescind the policy, take no action. You can line up your teachers. You can do what you like, ready to offer them one or other type of employment. Preferably if - if you want to offer them employment and they have in - in the position in the past has been of a casual nature, offer them casual employment because obviously that can be changed at a moment's notice. SDP Duncan will be back on 14 February. He can tell you to do something different then. He has a background in the dispute. I do not. He is on the panel that deals with education. I am not. I do not intend to get involved, deeply involved in an education dispute. Nor though do I intend to let something happen which could have an effect.

PN266

Now, at the moment I am not sure what effect it could have. I see a lot of merit in what the CIT say. It appears that all you are doing is offering more permanent types of employment, but I am not sufficiently across this dispute and do not wish to become that familiar with it, that I, as I said, would - if I am going to make any - if I was to do nothing about it I would have to get right across the dispute to make sure that I was not allowing something to happen. Unless you can give me some good reason, Mr Worthy, how a week's delay or slightly more than a week's delay - SDP Duncan is back on 14 February which is next Thursday. I will speak to him immediately he is back.

PN267

I am prepared to list this for Friday, and by that stage I can have his views or it will either be listed before me or before him on Friday, and I will lift what I am telling you now is a temporary direction to take no action of an irreversible nature. Now, in that I mean appoint nobody as other than a casual in the week period. You can appoint them for a week. You can appoint them as casuals. If you want to hold them you can tell them what you think might happen, but you cannot take any irreversible action in pursuit of this new policy between now and 15 February. The matter will be listed, as I said, before myself or before Senior Deputy President Duncan at 10 o'clock on 15 February. If it is before me it will be for the purpose of either setting you off in another direction having consulted with SDP Duncan or continuing or lifting the order if SDP Duncan - the direction if SDP Duncan tells me to do that. So, 10 o'clock.

PN268

Now, in the meantime if there is a dispute about whether action is to be taken by the CIT which would - the CIT's view does not offend my direction but if the AEU's view does offend my direction the matter is to be listed, to be notified to me, and it can be listed at very short notice, and if necessary I will make a one-by-one decision on each person to be engaged. I hope that does not happen because I think it is fairly straight-forward, and as I said you can employ people as casuals in the meantime to start your teaching program, just take no irreversible action before Friday of next week. I do not think that is unreasonable in these circumstances, particularly since these matters were not brought to SDP Duncan's notice in January.

PN269

I accept that the decision had not been taken, but it does seem that if the decision was not taken until just after 18 January it is being implemented in some haste when this matter has been going on for the last two years, and in those circumstances I am prepared to give this holding direction for just over a week until the person who has proper operation of this dispute is back. Now, is there any problem with that, Mr Worthy? If there is, if there is - take your instructions.

PN270

If the CIT believe that it is - in some way this direction is unworkable or is going to have effects which I may not have taken into account I will list the matter at a moment's notice on a notification from the CIT. All right? And we will be back here if necessary this afternoon, tomorrow, any day between now and when SDP Duncan returns to deal with any unexpected impacts that this direction may have.

PN271

Now, do I need to put this direction in writing? Yes, all right. As I said, Mr Worthy, if anything comes up when you have spoken to your people about it, I am willing to resume the hearing at a moment's notice. All right? All right, I will adjourn.

ADJOURNED UNTIL FRIDAY, 15 FEBRUARY 2002 [11.40am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AEU3 LETTER FROM AEU TO SDP DUNCAN DATED 31/1/02 PN87
EXHIBIT #AEU4 LETTER FROM CIT TO SDP DUNCAN DATED 4/2/02 PN90
EXHIBIT #AEU5 AEU AND CIT POSITIONS ON 13/12/01 AND 04/02/02 PN110
EXHIBIT #AEU6 COPIES OF CORRESPONDENCE BETWEEN THE INSTITUTE AND THE AEU DATED 30/10/01, 5/11/01, 19/11/01 AND 23/11/01 PN158
EXHIBIT #CIT1 LETTER FROM MR O'LEARY TO MR MALONE WITH ATTACHMENTS PN185