AG2004/3347, Transcript of Proceedings [2004] AIRCTrans 2542 (8 July 2004)

AUSCRIPT PTY LTD
(Administrator Appointed)
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 7606

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON
DEPUTY PRESIDENT IVES
COMMISSIONER GAY

AG2004/3347

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LC of the Act
by the Victorian TAFE Association Inc and
Another for certification of the Victorian
TAFE Teaching Staff Multi-Employer Certified
Agreement 2003

MELBOURNE

2.03 PM, MONDAY, 28 JUNE 2004

PN1

MR D. WILLIAMS: I appear for the Victorian TAFE Association.

PN2

MR D. COLLEY: I appear on behalf of the Australian Education Union. With me today is MS G. ROBERTSON.

PN3

MR P. WARMINGTON: I appear on behalf of the Victorian Department of Education and Training. I seek leave to intervene in this matter to make a very brief submission. If the Commission pleases.

PN4

SENIOR DEPUTY PRESIDENT WATSON: Do you think that will improve your chances to being granted leave? Very well, leave is granted, Mr Warmington. Who would like to lead off? Mr Williams.

PN5

MR WILLIAMS: Thank you, your Honour. The Victorian TAFE Association representing proposed employer respondents to the TAFE - Victorian TAFE Teaching Staff Multiple Employer Certified Agreement 2003 here today. The Association seeks certification of the agreement pursuant to section 170LC(4) of the Workplace Relations Act 1996. By way of explanation the Victorian TAFE Association is an incorporated body. The rules of the Association are contained at TAB M of the folder supplied to the Commission with the application.

PN6

Rule 126 of the Association rules on page 19 provides the powers for the Association Administrative Committee to represent members of the Association in industrial matters. Also at tab M of the folder provided to the Commission you will note that there is an extract of minutes of the Association Administrative Committee meeting held on 25 March 2004. This extract of minutes outlines the powers that have been delegated to me as the Executive Director of the Association to represent members in industrial matters, and specifically that motion of the Administrative Committee states:

PN7

Pursuant to rule 126 of the Rules of the Victorian TAFE Association Incorporated Administrative Committee delegates the power to the Executive ...(reads)... of the Association Administrative Committee.

PN8

Therefore, the signature of the Executive Director on the application to certify this agreement, on the actual signing of the agreement and on the statutory declaration submitted to the Commission is deemed by the Association Administrative Committee as being submitted on their behalf as delegated under the rules. Turning to the application, at tab A the Association has submitted the required statutory declaration. The declaration outlines that the agreement was genuinely approved by a valid majority of employees on 14 May 2004.

PN9

It outlines that 9571 employees would be covered by the agreement at the time the ballot was conducted. The declaration outlines the comprehensive information processes that were entered into by both the employers and the Australian Education Union in explaining the agreement to employees and provides material that was used in that explanatory process. The explanatory material of both the Association and the AEU is provided at attachment 2 and attachment 3 of the statutory declaration, and that material was used extensively in briefing employees.

PN10

The relevant changes to the terms and conditions of the award created through the proposed multi-employer certified agreement are outlined at clause 7.4 of the declaration, and that clause within the declaration clearly demonstrates that the agreement satisfies the no disadvantage test. The statutory declaration also outlines that there is a dispute-settlement procedure contained at clause 10 of the agreement and that the nominal expiry date of the agreement is outlined at clause 4 of the agreement and is 1 September 2006.

PN11

At tab B of the folder provided to the Commission is the signed agreement, and at tab C is a memorandum of understanding between the Victorian TAFE Association and the Australian Education Union. I will refer further to that memorandum of understanding later in the submission. In relation to the public interest test as to why it is in the public interest to certify the multiple business agreement pursuant to section 170LC(4) of the Act, the statutory declaration at attachment 4 provides a comprehensive rationale for the agreement satisfying the public interest test.

PN12

I do not propose to repeat the written submissions in full, except to highlight the key material that has been provided in support of that contention. At tab D of the folder a copy of the Vocational Education and Training Act 1990 has been provided, and this Act provides the ability for a TAFE council or a university TAFE division to be established. At tab E a sample copy of a College Constitution is provided, which amongst other things outlines the power of the council to appoint a director and to exercise proper control over the director and other staff.

PN13

At tab F of the folder the Ministerial Directions to Councils of TAFE Institutes and Universities with TAFE Divisions is provided and in the submission that was provided to the Commission, particular reference has been drawn to the sections of the Ministerial Directions that deal with the employment of staff. At tab G we have included a letter from the Honourable Lyn Kosky MP, Minister for Education and Training, which is a letter of support and a formal letter that is in fact required by the Ministerial Directions indicating that the Victorian TAFE Association is supported or approved in making an application to the Commission to certify the multiple business agreement.

PN14

At tab HI, a sample performance funding agreement has been provided, and this agreement explains the relationship that exists between the State Government as the purchaser and the institutes and universities as the providers of TAFE education in Victoria, and it outlines the commonality of funding based on the same formula for particular program areas that prevails across the TAFE sector. At tab JK we have included the Ministerial Statement titled Knowledge and Skills in the Innovation Economy, which in part highlights a strong focus on the transformation of the TAFE workforce across the state training system.

PN15

And finally, at tab L, we have enclosed a full bench decision of the Commission, T0489, 1138 of '98, print Q5998. The Commission will note that this decision highlights in great detail the history of events in the parties seeking to reach agreement on a revised classification structure to that which was contained in the award at that time. That has now been achieved and embraced within this multi-business agreement that is before the Commission today. At attachment 5 of the statutory declaration the case is presented why matters dealt with in this agreement are more appropriately dealt with by a multiple business agreement.

PN16

Again, I do not propose to repeat the written submission, but would be happy to elaborate on any questions that the Commission may have. I would like to draw particular attention to at tab C, that the parties have provided for the record and for inclusion on the Commission's file a memorandum of understanding between the parties. This memorandum seeks to provide an interpretation and clarification of some aspects of the multiple business agreement. It also specifies at appendix A matters associated with the agreement directly related to the savings clause, 32.3, where there are some few but specific exemptions to the agreement's application for the period of operation of existing commercial contracts.

PN17

The parties view the memorandum of understanding as a valuable document that will assist in the implementation of the agreement. As the Commission is aware, the Association has applied on behalf of respondents to the proposed multiple business agreement subject to certification of this agreement to terminate the existing agreements in the public interest. If the Commission pleases, I do not propose to elaborate further, and submit that on behalf of the Victorian TAFE employers we seek certification of the Victorian TAFE Teaching Staff Multi-Employer Certified Agreement 2003 from today. I would be pleased to respond to any questions that the bench may have. If the Commission pleases.

PN18

SENIOR DEPUTY PRESIDENT WATSON: Thanks, Mr Williams. Mr Colley.

PN19

MR COLLEY: If the Commission pleases, this is an application for certification of a multi-business agreement pursuant to the operation of section 170LC of the Act. As you have heard from the employer representative today, the proposed agreement covers some 9500 people and was approved by an overwhelming majority of employees proposed to be bound by that agreement, be covered by that agreement on 14 May 2004. A statutory declaration has been prepared by the Australian Education Union and is on the file of the Commission.

PN20

That statutory declaration, clauses 10, 11 and 12, details the information processes by which the employer and the union provided the agreement to employees, provided opportunities for those employees to make informed consent. The agreement in our submission passes the no disadvantage test and that is outlined in clauses 16 and 17 of the statutory declaration. The agreement provides for a nominal expiry date in clause 4 of 1 September 2003, and for dispute resolution procedure in clause 10.

PN21

In all other respects, if the Commission pleases, we submit that the application meets the requirements for certification of section 170LT, and further, that there are no grounds under section 17OLU by which the Commission would consider refusal, or refusing to certify that agreement. Further, if the Commission pleases, under clause 24 of the statutory declaration are reasons which the AEU submits provide grounds for why it is in the public interest that the Commission should certify the agreement, and in clause 25 of the statutory declaration are number of matters which the AEU submits go to the issue of whether the matters covered by the agreement more appropriately or not be dealt with by the MECA.

PN22

For those reasons if the Commission pleases, the AEU commends certification of this agreement and the start date as of the date today. If the Commission pleases.

PN23

SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Colley. Mr Warmington.

PN24

MR WARMINGTON: Thank you, your Honour. The department lends its full support to the making of this agreement. It also supports the submissions from the parties that it is in the public interest that the agreement be certified. If the Commission pleases.

PN25

SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Warmington.

PN26

COMMISSIONER GAY: Mr Colley, I have a question I would like to ask in relation to the operation of clause 19.2(1) and the subclauses that follow that clause under the heading: Overall total remuneration package, and I might have asked this question of Mr Williams, but I ask you, and I am happy to hear - it might be that Mr Williams can assist. And that - the work of that subsection or that clause of the agreement is to provide a basis for, it seems, for written agreements that replace the agreement in the circumstance where an individual employee under this agreement is to be working overseas, and it sets out that it will be in writing and there can't be disadvantage when one has regard for the total entitlements, the general entitlements of an employee.

PN27

MR COLLEY: That is correct.

PN28

COMMISSIONER GAY: Now, it is well known that the Commission takes particular interest in provisions within agreements which provide the opportunity for employees to do something other than what is in the agreements, only because sometimes experience shows that there can be a risk attending such a capacity in the parties, but in this case it is very likely on my reading that that is sought to be dealt with at 19.2(5) which provides for a scope for there to be the gaining of advice by presumably the employee who is asked to enter into such an agreement. Do the industrial parties, particularly the union, is there a - and this is my question.

PN29

It is as to how this clause is intended to operate. Do the parties have an understanding that there will be advice given perhaps to the union, or to counsellors of the union, to enable them to know of the entering into of such agreements? Is there any mechanism for testing the fact or otherwise of the giving of full effect to the workings of that clause, and particularly 19.2(4)?

PN30

MR COLLEY: There is no formal prior vetting mechanism by the union as a party or the employer or the VTA as a party to these sorts of written agreements. There is a mechanism by which a judgment can be made as to the relative disadvantage a person may allegedly have suffered during the period of time during which the agreement was in operation such that no disadvantage would in fact occur, or if it had occurred, be redressed. That is, that where a person enters that agreement and that agreement was struck on certain tendering requirements, and then those tendering requirements may have changed throughout the period of operation, then there is a mechanism by which that person can seek redress for - or to demonstrate that disadvantage had occurred, so that ultimately no disadvantage occurs, if the Commission gets my drift.

PN31

COMMISSIONER GAY: Yes, because often coming to a view about the fact or otherwise or advantage or disadvantage accruing is not an easy task. It can often be a complex task of evaluating different components of an industrial agreement as complex as this one, and it is not always something that one can envisage, however able an employee might be, something that would come not particularly naturally. I am interested to know whether the union and the Association have an intention perhaps in reviewing the operation, the ongoing operation of the agreement, to consider such agreements during the course of the agreement's term.

PN32

MR COLLEY: There is certainly a mechanism in the agreement for consultation and discussion on a range of issues to deal with implementation of the agreement, and that is the institute consultation committee, and one of its functions will be to review those areas in which agreements of this sort do in fact operate just as there is a range of other areas provided in this agreement whereby parties can agree to something that otherwise might be the standard provision, so the agreement operates in facilitating the mechanism, for example, in relation to hours of work on a weekly basis. So - if the Commission pleases.

PN33

COMMISSIONER GAY: Mr Williams, is there anything you want to add to what Mr Colley said?

PN34

MR WILLIAMS: Only to reassure the Commission that particularly in relation to these agreements that are struck it must specify under clause 19.2(3) which are the relevant clauses of the award or agreement are not to apply for the period of the arrangement, so that an employee entering into it would have a fairly thorough understanding of a particular clause not applying, but alternatively the higher level of remuneration that they would get for the period of the contractual arrangement whilst they were working overseas, and they could make a fairly good assessment in most circumstances as to whether they felt that was meeting the full requirements of this clause.

PN35

Principally, the rationale for the clause is there are currently a whole lot of ad hoc arrangements out there of paying people substantially greater than the existing agreements provide for, but at the same time the legal framework - whilst they are working overseas - but the legal framework is that the agreement clauses still apply, and that can be quite problematic when it comes to say working at a trade fair overseas on a Saturday, and someone has received substantially greater remuneration than provided for by the existing agreements, but in addition, would also be under existing arrangements entitled to loading payments.

PN36

The idea is to have a better understanding of that at the very start and come up with a fair remuneration for the circumstances that prevail with the type of work occurring, and a protection mechanism that I think you are alluding to, looking for, is really supposed to be identified up-front under clause 19.2(3). If the Commission pleases.

PN37

COMMISSIONER GAY: Thank you.

PN38

SENIOR DEPUTY PRESIDENT WATSON: Yes. We have the advantage of very extensive written submissions and documentary materials, and now the oral submissions today. We are satisfied that the agreement meets the requirements of section 170LT of the Act, and the particular requirements of section 170LC. We are further satisfied there is nothing in the agreement which would preclude certification, having regard to section 170LU of the Act. Accordingly, we will certify the agreement from today's date. We will issue brief reasons and formal certificate in due course. We will now adjourn the proceedings.

ADJOURNED INDEFINITELY [2.24pm]