C2003/3879, Transcript of Proceedings [2003] AIRCTrans 2549 (20 June 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DRAKE

C2003/3879

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE,
CLERICAL AND SERVICES UNION

and

IPC EMPLOYMENT PTY LIMITED

Notification pursuant to section 99 of the Act
of an industrial dispute re incorrect
classification levels

C2003/2458

APPLICATION FOR AN AWARD

Application pursuant to section 111(1)(b) of the Act
by the Australian, Municipal, Administrative, Clerical
and Services Union for an award

SYDNEY

10.04 AM, THURSDAY, 5 JUNE 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Yes, can I have your appearances please?

PN2

MS K. LEE: Your Honour, I appear for the Australian Services Union and with me is VANESSA CONROY and COLIN LYNCH, Organiser for the Australian Services Union.

PN3

THE SENIOR DEPUTY PRESIDENT: Colin Lynch is an organiser and Ms - - -

PN4

MS LEE: That is right, as am I.

PN5

THE SENIOR DEPUTY PRESIDENT: - - - Conroy?

PN6

MS LEE: Ms Conroy is an ASU member.

PN7

THE SENIOR DEPUTY PRESIDENT: And which branch of the ASU?

PN8

MS LEE: The Services Branch, the New South Wales and ACT Services Branch.

PN9

MS G. COURT: I appear on behalf of IPC Employment Pty Ltd and MR IAN TREVALLION who is a Director of IPC Employment Pty Ltd.

PN10

THE SENIOR DEPUTY PRESIDENT: Ms Court, you are seeking leave?

PN11

MS COURT: Yes.

PN12

THE SENIOR DEPUTY PRESIDENT: Is there any objection to leave?

PN13

MS LEE: No, your Honour.

PN14

THE SENIOR DEPUTY PRESIDENT: Well, leave is granted, yes.

PN15

MS LEE: Tank you, your Honour.

PN16

THE SENIOR DEPUTY PRESIDENT: I do apologise for having kept you waiting.

PN17

MS LEE: There are two inter-related matters before the Commission this morning. C2003/3879 is a dispute notification by the ASU pursuant to section 99 of the Workplace Relations Act. This dispute involves the ASU unsuccessfully seeking improvements to the conditions of employment of ASU member Vanessa Conroy with her employer IPC Employment. IPC Employment is a respondent to an interstate dispute finding before SDP Kaufman in matter number 2001/4969 concerning a log of claims served by the ASU. I will tender the finding of that dispute and the log of claims.

PN18

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN19

MS LEE: The dispute finding before SDP Kaufman provides the jurisdiction for the Commission to conciliate pursuant to section 100 of the Act and if necessary to arbitrate pursuant to section 104 in respect of the issues in dispute between ASU and IPC Employment with the ambit of the log of claims. The second matter, matter number 2458, listed this morning is an application by the ASU to rope IPC Employment into an award titled the Community Employment, Training and Support Services Award 1999.

PN20

This award is commonly referred to as the CETSS Award. Just briefly by way of background, IPC Employment provides employment services to unemployed people and long-term unemployed people. It is the third-largest provider in New South Wales contracted by the federal government to provide job network services and briefly, in conversation with me yesterday the employer indicated that he does not wish to deal with unions and is heading down the path of non-union agreements and this has created a sense of urgency for us in terms of this matter.

PN21

Returning now to the dispute matter, 3879, concerning Ms Conroy, this is a dispute in part as to whether Ms Conroy is appropriately classified under a New South Wales State Clerical Award or whether she should be more appropriately classified under the CETSS Award. As I said earlier, IPC Employment is not currently a respondent to the CETSS Award. However the roping-in application is before you today for that purpose. We wish these two matters to proceed together today. However it may be that the two applications should proceed separately later. So we don't wish to have them joined.

PN22

In addition to the award and classification issues, there are also other important pressing issues in relation to Ms Conroy's actual conditions of employment. IPC Employment notified - in fact sorry, IPC Employment have notified Ms Conroy that her employment is to be terminated as of 30 June in part due to a closure of a service she is working at but also they've stated that she is on a fixed-term contract which ends on 30 June. Therefore IPC Employment has taken the position that she is not entitled to redeployment or redundancy because she is a fixed-term employee.

PN23

There are various letters from IPC Employment which confirm her status as a permanent part-time employee. Yet in contradiction the same letters indicate, all indicate that she is on a limited period of employment with a set termination date. Each letter subsequently extends the supposed set termination date to a later date. The ASU submits that she can't be both a permanent part-time employee and a fixed-term employee and we regard this could be seen as a ploy by IPC Employment to avoid redundancy pay. So I wish to tender all of those letters which she has received in relation to the contract of her employment.

PN24

We are not seeking to address all of the points to be raised in these letters at this time but we do dispute the point that Ms Conroy is a fixed-term contract worker. We regard her to be either - to be a permanent employee under the CETSS Award and therefore have an entitlement to redeployment or redundancy. If we could just make one point in relation to the correspondence, if Ms Conroy has been correctly classified under the New South Wales Clerical Award as her letters from IPC state, and that award applies at law as a common rule award, that award does not provide for fixed-term employment at all.

PN25

Clause 4 states that it only provides for weekly, casual or part-time permanent employment. Likewise the CETSS Award only provides for fixed-term employment under very specific circumstances as outlined in section 11.8.1. So in conclusion we request the Commission to go off the record in order to conciliate some of these matters. Thank you.

PN26

THE SENIOR DEPUTY PRESIDENT: I'm not in a position to conciliate these matters, Ms Lee, today. I have a matter that is in its sixth day today for addresses and two Full Bench matters yesterday, plus some other short matters that are in and out. So I'm not sure that I will be able to accede to your request but I will make some inquiries about possibly listing elsewhere. Ms Court?

PN27

MS COURT: In relation to my client IPC Employment is an employer that - to find long-term employment for people who have been out of work. We say that Ms Conroy was employed on a fixed-term contract and therefore does not come within the award. We say that in terms of - the reason for the fixed-term contract is that our client's funding comes within certain periods and the termination date of 30 June 2003 is the date that their current funding finishes and their new funding starts after that. My instructions are that Ms Conroy has been asked to apply for another position.

PN28

THE SENIOR DEPUTY PRESIDENT: They employ from year to year as the funding ends and then they are re-employed on the next day?

PN29

MS COURT: That is correct. That is how the - because of the nature of funding because they have to apply for various sites and various positions.

PN30

THE SENIOR DEPUTY PRESIDENT: Because the employer has to apply for funding that those employees are moved from site to site, are employed year by year.

PN31

MS COURT: That is correct.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes.

PN33

MR TREVALLION: Do you want me to clarify that, Commissioner?

PN34

THE SENIOR DEPUTY PRESIDENT: No, no, not at the moment. I just need to have a general outline.

PN35

MS COURT: So they are on a fixed-term contract and therefore we say not within the ambit of this award and we also say that she has been asked in terms of redeployment as part of it she has been asked to apply for other positions within the company and that has been taking place and that happens to all the employees.

PN36

THE SENIOR DEPUTY PRESIDENT: Well, why would she - if you have asked her to apply for other positions within the company, why would she be terminated?

PN37

MS COURT: Sorry?

PN38

THE SENIOR DEPUTY PRESIDENT: Why would her employment be terminated?

PN39

MS COURT: It is terminated as at 30 June and then she reapplies for other - - -

PN40

THE SENIOR DEPUTY PRESIDENT: And how long does this go on for?

PN41

MS COURT: My understanding there is actually interviews have been taking place at present.

PN42

THE SENIOR DEPUTY PRESIDENT: No, no, how many - how long has she been employed?

PN43

MS COURT: She has been employed since June 2002.

PN44

MR TREVALLION: Commissioner, she has been employed since June 2002. The contract finishes at the end of June of this year. All of our staff are on such contracts but all of our staff were automatically entitled to redeployment at the same level to other sites. Ms Conroy was asked to apply for redeployment to other positions and as of today has not applied for any such redeployment. She has applied for promotion to other positions.

PN45

THE SENIOR DEPUTY PRESIDENT: The correct address is "your Honour".

PN46

MR TREVALLION: I'm sorry.

PN47

THE SENIOR DEPUTY PRESIDENT: That is all right, and you should stand.

PN48

MR TREVALLION: Thank you.

PN49

THE SENIOR DEPUTY PRESIDENT: No, you don't have to now, but when you address the Commission you should stand. I understand what the various positions are in relation to Ms Conroy. This matter will be allocated to a member for conciliation. Which award do you say applies, Ms Court?

PN50

MS COURT: The Clerical Award.

PN51

THE SENIOR DEPUTY PRESIDENT: The State Clerical Award?

PN52

MR TREVALLION: Yes.

PN53

THE SENIOR DEPUTY PRESIDENT: Have you got a copy of it there?

PN54

MS COURT: Yes, yes, we do.

PN55

MR TREVALLION: Extracts.

PN56

MS COURT: Well, we have extracts.

PN57

THE SENIOR DEPUTY PRESIDENT: And you say it is the CETSS Award?

PN58

MS LEE: That is right, your Honour, and just one other brief point. The rest of the job network providers that receive funds from Government do not treat the length of their contract with Government as equalling, the length of their employment. The employment relationship with their workers, that is that they treat their staff as permanent workers and not as fixed term contract workers, I would just like to make that point.

PN59

THE SENIOR DEPUTY PRESIDENT: Well, either, Mr Trevallion, treat somebody as, or obviously treat somebody as, is it necessarily what they are, it is an objective test.

PN60

MS LEE: I'm sorry, I couldn't hear you, your Honour.

PN61

THE SENIOR DEPUTY PRESIDENT: I said it is an objective test what the employee is or is not, not really a matter of what is determined by the employer. We will have some conciliation before another member if we can manage it and see what can be achieved.

PN62

MS LEE: Thank you.

PN63

THE SENIOR DEPUTY PRESIDENT: And you have that copy of the award.

PN64

MS COURT: I have a copy of the extracts, yes.

PN65

THE SENIOR DEPUTY PRESIDENT: Can I have it? All right, that matter will be referred into Conciliation before a member of the Commission. What then happens to it, will be another matter, but it will be in the near future so that any pressing matters that arise out of 30 June date can be taken into account.

PN66

MS LEE: Thank you.

PN67

THE SENIOR DEPUTY PRESIDENT: Are you located in Sydney?

PN68

MS LEE: Yes, your Honour.

PN69

THE SENIOR DEPUTY PRESIDENT: Everyone is?

PN70

MS COURT: Yes.

PN71

MR TREVALLION: Yes, your Honour.

PN72

THE SENIOR DEPUTY PRESIDENT: All right, roping in award, application to rope the employer into the other award, let us deal with that.

PN73

MS LEE: Your Honour, the ASU would like to argue here that the CETSS Award is the appropriate award that covers the work of the employees at IPC. As I indicated previously, IPC is in the business of providing employment services for unemployed people and long term unemployed people. The award which is generally regarded as the relevant award for the industry is the CETSS Award and - sorry, I don't have a list - - -

PN74

THE SENIOR DEPUTY PRESIDENT: You seek to have this employer roped into it?

PN75

MS LEE: Yes, that is right.

PN76

THE SENIOR DEPUTY PRESIDENT: Do you consent, Ms Court?

PN77

MS COURT: No, your Honour.

PN78

THE SENIOR DEPUTY PRESIDENT: All right, then in that case we will have a hearing. Do you wish to have the matter listed for hearing?

PN79

MS LEE: Yes, thank you, your Honour, yes.

PN80

THE SENIOR DEPUTY PRESIDENT: All right, Ms Court?

PN81

MS COURT: Yes, your Honour.

PN82

THE SENIOR DEPUTY PRESIDENT: Not today.

PN83

MS COURT: No.

PN84

THE SENIOR DEPUTY PRESIDENT: Don't panic. Okay, well we have to hearing. I am free in the week commencing 16 June, is that too soon?

PN85

MS LEE: Yes, that would be appropriate.

PN86

THE SENIOR DEPUTY PRESIDENT: Are you intending to brief or are you running it yourself, Ms Lee?

PN87

MS LEE: Sorry?

PN88

THE SENIOR DEPUTY PRESIDENT: Will you be running the matter yourself?

PN89

MS LEE: It may involve my National Office as well.

PN90

THE SENIOR DEPUTY PRESIDENT: So it will be conducted by officers of the ASU?

PN91

MS LEE: That is right.

PN92

MS COURT: That week is suitable, your Honour.

PN93

THE SENIOR DEPUTY PRESIDENT: All right, Wednesday the 18th, I list the matter for two days, Wednesday the 18th and 19th. Can you have too, Ms Court, any material sent outline of submissions that you intend to rely on by close of business on the 13th?

PN94

MS COURT: Yes.

PN95

THE SENIOR DEPUTY PRESIDENT: And to Ms Court. Ms Court, can you have to the ASU your response and outline of submissions by the 20th?

PN96

MS COURT: Yes, sorry.

PN97

THE SENIOR DEPUTY PRESIDENT: I'm sorry, by the 17th, is that too short a time frame for you, Ms Court? You will only get them on the Friday.

PN98

MR TREVALLION: That is fine.

PN99

MS COURT: It probably won't be because that only gives you the Monday Tuesday to do that.

PN100

THE SENIOR DEPUTY PRESIDENT: I can pull back the ASUs to the 12th which will give you - - -

PN101

MS COURT: I think that might - that might be preferable if it could be the 12th.

PN102

THE SENIOR DEPUTY PRESIDENT: Yes, I think that would be fairer. We will take your submissions by close of business on the 12th Ms Lee?

PN103

MS LEE: Thank you, your Honour.

PN104

THE SENIOR DEPUTY PRESIDENT: Ms Court, yours by close of business on the 17th. I don't require full submissions, but I require a fairly adequate outline including any references to case material etcetera and a photocopy of those materials on which you rely, all right. As to the matter involving the member, we might list that for the 20th and it will either be me or some other member of the Commission. I'm not sure which at a time which I will notify the parties beforehand. Is there any other matter?

PN105

MS LEE: No, your Honour, that is it.

PN106

THE SENIOR DEPUTY PRESIDENT: Okay, thank you. I'm sorry I kept you waiting this morning, it was unavoidable. The Commission is adjourned.

ADJOURNED INDEFINITELY [10.21am]