BP2002/4968, Transcript of Proceedings [2003] AIRCTrans 2690 (26 June 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 10418
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

BP2002/4968

APPLICATION FOR INITIATION OF
BARGAINING PERIOD

Application under section 170MI of the Act
by IEUA regarding notice of initiation of
bargaining period

MELBOURNE

10.30 AM, FRIDAY, 13 JUNE 2003

Continued from 27.5.03

THIS HEARING WAS CONDUCTED BY VIDEO CONFERENCE
IN MELBOURNE

PN95

THE SENIOR DEPUTY PRESIDENT: This matter has been subject to proceedings on the record before. Are there any changes in appearance from the last occasion?

PN96

MR ODGERS: On the union's side, your Honour, Ms Cotter, the union's Assistant Federal Secretary, is not with us today.

PN97

THE SENIOR DEPUTY PRESIDENT: Yes, thank you for that. And the appearances for the Education Office are the same?

PN98

DR GRIFFITHS: Yes, they are.

PN99

THE SENIOR DEPUTY PRESIDENT: There is an additional person in Darwin?

PN100

MR HALL: Your Honour, beside me, appearing with me for the NT Branch of the IEU is MR J. GAULKE.

PN101

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. The matter has come back on. There has been conciliation between the parties in relation to bargaining issues. There were some, since the last conference, further exchanges of correspondence. Perhaps at this stage if I could be apprised of what the position is, Mr Odgers.

PN102

MR ODGERS: Yes, your Honour. I believe your Honour is in possession of an exchange of correspondence between the parties in respect of measures proposed in the agreement to deal with hours of work for teachers. On the last occasion we were before your Honour in conference, the employers put a counter proposition to that which had been put by my organisation, undertook to express that in writing and to send it to us, and did so.

PN103

I believe at that time they also forwarded a copy of that proposition to you, your Honour.

PN104

THE SENIOR DEPUTY PRESIDENT: Yes.

PN105

MR ODGERS: That proposal was given consideration by the IEUA, and rejected for the reasons contained in the correspondence that was sent in reply. I believe, your Honour, you are also in possession of that document.

PN106

THE SENIOR DEPUTY PRESIDENT: You are referring there to the 10 June correspondence from Dr Griffiths, and the 11 June response from Ms Rolley?

PN107

MR ODGERS: Yes, your Honour. Your Honour, we formed a view that at this point in time it does not appear possible for us to agree on this issue, and that there is a very considerable distance between the parties in respect of the codification of any matters relating to work load for teachers.

PN108

However, what I would like to do today on transcript is to hand to your Honour a copy of the working draft that the parties have been dealing with, and to seek to clarify through you the areas that are in disagreement.

PN109

THE SENIOR DEPUTY PRESIDENT: Yes. I will make the working draft exhibit IEUA1. I think that is the first exhibit in the proceeding.

PN110

MR ODGERS: It is, your Honour.

EXHIBIT #IEUA1 WORKING DRAFT

PN111

THE SENIOR DEPUTY PRESIDENT: That is the working draft of the agreement under discussion?

PN112

MR ODGERS: Yes, it is, your Honour. Now, my organisation would be grateful if in the course of, or perhaps when I have concluded, the employers were able to point out whether there are any other matters that are not agreed between them and ourselves.

PN113

THE SENIOR DEPUTY PRESIDENT: You would have a copy, presumably, Mr O'Mullane and Dr Griffiths, of the document?

PN114

DR GRIFFITHS: We have just been handed one, your Honour.

PN115

MR ODGERS: And we would be similarly assisted if in identifying any other matters that are not agreed, the employer could provide any clarification necessary around its position. I don't want to misdescribe, or to have this document misdescribed in any way the position that they put.

PN116

THE SENIOR DEPUTY PRESIDENT: Yes. What do you understand to be the matters not presently - - -

PN117

MR ODGERS: They are in italics in this document, your Honour. I propose very briefly to go to them. The first is contained in proposed paragraph 1 of the agreement. There is no dispute around the title of the agreement, but there is a dispute around the nominal expiry date in respect of the agreement.

PN118

The CEO position is listed there. They say three years from certification. My organisation's view is August 2002. Now, your Honour, I just want to be clear. I am not proposing to give today on transcript any justification of the position we put. That would seem to me to be quite pointless: merely to go to the areas of disagreement.

PN119

Your Honour, not in italics, but very relevant to the submission, I would like to take you to clause 3 of this agreement, where it is proposed that the parties to the agreement be those who are traditionally party to the agreement. That includes not just my organisation, but the LHMU, the SDA and the ANF.

PN120

I am advised by the branch that these unions are represented in very, very small numbers in the Territory. Moreover, as I understand it, there is no substantial disagreement between those organisations and the employer. What my organisation is seeking is to have any agreement that would arise from these proceedings or other proceedings be an agreement that applied to the kind of employees that we represent.

PN121

We have no objection to the employer reaching an agreement with the other unions, if they are capable of reaching such an agreement with those unions. And it seems to us, given the matters that lie between the parties, that capacity certainly exists.

PN122

If I can then take the Commission to clause 13 of the agreement.

PN123

THE SENIOR DEPUTY PRESIDENT: The matters you are passing over are, you say, subject to agreement within negotiations?

PN124

MR ODGERS: Yes.

PN125

THE SENIOR DEPUTY PRESIDENT: Very well, clause 13.

PN126

MR ODGERS: In respect of grievance procedure, I know your Honour is familiar with the dispute between the parties in respect of that, and that is summarised immediately following the clause. We are seeking to have disputes arising from the operation of the agreement, subject to the jurisdiction of the Commission in respect of conciliation and arbitration.

PN127

The employer's position is that put previously, and that is that they merely want to stick with the existing apparatus, which restricts a role for the Commission to conciliation.

PN128

In respect of clause 14, the union wishes to codify a procedure around due process, which has been a standard feature of awards in our industry, but it was found not to be an allowable matter by the Commission in a series of proceedings related to award simplification. I understand that the employer has offered to supply us with an alternative to the proposal that we have made, but nevertheless there is disagreement there.

PN129

I then take the Commission to clause 16, which is a renegotiation clause. In every sense this is related to the disagreement around clause 1. The parties' positions reflect in essence their view of when the nominal expiry date of the agreement should be.

PN130

I point out, not that it needs saying, your Honour, that the parties are agreed in respect of clause 17, around wages. I take the Commission to clause 22.

PN131

PN132

MR O'MULLANE: Your Honour, we just missed that last sentence of Mr Odgers. After the wages, we couldn't hear what Mr Odgers was saying.

PN133

MR ODGERS: My apologies. I simply advised the Commission that the parties are agreed on the wage outcomes in this document. I believe I am right in saying that, am I not? Yes.

PN134

THE SENIOR DEPUTY PRESIDENT: There seemed to be some nodding at the Darwin end.

PN135

MR ODGERS: Thank you, your Honour.

PN136

THE SENIOR DEPUTY PRESIDENT: Clause 22.

PN137

MR ODGERS: Yes. The dispute here was simply around codification. The nub of the issue, at least one of the significant matters remaining, not agreed of course is contained in the proposed clause 29 of the agreement, where a number of workload measures are spelt out. The employer's position, of course, is that these matters should remain in policy.

PN138

There are two other matters, your Honour, listed at 36 and 37 respectively, concerning modes of employment that remain not agreed. It seems to us that they are effectively the matters that still divide the parties.

PN139

THE SENIOR DEPUTY PRESIDENT: What about the allowance issue?

PN140

MR ODGERS: I am sorry, your Honour. You are right to draw my attention to that. If your Honour will bear with me for a moment.

PN141

MR HALL: Your Honour, clause 95.

PN142

MR ODGERS: I am grateful to my colleague in Darwin for his assistance in respect of that. The matters disagreed in respect of remote rental allowance are, firstly, the provision of an allowance, and, secondly, the codification of salary sacrifice in the agreement itself.

PN143

Your Honour, I might leave it at that point briefly. I do have some other things that we wish to place on transcript, but I would just like to seek some confirmation, if I can, from the employers in the Territory as to whether - as I referred earlier, there are matters in addition to those that I have raised that are said to not be agreed between the parties.

PN144

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Yes, Dr Griffiths, or Mr O'Mullane, I wonder if you could - - -

PN145

DR GRIFFITHS: If it pleases your Honour, Mr Odgers has given a reasonable summary of negotiations ..... NT and the Catholic Education Office as of early this week. We would view our position to be perhaps much closer than Mr Odgers might have implied. In fact, his list of outstanding matters really, apart from the issue in regard to section 29 proposed, are generally small, I would suggest.

PN146

We believe that we have basically got an agreed ..... the issue of workloads. We propose to make a policy statement. We would argue that gives a very significant gain for the union, and for the people working in schools, Catholic schools in the Territory.

PN147

We have in the context of the exchange of letters that you referred to earlier, your Honour, the 11 June letters, we did propose a clause for insertion in the agreement that dealt reasonably with the allocation of teaching duties, the workloads issue, that was raised at our last conference. We would seek some clarification from the IEUA as to the difficulty with the conditions that they see imposed in that agreement, and that proposed clause.

PN148

We still see, your Honour, with no disrespect to the Commission, but we don't see the need to seek arbitration in a grievance procedure, given that we have very successfully worked with the union to date - over the last 10 years, in fact - to provide an environment where disputes are settled readily. We note your Honour's own advice that the union has the Federal Court if there are matters that are such serious consequence that need to be dealt with. So we think there is an option there for the union to exercise, should they feel that there is an issue of sufficient moment to do that.

PN149

So we would argue, your Honour, that the agreement is - perhaps in Mr Odgers' outline he has run through the clauses that are yet to be finalised, but our agreement is fairly substantial. And we will continue to argue that perhaps with some further discussion today on the workloads issue and the exchange of letters this week to which your Honour referred, that we might be able to work out in this context how we can work towards an agreement on the workloads issue.

PN150

We would continue to argue that the policy statement which has real numbers in it does give a significant gain for the union and I think the employees in our schools, both in terms of quantum and ..... process. So, your Honour, perhaps if I leave my remarks at that at this stage, and I look forward to being able to discuss some of those issues in some detail in this conference.

PN151

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you, Dr. Griffiths. I wonder if you would just clarify. I think you indicated that the clause 29 issue, the workload issue, was the major provision outstanding. Mr Odgers has gone through and identified various clauses, 1, 13, 14, 16, 22, 29, 37, 95. I wonder if you could just clarify: do you see that as an accurate representation of what is presently outstanding, or are some of those issues, in your view, agreed, and are there any other additional items which are not at this stage agreed between the parties?

PN152

MR O'MULLANE: Your Honour, Greg O'Mullane. I would largely agree they are the outstanding issues, but as Dr Griffiths has indicated, I think the only issue that is of real contention are the workloads. Mr Hall and I only met yesterday, so the document that he has sort of handed out this morning, there are other text items which we made some adjustments to yesterday which I would need to check.

PN153

THE SENIOR DEPUTY PRESIDENT: Yes.

PN154

MR O'MULLANE: The items listed there will be the ones that we have said, yes, we have just got to finalise some items on it. So I think that is a fair representation.

PN155

THE SENIOR DEPUTY PRESIDENT: Thank you for that, Mr O'Mullane. Well, where do the parties wish to go from here? Mr Odgers.

PN156

MR ODGERS: I would just like to say a couple of things in response to what Dr Griffiths has had to say. Can I just say, firstly, yes, it is true, the proposed paragraph 29 of the agreement on one construction is the major item dividing the parties. My organisation's position on this is that codification of the matters contained in the proposed paragraph 29 within the certified agreement is a sine qua non. It is essential to the conclusion of an agreement, from our perspective.

PN157

So that whilst we are more than happy to sit down in conciliation and thrash through the other issues that remain, it seems to us that there is little if any prospect of agreement around that. In saying this I take the opportunity to address the other point that Dr Griffiths raises. That is, that he wants to hear from us further as to why the offer put by the Catholic Education Office in Darwin is unacceptable.

PN158

Now, of course, we rely on the written response that we sent. The effect of that written response was to say the provision they put to us is so beset by conditionality as to be unworkable. It seems to us without doubt that a requirement that no teacher shall be directed to teach unreasonable hours that is fettered by the operational requirements of the school, and the flexibility needed by the Principal to administer their school, is no requirement at all, is a requirement that can on any justification whatsoever be said to be overturned.

PN159

We cannot accept the conditions that are placed upon the requirement for fairness and reasonableness in respect of hours that we have sought to codify. We cannot accept any restriction on it. It seems to us to be the most basic of rights that we have sought to advance through the making of this agreement. So in saying that, it appears to us that this matter is irreconcilable.

PN160

Cam I also point to just two of the other matters that remain not agreed, that also seem to us to be not capable of resolution through the process of conciliation at this point in time. The first is the provision of a remote rental allowance. The union is determined to include this provision, and has been from the beginning of negotiations. Proper reimbursement for persons who face significant additional costs as a result of working in remote areas in the Northern Territory.

PN161

Secondly, and equally importantly, the difference between the employer's proposal and our own in respect of the nominal expiry date of the agreement is profound. The effect of that difference would be to reduce, if the employer's position were to hold sway, the 14 per cent increases that are contained within the agreement would be averaged over 5 years, and would then provide effectively for an increase of around 2.7 per cent per annum, which is - - -

PN162

THE SENIOR DEPUTY PRESIDENT: I am sorry, I don't understand the 5 years.

PN163

MR ODGERS: Your Honour, the last increase was received in August 2001 by members in the field.

PN164

THE SENIOR DEPUTY PRESIDENT: I see.

PN165

MR ODGERS: Whilst some of the increases suggested in the - agreed, I should say, provide for back dating, the total period over which the increases would be applied, given our lack of capacity to reach a bargain prior to the nominal expiry date, would be some 5 years. In any event, even if this were not the case, we would maintain an in principle objection to the extension a year after the final increase in the agreement, or more, of the nominal expiry date.

PN166

I make this point simply to say they are significant differences. In our view, at this point in time there seems little hope of resolving these issues by way of conciliation.

PN167

Can I just say very briefly, your Honour, in this respect, that in essence the parties had reached agreement we have submitted previously in December last year. We put what we thought was a break through offer to the employers to exclude from the provisions of the agreement in respect of workload matters relating to class size. We put repeatedly offers in respect of workload that sought to pare down what we perceived were items that the employer did not want to include around teacher workload.

PN168

We effectively have been rebuffed in respect of all of those endeavours, and have reached a point where we feel it is really not going to be possible for us to reach agreement. In fact, we are concerned that the more we sit down and discuss the text of the agreement and the issues within it, the further the parties seem to be from agreement.

PN169

I have to say that we don't share the employer's optimism in the Territory about the likelihood of a negotiated solution. In fact, we are extremely pessimistic, given our determination to insist upon reasonable provisions relating to workload being contained within the agreement. Remote rental allowance, and a reasonable period over which the agreement would operate.

PN170

So, your Honour asks, where to from here? Well, your Honour, my organisation has given consideration to its options in respect of the Act. I would like to ask the employers through you, if I can, whether there is any serious disagreement about the fact that the award that underpins this proposed agreement is now and always has been a paid rates award.

PN171

THE SENIOR DEPUTY PRESIDENT: Well, what is that award, just for the record?

PN172

MR ODGERS: The Catholic Schools Northern Territory Award 2003.

PN173

MR HALL: Your Honour, it is the Catholic Schools Northern Territory Award 2003.

PN174

THE SENIOR DEPUTY PRESIDENT: Thank you for that. That is the first of the awards identified in clause 5.1?

PN175

MR ODGERS: It is, your Honour. So if I can simply ask through you, your Honour. We have previously been able to confirm in these proceedings that prior to the introduction of agreements pursuant to the Act, the employees who are employed pursuant to the predecessors of this award were reliant upon the award for their rate of pay; in fact, for every term and condition, and over award payments were not made.

PN176

I just want to try and confirm through you, if I can, that there is no serious disagreement around the question that the award has operated at all times as a paid rates award.

PN177

THE SENIOR DEPUTY PRESIDENT: Dr Griffiths, or Mr O'Mullane.

PN178

DR GRIFFITHS: If the Commission pleases. There is quite a range of issues there to address. Perhaps if I just briefly refer to the paid rates question. We will have to take advice, obviously on the issue. We think the parent award might well be a minimum rates award, and that particular discussion would take some time to work out at a technical level, I would suggest.

PN179

THE SENIOR DEPUTY PRESIDENT: Well, it is a question of what it was - the status of the award immediately prior to the bargaining, rather than what it currently is.

PN180

DR GRIFFITHS: I would need to get advice on that. But as I have suggested, our initial conversation with our technical advisers - if your Honour would allow us to confer - the ..... award to be a paid rates award, is the answer to that particular issue.

PN181

THE SENIOR DEPUTY PRESIDENT: Yes.

PN182

DR GRIFFITHS: If I could refer your Honour to some of the points raised by Mr Odgers in his second statement. Mr Odgers raised, apart from the paid rates, minimum rates issue, general comments about how optimistic we felt about reaching agreement, and then the specific three points with regard to rent rebates, the dating of the award, and the question of workloads.

PN183

We would continue to be optimistic, and interested in and prepared to be involved in conciliation through the Commission, with an aim of seeking agreement by consensus. We would be encouraged, and prepared to consider that process to be an ongoing process as well. We are not interested, from our point of view - what we are interested in pursuing the matter through conciliation, and I want to make that quite clear. I don't feel as pessimistic as Mr Odgers seems to imply the IEU is about the capacity to reach an agreement.

PN184

If I can refer to the three issues that Mr Odgers raised. Rental rebates in fact has not been a matter for discussion since the beginning of our negotiations. It came up rather late in the piece. In any event, we would share your Honour's concern, and the union's concern, that we do have an arrangement that reflects in a practical way support for employees, non-indigenous employees who work in remote community schools in the Northern Territory.

PN185

The difficulty I would have, your Honour, is simply the practical difficulty of no access to funds from the Northern Territory Government. I estimate that our last estimate of the costs involved permitting rebates to non-local, non-indigenous employees in our schools runs to the amount of $120,000 a year. My representations to the Minister of Education - Employment Education and Training, have not been successful in getting that legitimate expense recognised.

PN186

We will continue to pursue that, obviously. I would hope that some sort of - a date yet to be - well, there is a meeting next week, and we are hoping the Education Department, in the light of the comments made in the Northern Territory budget last week about conditions for teachers in the bush, that we would be seeking some sort of funding arrangement with the Government. That is my hope. We are meeting on the 19th, to try and pursue that matter yet again.]

PN187

In a practical sense, your Honour, the Catholic Education Office, or the Catholic education system, receives no money except the money it receives for ..... I am not sure that they are entitled to take $120,000 out of money that might be given to us to employ teachers ..... education services to fill a gap that we have been unable to persuade the Northern Territory Government to meet in the funding arrangements. The bottom line is more than $120,000 rental rebate, but that is the significant amount.

PN188

So I would appreciate your Honour's advice in this matter, but I just cannot see how I can agree to a condition ..... no funding. We have looked through the Taxation law to see if we can organise ..... That seems to be possible. That does offer some amelioration. But with regard to the enterprise bargaining agreement under discussion - were responsible for these schools and in receipt of these moneys from the Territory Government for certain purposes, none of which includes rental rebates. How I can really allocate that sort of money, might be a teacher and a half, two teachers' worth of money away from the purpose to which the government intends me to apply those moneys, that is a difficulty for me and I am not sure that there is anything the Commission can do for me there beyond the papers already supplied.

[11.00am]

PN189

THE SENIOR DEPUTY PRESIDENT: Does that suggest absent a change of heart by the government there is little prospect of agreement on that issue?

PN190

DR GRIFFITHS: Sorry, your Honour, I didn't get that.

PN191

THE SENIOR DEPUTY PRESIDENT: Does that suggest that absent any change in heart on the part of the Northern Territory Government that there is little prospect of agreement on that issue?

PN192

DR GRIFFITHS: Your Honour, we pursue this matter regularly and, as I say, we have a meeting next - the 19th, I think, next Thursday to review the provisions outlined in the Northern Territory Parliament recently with the presentation of the Budget 2003/2004, which made specific mention to improved conditions for government employees working in indigenous communities. Our argument is that while these people that are employed by the Catholic Education Office are not government employees, to all intents and purposes, according to the agreement with the Northern Territory Government, their conditions are - - -

PN193

THE SENIOR DEPUTY PRESIDENT: Is government funding the sole source of funding for the Catholic Education Office or the schools within?

PN194

DR GRIFFITHS: Your Honour, the arrangement with regard to these five indigenous community schools harks back to 1979 and the beginning of limited self-government in the Territory where the Commonwealth minister, the Territory and the bishop of the day agreed that the Territory would take over 100 per cent funding for these former mission schools from the Commonwealth as if they were Territory government schools. To be quite clear, your Honour, the government does honour that in the main.

PN195

There are these what you might call fringe areas or what the government sees to be fringe areas, rental rebates being one, certain other payments with regard to electricity costs, other things that have arisen in the intervening 20 years, like council rates and rubbish collection costs, we have a continuing argument about some of these. So I don't wish to imply that the government is being unnecessarily hard but our argument has been with the government that just as their own arrangements for employees on the government payroll, the communities have changed in the post GST scenario, then changes to the FBT laws.

PN196

We need those changes to be reflected in a practical way in the funding arrangements that we receive with respect to being able to maintain parity for our employees. We have not had any success with those arguments to date but, as I keep saying - with regard to the agreement, your Honour, my practical issue is that I am not sure that I can agree to pay something that I have got no funding for or, indeed, if I were to pay it and reduce funding to other areas it mightn't, of course, matter - more significant problems.

PN197

I suppose I am saying I am not seeking to remunerate or to support employees in Catholic schools any less. I am just, I suppose, saying that I have no options at the moment except to pursue that through the political process with the Northern Territory Government. Just as an aside, your Honour, we do provide in some respects some support for our employees in remote communities that are in advance of the Territory Government, particularly with regard to the portability of long service leave.

PN198

We employ the large majority of non-indigenous teachers at our remote community schools on secondment from major Catholic employers in other jurisdictions because there is a nationwide portability given for long service leave. That is actually a condition that is above and beyond a condition that would be enjoyed by people working for the government, who might do or three years and then go back to Melbourne or Sydney. So we are able to persuade the government that that condition is worth funding but we have not been successful with regard to the rental issue.

PN199

If I could move to the second point Mr Odgers raised. That was with regard to the determination of the date of the award. Your Honour, we are trying to work in real time here and in our discussions with the union we have been conscious of the passage of time and while we wouldn't seek to apportion blame, we would argue that we are trying to keep good faith with our employees by saying there is a back pay here until - it goes back to last August, doesn't it, and it is listed in the agreement under the wages section, which your Honour referred to.

PN200

So we would argue that we are keeping the momentum, if you like, the momentum of improvements and consolidation of conditions for employees in Catholic schools in the Territory through the ongoing bargaining process because we are prepared to stretch back what will be a 12-month period at least. Even if we were to finalise it today, it will be a 12-month period to last August. We would ask your Honour to recognise that in terms of our goodwill and our commitment to maintaining that sort of continuity with our employees.

PN201

So, your Honour, it is not simply just a matter of striking whatever, the 5 per cent or the 4 per cent, whatever the agreement is on a certain day. We are maintaining through the period of negotiation, which has been too long, I think. We are agreeing to maintain, through back pay arrangements, continuity of improvement, if you like, for employees with regard to their remuneration. We would see that the award were best dated, according to the rules, from the date of its certification before the Commission and that we have a three-year award from that particular date.

PN202

We would regard that our relationship with the union and the Territory is sufficiently robust for us to be able to maintain and sustain the agreement through that period and we would come back with the support of the union in a certain number of months to begin a negotiation process before the conclusion of that period, as we have done with this particular award. We had negotiations in May this year, some three months before the notional expiry date - sorry, May last year.

PN203

We would argue that to persist with a three-year agreement is warranted, given our commitment to maintaining continuity for improvements for employees in Catholic schools and give us, I think, a reasonable time to bed down what we would argue is a significant change - just flagging the issue with regard to the proposed clause 29 or the proposed policy statement on workloads - that we have time to bed down what is a significant change in the consultative processes in our schools so that employees have a detailed process - have the right to participate in a detailed process that helps determine the workloads issue.

PN204

We would argue that that is a workplace of some cultural moment. It would need to have some time to bed down and to be sorted out and we would again seek the Commission's support for the three-year agreement that we have been talking about. Until very recently, it has been the way to go forward. So we would argue, your Honour, there that - - -

PN205

THE SENIOR DEPUTY PRESIDENT: Dr Griffiths, it is not a matter of seeking my support at this time. What concerns me is that there seems to be an endeavour to convince the Commission and that suggests perhaps that the parties are beyond the point where they are capable of convincing each other of a position.

PN206

DR GRIFFITHS: Well, your Honour, I am an amateur in this Commission, so I will take your advice and would act accordingly, but I am simply saying that I presume in a conciliation process - - -

PN207

THE SENIOR DEPUTY PRESIDENT: Well, if it is a matter of - - -

PN208

DR GRIFFITHS: - - - with your Honour perhaps involved in persuading both parties to be able to accommodate the views of the others.

PN209

THE SENIOR DEPUTY PRESIDENT: Yes. Well, the only way, for the purpose of the negotiation of an agreement, of convincing the Commission is by way of a section 111 - I am not sure how many As follow it, off the top of my head - 111AA recommendation by consent, which is a proposition, I think, which was previously put in conference and not accepted by the Education Office. In those circumstances, if the parties consented to a recommendation by the Commission on outstanding issues, then there obviously is an element of convincing the Commission as to a particular position. But absent that, for the purpose of conciliation - and I am at this point restricted to conciliation - then it is a matter of the parties convincing each other rather than convincing the Commission.

PN210

DR GRIFFITHS: Thank your Honour. With regard to the third point that Mr Odgers raised, and that was the workloads document, our proposal would remain that it is best couched in a policy document rather than inserted in the EBA. Our response to the IEU model was to provide a paragraph in response to an earlier paragraph provided by the union that said - just bear with me, your Honour. What we discussed, I think, at one earlier conciliation meeting was at paragraph 11 of the IEU dated 27 May:

PN211

2. The agreement shall contain a clause stating that hours of work for teachers shall be fair and reasonable.

PN212

In response to that we had agree to put up a paragraph that reflected our concerns about open-endedness of fair and reasonable and so we did that in our letter of - that your Honour has already referred to, dated the 10th. The union replies with regard to conditionality being an inhibiting factor and possibility, perhaps. So I am a bit mystified, your Honour. We were simply, I think, by putting that clause together, saying to the union we agree to provide a set of words to amplify what - create a presence, if you like, to point 2 in the letter that we have read a copy, 27 May.

PN213

Our point would be that the workloads issue is not an absolute in the sense that there are various people who have points of view to raise and various issues that have to be considered within the context of negotiations about workloads. Thus our conclusion in our letter of the attempt to phrase with regard to the educational interests of the child, for example, and the way the school works, that any agreement in a practical sense about workloads and their operation has got to be couched in terms of what the school is there for and the needs of the young people, students in the school, as well as some proper respect for the rights of the employees and for a process whereby their needs are met as well, including workloads. Thank you, your Honour.

PN214

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Dr Griffiths. Do you have anything further, Mr Odgers?

PN215

MR ODGERS: Yes, your Honour, only to say that it seems to us that on the three questions that have formed the discussion today, the employer's responses, we don't change our position, we don't change our position, we don't change our position. Our offer - and there has been a lot put by way of justification. I am not proposing to do that in respect of our side because I see no utility in it in this context. Our offer to the Catholic Education Office in Darwin to have the Commission resolve these issues by way of arbitration, private arbitration, and the parties would consent to accept the recommendations of the Commission remains open.

PN216

However, it seems to us that there is no reasonable prospect by way of further discussion to resolve the issues. I think, even on Dr Griffiths' submission alone, the gulf between the parties is self-evident and, therefore, I want to make now on transcript an application pursuant to section 170MW(7) of the Act or MW(1) and (7) of the Act that the Commission terminate the bargaining period pursuant to the provisions of section 170MW(7).

PN217

Now, I note that - I am surprised, I should say, in making that application that the employers say that they have formed a belief that it is a minimum rates award but I am encouraged by the fact that they say they are not across the technicalities of this issue and they wish to seek advice, because in the history of this award there are many statements by the employer and by the Commission that indicate that the parties have always treated the award as a paid rates award and this is the first time that we have ever heard from them - and it is easy to see, given the schema of the Act, why that is the case - that anything else might be put.

PN218

We would, without being in any way mendacious, urge them to seek that advice and we would ask the Commission to set down a time when argument, if there is a necessity for argument, might be heard in relation to the application that I have just made, from the point of view it doesn't seem to us to be - it has never seemed to us to be an issue in dispute. But I suppose, as it is, we would ask that perhaps this might be an appropriate time to determine when such a convenient date might be arranged to fit with the parties' availability.

PN219

THE SENIOR DEPUTY PRESIDENT: Very well. You understand the application, Dr Griffiths? It is not proposed that it be dealt with now. Briefly, section 170MW provides that the Commission may, by order, suspend or terminate a bargaining period after giving the negotiating parties an opportunity to be heard and, in this circumstance, that would require an opportunity for you to obtain advice and prepare in relation to such an application. In this case, reliance is placed specifically on section 170MW(7).

PN220

The circumstance in which the Commission may terminate a bargaining period is that "immediately prior to the commencement of this section", which I understand to be 31 December 1996, but you should check that independently.

PN221

...the wages and conditions of the kind of employees whose employment will be subject to the agreement were determined by a paid rates award, or would have been so determined -

PN222

but for an enterprise flexibility or state employment agreement operating - that is the first condition; secondly, that:

PN223

so far as wages and conditions of the kind of employees whose employment will be subject to the agreement -

PN224

was

PN225

...customarily determined by an award or a State award by a paid rates award;

PN226

and finally, that:

PN227

there is no reasonable prospect of the negotiating parties reaching an agreement under Division 2 or 3 during the bargaining period.

PN228

If the bargaining period were to be terminated, then section 170MX would have effect. That requires the Commission then to exercise conciliation powers with a view to facilitating the agreement or, absent any agreement arising out of conciliation or, more correctly, the Commission being satisfied it is not likely that further conciliation would result in matters being settled within a reasonable time, the Commission may then exercise arbitration powers, and that is by way of a Full Bench.

PN229

That is the nature of the application and I think, really, now it is a matter of setting down a date for that matter to be heard and determined. As I said, that won't be, obviously, now. Obviously, you will require an opportunity to receive the advice that you indicated earlier you would need to seek in respect to at least one issue, the paid rates issue, and possibly others. What sort of time period would you be looking at, Mr Odgers?

PN230

MR ODGERS: I presume, your Honour, that there would be no necessity for the parties to exchange submissions prior to that hearing and that the time that it would take would be a day or less. We would have thought at some stage inside the next five to eight working days if it is convenient for your Honour.

PN231

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Dr Griffiths?

PN232

DR GRIFFITHS: Your Honour, the sooner the better, obviously, would be good if this application is to be granted.

PN233

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN234

DR GRIFFITHS: I am not sure whether I should be arguing against it but this is your Honour's wish. I just - - -

PN235

THE SENIOR DEPUTY PRESIDENT: No, it is not my wish. It is an application by the union and in that circumstance I am bound to determine it. You may argue against it on two bases, presumably, that some of the circumstances required in 170MW(7) are not met or that in terms of section 170MW(1) being expressed as a discretion, that that discretion should not be exercised in favour of the union application in this case. So it is not a matter of what the Commission prefers. There is an application now been made and that will need to be determined. You are thinking the sooner the better.

PN236

DR GRIFFITHS: If your Honour pleases, did I understand you to say that the first step, were you to grant such an application, is a further conciliation process? Did I understand that correctly?

PN237

THE SENIOR DEPUTY PRESIDENT: No, no. The first step is to determine whether, pursuant to section 170MW(1), by reference to the circumstances in MW(7), the Commission should suspend or terminate the bargaining period. In the event that the Commission does, in fact, terminate the bargaining period, then section 170MX has effect and that requires in MX(2), in the first instance, that conciliation occur and in MX(3), if the Commission is satisfied that further conciliation is not likely to result in the matters being settled within a reasonable time, the Commission will then exercise arbitration powers mentioned in section 170MY. And section MX(4) provides that those arbitral powers will be exercised only by a Full Bench of the Commission.

PN238

DR GRIFFITHS: Thank you, your Honour. I think I understand that.

PN239

THE SENIOR DEPUTY PRESIDENT: So the first step is to determine the application now made for the termination of the bargaining period. What follows after that will depend on what the outcome of that proceeding is.

PN240

THE SENIOR DEPUTY PRESIDENT: Your Honour, could I ask for a five-minute just to consider my position?

PN241

THE SENIOR DEPUTY PRESIDENT: Yes, very well. I will resume in five minutes' time.

SHORT ADJOURNMENT [11.24am]

[11.34am]

PN242

THE SENIOR DEPUTY PRESIDENT: I will resume on the record at this point. Yes, Dr Griffiths, I think you were - - -

PN243

DR GRIFFITHS: Yes, if the Commission pleases, we would oppose the application.

PN244

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that.

PN245

DR GRIFFITHS: But we recognise that I have neither the capacity to argue it from a legal point of view, and we would have to seek legal advice. And ask the Commission's support, that we do meet again so that I can be properly briefed. I appreciate your Honour's advice about the contents of 170MX. Not being a specialist, it is just too difficult for me to take in. And I wasn't - we were under the - we are sure that this agreement can be reached by conciliation, and by negotiation. And we were unaware that the Union was going to make a claim that the negotiating period was to be terminated today. So I am just caught short, your Honour, and I need time for me to seek legal advice.

PN246

THE SENIOR DEPUTY PRESIDENT: Yes, well the - Dr Griffiths, the Union hasn't sought that the matter proceed immediately to the arbitration, and nor have I - it was always clear that a period of time to allow you to obtain advice would be available. So no-one has sought to deny the Education Office that opportunity.

PN247

DR GRIFFITHS: I appreciate that, your Honour.

PN248

THE SENIOR DEPUTY PRESIDENT: Yes.

PN249

DR GRIFFITHS: But the point at issue that I would wish to argue against your granting the application, that the bargaining period be terminated. And because I have not the technical capacity to do that, because I wasn't expecting it - - -

PN250

THE SENIOR DEPUTY PRESIDENT: Yes.

PN251

DR GRIFFITHS: - - - I would ask that that issue be left open until I can seek legal advice. If the Commission pleases.

PN252

THE SENIOR DEPUTY PRESIDENT: Yes. So that is what in fact was being proposed. Mr Odgers wasn't - although presumably he would like to proceed today, wasn't pressing to do that, and the opportunity was available. That is the point of some further hearing date being set down to allow you to obtain advice.

PN253

DR GRIFFITHS: Thank you, your Honour.

PN254

THE SENIOR DEPUTY PRESIDENT: Very well. Well, certainly I am of a view, and it is not opposed by the Union, from what Mr Odgers put earlier, that there should be some period for Catholic Education Office to obtain advice and prepare to defend the application now made by the Union pursuant to section 170MW(1) and reliance on MW(7). Accordingly, I will allow a period of time before the matter is set down for determination of the 170MW(1) application.

PN255

I proposed to re-list the matter for arbitration of that issue on Wednesday, 25 June, again by video conference, 10.00 am in Melbourne, 9.30 in Darwin, AM, obviously, in each case. One thing does occur to me. On the application that has been made and does require to be heard, and I have chosen a date which recognises the fact that negotiations have been going since the early part of last year, without resolution. And the agreement is now a considerable time - the last agreement a considerable time out of its nominal period. But equally recognising the need for the Education Office to obtain advice.

PN256

The thing that occurred to me that - whilst the matter will be listed for arbitration of the MW(1) application on 25 June, the Education Office may wish to give some further consideration to possibility of a section 111AA recommendation by consent. That has been previously proposed, I think, by the Union, and not acceded to by the Education Office. I don't ask you to do that now, Dr Griffiths. One thing that might assist, if the parties were inclined to reconsider that option for determining the matters that remain outstanding between the parties, if it were thought desirable to bring a fresh mind, if you like, for the purpose of the recommendation by consent, in effect with the parties consenting to a mini-arbitration before a new member with that member making a recommendation to resolve outstanding matters.

PN257

I certainly wouldn't be adverse to removing myself from that process if it assisted the parties to reach an agreed position to proceed by way of a section 111AA recommendation by consent. But that is a matter I will leave to the parties consider and discuss. If there is a common position between the parties in respect of that, given that it does require the consent of both parties, obviously that can be communicated to me. but absent a common position in respect to that provision, the matter will - section 170MW(1) application will proceed for the termination on the Wednesday, 25 June.

PN258

I will now adjourn these proceedings. I will leave the link open for the parties for a brief period, in the event that they do wish to discuss any matters including the suggestion I put on an open basis for the parties in respect to section 111AA. Unless there is anything further I will adjourn at this stage and resume to deal with the section 170MW(1) application on 25 June.

ADJOURNED UNTIL WEDNESDAY, 25 JUNE 2003 [11.40am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #IEUA1 WORKING DRAFT PN111