C2001/6536, Transcript of Proceedings [2002] AIRCTrans 608 (27 February 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 VT02487

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

C2001/6536
C2001/6628

ENTERPRISE BARGAINING AWARDS

Applications pursuant to section 111(1)(b)
of the Act by National Tertiary Education
Industry Union for making interim awards

MELBOURNE

10.00 AM, TUESDAY, 12 FEBRUARY 2002

PN1

MR R. THOMAS: I appear on behalf of the National Tertiary Education Industry Union.

PN2

MR G. SMITH: I seek leave to appear for Monash International Pty Limited. With me is MR O. SLATTERY from the Company.

PN3

THE DEPUTY PRESIDENT: Any objection to leave, Mr Thomas?

PN4

MR THOMAS: No, your Honour.

PN5

THE DEPUTY PRESIDENT: Leave is granted. Well, Mr Thomas, I am a bit confused by this paper-work, so perhaps you can throw some light upon it.

PN6

MR THOMAS: Thank you, your Honour. This before you is an application pursuant to 111(1)(b) of the Act as stated, application for a roping-in award for Monash International Pty Limited. Monash International Pty Limited is one of the commercial arms of Monash University who ostensibly have three broad groups of staff, one being ELICOS Language Teachers in which I believe a matter was addressed before you in C 2001/5051 in December where we made an application to rope them into the ELICOS Award.

PN7

The two other broad groups or categories of staff are the general staff, administrative staff, and then there are what are referred to as the college teachers who are engaged in ostensibly foundation studies which is part of the preparatory course for entry into full higher education. The two documents before you, the application for the roping-in to the Higher Education Workers Victoria Award, the purpose of that is to provide - underline award coverage for the general and administrative staff, and the HEWVIC Award, as it is referred to, obviously encompasses a lot of the old state-based awards in Victoria, and there are a multitude of instruments that lie underneath that, and in our paper-work we have referred to the University General Staff Award as being the most appropriate document.

PN8

One of the alternatives was what is referred to as the PACCT Award which is the old Professional Administrative Clerical Computing and Technical Employees Award which came from the State College sector, but we certainly see the University General Staff Award as the more appropriate one for this group of employees.

PN9

THE DEPUTY PRESIDENT: Sorry, Mr Thomas, that was just one of the points of confusion, and it was just a very brief look before coming into this hearing. The Universities General Staff Award in the brief that we had appears to be properly titled: The Higher Education General Staff Award which is a Victorian state award, or have I got another document?

PN10

MR THOMAS: I am trying to recall the precise name. We have not provided a copy of that award, it is behind - I mean the Higher Education Worker Victoria Interim Award is ostensibly a covering document, with all the old state awards sitting behind that, rolled up. From my understanding the name of the underlying award is the University General Staff Award. There is a date.

PN11

THE DEPUTY PRESIDENT: That I couldn't find, but did that ever become a federal award?

PN12

MR THOMAS: Yes. All the underlying awards were state-based awards, and then obviously with the political industrial situation in Victoria in the early 90s with the abolition of state awards, that were all picked up and rolled into what was known as the Higher Education Worker Victorian Interim Award which was a federally-registered award. The other broad group of employees at Monash International are what are referred to as the college teachers who do not teach in the English language program per se and certainly are not covered by the General Administrative Staff.

PN13

There is an application for a new award, and that would be known as the Monash University Teachers Agencies and Companies Award 2002. Monash University, like most universities in Australia these days, have a plethora of research arms, commercial entities and other various commercial offshoots, all concentrating on specific aspects of their business, but we certainly see if we are successful in establishing the creation of this award, we would see that then as an appropriate vehicle by which to underpin the terms and conditions of employment of the people who work in many of those arms and companies that aren't part of the university proper.

PN14

The terms are largely derived from a combination of the Victorian TAFE Teachers Award, some influence from the ELICOS and obviously the general staff awards as well, your Honour. That is roughly the purpose of and the difference between the two documents. Obviously the parties are the same.

PN15

THE DEPUTY PRESIDENT: Yes. The other point of confusion that I had was that, based upon what limited documentation was in front of me, it appeared that you were seeking both the consent award and a roping-in award for the same group of people.

PN16

MR THOMAS: Same respondent employer but for different categories of staff, which is why I referred to, obviously, the matter that was before you in December, one aspect of the process, and these are the following two groups of staff. As I said, the application is for those two. We are quite happy to take directions or instructions from the Commission as to how you want to proceed with these, whether you want to do one at a time or take them - we have had some preliminary discussions with Monash International.

PN17

They have put forward a without prejudice situation which we are more than comfortable in discussing. So whether or not the Commission feels we need to go through it formally or we can reach some understanding between the parties with the aid of the Commission, we are open to that, your Honour.

PN18

THE DEPUTY PRESIDENT: Well, let us deal with your submissions in respect of both, Mr Thomas, and then I will hear from Mr Smith in respect of both, and we can see where we go from there.

PN19

MR THOMAS: Thank you, your Honour. Well, perhaps if I start with the first document which is the application for the creation of a roping-in award which we would like to be known as the HEWVIC Interim Roping-in Award Number 1 2001. That would be binding upon the NTEIU and Monash International Pty Limited. The dispute which exists between Monash International Pty Limited and the NTEIU is C number 36541 of 1996.

PN20

The NTEIU has been engaged in discussions with both Monash University proper and Monash International Pty Limited on an off-and-on basis shall we say, your Honour, in relation to satisfactorily regulating the terms and conditions of the employees of Monash International. As referred to, the creation and growth of commercial arms of universities has presented the NTEIU and many of the employees in our industry with a few problems as to uncertainty over their terms and conditions, and then questions as they move out of the central university sector as to what instruments underpin the terms and conditions of their employment.

PN21

Many of these companies are stand-alone employees in their own legal right, although the parent institution may have a part or a complete controlling interest. In this instance Monash International Pty Limited is, we believe, wholly owned by Monash University, but as a separate employment entity the Company is not respondent to the awards that apply at Monash University, and whilst they are connected in and in association with higher education, we do acknowledge and appreciate that the type of work is not exactly the same as is performed within the university proper.

PN22

However, for staff who perform what are referred to as general staff, administrative staff, their work is very similar, there is very little difference, and we certainly see that there is a need to underpin their terms and conditions with an award base. There have been some preliminary discussions in relation to whether or not a process of enterprise bargaining can be entered into, and whilst that has not commenced in any way of substance - I mean obviously the objective at the end of this process would be to commence enterprise bargaining negotiations that would tailor the terms and conditions of employment to meet the requirements of both the employees in those companies and obviously the company itself.

PN23

So any required variations from the university proper could be dealt with quite adequately in that process, but nevertheless underneath enterprise bargaining there is a need for some of award safety net, and we believe quite obviously that the Higher Education Workers Victoria Interim Award with reference to the underlying University General Staff Award is the most appropriate document to provide the general and administrative staff of Monash International with that award, the safety net that underpins their terms and conditions.

PN24

THE DEPUTY PRESIDENT: Can you tell me whether the award that you are referring to has been through the simplification process at this time, Mr Thomas?

PN25

MR THOMAS: No, I think in the queue is the appropriate term, your Honour. Obviously there are a myriad of instruments regulating the employment and terms and conditions of general administrative staff across Australia. Outside the State of Victoria they have been covered by the HEGS case, which is the Higher Education General Staff - a long-running matter that has been before Senior Deputy President Duncan who has the matter, but for workers in Victoria who are covered by the HEWVIC Award that process has not commenced.

PN26

We all known it is a matter of time obviously, the HEGS matter, because it covered all the other states and Victoria took priority. So we expect the HEWVIC Award to commence upon that process some time in the near future. But one of the problems with that is that there are so many underlying state awards that were rolled into it, the logistics are fairly onerous, and the number of parties involved are broad as well because with so many different underlying awards the respondents are huge.

PN27

Now, whilst we are cognisant of that, I mean obviously that process will commence at some stage, and whatever the outcome of that process, then that will apply to Monash International Pty Limited. Now, whether or not the Commission has a view that that would preclude the making of this roping-in award or it could be done with the obvious situation being that Monash International Pty Limited then would be involved in that review process. But no, it hasn't actually commenced, but we are waiting.

PN28

THE DEPUTY PRESIDENT: Thank you, Mr Thomas. Continue.

PN29

MR THOMAS: In relation to the application for the roping-in to the HEWVIC and the general and administrative staff, that is ostensibly the broad outline of the situation. I mean as I said we have had discussions with the other party, but we have no further submission to make at this point on that matter.

PN30

THE DEPUTY PRESIDENT: I think while you are on your feet just continue with your submission in respect of the consent award, and then I will hear from Mr Smith.

PN31

MR THOMAS: The consent award: as mentioned, within Monash International Pty Limited there are a third broad group of employees, and they are referred to as the college teachers who teach foundation studies programs, who don't fit into the language teaching program, and certainly aren't part of the administrative set-up. They are not classified or regarded as academics in the professional sense within the higher education industry even though many do have significant academic qualifications and background.

PN32

But foundation studies are a growing sector; they are a part of our sector which aims to provide education service and support to a lot of students who come from overseas and enter into the Australian higher education system and require quite different teaching support from normal undergraduate students or those who don't have the cultural or language problems that come in. They too are a classification of staff who are award-free, again the objective being to pursue enterprise bargaining negotiations at an appropriate time in the future.

PN33

We would see that all these groups of staff would be picked up by, hopefully, a single agreement, or possibly a separate agreement with schedules. But again there is no underpinning award safety net to supplement their terms and conditions of employment. This group of staff tend to fall between the cracks of the existing awards in our industry which is why the application has been made for the creation of a new award that is specific to the agencies and companies of Monash.

PN34

As referred to, the items contained within that award are predominantly sourced from the Victorian TAFE Teachers Award, a state award, but the duties and classifications are - there is a bit of a parallel there, but that needs to be tailored slightly to awards higher education sector. So there is a little bit of influence from ELICOS and the general staff awards. But we see this just as underpinning that specific category of staff, but that type of employment is in existence in many of the other commercial arms and entities and private companies that university have.

PN35

So our objective is to see an award that covers that group of staff because they are growing and often difficult to track because many of the commercial arms and entities are small, with only a handful of people, but nevertheless those people need an award base to underpin their terms and conditions of employment as well, and we are certainly seeking the making of this if it is by consent, but as I have said we have had discussions with the parties, and we are certainly on talking terms which is always beneficial in a situation like this, your Honour.

PN36

But again we see it as a necessary step in providing this category of employees with some form of safety net with the objective then to obviously address and tailor whatever the terms and conditions are through the enterprise bargaining process. If your Honour pleases.

PN37

THE DEPUTY PRESIDENT: Thanks, Mr Thomas. Just before you resume your seat, just one question going back to your roping-in application.

PN38

MR THOMAS: Yes.

PN39

THE DEPUTY PRESIDENT: To the extent that that award hasn't been simplified, what do you say to me about the potential for me to be making an award that contains non-allowable matters?

PN40

MR THOMAS: Obviously the making of an award that contains allowable matters is in itself non-allowable. We would be quite comfortable in perhaps discussing with the parties to reach a common understanding of the allowability of the elements of that award, and if that requires conference or a report-back on a process with directions from yourself, we are quite comfortable with that process.

PN41

THE DEPUTY PRESIDENT: Thanks, Mr Thomas. Mr Smith.

PN42

MR SMITH: Thank you, your Honour. I think it is just appropriate to give you a snapshot of Monash International so that you can understand the context of these discussions. It is 100 per cent owned by Monash University, but it is a separate company. Its main goal is to recruit international students for Monash University, and it has three main divisions: the international marketing division, the access division, and the project development assistance division.

PN43

The point I really want to establish is that it is a commercially-focussed organisation and it shouldn't be seen as just another part of Monash University. It is created separately for particular reasons. In the international marketing division, there are about 15 admissions personnel, about three marketing personnel, about six recruitment people who go basically around the world travelling overseas in relation to activities associated with recruiting international students.

PN44

There are about nine student services personnel, some at the Caulfield campus, some at Clayton, some at other campuses such as Gippsland and Peninsula, and then about three scholarship personnel who look after people who come to Australia on scholarships, and four Monash Abroad personnel who administer funds for the university. So even in that division you can see a very diverse range of activities. Then there is the access division - and it is the largest division - it consists of people engaged in the Monash College and people engaged in the Monash English Language Centre.

PN45

There are about 40 to 50 permanent staff in this division, about 20 of whom are general staff. Now if we look at the Monash College side, as Mr Thomas has pointed out, there are teaching staff there who teach courses really almost at TAFE level - I will be corrected if I get that wrong - but certainly not at the traditional tertiary level. They are things, certificate and diploma courses in the field of business, economics and IT. Then the teachers in the Monash English Language Centre obviously teach English to overseas students who come here and need to learn that. The larger part of the teaching staff in this division, as I said, are in the Monash English Language Centre.

PN46

Then separately there is the project development assistance division which is very small, it looks after tenders for projects. Monash International tenders for various things, and there are about four admin staff in that division. I now move to the industrial coverage side. Historically, the teaching staff in the English Language Centre have been covered by an award known as the ELICOS Award which is an abbreviation for English Language Intensive Course for Overseas Students, and the ELICOS Award is an award made in 1996 to which the Monash English Language Centre Pty Limited has been roped in, and it actually has its own certified agreement.

PN47

That company, the Monash Language Centre Pty Limited, actually now is part of Monash International; it has been absorbed into it. So that part of it is covered by both an award and a certified agreement of the Commission. Now, in December, Monash International consented to being roped into the ELICOS Award. It was probably technically unnecessary, because it was bound as a transmittee through the award and enterprise agreement that already existed for the Monash English Language Centre Pty Limited.

[10.27am]

PN48

Now Monash International, though, has a number of other industrial arrangements that cover its other divisions. And this is partly because as an organisation it depends heavily on external and project funding and just can't afford to adopt terms and conditions of employment that would apply to a more regularly funded organisation like Monash University. And Monash International is keen to develop its own identity both commercially and industrially. So what it has done with the college teaching staff, it has negotiated an agreement that covers them. It is not certified but it is one that the staff have actively negotiated and they have all, I think, signed up to it. And we are obviously keen not to disturb fundamentally those arrangements that have been negotiated.

PN49

Monash International has also commenced discussions with its administrative and clerical staff for the making of a 170LK agreement to cover those staff. Now with those - that background if I can turn to the applications, first of all we oppose being roped into the HEWVIC Award. As Mr Thomas has outlined, it is an award that essentially was made on the run as an interim award in 1993 when the Kennett Government abolished the State awards. And so it is an award that basically contains a shell of pay and classifications and it then incorporates about 36 old awards and four industrial agreements.

PN50

Now if you could actually find all those old awards - I don't think anybody has actually got them in one place - the award itself would be about this thick. That is what they are trying to rope us into. And Commissioner Smith spent about two or three years chairing discussions with the parties to try and simplify the award. It has not yet been simplified. I think it might now be before Deputy President Duncan, but I am not sure. Both have tried to handball with each - to each other at various stages. I think Commissioner Smith has been trying to get rid of it.

PN51

THE DEPUTY PRESIDENT: I am sure they will be pleased to read that in the transcript, Mr Smith.

PN52

MR SMITH: He won't worry about that. That is public knowledge and in probably in - in decisions - virtually decisions of Commissioner Smith. The Commission is not actually able to rope Monash International into this award. There is a decision of Commissioner O'Shea to which I will refer, your Honour, in Australian Nursing Federation v Aboriginal Community Elders Services and Others Print Q2191. I will refer to it just for the purposes of the transcript as the ANF decision. It was a case where the Australian Nursing Federation applied for a roping in award to rope a large number of health service providers into an award known as the Nurses Victorian Health Services Award, which itself was a very substantial award not yet simplified by the Commission.

PN53

Now the Commission's conclusions about whether it could make the roping award are noted in page 3 through to 6 - but I think relevantly if I refer, your Honour, to page 4(f), (g) and (h), I might just - rather than read it out I might let your Honour read it.

PN54

THE DEPUTY PRESIDENT: Yes, well, it raises - - -

PN55

MR SMITH: It raises some fundamental issues for the Commission. Now we say the same considerations are entirely applicable here - protracted proceedings in the Commission to simplify the HEW Award which are not yet concluded. So now the Commission, of course - there are a number of decisions of the Commission where the Commission has said, "Well, I think we can actually make a modified award that is - would be allowable." But that is usually in the case of a fairly straightforward simple award where you can just excise a few provisions. Now that really isn't easily done in this situation.

PN56

Now, notwithstanding all of that we are prepared to have discussions with the union to look at appropriate safety net award provisions. If the LK discussions with the staff proceed successfully to a conclusion there will need to be - the Commission will need to designate an award, in any event, as a safety net award for that LK agreement.

PN57

THE DEPUTY PRESIDENT: How far advanced are those discussions, Mr Smith?

PN58

MR SMITH: I think progressing slowly. They have had two or three meetings.

PN59

MR SLATTERY: They commenced - - -

PN60

MR SMITH: Yes, I will let Mr Slattery - - -

PN61

MR SLATTERY: They commenced just before Christmas, having gone through a process of calling for nominations for members of the consultative committee. That meeting - that group met for the first time immediately before Christmas. The work of the consultative group has really picked up on the return after Christmas and is now meeting on a regular scheduled basis. And we are - at this stage - quite confident that we have a pathway in place which enable us to come to a sensible and practical conclusion to that.

PN62

THE DEPUTY PRESIDENT: Thank you. And I would assume, Mr Thomas, that you would be seeking to be party or is that jumping too far ahead?

PN63

MR THOMAS: We have been seeking to be a party but obviously if we are to be a party to an enterprise agreement we would seek to have it certified under LJ.

PN64

THE DEPUTY PRESIDENT: Okay, thank you.

PN65

MR SMITH: Yes. So, what we are prepared to do is to meet with the union to discuss the proposed consent award and any proposals, obviously that they might want to put in relation to an alternative to the HEWVIC award. We haven't had any formal discussions with the union about these matters. I think Mr Thomas described the discussions as "off and on". They have probably been more off than on but we are prepared to make them more on than off, at this stage, to see if we can reach agreement.

PN66

So what we would be proposing is that both applications be adjourned for - with the right for the parties to seek to have the matter relisted and to allow the parties to have some discussions. They are our submissions.

PN67

THE DEPUTY PRESIDENT: All right. And you are seeking that in respect of both matters, Mr Smith?

PN68

MR SMITH: In respect of both, yes. I should say for the record that we don't consent to the document that they describe as a consent award.

PN69

THE DEPUTY PRESIDENT: Okay. All right.

PN70

MR SMITH: Yes.

PN71

THE DEPUTY PRESIDENT: Thank you. Mr Thomas?

PN72

MR THOMAS: Thank you, your Honour, the NTU is more than happy and prepared to enter into a more on state of negotiations with the employer and we are, you know, more than happy to embark on genuine and realistic discussions with them in relation to both these applications and obviously the related aspect of any potential enterprise bargaining agreement. As to the request from the employer for an adjournment with the ability for the parties to call it back on, we would - we would like to expand that by seeking, perhaps, the assistance of the Commissioner with maybe a few - if the Commission is in a position to issue some supportive directions to the parties and with perhaps in the first stage a report back of, you know, adequate time for the parties to actually meet, and it would serve no purpose to report back in a week. But to have a report back date, so that the parties can engage in those negotiations and keep the Commission abridged and informed of the progress. Yes, thank you.

PN73

THE DEPUTY PRESIDENT: Thank you, Mr Thomas. Yes, Mr Smith, yes.

PN74

MR SMITH: We don't oppose a report back being set but I don't think any directions are necessary at this stage. We are prepared to sit down with the union and pull out our diaries and work out some dates for discussions. So I don't think we necessarily need any directions. And we would need, I think, a reasonable amount of time before a report back given the reasonably complex matters at stake here.

PN75

THE DEPUTY PRESIDENT: All right, thanks, Mr Smith. Well, look, I didn't intend to issue any other direction other than that there should be a report back to this Commission as to the progress of the particular discussions, I do intend to adjourn both matters in accordance with the submissions put to Mr Smith so that those discussions can take place between the parties. I think it is reasonable that there should be a report back to this Commission within six weeks of today's date, at least a progress report as to where those discussions have led in respect to both of the matters.

PN76

So unless the parties have any particular objection to that time frame, I propose to direct that the parties report back to the Commission within a time frame of six weeks from today's date, advising of progress made in discussions in respect of both the applications that have been made here today.

PN77

MR SMITH: Yes. So, your Honour, that would be via the way of a letter indicating to the Commission where we are at, as I understand it, yes.

PN78

THE DEPUTY PRESIDENT: That would be correct, yes, just a written progress report. So am I to take it that is okay with you, too, Mr Thomas?

PN79

MR THOMAS: Yes, thanks, that is all right.

PN80

THE DEPUTY PRESIDENT: All right, on that basis I think is probably about as far as we can take it so we will adjourn and no doubt meet again on the matter. Okay, thank you.

ADJOURNED INDEFINITELY [10.39am]