C2004/3159, Transcript of Proceedings [2004] AIRCTrans 2059 (3 June 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 7210

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

C2004/3159

APPLICATION FOR AN AWARD

Application pursuant to section 111(1)(b)
of the Act by the National Tertiary Education
Industry Union for an award

MELBOURNE

12.04 PM, MONDAY, 24 MAY 2004

PN1

THE DEPUTY PRESIDENT: Yes, I will take appearances, please.

PN2

MR R. SOLOMON: I appear for the NTEU.

PN3

THE DEPUTY PRESIDENT: Thank you.

PN4

MS C. DENMEAD: I appear for the Geelong Adult Training and Education.

PN5

THE DEPUTY PRESIDENT: Thank you.

PN6

MR SOLOMON: I am sorry, sir, I have MR M. BJORK-BILLINGS with me from the NTEU.

PN7

THE DEPUTY PRESIDENT: Go ahead, Mr Solomon.

PN8

MR SOLOMON: Yes, sir, this is section 111(1)(b) application of the Workplace Relations Act seeking to rope-in Geelong Adult Education and Training Incorporated to the Adult Community Education PACCT staff award.

PN9

The organisation has been served with our application and also with that - and I will tender that as a document - with that, also indicates receipt of that from the organisation, from the Geelong Adult Training and Education Incorporated.

EXHIBIT #NTEU1 - APPLICATION AND RECEIPT

PN10

MR SOLOMON: There has been a dispute finding, the organisation as it is currently named, was a party to a dispute finding in being C No 36541 of 1996. In a variation to the finding, Commissioner Smith, on 24 January 1997 listed Geelong Adult Training and Education as an employer against whom a dispute was found with the NTEU. I do have, if you wish, a copy of that variation together with an extract of the transcript that refers to such organisations including Geelong Adult Training and Education. If you require, I can tender that, it is just a short document.

PN11

THE DEPUTY PRESIDENT: It is a document of the Commission, is it?

PN12

MR SOLOMON: Of the Commission, you should have that, I suppose.

PN13

THE DEPUTY PRESIDENT: Yes, thank you.

PN14

MR SOLOMON: But I can if needed.

PN15

THE DEPUTY PRESIDENT: You can pass it up, Mr Solomon, I won't bother marking it if it is a document of the Commission.

PN16

MR SOLOMON: Sure, yes, your Honour.

PN17

THE DEPUTY PRESIDENT: Yes, thank you.

PN18

MR SOLOMON: We also do have members, of course, at the organisation and we believe as per a previous hearing when we came before you on a range of - or a number of adult and community education providers, that this organisation should also be roped-in, into the award.

PN19

We believe, and I will leave that for my friend here to explain further, but we believe there is a lack of consent and I am prepared to ..... but my colleague, Mr Bjork-Billings wishes to address your Honour on that matter at the time.

PN20

THE DEPUTY PRESIDENT: Yes.

PN21

MR SOLOMON: As I said, I might have been told informally that there is no consent, I am waiting on the other party - - -

PN22

THE DEPUTY PRESIDENT: Yes, thank you. Thanks, Mr Solomon. Ms Denmead.

PN23

MS DENMEAD: I am here to represent Geelong Adult Education in this matter and we have advised Mr Bjork-Billings that there is no consent at this time.

PN24

THE DEPUTY PRESIDENT: Yes, is there any basis for that, Ms Denmead?

PN25

MS DENMEAD: Yes, we believe that given the organisation's financial situation at the time, which I am prepared to put before you, that that is reason behind the decision. I am happy to go through that reason for you if you would like me to.

PN26

THE DEPUTY PRESIDENT: Well, I don't know that I need you to at this stage, I think in the circumstances if you intend to oppose the making of an award, then I am of a mind, most likely, subject to what is said at the other end of the table, to issue some directions and hear circumstance separately.

PN27

MS DENMEAD: Thank you.

PN28

THE DEPUTY PRESIDENT: Mr Solomon or Mr Bjork-Billings.

PN29

MR SOLOMON: Sir, we are prepared to proceed today if your Honour is so minded but we understand if you want to give directions for a further hearing. We believe the matter is very straightforward and could be resolved rather quickly.

PN30

THE DEPUTY PRESIDENT: Yes, well I just get the impression, Mr Solomon, that Ms Denmead is not as prepared as you based upon she has said. She has indicated that she is prepared to table some documents that attest to the financial circumstances of the organisation. I am not sure that that in or of itself in any event is sufficient to convince the Commission that an award shouldn't be made and perhaps it would be more appropriate if Ms Denmead was given the opportunity to seek some advice. Ms Denmead, do you have anything that you wish to say about that?

PN31

MS DENMEAD: No, other than the only information I have is some financial information and if the Commission thinks we should seek further advice on the matter - - -

PN32

THE DEPUTY PRESIDENT: Well I am not suggesting that you should or you shouldn't, Ms Denmead. It would seem to me that if you just have some financial information on the organisation and that is the entirety of your submissions, that wouldn't seem to me, just on its face, to be sufficient to convince the Commission in the circumstance that an award shouldn't be made.

PN33

MS DENMEAD: Well, that is the only information I have at the moment.

PN34

THE DEPUTY PRESIDENT: Yes. So, how did you wish to go forward then?

PN35

MS DENMEAD: Well, we did indicate to the NTEU that we were prepared to go back to some negotiations that we had previously had with them that they had walked away from some years ago and that we were quite happy to continue those negotiations but they had never re-engaged us in that process. We are more than happy to be re-engaged in that process but that had never come back to us. That has always been our position.

PN36

THE DEPUTY PRESIDENT: Yes. Is there any other basis for your opposition to an award being made, Ms Denmead? Is this - and I don't want to put the words into your mouth, but are you suggesting that the Commission should refrain from further hearing of this matter on a public interest ground in accordance with section 111(1)(g) or do you have any other basis for opposing this other than to say that there is some, presumably, financial imperative on behalf of - - -

PN37

MS DENMEAD: No, that is the only grounds I have at this point.

PN38

THE DEPUTY PRESIDENT: Yes.

PN39

MS DENMEAD: That the organisation - - -

PN40

THE DEPUTY PRESIDENT: And how do you say that that should convince the Commission that they shouldn't, that the Commission shouldn't make an award?

PN41

MS DENMEAD: Just because of the financial difficulties that the organisation has been in and the impact that that would have on the organisation if the award was - if the Commission ruled that way. Mr Bjork-Billings is well aware of the potential closing of the organisation last year and the financial difficulties that we're in and the award places additional and financial constraints on the organisation and would have an impact on the staffing numbers and the organisation's financial sustainability for the next 12 months.

PN42

THE DEPUTY PRESIDENT: Yes. All right, thank you, Ms Denmead. Mr Bjork-Billings or Mr Solomon, did you want to - - -

PN43

MR BJORK-BILLINGS: Thank you, your Honour. If I may just deal firstly with the statement that the NTEU walked away from discussions: there were discussions in relation to an enterprise agreement being formed for this organisation that took place over a period of time but they ceased approximately 18 months ago for two reasons - or one main reason. Our main negotiator in that process was, as you may be well aware, in union activities was defeated in a ballot for his position and thus no longer became a person able to negotiate. That was - and then from that moment on, further discussions did not take place.

PN44

I have to point out that at a meeting with GATE last Thursday I was under the impression but I stand corrected that the NTEU made an offer to the organisation to immediately re-open those negotiations at the commencement of July when I, myself, and the executive officer would be allocating a specific staff member to recommence those negotiations and indeed for the organisation's information provided the name of that industrial officer who would be available. So I can understand that the negotiations ceased but I do not think it should stay on transcript that the NTEU walked away. The second item is in relation to the financial position of the - - -

PN45

THE DEPUTY PRESIDENT: Well, it will stay on transcript, Mr Bjork-Billings, it will just be that your explanation of it will also be on transcript.

PN46

MR BJORK-BILLINGS: Thank you very much for your direction, your Honour.

PN47

Last year the NTEU did become aware that Geelong Adult Training organisation that there was financial problems. They were drawn to our attention by our members who were very concerned about a financial situation that had allegedly arose due to an action in the Commission that required the organisation to provide a pay-out of some substance and on the basis of that, we, at the time were roping-in various organisations by consent to the award. We had listed and requested of GATE if they would be one of them. The committee discussed it and informed us in writing that they would not be. However, a series of meetings took place at that time between myself and the organisation in order to get some clarity for our members but also to offer assistance in ensuring that anything that did occur to the organisation took into account their specific financial situation.

PN48

We had a series of meetings with our members when the new contracts of employment were placed before them which they brought to our attention that illustrated that not only was the award not going to be applied but previous conditions of employment that had been enjoyed by our members, for example, the 17-1/2 per cent holiday loading that had been paid was no longer to be part of the contracts of employment. Now that could have given to us a reason for it to appear in the Commission but in discussions with our members and mindful of the situation that had arisen at GATE, we decided not to proceed with anything in relation to that in recognition that GATE at that particular point in time were in a financial situation that we recognised and were prepared to wait until their circumstances improved.

PN49

At the end of last year - and there were a series of meetings between myself and GATE to discuss the implementation of the restructure and to ensure that our members there were basically, to put in the vernacular, getting a fair go, and we were prepared again to sit back and wait for that process.

PN50

When GATE informed us late last year that the roping-in was to be opposed, we did not proceed at that time and the reason we didn't want to proceed was the reasons I've given. They had circumstances to overcome. In the issuing of the new contracts of employment for the organisation, the majority that we are aware of had a finishing date of 30 June and it was given to us in information that that period of time for those new contracts did have that breach in time so that GATE itself could get its financial situation in place.

PN51

There is no intention of the NTEU not to come back and discuss this matter. Indeed, we did discuss this matter with the management. It was in the context of a former staff member requiring a redundancy payment and eventually the organisation paid the redundancy as per the award because the history of GATE goes back through predecessor organisations none of which were respondent to the award but some of those predecessor organisations brought staffing to GATE who were guaranteed that their conditions would remain under the PACCT award under their previous employers.

PN52

Early this year, we came back to the organisation to our members to talk about how the restructure was falling into place and we were of the opinion that the efficiency of what had been opposed - proposed was enough to ensure that if the new contracts from the middle of year were going to be issued, there should be the underlying minimum protection for our members and all staff at GATE who were defined by the award.

PN53

We approached GATE with that proposal and again the answer was no and we met as late as the week before - I stand corrected on the exact date but the fact that in the last fortnight we met. I met with the president of the committee, Ms Denmead as the executive officer and the representative from ASVIC and we talked around ways of resolving the problem but also, and I made no bones about it to them, that we would be seeking the organisation become a respondent to the award.

PN54

At that meeting we offered, as I have said before, the industrial officer to be available for those negotiations towards an enterprise agreement but in the mind, has to be, if we are going to negotiate towards an enterprise agreement, what is the award we are going to look at for the no-disadvantage and as far as we're concerned, it would be the PACCT award.

PN55

We also offered at that meeting to meet with GATE if they agreed to be roped into the award, we would be involved in the consultative process defined under the award to assist them with the implementation of the award and I gave an example at that meeting is that under the award there is a 17-1/2 per cent leave loading, we would be happy to discuss it with our members and come up with a proposal that it would be phased-in for example - - -

PN56

THE DEPUTY PRESIDENT: Yes, I don't think it is necessary to go to this level - - -

PN57

MR BJORK-BILLINGS: I could go on and on, your Honour.

PN58

THE DEPUTY PRESIDENT: - - - of detail, Mr Bjork-Billings at this point in time. What I have is an application for roping-in pursuant to section 111(1)(b) and I have the respondent party opposing that and it seems to me at this point in time that given what has been said that it is appropriate that I issue some directions, with the greatest of respect to Ms Denmead, I am not sure that she understands totally what the Commission must consider in these applications and it is certainly insufficient for the Commission simply to be guided by some assertions from the bar table about the financial circumstances of the organisation.

PN59

I think, in fairness, I should provide the organisation, the respondent organisation, an appropriate opportunity to put that to the Commission. I might just go off the record briefly, thank you.

OFF THE RECORD [12.20PM]

RESUMED [12.26PM]

PN60

THE DEPUTY PRESIDENT: I intend to issue some directions in this matter and those directions will issue from my chambers in the next day or so. They will be to the effect that the NTEU will have until close of business on Wednesday, 2 June, to file an outline of submissions in support of their application and any witness statements upon which they intend to rely.

PN61

The respondent in this matter will have until close of business on Wednesday, 16 July[sic] to file a submission in response as well as any witness statements upon which the respondent intends to rely and the matter will be set down for further hearing at 10.00 am on Tuesday - I think I have been saying July right throughout this. I meant June. So the matter will be set down for further hearing on Tuesday 22 June at 10.00am.

PN62

Now I would only intend that that be an opportunity to speak briefly to submissions. I would expect the submissions would speak for themselves in the main and an opportunity for the union to raise any matters that arise out of the submissions by the respondent. I don't expect that that should be a particularly long hearing. Yes. Those directions, as I say, will issue from my chambers most likely today. On that basis, the matter is adjourned.

ADJOURNED UNTIL TUESDAY, 22 JUNE 2004 [12.29PM]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #NTEU1 - APPLICATION AND RECEIPT PN10