BP2003/367, Transcript of Proceedings [2003] AIRCTrans 5364 (4 December 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

BP2003/367

APPLICATION FOR TERMINATION
OF BARGAINING PERIOD

Application under section 170MW of the Act
by the Minister for Education in the State of
Western Australia to suspend or terminate a
bargaining period

SYDNEY

12.36 PM, TUESDAY, 18 NOVEMBER 2003

Continued from 12.11.03 before Senior Deputy President Duncan

PN108

MR DIXON: I appear for the WA Government, to use a broad description.

PN109

MR BROMBERG: I appear for the Australian Education Union.

PN110

MS CRAVEN: I received notification of this from the Australian Principal's Federation. I did try to contact your office yesterday to see if it was appropriate if I attend the conference and I'm quite happy if it is not appropriate, to no longer attend but I would seek to be kept informed about the progress of the matter listed for 1 December.

PN111

THE COMMISSIONER: Yes, well, I think Senior Deputy President Duncan has not ruled on your intervention as yet, Ms Craven. I have no problem with you being here today. Whether you should also be here at the - attend the formal conciliation, well, that will perhaps be best left to the other - well, various parties. Thank you. Who do we have in Perth?

PN112

MS FAWCETT: I instruct Mr Bromberg.

PN113

MR JACKSON: Brian Jackson.

PN114

THE COMMISSIONER: Yes, Mr Jackson, you are - - -

PN115

MR JACKSON: I instruct Mr Dixon, SC.

PN116

THE COMMISSIONER: Yes.

PN117

MR JACKSON: Commissioner, could I raise one matter? I was not able to hear you properly and I'm not sure whether you indicated the view as to whether it was proper or not for Ms Craven to be here. I did want to say something about it and in particular, say to you, sir, that it is highly inappropriate for Ms Craven to attend a private conference in circumstances where she does not represent a party, either to the negotiations nor to the agreement between the parties by which this conciliation is taking place.

PN118

I don't want to raise any difficulties too early but this is a difficulty for us if all Ms Craven seeks to do is be kept informed of the status and programming of the application before Senior Deputy President Duncan when clearly we can address that and there is no need for her attendance here today in relation to that aspect.

PN119

THE COMMISSIONER: Yes. Mr Dixon?

PN120

MR DIXON: We don't wish to add anything, thank you.

PN121

THE COMMISSIONER: Yes, well, I perhaps jumped the gun and it may be that there are things to be said in these proceedings that should be kept to the direct parties, so Ms Craven, if you could leave these proceedings and as to the proceedings in - well, that have been set down before Senior Deputy President Duncan, well, you are aware of them and the Commission, if there are any other matters that we think appropriate, we will keep you informed, but otherwise perhaps Ms Craven, given the attitude of one of the parties, it is best if you leave.

PN122

MS CRAVEN: Thank you, Commissioner.

PN123

THE COMMISSIONER: Thank you.

PN124

MS FAWCETT: Commissioner, I note that there are some people here in Perth that aren't limited to the parties and their representatives also, so if you go into private conference, that would need to be addressed.

PN125

THE COMMISSIONER: There is no problem with that, I think. Yes, anybody who is not someone attached to the AEU or the West Australian various Government persons, really shouldn't be in these proceedings. It is somewhat difficult to do conciliation this way and it really has been listed merely for - well, largely for programming matters. Does anyone - well, perhaps I should indicate that the matter has come before me to see if there can be some conciliated path out of the issues between you.

PN126

Now, I know very little other than that, but for that, I indicate that I am available to attend at Perth early next week. Other than that, perhaps the parties should inform me as to what their attitude or views are as to how the conciliation should occur and what is likely to happen. Yes, Mr Dixon.

PN127

MR DIXON: Commissioner, may I just establish whether Ms Fawcett's concerns in relation to other parties has been satisfied at that end?

PN128

MS FAWCETT: Yes, it has.

PN129

MR DIXON: Thank you. Commissioner, we understood that today's session is going to be to try and work out some sort of programming as to how best to use the time that you are able to give the parties early next week. It seems that perhaps it is appropriate that we start off with when you might be able to attend?

PN130

THE COMMISSIONER: Yes, well, it has been somewhat difficult but I am able to be in Perth first thing from Monday and then certainly all of Tuesday morning. There is a possibility that I may be able to get out of Perth in mid afternoon of Tuesday, so it is those 2 days or those 1 and a half days.

PN131

MR DIXON: Thank you, Commissioner. I suppose I should just indicate our understanding that I understood that presently we didn't see any need for legal representation to be present during the conciliation process. I don't know if Mr Bromberg has got a different view. I understood from my earlier conversations with him last week that I thought it was much the same as mine. The other issue would then be just for us perhaps to identify who the representatives will be who attend the sessions with you.

PN132

We thought that it might be useful if each party prepare a short document in which they identify those matters which they believe have been the subject of agreement but all of that as been, as we understand matters to date, the parties have approached this matter through their lengthy discussions that did take place, is that agreement subject to agreement on all issues. At least, as I understand the position, there are a range of matters that are non-contentious and one could put them aside on the basis that if there is overall agreement, then those matters are already settled as it were.

PN133

Perhaps the parties could also be directed to, or invited to, put their present offers in respect of the matters that are not the subject of agreement so that at least we have a proper and not artificial starting point when you meet with the parties and discuss matters. There is the question of on-going industrial action but that is a matter which will be more appropriately addressed I think, when you meet with the parties. I simply mention that to you, Commissioner, because that is a matter that my clients have consistently said they want, at least to raise with you at the appropriate time.

PN134

The other question I think from our end, is just that some confirmation about how the parties will deal with the fact, if this is conciliation in the true form being off the record discussions. I think some consideration should be given to how they are going to conduct themselves in that regard. Those were the matters that I thought might be usefully discussed.

PN135

THE COMMISSIONER: Yes, thank you. Mr Bromberg.

PN136

MR BROMBERG: Thank you, Commissioner. Firstly on the question of legal representation, I can indicate that our view is in accordance with that expressed by Mr Dixon.

PN137

THE COMMISSIONER: Sorry, Mr Bromberg. In relation to that, are we talking about Senior Counsel or are we also talking about the solicitors in Perth?

PN138

MR BROMBERG: I understood we were talking about counsel and solicitors.

PN139

THE COMMISSIONER: Okay, yes, okay.

PN140

MR DIXON: That is consistent with my understanding.

PN141

THE COMMISSIONER: Yes, proceed.

PN142

MR BROMBERG: Now, we would agree that the parties ought to identify as soon as possible, and probably today, the representatives that they intend to involve in the conciliation. We would further agree that a short document of the kind identified by Mr Dixon is appropriate, so that each party does set out the matters that are considered to be the subject of agreement reached already, subject as Mr Dixon says, to any qualifications. That the parties also put their position in relation to the outstanding matters.

PN143

Now, we had in mind, Commissioner, that in relation to the outstanding matters, there might be some form of prioritisation entered into so that we identify those issues that the Commission might determine to commence with. We had in mind a number of issues which I can identify now if it is appropriate, and we had in mind that in relation to those issues, each of the parties prepare between now and Monday, a short position paper explaining their claim.

PN144

That on Monday, and in relation to those claims, the parties could meet privately with the Commissioner, that is each party meet privately with the Commissioner and explain and elaborate upon their position papers so that the Commission has a good understanding of the claim and the way that it is put. Now, we, in terms of identifying issues, we have in mind salary, as a priority issue. In relation to workload, there are three matters and I want to indicate some preference in terms of priority.

PN145

The first is a claim in relation to what is known as DOTT, D-O-T-T, Duties other than teaching time. That relates to primary teachers only and the claim there is that there be more time available for preparation. The next item of workload relates to class sizes, particularly as I'm instructed in years 4 to 7 and years 8 to 10. Thirdly, there is proposed, as I understand, a new senior teacher classification which, it is envisaged by the Department, would involve additional work and there is resistance to that aspect.

PN146

We think that those three aspects of workload should be dealt with as a matter of priority. We understand that the Department wants to raise the issue of industrial action and we make it clear now, as we have I think, in the past, that the AEU would like to see some progress in the negotiations so that it can reconsider its position in relation to industrial action and to that purpose, we do encourage the Commission to deal with the priority issues that we have identified first because it is in those areas that progress of the appropriate kind may well be made.

PN147

I say nothing further about that issue, except that that is a matter that we have been advised the Department would like to raise and consistently with our current position, we said, and say again, that we would like to see some progress in order that we can review industrial action. I was going to ask the Commissioner whether there are documents that the Commissioner thought you may need in order to equate yourself with the issues. The log of claims or the demands made by the AEU, is probably starting a point - - -

PN148

THE COMMISSIONER: We have that.

PN149

MR BROMBERG: - - - and we can supply them.

PN150

THE COMMISSIONER: We have that. That was part of the BP, wasn't it?

PN151

MR BROMBERG: Yes. I imagine that is the case. There has also been exchanges of correspondence in relation to offers and for our part, we think it appropriate that that material be made available to you. Lastly, can I just indicate that we are grateful that the Commission can deal with the matter next week and as far as I know, we have no availability problems and are obviously happy that the venue is in Perth.

PN152

THE COMMISSIONER: Yes. Mr Dixon.

PN153

MR DIXON: Thank you, Commissioner. I think I just need to address a couple of matters. One is the suggestion that the parties should prioritise matters and then prepare a short position paper. We don't think it is appropriate to dictate, in a sense, how a conciliation should happen, and B, to concentrate on matters in the way in which Mr Bromberg has suggested. We are content to address the issues where the parties are in disagreement. We would be much happier to leave it to you to make a decision as to how you would like to go about the conciliation.

PN154

We are particularly concerned by Mr Bromberg's suggestion which we think is most inappropriate, to say to the Commission: we want to prioritise these matters. We want to see, "Progress in that matter before we reconsider our industrial action". Now, that seems to us to be an entirely inappropriate way of going about matters. It seems to us that the parties should state where they are in agreement, identify the matters where they are not in agreement.

PN155

They can put a short position in relation to the matters in which they are not in agreement and then leave it to the Commission to decide how to address the matter. We don't also wish to simply say to the Commission at this stage that it is necessary to dictate in advance that the parties go separately into conference with you on Monday or whatever it is, again. We think that it is appropriate for you to decide how you want to deal with that aspect of the matter.

PN156

The essential documents we think should be before the Commission, but in relation to some of the correspondence that I've seen, we have taken issue - my clients have taken issue with the accuracy of quite a fair bit of the correspondence that have been addressed at our clients, therefore the matters are going to be at issue and there is going to be unnecessary argument about whether the letter accurately reflects the position or not. To start off with, we think it is going to be counter-productive to burden you, and/or the process, with that sort of material.

PN157

A lot of correspondence has been forthcoming where the parties have written back saying: that is not accurate and they don't accept the accuracy of the material. We don't think that that is necessary to burden you and we see it as counter-productive. So we certainly would oppose this prioritisation approach, particularly because it has been, A, we don't think that that is our role and the Commission can make its own decision about where we go on those matters.

PN158

Given that a clear recognition between the parties that ultimately there has got to be agreement on everything, and even on the matters where there is agreement, there is no agreement unless there is agreement on what the union prioritises. Secondly, we don't think it is appropriate to say: we want to make this a priority; we want to see progress on that matter and then we will re-think our industrial action. Those matters can be separated out and we should leave it to the Commission to decide how it wants to run the matter given the parties put in a short position paper on where they are at.

PN159

MR BROMBERG: Commissioner, might I reply very shortly?

PN160

THE COMMISSIONER: Before you do, I just want - Mr Dixon, you don't have any objection however, to identifying the representatives?

PN161

MR DIXON: No, no, no. That makes sense. Sorry, I just addressed the issues that I thought - I think it is necessary - it is useful to know who is going to come and you can - - -

PN162

THE COMMISSIONER: Yes, Mr Bromberg.

PN163

MR BROMBERG: Commissioner, we would in no way intending to suggest that the parties usurp the process by dictating what should happen, but it is obvious that the Commission, in terms of a starting point, will need to start somewhere and all that we were indicating was that we have a preference for that starting point. We would prefer that the starting point commenced with the issues we have identified.

PN164

Now, obviously at the end of the day, that is a matter for the Commission, but it seems to us difficult to understand how the Commission is going to arrive at the appropriate starting point without hearing from the parties as to what are their preferences, so if my learned friend has other preferences in terms of a starting point, then in our respectful submission, he should tell the Commission about that and ultimately the Commission can decide where to start.

PN165

We do have a preference, and we see nothing inappropriate in expressing that preference to the Commission and we do that, having told the Commission not in an interim way, but simply reported to the Commission, that the AEU's position has been that the issue of industrial action is linked to a progress and we simply report that. We don't seek to say any more about it, but it seems to us that that matter is of some importance in progressing the matter and that if the matters identified by us as priority matters were taken up, it would seem to us that the capacity of the union to be in a position to better understand the Minister's most recent position in relation to those issues is assisted, and in that respect the review of industrial action which may take place, would also be assisted.

PN166

In our respectful submission, it is in the interests of all concerned, including the Minister, that issues of greater substance be addressed first and we put forward our preferences in that respect and we don't seek to stop our friends from doing likewise. Ultimately we agree that that is an issue for the Commission to determine. Thank you, Commissioner.

PN167

THE COMMISSIONER: Yes. Look, what I propose is this, that I think the Commission will be assisted by the following. One, of course, identification of who the representatives are to be, and that of course, is of greater interest to each other than to myself, but anyway, that should be set out. I should also appreciate a document, one from each, but let us trust that they are the same and that is that the matters that are agreed, at least in principle and subject to overall agreement, we understand that should be a document.

PN168

In respect of the matters that are not agreed, I think they should be identified and I don't wish to burden the parties with the submissions or arguments in support of those positions, but perhaps it might need a bit of an explanation for me so that claims as to salary or position as to salary perhaps, should be in brief terms - put in some context, that is, how that perhaps - I'm sure you have said this to one another - how that fits in with comparable outcomes elsewhere it might be, or it might be - impact on overall cost to the service, etcetera.

PN169

Comments like that, and also as I said, some explanation if it does not seem to you to be clear to someone who is walking in somewhat cold to this industry and this question. Now, it may be that in putting the outstanding issues, or setting out the outstanding issues, some prioritisation might be made by the respective parties, and no one should be denied doing exactly as you have said, Mr Bromberg, saying: well, these are the outstanding issues as far as we are concerned. The most critical ones are these, these and these.

PN170

I'm not attracted to determining prior to the conciliation proceeding that such a priority will be followed, or that necessarily, the proceedings will be prioritised. I'm so out of this at this stage that I would like to really see what happens from the very first moment and equally, an explanation more detailed of person's positions or the group's position, separately and privately, has its attractions, but I'm not attracted to it from the beginning but it may very well be that soon after, that may occur.

PN171

I think the issue of industrial action, well, we note that that is a concern or an issue. I don't think anything needs to be said at this stage. So I guess that is the long way round saying the identity of the representatives should be forwarded to each other and to myself as soon as possible. The agreed positions should be likewise forwarded and finally, the outstanding issues, a little bit more explanation should be forwarded. I'm not attracted - I should have said this. I'm not at also attracted to a whole range of correspondence of offers made and offers withdrawn, etcetera.

PN172

However, if there is some handy document that perhaps encapsulates the final, or near final positions, you know, up to about September or whenever most recent discussions have occurred, that might be helpful. So I'm not denying any items of correspondence, but going back months may not assist me all that much. Now, just getting back to the time, I'm happy to commence at about 9.15 on Monday. Is that okay to the various Perth people?

PN173

MR BROMBERG: Yes.

PN174

THE COMMISSIONER: I should also indicate that in respect of Tuesday, by the end of the today, I should know whether a 2 day matter that I've got in Sydney on Wednesday and Thursday will settle, so it may very well be that Tuesday might be available much more fully than I can say at this stage. But in any case, I guess that is - well, just something for the Perth people to be aware of, that Tuesday may go longer and it may be that we also have the availability of Wednesday morning. It might very well be not too much conciliation and we are either getting there or we are not. Now, is there any other matters to be attended to?

PN175

MR DIXON: No.

PN176

MR BROMBERG: No thank you, Commissioner.

PN177

THE COMMISSIONER: Okay, well, on that basis, these proceedings are now adjourned and they will be resumed, off transcript of course, in conciliation proceedings next Monday. Thank you.

ADJOURNED UNTIL MONDAY, 24 NOVEMBER 2003 [1.05pm]