C2002/4410, Transcript of Proceedings [2004] AIRCTrans 1497 (19 April 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 6723
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

C2002/4410, 4411, 4412, 4413, 4414,
4415, 4416, 4417, 4418, 4419, 4420,
4421, 4422, 4423, 4424, 4425, 4428,
4429, 4430, 4431, 4432, 4433, 4990,
4991, 4992, 4993, 4994, 4995, 4996,
4997, 4998

HIGHER EDUCATION CONTRACT OF
EMPLOYMENT AWARD 1998

HIGHER EDUCATION GENERAL STAFF
SALARIES AND CLASSIFICATIONS
AWARD 1998

HIGHER EDUCATION WORKERS VICTORIA
(INTERIM) AWARD 1993

AUSTRALIAN UNIVERSITIES ACADEMIC AND
RELATED STAFF (SALARIES) AWARD 1987

AUSTRALIAN POST COMPULSORY AND
HIGHER EDUCATION ACADEMIC SALARIES
(CONSOLIDATED) AWARD 1989

UNIVERSITIES AND AFFILIATED INSTITUTIONS
ACADEMIC RESEARCH SALARIES (VICTORIA
AND WESTERN AUSTRALIA) AWARD 1989

UNIVERSITIES AND POST COMPULSORY
ACADEMIC CONDITIONS AWARD 1999

VICTORIAN POST-COMPULSORY AND HIGHER
EDUCATION ACADEMIC AND TEACHING STAFF
(CONDITIONS OF EMPLOYMENT) INTERIM
AWARD 1990

SOUTH AUSTRALIAN POST COMPULSORY AND
HIGHER EDUCATION ACADEMIC STAFF
(CONDITIONS OF EMPLOYMENT) AWARD 1989

QUEENSLAND POST COMPULSORY AND
EDUCATION ACADEMIC STAFF (CONDITIONS
OF EMPLOYMENT) AWARD 1989

NORTHERN TERRITORY UNIVERSITY ACADEMIC
AND RELATED STAFF (TERMS AND CONDITIONS
OF SERVICE) AWARD 1989

CURTIN UNIVERSITY OF TECHNOLOGY ACADEMIC
STAFF (CONDITIONS OF EMPLOYMENT) AWARD 1999

ACADEMIC STAFF (EDITH COWAN UNIVERSITY)
AWARD 1988

UNIVERSITY OF CANBERRA ACADEMIC STAFF
(CONDITIONS OF SERVICE) AWARD 1999

TASMANIAN STAGE INSTITUTE OF TECHNOLOGY
ACADEMIC STAFF (CONDITIONS OF EMPLOYMENT)
INTERIM AWARD 1988

ACADEMIC STAFF (AUSTRALIAN MARITIME COLLEGE)
CONDITIONS OF EMPLOYMENT AWARD 1999

QUEENSLAND UNIVERSITIES (GENERAL STAFF)
INTERIM AWARD 2000

UNIVERSITY OF WESTERN SYDNEY (GENERAL
STAFF) (INTERIM) AWARD 1999

UNIVERSITY OF NEW ENGLAND GENERAL
STAFF (INTERIM) AWARD 2000

UNIVERSITY OF ADELAIDE GENERAL STAFF
(INTERIM) AWARD 2000

UNIVERSITY OF CANBERRA GENERAL STAFF
(INTERIM) AWARD 2001

AUSTRALIAN MARITIME COLLEGE (GENERAL
STAFF) AWARD 2002

HIGHER EDUCATION CONTRACT OF EMPLOYMENT
AWARD 1998

HIGHER EDUCATION GENERAL AND SALARIED
STAFF (INTERIM) AWARD 1989

THE HIGHER EDUCATION WORKERS VICTORIA
(INTERIM) AWARD 1993

QUEENSLAND UNIVERSITIES (GENERAL STAFF)
AWARD 2000

UNIVERSITY OF WESTERN SYDNEY (GENERAL
STAFF) (INTERIM) AWARD 1999

UNIVERSITY OF NEW ENGLAND GENERAL STAFF
(INTERIM) AWARD 2000

UNIVERSITY OF ADELAIDE GENERAL STAFF
(INTERIM) AWARD 2000

UNIVERSITY OF CANBERRA GENERAL STAFF
(INTERIM) AWARD 2001

AUSTRALIAN MARITIME COLLEGE (GENERAL
STAFF) AWARD 2002

Applications under section 113 of the Act
by National Tertiary Education Industry
Union to vary above awards re casual
employees

MELBOURNE

10.05 AM, WEDNESDAY, 7 APRIL 2004

Continued from 10.3.04

PN488

THE DEPUTY PRESIDENT: Yes, good morning. Are there any changes to appearances?

PN489

MR G. WHITEHEAD: Your Honour, I am representing the Australian Manufacturing Workers Union in a number of matters before the Commission this morning.

PN490

THE DEPUTY PRESIDENT: Thank you.

PN491

MR NUCIFORA: Your Honour, I believe I have made an appearance.

PN492

THE DEPUTY PRESIDENT: Yes, I think you have, Mr Nucifora, yes.

PN493

MR PILL: Your Honour, MR WAUGH appears with me today in place of Mr Smith. Mr Waugh is from the University of Melbourne.

PN494

THE DEPUTY PRESIDENT: Thank you. Do we have a volunteer?

PN495

MS FLOYD: Thank you, your Honour.

PN496

THE DEPUTY PRESIDENT: Good, thanks, Ms Floyd.

PN497

MR MENDELSSOHN: Actually, your Honour, perhaps I might start because on the last occasion the unions undertook - or the unions that were present on that occasion, namely the CPSU and the NTEU, undertook to notify the other union parties to the various awards - - -

PN498

THE DEPUTY PRESIDENT: Yes.

PN499

MR MENDELSSOHN: - - - of today's - that the matter was listed today and to send them the relevant draft orders. And if I may hand up an affidavit of service to show that I have done that and who I have served what on.

PN500

THE DEPUTY PRESIDENT: Yes. Thanks, Mr Mendelssohn.

PN501

MR MENDELSSOHN: And what I think I did - from discussion with Mr Whitehead I might not have served some of the union parties with all of the draft orders, although Mr Whitehead now has them all. Certainly all union parties to the award have been notified of today's proceedings and are aware of the nature of them.

PN502

THE DEPUTY PRESIDENT: Yes. Did you wish to have this marked, Mr Mendelssohn?

PN503

MR MENDELSSOHN: Yes, if I could, your Honour, just for completeness.

EXHIBIT #CPSU1 AFFIDAVIT OF SERVICE

PN504

THE DEPUTY PRESIDENT: Yes, perhaps it is appropriate at this stage, given your comments, Mr Mendelssohn, to state that I have got a facsimile communication that I received from the CEPU which I won't read out in full but it refers to various awards and makes certain submissions in respect of the draft orders which were provided to the CEPU. And that is in respect of the Higher Education General and Salaried Staff Interim Award 1989, the Queensland Universities General Staff Award 2000 and the Western Australian Universities General Staff Award 2002, and also the University of Queensland General Staff Award 2003. I assume the parties have a copy of those submissions from the CEPU? Yes, Ms Floyd.

PN505

MS FLOYD: Thank you, your Honour. When the matter was last before the Full Bench on 26 November 2003 the parties tabled a settlement position and that was marked CU3. At the end of the hearing the Bench issued directions and at point 2 of the directions the parties were directed to meet and prepare variations to the awards and the awards that have superseded these awards to give effect to the agreed positions. And the orders that we are handing up today give effect to some of the - to part of that settlement position. In particular, it is giving effect to - sorry, I will hand up - do you wish to mark that, your Honour?

PN506

THE DEPUTY PRESIDENT: Yes, I think it is probably a good idea. So do you wish to have this marked as a single exhibit, Ms Floyd?

PN507

MS FLOYD: Yes.

EXHIBIT #NTEU3 DRAFT ORDERS

PN508

MS FLOYD: Thank you. The orders that we have prepared today, if I could take you to tab 1 of the folder which is a copy of CU3, the settlement position. The variations are to give effect to general staff conversion which starts at point 3 on page 2; general staff minimum hours which is point 14; and overtime for general staff which is at point 15; payment within 22 days for academic staff which is at point 17; other academic activities at point 18; and point 19, loading for academic and general staff. And in order to take you through those variations, I am going to take you to the ACU Award which is at clause 14 - sorry, tab 14.

PN509

THE DEPUTY PRESIDENT: I see, these are just copies of the same document, are they, Ms Floyd?

PN510

MS FLOYD: Yes.

PN511

THE DEPUTY PRESIDENT: Yes, sorry.

PN512

MS FLOYD: Now, the draft order in the Australian Catholic University is an illustration of the clauses that have been agreed to give effect to those parts of the settlement agreement and the clauses are identical in all of the awards. The variations to the underlying award are slightly different but the actual wording of the clauses are identical and if there are any variations, I will take you through those.

PN513

In the first case, if we go to the first variation by inserting at the end of clause 2, that is really just a tidying up exercise for the arrangement clause. The next one is more important. By deleting clause 6.2 and inserting the following, and 6.2 indicates that a casual means:

PN514

A general staff member of the university employed and paid by the hour who receives a loading as provided for in clause 10.10.1.

PN515

Now, that is just an updating of what the actual clause 6.2 is in terms of definition. Part 3 is stating that:

PN516

A staff member may be employed on a full time, part time, fixed term or on a casual basis.

PN517

And the additional here is:

PN518

...or on a part year seasonal or annualised hours basis.

PN519

And I will describe what that means later on. Over the page 10.10.1 is the clause that has been inserted in all of the awards which indicates what a casual staff member is and how much loading they are paid. And it states that:

PN520

A casual staff member shall mean a person engaged by the hour and paid on an hourly basis that includes a 23 per cent loading in lieu of benefits not provided to the casual employee including all the entitlements, penalties and loadings not provided to the casual employees.

PN521

and we say that the 23 per cent is appropriate and it is not inconsistent with the approach that the Commission has been taking to casual loadings and, in most cases, it has been increased to 25 per cent. So we say that the 23 per cent is not unreasonable.

PN522

10.10.2 gives effect to the minimum period of engagement for staff members, for casual staff members, and in most cases casual staff members will have a minimum period of engagement of three hours. However, there are exceptions which are stated in 10.10.2 (a) to (e) and those exceptions are set out in schedule D, and those exceptions allow for where there is a state award that allows for a lesser period than three hours for particular general occupational groups, then that lesser hour minimum hours will apply. Where an award currently has a three hour minimum call out in any of the orders we have handed up that will not change. So, in other words, where it is less than a three hour minimum call out, the minimum is three hours with those exceptions. 10.10.3 indicates that:

PN523

A casual staff member shall only be entitled to overtime where hours of work are in excess of seven hours on any one day and in respect of such excess the casual staff member shall receive only the greater of the applicable overtime rate or the casual loading.

PN524

So the overtime is payable for the number of hours worked, not the time at which they are worked. So, in other words, there is no overtime payable if all of the work is done on a Saturday or a Sunday or a public holiday unless it exceeds the daily minimum. 10.11 is conversion from casual to non-casual employment. 10.11.1 indicates that:

PN525

A staff member must not be engaged or re-engaged or have hours reduced in order to avoid this obligation.

PN526

10.11.2, the university shall advise the member that:

PN527

After serving a qualifying period some casual members may have the right to apply for a conversion.

PN528

10.11.3 obliges the university to take reasonable steps to inform casuals of the provisions of this award. 10.11.4 indicates that:

PN529

An eligible casual staff member may apply in writing for conversion to non-casual employment.

PN530

10.11.5 sets out the eligibility, and there is two criteria for eligibility:

PN531

Where the staff member over the immediate preceding period of 12 months has worked an average weekly hours equal to at least 50 per cent of the ordinary hours worked by a full time staff member, or over the immediate preceding period of at least 24 months.

PN532

So the second one doesn't have a percentage qualifying time. Then 10.11.6 indicates what is meant by occasional, short-term work - sorry, indicates that:

PN533

For the purpose of this clause occasional, short-term work performed by the staff member shall not affect eligibility for conversion and shall be included in determining whether the staff member meets or does not meet the eligibility requirements.

PN534

10.11.7 (a) to (f) are reasons that the employer can refuse to convert a casual employee. The first is where the staff member is a student or has recently been a student other than where the status of a student - where the status of a student is irrelevant to the engagement. So, in other words, these are positions that have not been designated for students, then if that is the case they can't refuse them unless it has been specifically designated as a student position.

PN535

If the staff member is a genuine retiree. If the staff member is performing work which will either cease to be required or be performed by non-casual employees within 26 weeks of the application. If the staff member has a primary occupation with the university elsewhere or is self-employed. If the staff member doesn't meet the essential requirements of the position, or if the work is ad hoc, intermittent, unpredictable or involve hours that are irregular. And those are the grounds on which the university can reasonably refuse an application for conversion. 10.11.8 indicates that:

PN536

The university must determine the application for conversion by either offering conversion to non-casual employment or by rejecting the application.

PN537

And if the application is rejected, then the employer is obliged to give reasons for the rejection. 10.11.9 indicates that:

PN538

The conversion can be either continuing or fixed term appointments consistent with clause 10.8 of this award.

PN539

And 10.8 of this particular award sets out the limitations on fixed term employment. In this industry, your Honour, we have an award which limits the instances where people can be appointed on a fixed term basis and that award has been - the terms of that award have been incorporated into - they have either been incorporated into these awards or the other award still applies. So in accordance with what is allowed the position would be converted to a continual or fixed term.

PN540

The offer has to also indicate the hours and pattern of work and the desirability of offering the staff member work which is regular and continuous shall be consistent with the staff member's casual engagement. So, in other words, if a casual person has been engaged for X number of hours, that is how the conversion should apply. 10.11.10 indicates:

PN541

The conversion may be but is not required to be part-year, annualised out or seasonal employment.

PN542

In this industry there are some positions which are required from year to year but on a seasonal basis. For instance, library shelvers are unemployed - usually only employed for nine months of the year. So this clause allows them to be employed as part-year or annualised hours, or seasonal employees. 10.11.11 indicates how casual service will be counted for other entitlements and 10.11.11 is long service leave - if at the time of the conversion the University provides casual staff members with an entitlement to long service leave - then it will be counted. Any applicable unpaid parental leave, the casual service will count towards the eligibility for that. And a staff member - at 10.11.12:

PN543

A staff member whose application for conversion is rejected shall not be entitled to apply within 12 months -

PN544

unless the rejection is based on 10.11.7(c) which is that the work is expected to cease within 26 weeks of the application, and that didn't apply. 10.11.13 just indicates that the disputes procedures can be used for any dispute arising out of an application for conversion. 10.11 sets out the terms and conditions for seasonal, part-year or annualised hours and it indicates that to the extent of any inconsistency with the provisions in the body of the award and the provisions of schedule E - which I will come to in a minute - then the provisions of schedule E apply and override the provisions within the body of the award.

PN545

Schedule D on page 5 sets out the minimum callout for casual members and where those exceptions are and it is more extensive at the Australian Catholic University because that University covers four states or three states and one territory. So it includes all of the exceptions for all of those. Schedule E sets out the seasonal, part-year and annual hours of employment. It gives the definition at clause 2 of what seasonal or part-year staff members are. 2.2 indicates how pay is approved. It indicates they will be paid on the same basis as comparable full-time or part-time continuing staff members.

PN546

2.3 sets out their leave entitlements and how they will accrue. 2.4 indicates that they are entitled to the benefit of all public holidays if they fall on the day on which the staff member would work. 2.5 sets out what happens in the event of the termination of employment of seasonal or part-time staff member. Point 3 is annualised hours staff members which are slightly different to seasonal and part-time and 3.1 is the definition and similarly to seasonal and part-time 3.2 sets out the accrual of pay, 3.3 the leave entitlements, 3.4 public holidays.

PN547

3.5 indicates that they will be eligible for overtime but there is no accrual of leave entitlements in respect of overtime work. 3.6 sets out what happens if the annualised hour member works in excess of the number of ordinary hours of the year for which they are engaged. 3.7 sets out the alteration of annual hours - they can be altered by agreement between the University and the annualised hours staff member and 3.8 sets out what happens if the annualised hour member is terminated.

PN548

Your Honour, those clauses, save for some variations that are in the body of the award, are identical for all of the orders.

PN549

THE DEPUTY PRESIDENT: Yes.

PN550

MS FLOYD: There are some slight changes and I will take you to the University of Queensland which might indicate a variation on that.

PN551

THE DEPUTY PRESIDENT: And that is where, Ms Floyd?

PN552

MS FLOYD: Tab - sorry, tab 15.

PN553

THE DEPUTY PRESIDENT: Thank you.

PN554

MS FLOYD: At the University of Queensland there are casual cleaners who are currently entitled to leave provisions and so that they don't get the leave provisions plus - - -

PN555

THE DEPUTY PRESIDENT: We spoke about this before, I think, Ms Floyd. This is a grandfathering provision essentially.

PN556

MS FLOYD: Yes, that is right; that is right.

PN557

THE DEPUTY PRESIDENT: Yes.

PN558

MS FLOYD: So that is just an indication of some variation on the theme. If we go to clause 4.1 there had to be some consequent changes to the span of hours, in particular at the end of page 5, the ordinary hours include casuals who I think currently their maximum number of hours per day are eight and they will now get overtime after 7 hours 15 minutes but the spread is now an open span because in the past those people would have been paid overtime on Saturdays or Sundays. Now they will get Saturday and Sunday rates only if they work in excess of 7 hours 15 minutes on that day.

PN559

THE DEPUTY PRESIDENT: Yes.

PN560

MS FLOYD: Now that was part of the agreement. Part of the settlement was that we were striking a minimum standard rate for the industry and that was part of the agreement that would occur.

PN561

THE DEPUTY PRESIDENT: Yes. Just with regard to the employees who are essentially to be grandfathered, I think there was some suggestion at one point in time that there would be a listed provided. Mr Pill, do you have that available or - - -

PN562

MR PILL: Perhaps I can - what I can indicate, your Honour, if you turn to clause 3.2.6 of the University of Queensland draft order.

PN563

THE DEPUTY PRESIDENT: Yes.

PN564

MR PILL: And you will see that there is a definition of an eligible casual cleaner and they are - that is their description and it is a defined term in this order of the people who are to be grandfathered. When we were last before the Full Bench I handed up a list of employees that was marked as exhibit CU4. I am instructed that - - -

PN565

THE DEPUTY PRESIDENT: I think that was to be checked by somebody to make sure that it was exhaustive.

PN566

MR PILL: What I can indicate is that it has been checked and the eligible casual cleaners as defined there are the same as each of those persons on the list. For completeness when we were last before the Full Bench we flagged an intention at that time to actually list them in the proposed award and that intention has changed and this approach of defining an eligible casual cleaner has been adopted. But I am happy to state for the transcript that the persons that we are talking about by that description are the persons listed in exhibit CU4.

PN567

THE DEPUTY PRESIDENT: Good. Thank you, Mr Pill. Sorry, Ms Floyd, go ahead.

PN568

MS FLOYD: That is okay. So that is just a variation on the theme for the University of Queensland. I would also like to take you to tab 2 which is the Academic Award which is different. With the Academic Award the first variation is the inclusion of a new 6.3 which says that the casual employer:

PN569

...will be paid within 22 days of submitting a completed valid claim for payment to the appropriate representative as defined by the University to the employee.

PN570

And that gives effect to number 19, I think, of the agreement. The change to the casual rates - there is a formula for the academic salaries with reference to particular points on the full-time salary scale - that hasn't changed but if we have a look at 8.2.11(?) which is headed, Lecturing and Higher Marking Rate, that formula in the current award is plus 20 per cent. So this award increases - this order increases that to 23 per cent and that is replicated over in 8.2.12 and 8.2.13 which means there are subsequent variations throughout to the salary rates to give effect to that 23 per cent.

PN571

The other change is on page 5 at 8.2.7.2 and this is a list of other academic activities which are paid for separate to the rates as set out previously and the last dot point has been included as part of this settlement and that is:

PN572

...attendance at any of the activities set out in 8.2.2 to 8.2.5.

PN573

So in other words if a casual academic is required - who is tutoring is required to attend a lecture or required to attend a musical accompanying session or an under-graduate clinical nurse education session then they will be paid for separately from their hourly rate.

PN574

THE DEPUTY PRESIDENT: The clause numbering system almost looks like it has been modelled on the Act, Ms Floyd.

PN575

MS FLOYD: Yes. It was actually done quite a while ago. Your Honour, we say that - we commend these orders to you. We say that they are all consistent with the requirements of the Act. They are all allowable award matters in accordance with 89A(2) and - - -

PN576

THE DEPUTY PRESIDENT: Or presumably alternatively 89A(6), Ms Floyd?

PN577

MS FLOYD: Yes, yes. For instance the 23 per cent is consistent with 89A(2)(c). The 22 days payment we will say is 89A(2)(6)[sic]. Attendance at lectures 89A(2)(c). Minimum callout 89A(2)(c) and 89A(2)(b). The conversion process is consistent with 89A(2)(r) and the overtime is consistent with 89A(2)(c). So we say that we meet all the requirements under the Act and we commend these orders to the Commission.

PN578

THE DEPUTY PRESIDENT: Thank you, Ms Floyd. Ms Floyd, do you have anything to say at this point in time about the submissions that I referred to previously of the CEPU?

PN579

MS FLOYD: We have had a look at these submissions. The table that is attached to all of the orders that sets out the less than three hours minimum was agreed to on the understanding that there would be no additional cost to the employer if that was the status quo. If the CEPUs submissions are the status quo then we would support those submissions but we wait to see what the employers have to say. We were acting on the employer's advice that that is what the status quo was and on that basis we would have to - we really don't have submissions to make other than that.

PN580

THE DEPUTY PRESIDENT: All right. Thank you, Ms Floyd. Mr Mendelssohn.

PN581

MR MENDELSSOHN: Thank you, your Honour. I have something slightly different to say about the CEPUs submissions but otherwise I adopt and support the submissions made by Ms Floyd on behalf of the NTEU. I would seek only to make a few additional comments of a general nature. With respect to the conversion process that is or the conversion mechanism that is embodied in the draft orders and which was part of the agreed settlement that is, in my submission, a procedure which is very much tailored to the needs and the realities of the higher education sector as far as in the general staff area of employment.

PN582

The proposal embodies two separate thresholds. One, where the employee has worked on a regular and systematic basis in the same or a similar position in the same or closely related area for 50 per cent - for at least 50 per cent of the hours that a full-time employee would work over a period of 12 months and the other is on a regular and systematic basis for a period of 24 months and that the employer would have the ability to refuse an application for conversion on reasonable grounds and some examples of reasonable grounds are set out.

PN583

In my submission the net result of that is that as this settlement is gradually translated into the various enterprise agreements that apply in the sector it, on the one hand, will in practice lead to more general staff casual employees being able to obtain conversion to ongoing or fixed term employment than would be the case with a simpler but cruder mechanism but on the other hand it wouldn't impose unreasonable burdens on the employers in that people for whom conversion was obviously not intended if they did put up their hand and say, "I want to be converted", the employer would be able to say, "No, this is really not intended for you and you are not - we are not going to convert you".

PN584

So it is, in my submission, an appropriate and flexible mechanism for the realities of the sector and I might indicate that to my certain knowledge even though the settlement is not yet part of the award safety net it has been incorporated into the three enterprise agreements which I am aware have now been concluded and I have not been told of any university with whom we are at present in the process of enterprise bargaining who has indicated that they are not prepared to incorporate the settlement into their enterprise agreement.

PN585

So that would, in my submission, indicate that it is a very appropriate solution for this industry. With respect to the increase in the casual loading, the 23 per cent, this is, in the light of a number of matters that have been before the Commission in the last couple of years, a relatively modest increase. There have now been quite a number of awards which have been varied to increase the casual loading to 25 per cent.

PN586

The rationale for increasing the casual loading to 25 per cent in the Metals case was that when the casual loadings, as they were in that award prior to the variation, were established or rather since those casual loadings were established a number of additional award-based benefits became available to which casual employees were not entitled, including matters such as redundancy provisions, and if one looks at the instruments, the various state instruments in particular, that were incorporated into the Higher Education General and Salaried Staff Interim Award 1989 all of those instruments date from the early 1980s or even before and so a number of award-based benefits that have subsequently become available to employees other than casual employees were certainly not in those awards at that time.

PN587

A number of Commission test case standards have been established since then. So in my submission the increase in the casual loading, the 23 per cent, is in, by today's terms, in today's terms, a moderate - a modest and moderate increase in the loading. With respect to the submissions of the CEPU first of all could I draw your Honour's attention to what I think must certainly be a typographical error in clause 11 and clause 19 and clause 23 where Mr Flatt refers to clause 4.3.3(d) of the Queensland Act.

PN588

I think those references to the Queensland Act must certainly be a typographical error and it should read Queensland award because elsewhere in the submission wherever Mr Flatt refers to a particular instrument he refers to it by its full names and then in brackets afterwards the abbreviation he intends to use and thereafter uses the abbreviation but he certainly doesn't refer to any - in full to any Queensland Act so I think that is a typographical error in each of those three paragraphs and it should be taken as referring to the relevant clause of the Queensland award.

[10.40am]

PN589

Now, subject to that, your Honour, I would support the orders referred to in Mr Flatt's submissions being amended in the manner he seeks, and also that would apply to the Flinders University and University of New South Wales draft orders. The schedule in the various orders - and the schedule number varies, but the schedule I am referring to is the one which sets out the exceptions to the three-hour minimum engagement, the classifications for whom a minimum engagement might be less than three hours.

PN590

The rationale for that was that generally employees - or a lot of the employees in those categories are in areas of operations of universities that are in competition, in effect, with the private sector in the relevant State, and if I may take three examples. The University of Queensland operates catering services at Brisbane Customs House on a purely commercial basis. The Charles Sturt University runs a winery which serves a partially educational function in connection with the oenology course there, but it also has to pay its way and is in competition with the wine industry generally, the private sector wine industry. The University of Sydney runs a dairy farm which again obviously serves an educational purpose in connection with the veterinary science and agriculture courses, but also likewise has to pay its way in competition with commercial dairies.

PN591

So that is the sort of rationale for the exceptions as I understand that rationale, and at all times in the discussions between the parties, it has been a question of fact, whether there is a standard in the private sector which would - where the minimum engagement is less than three hours, and it seems to me that Mr Flatt has established that with respect to electricians in South Australia and electricians in Queensland and also the New South Wales situation, Mr Flatt has established that the factual situation is that with respect to those particular classifications he deals with in his submission that the minimum engagement in the private sector is, in fact, three hours or more, so I would support the variation sought by Mr Flatt. May it please the Commission.

PN592

THE DEPUTY PRESIDENT: Thanks, Mr Mendelssohn. Yes, Mr Whitehead.

PN593

MR WHITEHEAD: Yes, your Honour. Your Honour, the Australian Manufacturing Workers Union has an interest, I think, in six of the awards before the Commission. Three of those, namely the West Australian University's General Staff Award, the University of Canberra General Staff Award and the University of New South Wales General Staff - sorry - the Higher Education General Staff Salaries and Classification Award, the AMWU received a draft of the applications and the draft orders prior to today's hearing and I had an opportunity to go through those and the AMWU had no objection to those awards being varied in terms of the applications before you.

PN594

In respect of the other three awards with which we have an interest, the University of New South Wales General Staff Award, the University of New South Wales Australian Defence Force Academy General Staff Award, and the Flinders University General Staff Award, I have received a copy of those draft orders this morning, just immediately prior to this hearing, and I have had an opportunity to have a quick glance through them, and listening to the submissions of my friend Ms Floyd, I believe that we won't have any objections to those applications either, your Honour. I am fairly certain that they are identical to the other three so that I think I can say on behalf of the AMWU we would accept those draft orders as well.

PN595

In regard to the CEPU submission, which Mr Mendelssohn has just addressed, I haven't - I only just received a copy of that only a minute or two ago, had a glance at it. As far as I can understand, it refers only to electricians which wouldn't be of interest to the AMWU. Certainly in regard to the University of Queensland, I don't think we are parties to that award so obviously we have got no interest there.

PN596

Flinders University and University of New South Wales, we are parties, but again briefly looking at their submission, I don't feel that it causes me a problem, and given that the CPSU are accepting the suggested further variation - amendment to the variation, I imagine the AMWU would support that as well. I am being a little bit vague, but I think you can get the gist of it. I think the AMWU is happy to support these applications.

PN597

THE DEPUTY PRESIDENT: Well, did you want some time, Mr Whitehead, to confirm that circumstance on behalf of the metal workers?

PN598

MR WHITEHEAD: I don't want to hold proceedings up. I don't how the matter is going to run, your Honour.

PN599

THE DEPUTY PRESIDENT: I don't think it should do that, but I am happy to provide a period of time for you simply to confirm in writing with my chambers essentially what you think will be the case here.

PN600

MR WHITEHEAD: Your Honour, could I put it to you that if you don't hear from me, everything is clear. If I have got a problem in the next hour or two, I will let you know.

PN601

THE DEPUTY PRESIDENT: All right. Well, I think that is probably reasonable, Mr Whitehead. If I don't hear anything within a 24-hour period - - -

PN602

MR WHITEHEAD: I think that is sufficient.

PN603

THE DEPUTY PRESIDENT: - - - then I will take it as read that the AMWU is supporting the applications.

PN604

MR WHITEHEAD: Can I just conclude by saying that it is my submission that - or the AMWUs submission that matters before the Commission are allowable or incidental to allowable matters, and we can't contemplate any problems with the Act. Your Honour, we support the applications.

PN605

THE DEPUTY PRESIDENT: Thank you, Mr Whitehead. Mr Nucifora.

PN606

MR NUCIFORA: Yes, thank you, your Honour. The ASU has a direct interest in these four awards that are before you and, in particular, the Higher Education General Salaried Staff Award, the Queensland University General Staff Interim Award 2000, the University of Queensland General Staff Award and to a lesser extent the University of Adelaide General Staff Award. Now, we have two branches of our union that are - in particular, our Queensland branches that are very active in those awards.

PN607

We have been kept up to date over the last year in terms of the consent position that was reached with the employer universities and the ASU does concur with the substantive submissions put by the representatives of the ETU and the CPSU today. And we are grateful for them and the employers reaching a consent position on what is a very vexed question on how we should regulate casual employment into the future. We think that it is - that it deals with a lot of the key questions that we do find that - we need to deal with the casuals in particular, not the least being the loading, but in particular the opportunity to be able to confer arising out of the - written in the Metals case and, of course, there was the South Australian Clerks Award case.

PN608

So we are very supportive of the consent position reached and we are - we have checked the draft orders that are before your Honour. We do support the approval of those orders. If your Honour pleases.

PN609

THE DEPUTY PRESIDENT: Yes, thanks, Mr Nucifora. Mr Pill.

PN610

MR PILL: Thank you, your Honour. Your Honour, on behalf of the group of eight institutions, I support the substantive submissions, if I can call them that, made by Ms Floyd and Mr Mendelssohn in particular. There are some minor matters that perhaps I don't support but I am not vehemently disagreeing with but I will just highlight what they are.

PN611

THE DEPUTY PRESIDENT: I think VECCI has a saying as I recall, Mr Pill, that they don't consent but they don't object.

PN612

MR PILL: I am supportive of the submissions but I am not adopting them. Unless the Deputy President wishes me to, I don't intend to go through any of the other draft variations that have been proposed. Ms Floyd has ably done that for you in relation to the ACU Award and I can support the general submission that she made that the other general staff awards have generally been buried in the same fashion, taking into account the existing award provisions that were there.

PN613

One matter that I would briefly highlight again in the University of Queensland Award is that - and this is a function of point 19 in the settlement document which is CU3. Point 19 of the settlement document provides for - I will just read it to you:

PN614

Provides for an increase in all relevant Academic and General Staff Awards to 23 per cent, subject to the proviso that the award rate will not pierce the EB rates during the first 12 months of operation from the date of variation of the awards.

PN615

The matter which I wish to highlight goes to that proviso and it is on the very last page of the University of Queensland draft order at point (b) which is the very last point.

PN616

THE DEPUTY PRESIDENT: Which is tab 15, isn't it, Mr Pill?

PN617

MR PILL: I have my own folder, Deputy President, which has different tab numbers but I - - -

PN618

MS FLOYD: It is tab 15.

PN619

THE DEPUTY PRESIDENT: Yes, I have it, Mr Pill.

PN620

MR PILL: It is at page 10 at the bottom, point (b). You will see that clause 3.2.6(a)(i) is referred to. It is a clause which increases the casual loading to 23 per cent and, by virtue of how the University of Queensland enterprise bargaining agreement operates with the award, it is agreed between the parties that that casual loading increase will not apply for a period of 12 months from the date of when this order is made, and that is a unique position amongst all of the variations that you have before you.

PN621

Your Honour, there is one matter which I might touch upon; it is perhaps unnecessary. It hasn't been referred to by the other parties yet. We mentioned when we were last before you that there are some awards which were made post the original applications, and there have been applications made at least I am aware by the NTEU to vary awards, including, as far as my clients are concerned, the University of Queensland General Staff Award and the UNSW General Staff Award and the UNSW ADFA General Staff Award.

PN622

Your Honour indicated last time an intention to seek the President's referral of those matters to the Full Bench. I am not sure where that is up to but I just want to state for the record that my clients support, as a matter of process support the referral of those matters to the Full Bench so that, as a matter of compliance with the Act, they can then be made, those variations can then be made by the Full Bench.

PN623

THE DEPUTY PRESIDENT: Yes.

PN624

MR PILL: It is a housekeeping matter, in my submission, your Honour. Your Honour, by way of general submissions in my submission it is appropriate that the Commission makes the variations sought. The variations represent an agreed position reached after an extensive period of negotiation. That settlement at least part settles the underpinning dispute and I would submit that it also assists in the parties in avoiding what would have been a very long and very messy arbitration should the parties not have been in a position to reach a consent position.

PN625

I support the submissions that the variations only contain either allowable matters or matters incidental to allowable matters within the meaning of section 89A. In relation to the merits generally, your Honour, in relation to the loading, I can't support Mr Mendelssohn's submission that the increase in the loading is modest. What I would support is the submission that it is consistent with or at least not inconsistent with the general approach adopted by the Commission to whether the casual loading should be increased and that has to take into account the history of the award regulation in the particular awards that are the subject of the variation applications together with, in my submission, the award benefits foregone, for want of a better word, by casual employees.

PN626

Mr Mendelssohn referred to the fact that there are a number of underpinning award entitlements in this sector. They are far from uniform and there is a variety of entitlements that were enjoyed by employees, for example, who are full-time who are covered by the Metal Industry Award which are not enjoyed and do not appear in a number of the awards that are part of, for example, the HEGSS Award or part of the HEWV Award.

PN627

The general submission being, your Honour, that there is differences in the current award entitlements for full-time employees that are not enjoyed by casual employees in this sector compared with some other sectors and compared with other awards and in the absence of full evidence about the matter the Commission wouldn't be in a position to, in my submission, adopt any increase other than that which has been put to the Commission by consent.

PN628

In relation to the conversion clause I support generally the comments made by Mr Mendelssohn. It was specifically drafted having regard to the needs of this particular sector. It does differ in many ways from other conversion processes adopted by this Commission although it is modelled largely on the Metal Industry conversion clause. Mr Mendelssohn went on to submit about what the effect of this conversion process might be. Suffice to say in my submission it is not for us to speculate what the effect might be in relation to whether this type of conversion process will result in a greater number of casual employees converting than some alternative conversion process.

PN629

What I would submit is that it is an appropriate conversion process for this sector having regard to the fact that it is agreed as part of a package to settle the dispute. In relation to the CEPUs fax, your Honour, I received or it was received by my office at about 20 past 4 last night. It came to my attention about 7 o'clock last night. I haven't been able to get instructions in relation to the matters set out therein, appreciating that I have eight different clients who are affected by the matters set out therein.

PN630

What I would therefore propose is I wish to make some general comments but would then seek a period of 14 days to make, if I am instructed to do so, make some brief written submissions which can be filed and served in relation to the matters raised by the CEPU. By way of general comments I wish to note that the CEPUs submissions only go to one very small aspect of the proposed variations that are sought and that is the aspect which deals with the minimum period of engagement. Your Honour, if I can take you to clause 14 of CU3 which I believe might be included in the folder which was handed up. It is tab 1 of the folder.

PN631

As Ms Floyd indicated to you the agreement reached generally in relation to minimum hours and as reflected in the draft variations sought is to increase the loading to three hours where it is not already three hours or more and then there is some exceptions to that. The exception which is the subject of the submissions by the CEPU is 14(b) and the exception is where there is a widespread and established award standard in the relevant state and Ms Floyd submitted it was where there was a particular state award and also referred to it subsequently as it was meant to reflect what the status quo was.

PN632

In my submission that is a mis-description. The intention here is that one needed to examine whether there was a widespread and an established award standard in the relevant state and that could have been established by federal awards, it could have been established by state awards. The matter highlighted by the CEPU in my submission, reading it, they are not disputing what has been agreed; they are not disputing that there should be an increase to three hours and that this exception should apply.

PN633

What their submission does is they seem to dispute whether the exceptions that we have then included in various tables at the back of the draft variations constitute that widespread and established award standard in that state and they have referred to particular state awards to support that. The table which is attached to CU3 refers, and this is the table in schedule 1, in the last column, your Honour, refers to external awards and this document arose out of discussions and negotiations between the parties.

PN634

It was proposed by the employers but it was certainly the subject of negotiations and it was agreed by the parties, including the representatives of the NTEU and the CPSU, as being appropriate to give effect to that clause 14(b). Where the CEPU differs is that they have named some different awards and I am, I guess, foreshadowing, your Honour, that there may be an invidious position for the Commission where effectively what it is being called upon to do is work out from submissions only whether there is a widespread and established award standard in the relevant state or to put it more simply whether, for example, the Metal Industry State Award has greater application in the State of South Australia than, for example, the Metal Industry Contracting Award.

PN635

I am not sure how that is going to be resolved at the moment but what I would flag for a moment is a desire to at least have the opportunity to consider it further and get some instructions and potentially make some written submissions about that. It may be that if there is no impact on my clients that we are prepared to vary the agreement which has been reached but it is, in my submission, a variation to the agreement which has been reached, appreciating that the CEPU were not a party to that agreement.

PN636

THE DEPUTY PRESIDENT: Yes. That would obviously require some period of time to be available to the CEPU and other unions who may want to respond to any submissions that you make, Mr Pill.

PN637

MR PILL: I am content with that, your Honour. I should indicate Mr Mendelssohn has submitted that he supports the variations proposed now by the CEPU. With respect to Mr Mendelssohn that is a submission that is contrary to his previous submission to the Full Bench which was to support the document that constitutes CU3 and although I can't quote the words it was certainly submitted by the CPSU and the NTEU that they agreed with and supported the settlement contained in document CU3.

PN638

So my primary submission in relation to the matters raised by the CEPU is that the overwhelming majority of the parties have reached an agreed position. The CEPU have highlighted that in their submission there are different awards which might constitute the widespread standard or at least reflect that there is no widespread standard and that therefore that exception to the three hours should not apply in respect of - and it is just electricians, I can confirm with Mr Whitehead, it is their electrical members in a particular state.

PN639

Your Honour, briefly for completeness I flag there are a couple of minor matters that were submitted by my friends on my right that I didn't vehemently disagree with but didn't support and I appreciate that Ms Floyd, when she went through the document, was, in some cases, in a shorthand fashion describing the operation of the clauses but I would indicate Ms Floyd's description of the exception to - or, sorry, one of the reasonable grounds for refusing conversion which is that:

PN640

...the employee is a student or has recently been a student other than where her/his status as a student is irrelevant to his/her engagement and the work required -

PN641

Ms Floyd used the words that this was to cover a situation where the University designated a particular position as being a student's position. We rely simply on the words of the settlement document, the words which appear. That may well be the case in some instances but there may well be other positions where the employee's status as a student is relevant to the engagement or is relevant to the work required but the position is not a specifically designated position - - -

PN642

THE DEPUTY PRESIDENT: So we should leave some area for future disputes over the matter, Mr Pill?

PN643

MR PILL: I am not even sure it is an area for dispute, your Honour.

PN644

MS FLOYD: It is only an example.

PN645

MR PILL: It was an example, Ms Floyd is indicating.

PN646

THE DEPUTY PRESIDENT: Yes, I understand what you say. I am being flippant, Mr Pill.

PN647

MR PILL: I understood that, your Honour. And similarly some of the other general descriptions, we would support the thrust of those submissions but refer specifically to the words of the documents as setting out the accurate position. Unless your Honour has any questions those are my submissions.

PN648

THE DEPUTY PRESIDENT: No, thanks, Mr Pill, that is fine. Yes, Mr Wedgwood.

PN649

MR WEDGWOOD: Thank you, your Honour. Can I say in general that the organisations that I represent on behalf of 31 member institutions supports the settlement in general terms. We would suggest that the draft award variations are consistent with the agreement that was reached between the parties and tendered to the Full Bench in CU3 and that in that context the proposed variations that arise to the awards from that agreement are allowable matters under 89A(2) or alternatively, as have already been indicated by others, that to the extent that one might find that that is not the case they are certainly allowable as incidental to such matters under 89A(6).

PN650

In relation to the general environment of the settlement I suppose that the history of the higher education sector is briefly relevant. We do say that in particular in relation to the casual loading, and I think that is a matter which the chair of the Full Bench raised on a previous occasion, that the casual loading we see as an appropriate settlement. We have identified throughout the discussions and negotiations that we did see a difference between the academic and general staff situation that related because there are differences between the history of the award regulation within those two sectors and indeed within the general staff there is variation as well as to the award benefits that are or are not received by particular individuals covered by this settlement as a global result and that in general historically the academic awards have not been as comprehensive as some of the general staff awards.

PN651

But we would say that the settlement itself provides for a consensus between all the parties. It is, as these things are, a compromise on a range of matters and that therefore the settlement figure of 23 per cent is reasonable within the context of the current industrial relations climate. I would, if I may, point your Honour again to the settlement document CU3 at paragraph 20 where it was agreed that the loading was in lieu of benefits not received by casual staff, including all leave entitlements and penalties or loadings not provided to casual staff, and the employers have already expressed their view on transcript that the 23 per cent more than properly contemplates[sic] and that remains our position and the unions were free also to express their view that they thought it wasn't. So it is the classic compromise in that sense.

PN652

But we would say also that it is consistent with the methodology arrived at in other decisions of the Commission and that it is a reasonable figure in the environment. I would also like to refer briefly to the background of the fact that this matter in general, I suppose, arises from an earlier decision of the Full Bench which was the decision of the Full Bench, print P0289 of 18 April 1997, and if I may just quote briefly from the particular circumstance at that time. The Full Bench said, on page 16 of the decision:

PN653

However, in the circumstances of this case we are not satisfied that we should revise the existing loading. In this respect we note that the loaded rate is only applicable to the construct that results in light casual academic work.

PN654

I should make the point that that Full Bench related specifically to the academic circumstance, and that the history of the casual loading was, in fact, and it is referred to on page 7 of that decision, print P0289, that the scheme of payment was originated from the 1980 Academic Salaries Tribunal Determination of Justice Ludeke. So that there is a long history of regulation where variation has occurred appropriately through the history of the organisations represented.

PN655

In relation to one particular aspect of the settlement I would also like to make the submission that again this is an appropriate settlement in terms of the particularities of four particular members of AHEIA and those are detailed in clause 19(a) of the settlement document, CU1, which are the Australian Maritime College, Curtin University, Edith Cowan University and Murdoch University where the increase in rates for the general staff has a stepped increase from the current low 15 per cent comparable to the sector to ultimately achieve the 23 per cent.

PN656

Those steps, if you like, are identified in the AMC case and I likewise, your Honour, have a slightly different tab copy fo the document but the Australian Maritime College General Staff Award 2002, the proposed variation there is 34.1.1 and for the three Western Australian Universities, the Western Australia Universities General Staff Award 2002, it is clause 13.6.1(a) and they each reflect the fact that that step from 15 to 23 takes place over a period of time which we would say is consistent with the fact that otherwise there would be an unreasonable impost on those institutions with a sudden and large increase in cost.

PN657

In relation to the particulars of the conversion clause we would also submit that it is an appropriate one for the sector. It was devised specifically to address the fact that something like the metals provision, which would require a notification to each casual employee, would, in this sector, be an enormous administrative task largely useless that would otherwise be imposed on employers and the process of an eligible employee being able to, in effect, put their hand up for conversion is an appropriate one in these circumstances.

PN658

It is protected by the fact that there is an obligation to advise commencing individuals and then generally to advise casual employees that they may have such a right and in the university sector that is relatively easy to do given the fact that the vast majority of people are on e-mail or they are in a location which is not difficult to communicate with. So we would say that that protects the rights of the individual as well as not imposing an unreasonable obligation on employers.

PN659

I would also concur with my colleague Mr Pill that in relation to the interpretation to be placed on the words in the draft order, we would rely upon words if we ever come to a difference, not what might have been said on transcript. In particular I make a point that in relation to the provision to refuse conversion for a reasonable reason, the list of reasonable reasons proposed is indicative but not exhaustive and that other reasonable reasons may in particular circumstances be provided.

PN660

In relation to the proposal from the CEPU I would agree with Mr Pill's submission. That is that in effect we had an agreement and that agreement referred, as you have been directed to in the attachment to the agreement, to a schedule which referred to a number of specific awards. What the CEPU has now said is that in terms of the interpretation of clause 14 of the agreement that that is not the appropriate award to use for that particular determination.

PN661

I, like Mr Pill, have not had time to seek anything other than - do anything other than simply read the submission from the CEPU so I would also support a suggestion that there be some time for the parties to consider and make any formal brief submissions on the point. It is really a relatively narrow and specific point relating only to those electricians but I am not in a position today to either agree or disagree with the submissions from the CEPU. Simply not informed about it sufficiently. Other than that I don't think I have got anything to say unless likewise there are any questions and support the draft orders as proposed.

PN662

THE DEPUTY PRESIDENT: Yes, thanks, Mr Wedgwood. Is there anything further, Ms Floyd?

PN663

MS FLOYD: No, your Honour.

PN664

THE DEPUTY PRESIDENT: Mr Mendelssohn.

PN665

MR MENDELSSOHN: Yes, your Honour. Just in respect of one matter raised by Mr Pill in relation to the - - -

PN666

THE DEPUTY PRESIDENT: This is not about whether it is modest or not, is it, Mr Mendelssohn?

PN667

MR MENDELSSOHN: No, no. It was a suggestion by Mr Pill that in supporting the submissions of the CEPU I was contradicting the position I put to the Full Bench earlier. I reject that suggestion. The submissions of the CEPU are purely to correct what, in their view, is simply a factual error in the schedule of exceptions to the three hour minimum. Mr Pill correctly characterised it as to whether there is a state standard and the CEPUs submission simply goes to what is the state standard with respect to electricians in certain states and he has satisfied me that in fact the state standard is what he says in his submissions on behalf of the CEPU and because that is purely a factual question, not - it doesn't go to the substance or the principles involved, I would reject the suggestion that I have - that this is a contradiction to the position I put to the Full Bench. That is all I wish to say, your Honour.

PN668

THE DEPUTY PRESIDENT: Thanks, Mr Mendelssohn. Mr Whitehead, Mr Nucifora, anything further?

PN669

MR WHITEHEAD: Your Honour, I was only going to say that, you know, I have reserved my rights, which is rather fortuitous, in regard to the CEPU matter but I would just indicate it would seem to me to be relatively simple that under the WROLA process those conditions that already apply, the allowances, the minimum callback period that applies now to electricians in South Australia or Queensland, in those respective universities, should continue to apply, I think. I mean, I couldn't see that the applications before the Commission would reduce what actually exist now.

PN670

I couldn't see the parties would agree to that. So, I mean, if we can establish what the facts are now surely that is the answer to the problem.

PN671

THE DEPUTY PRESIDENT: Thanks, Mr Whitehead. Mr Nucifora?

PN672

MR NUCIFORA: I have nothing further to add, your Honour, thanks.

PN673

THE DEPUTY PRESIDENT: Well, it remains to me to report to the Full Bench in this matter. I don't intend to do that immediately because of this issue of the CEPU submissions. I intend to accede to the request of the employer parties to a period of or for a period of 14 days to respond to those CEPU submissions. Should it be necessary I will extend a further 14 day period beyond that period to the unions for any submissions they may wish to make in reply to the submissions of the employers.

PN674

Other than that at this stage I think the only matter is the awards referred to by Mr Pill to ensure as far as possible that those awards are referred by the President to - sorry, those applications are referred by the President to this Full Bench. I don't intend, unless it is particularly required of the parties, to issue any directions in respect of those submissions. I think it is sufficient that we simply record it here and there will be 14 days from today's date and, as I say, a further 14 days should that be necessary based upon what the submissions that the employer parties make. On that basis I think we can adjourn. Thank you.

ADJOURNED INDEFINITELY [11.12am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CPSU1 AFFIDAVIT OF SERVICE PN504
EXHIBIT #NTEU3 DRAFT ORDERS PN508