C2004/4770, Transcript of Proceedings [2004] AIRCTrans 3081 (10 August 2004)

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

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

TRANSCRIPT OF PROCEEDINGS


O/N 8016
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT LEARY

C2004/4770, 4257, 4516, 4517
4519, 4520, 4521, 4522

HIGHER EDUCATION CONTRACT
OF EMPLOYMENT AWARD 1998

HIGHER EDUCATION GENERAL
AND SALARIED STAFF (INTERIM)
AWARD 1989

THE HIGHER EDUCATION
WORKERS VICTORIAN (INTERIM)
AWARD 1993

UNIVERSITY OF CANBERRA
GENERAL STAFF AWARD 2001

UNIVERSITY OF NEW ENGLAND
GENERAL STAFF AWARD 2000

UNIVERSITY OF WESTERN
SYDNEY GENERAL STAFF
AWARD 1999

QUEENSLAND UNIVERSITIES
(GENERAL STAFF) INTERIM
AWARD 2000

UNIVERSITIES AND POST
COMPULSORY ACADEMIC
CONDITIONS AWARD 1999

Applications under section 113 of the Act
to vary the above awards

MELBOURNE

3.44 PM, WEDNESDAY, 28 JULY 2004

PN1

THE DEPUTY PRESIDENT: Could I take appearances in this matter please.

PN2

MS E. FLOYD: I appear on behalf of the National Tertiary Education Industry Union.

PN3

MR I. ARGALL: I appear on behalf of the University of Canberra in this matter. I should say that there are a number of my submissions that I would make in relation to this case that have application in relation to a number of the other matters. Maybe we can come to those, or I can indicate it during my submissions where I think those submissions have wider application.

PN4

THE DEPUTY PRESIDENT: I must confess that my associate and I, and I know Ms Floyd also, have spent a lot of time trying to work out just what all these applications are trying to do. There seem to be consistencies and inconsistencies throughout, but I am all in favour of trying to make it as painless and as quick as possible. If you have got an idea of how that could be done I am happy to hear you.

PN5

MR ARGALL: Well, I was going to suggest that you call on all of the remaining matters at the same time, and I can make general submissions in relation to all of them.

PN6

THE DEPUTY PRESIDENT: So all of those except the AHEIA application?

PN7

MR ARGALL: If you wish, but I don't mind if you call that on at the same time as well.

PN8

THE DEPUTY PRESIDENT: Well, there are going to be some submissions in respect to that one.

PN9

MR ARGALL: Yes, I am happy, all except that if you wish, yes.

PN10

THE DEPUTY PRESIDENT: Okay. Just let me see these. Does that then mean that all of the other applications the CEPU is a party to, or there are some that they are not a party to?

PN11

MR D. MENDELSSOHN: I appear on behalf of the CPSU. The only other application to which we are not a party is the Universities and Post Compulsory Academic Conditions Award 1999.

PN12

THE DEPUTY PRESIDENT: Right. And that is 4522?

PN13

MR MENDELSSOHN: That is right, your Honour.

PN14

THE DEPUTY PRESIDENT: Now, if I understand Ms Floyd's position on that is, you are going to seek to adjourn that one?

PN15

MS FLOYD: Yes, your Honour. I am not sure what Mr Argall's submissions are going to go to, but if I can just say that all we are seeking today, and the draft order reflects that, and the AHEIA have been advised of that and so have all the parties, that because 170N has been raised, which applies equally to the AHEIA application, provided that both those matters are deferred then we would not be making any submissions. But I need to say - sorry, your Honour, I do need to say if Mr Argall is going to be allowed to address his matter, if you don't accept that 170N does apply, then we would be expecting to - we would have to ask for an adjournment, because we have come along here today, and everybody knows that all we are seeking to do is have the safety net adjustments made and have everything else programmed and adjourned.

PN16

THE DEPUTY PRESIDENT: That is as I understand your position also. Okay. So all of the other matters other than the AHEIA application and the one that Mr Mendelssohn referred to, which is 4522, the CPSU is party to all of the NTEU applications then. Is that correct, Mr Mendelssohn?

PN17

MR MENDELSSOHN: Yes, your Honour, it is.

PN18

THE DEPUTY PRESIDENT: All right. Is there anybody else that is a party to any of those applications?

PN19

MR A. KENTISH: I appear on behalf of the AMWU, and the AMWU is a party in matters 4571, 4257, and if 4770 is going ahead we would be seeking leave to intervene.

PN20

THE DEPUTY PRESIDENT: I am sorry, which ones? 4770, we are not dealing with that one just yet. What were the other ones that you were involved in?

PN21

MR KENTISH: 4571.

PN22

THE DEPUTY PRESIDENT: I don't have a 4571.

PN23

MR KENTISH: Your Honour, that is the University of Canberra General Staff.

PN24

THE DEPUTY PRESIDENT: 4517, is it?

PN25

MR KENTISH: Sorry, your Honour, that is 4517, and 4257. And we would also be involved with some at 4 pm too.

PN26

THE DEPUTY PRESIDENT: Okay, we will get back to those. All right, thank you. There is nobody else a party to any of these awards?

PN27

MR ARGALL: If I might complete my appearances if you are calling on all those other matters.

PN28

THE DEPUTY PRESIDENT: Yes, okay.

PN29

MR ARGALL: I might indicate that I appear for the University of New England in matter 4519, for the University of Western Sydney in matter 4520, for matter 4521 I appear for Central Queensland University and the University of Southern Queensland, and Queensland University of Technology, as well as for AHEIA, which is itself a party, a respondent in its own right to that award. In relation to 4516, 4522 and 4257 I appear for the Australian Higher Education Industrial Association, and in relation to the CPSU applications affecting our members I appear for the Australian Maritime College in 5112.

PN30

THE DEPUTY PRESIDENT: I have kept those separate. I thought it might help, but I am not too sure.

PN31

MR ARGALL: Well, that is it at this stage then, thank you very much, your Honour.

PN32

THE DEPUTY PRESIDENT: All right. Well, Ms Floyd has put her position, that all they are seeking is the safety net adjustments in respect to all of the applications that we are dealing with now. So perhaps if I hear from Mr Argall, what his position.

PN33

MR N. WAUGH: I appear on behalf of the University of Melbourne in C number 2004/4516 and 4522, and I understand you are setting 4770 till later.

PN34

THE DEPUTY PRESIDENT: We will deal with that separately, yes, because that brings in a whole lot of people I think.

PN35

MR WAUGH: If the Commission pleases.

PN36

THE DEPUTY PRESIDENT: All right. Now, we have got all of the appearances?

PN37

MR McMAHON: I appear on behalf of the University of Queensland in matter 4522.

PN38

MR B. BEASLEY: I appear in matters 4257 and 4522 for the Australian National University.

PN39

MR D. WARD: I appear in matter 4522 on behalf of the University of New South Wales.

PN40

MR G. HARRIS: I appear on behalf of the University of Sydney in number 4522, the Universities and Post Compulsory Academic Conditions Award, and also in 4257.

PN41

THE DEPUTY PRESIDENT: Thank you. That is it? All right. Once again, Ms Floyd has indicated to all of the parties and to the Commission that all she is seeking in her applications is to give effect to the safety net adjustment and seeking to adjourn any other matters that may be sought in the application. So, Mr Argall, would you like to start and tell me what your position is.

PN42

MR ARGALL: Yes, thank you, your Honour.

PN43

THE DEPUTY PRESIDENT: In respect to the safety nets, and then if you have anything else that you wish to put.

PN44

MR ARGALL: I will try and simplify matters rather than complicate them. I know the appearances took about as long as you expected the whole matter to take. As far as we can see there are two lots of applications. On the one hand there are those that originally were submitted by the NTEU that applied to vary both the safety net salaries, and also to put into those same awards the redundancy provisions. Those affect the University of Canberra, University of New England, University of Western Sydney, and the Queensland Universities General Staff Award amongst our members.

PN45

There is some confusion as to file numbers and so on, but I won't go into that. The NTEU, when it wrote to your Honour on 14 July, sought leave to vary its draft orders so that they dealt only with the safety net adjustments. And that is fine with us. If the NTEU has that application granted, I say that there is no longer any extant application in relation to other than salaries matters for the Commission to deal with, so Ms Floyd's application, if she is foreshadowing one, for adjournment of that matter is unnecessary and otiose.

PN46

If that is the case then we are only dealing with the salaries issues. I spoke to Ken McAlpine of the NTEU last Friday because of Ms Floyd's unavailability on behalf of Queensland University of Technology, Central Queensland University, USQ, UNE, UWS and the University of Canberra, pointing out some of the difficulties with some of the calculations and figures in the NTEUs applications. I went into some detail with Mr McAlpine and suggested that AHEIA and the NTEU meet to go through those figures in an attempt to agree on them before the hearing, although that suggestion has not been taken up.

PN47

I could go through the applications one at a time, but I think there are some general issues that you will need to sort out in order to resolve these matters. The first and major one is the approach that should be taken in relation to expenses by way of reimbursement in terms of safety net adjustments. The principles provide, and I quote, I think at 5A of the principles, that:

PN48

Existing allowances which constitute a reimbursement of expenses incurred may be adjusted from time to time where appropriate to reflect relevant changes in the level of such expenses.

PN49

The usual approach taken in such cases is to apply the Consumer Price Index or some other relevant statistic that measures the increase in costs, and this is consistent with the approach proposed by the NTEU, which has used the all groups CPI average of eight capital cities figure. We think this is reasonable in itself, but we believe that the NTEU has over-stated some of the resulting figures for this reason.

PN50

To take the University of Western Sydney Award as an example, that award was made on 26 July 2000, and since that time we say that the relevant statistic has increased by 9.7 per cent, or if you compound the relevant statistics, by 10.14 per cent. The NTEU calculations suggest that the expenses figures have been increased by 16.1 per cent, and I think that is because the NTEU also takes into account the September 2000 CPI figure. So the award was made on 26 July, the next - - -

PN51

THE DEPUTY PRESIDENT: Was it a new award or was it a simplified award?

PN52

MR ARGALL: Well, your Honour, it was both. You might talk to Senior Deputy President Duncan about that. It was a new award made as part of the consideration of the simplification of the Higher Education General and Salaried Staff Interim Award. The award was made on 26 July 2000. The next published CPI figure was the September quarter figure, because the September quarter figure, of course, covers the period 1 July 2000 to 30 September 2000, which means that some of the inflationary period that has been calculated actually pre-dated the award.

PN53

What we say is, it is not appropriate to do it that way. You should only include CPI figures that relate to periods totally after the making of the award. And that is why in almost all but one case we disagree with the NTEUs figures for expense related allowances. We say they are too high. Unless the NTEU is prepared to agree with us on this point, I guess it will fall to the Commission to determine which is the correct approach.

PN54

THE DEPUTY PRESIDENT: No doubt after several days of argument.

PN55

MR ARGALL: Yes, thank you, your Honour. In relation to other salaries we are generally in agreement with the NTEUs approach, the salary adjustments, and the allowances that are to be adjusted by the Glass Workers principle. We believe that the NTEU has taken the correct approach, and we believe those figures are right, nonetheless there are a few areas where we think that there are some errors made, and we would like the opportunity of discussing those with the NTEU before we - - -

PN56

THE DEPUTY PRESIDENT: Are these just questions on calculation?

PN57

MR ARGALL: They are questions of calculations and round - calculations mostly, except, I should say this, that the consent of all parties is required if the safety net adjustments are to be increased up to and including the 2004 safety net adjustment. That is, the principles say at paragraph 329, implementation of the - the national wage case, print PR002004 says at paragraph 329:

PN58

Implementation of the adjustment will be subject to the following conditions. (a) the increase will be fully absorbable against all above award payments, (b) except where permitted by the statement of principles the increase will be available from a date no earlier than 12 months after the increases provided for in the May 2003 decision in the award in question.

PN59

So the consent of all parties is necessary to waive the - to allow any increase beyond the 2003 safety net adjustment. Some of the parties I represent do not consent to the 2004 safety net adjustments being applied at this time for so long as the NTEU redundancy applications remain before this Commission. And I will explain why that is in a moment. That is, if the NTEU withdraws those applications or the Commission rules against those applications they will consent to the 2004 increases being applied, but not - - -

PN60

THE DEPUTY PRESIDENT: Are these real increases, or is it merely an increase in the safety net?

PN61

MR ARGALL: They are merely increases in the safety net.

PN62

THE DEPUTY PRESIDENT: So this is a sub tactical game, is it, rather than some exercise in reality? I am just wondering.

PN63

MR ARGALL: I can explain why I think it is important in a moment, if you want.

PN64

THE DEPUTY PRESIDENT: I am sure you can. First of all, it would have been helpful if someone had have advised perhaps Ms Floyd and also the Commission that - - -

PN65

MR ARGALL: Well, I tried to meet with Ms Floyd about these matters.

PN66

THE DEPUTY PRESIDENT: These things have developed into a monumental mess, and this is not helping, because it seems to me that it is almost a case that they are all going to have to be adjourned to try and work our way through them.

PN67

MR ARGALL: Well, I don't think it need be that complicated, your Honour. I can explain why.

PN68

THE DEPUTY PRESIDENT: Well, you are asking me to make decisions. People have a right to put an argument before I make any decisions about certain things.

PN69

MR ARGALL: I am merely putting my argument.

PN70

THE DEPUTY PRESIDENT: Yes, sure.

PN71

MR ARGALL: Those universities that take that position are the Central Queensland University, University of Southern Queensland, QUT, UNE and UWS. Only the Canberra University, University of Canberra consents unconditionally to the 2004 increases. There are also entrenched in some of the applications, applications to increase the minimum payment out of the supported wages scheme to $60, and we say that that concurs with the wage cases.

PN72

THE DEPUTY PRESIDENT: $61.

PN73

MR ARGALL: To $60.

PN74

THE DEPUTY PRESIDENT: It has just been increased to 61, I think, hasn't it?

PN75

MS FLOYD: That must have been after the application was made, your Honour.

PN76

THE DEPUTY PRESIDENT: Yes, I think in the last week perhaps.

PN77

MR ARGALL: Well, the 2004 safety net decision, national wage case decision talks about $60. If that has happened, it has happened.

PN78

THE DEPUTY PRESIDENT: Yes. I think there was a decision issued either late last week or early this week. But that is beside the point. We will just deal with that and we will put it on the list.

PN79

MR ARGALL: That is right. The other group of matters, that is 4516, 4522 and 4257, and applications that are only in relation to the redundancy provisions. And I want to just put on the record why we take the position that we take.

PN80

MS FLOYD: Your Honour, this is our application, and the AHEIA are making their submissions before we have made ours.

PN81

THE DEPUTY PRESIDENT: It might be helpful if you hear what they have got to say so you can respond perhaps, because you don't seem to be aware of most of this either.

PN82

MR ARGALL: I am happy if Ms Floyd is prepared to make her submissions first, I am completely comfortable with that.

PN83

MS FLOYD: No.

PN84

MR ARGALL: In relation to 4516, the Higher Education Workers Victoria Interim Award, AHEIA has not been served with an application to vary that award. I advised Ms Floyd of this point in a letter dated 8 July, but I have still not received a copy of the application.

PN85

THE DEPUTY PRESIDENT: So you are a named respondent, are you?

PN86

MR ARGALL: We are a named respondent, I understand, yes. Well, I would have to check that actually, as to whether we are a named respondent. I am pretty certain we are, but the respondency in some of these older awards is all over the place. But I still have not received a copy, I have not seen a copy, none of my members have sent a copy on to me. More generally though we say two things about these things.

PN87

First of all, the Commission is prohibited from arbitrating in relation to these applications by section 170N of the Workplace Relations Act. This point appears to be acknowledged by the NTEU in the letter addressed to your Honour on 14 July 2004, for instance, although it is unclear to me whether it is acknowledged by the CPSU in relation to its applications. We will come to that though.

PN88

The issue of redundancy provisions generally, but also we have entitlements of fixed term staff to severance benefits on the non renewal of contracts are matters that issue between the parties in most universities during bargaining periods. Only four institutions out of 39 have completed enterprise bargaining at this stage. Given this, AHEIA opposes the NTEU proposal that these matters be simply adjourned. What we say is, we don't believe - in relation to the matters I referred to earlier, the institutional awards, if I can call them that, if the NTEUs application to seek leave to vary its application has been granted, then there is nothing left to adjourn.

PN89

In general though the scheme of the Workplace Relations Act is one that gives primacy to the settlement of matters at the enterprise level. That is why section 170N is in the Act. What the NTEU wants to do, we say, by its application to adjourn, is to be able to say to universities during bargaining that there is really only some technical impediment to the granting of this application, and that the increase in the level of award safety net redundancy benefits for ongoing employees, but also of severance benefits for fixed term employees, which we say is a different thing, are an inevitability.

PN90

They want to say that the Commission has recognised this by agreeing to deal with their application the moment the technical impediment has been removed. We say that the Commission ought not to be playing this game. Now, I don't know whether your Honour wants more explanation of why I say that - perhaps it is important to explain this. Ostensibly the applications only apply to the redundancy payments that are given to ongoing employees when they are made redundant, because the standard in the redundancy test case now says that it excludes fixed term employees.

PN91

However, there is another award - this is the award that we have applied to vary, the Higher Education Contracted Employment Award 1998 - that says in that award that the amount of severance payment payable to a fixed term employee whose contract is not renewed is at the same level as the redundancy payments specified in a relevant award as they would apply to an ongoing employee, a full time employee.

PN92

We say that the real effect of the granting of the NTEUs applications would be not only to increase the safety net redundancy payment to ongoing employees, which is entirely consistent with the safety net standard, but it would also have the flow on effect of increasing the level of severance benefits payable to fixed term employees under the Higher Education Contract of Employment Award, which we say is not encompassed in the consideration of the Full Bench in the redundancy test case supplementary decision, explicitly so, because they explicitly exclude fixed term employees from the standard clause.

PN93

What the NTEU wants to do is to be able to have this application hanging over the heads of universities while they are enterprise bargaining, and to be able to say to them, look, it is an inevitability, it is a lay down mesaire, as Mr McAlpine told me the other day, that they will get the flow on of these higher level of severance benefits to fixed term employees, and universities may as well give into that now on enterprise bargaining. And we say that that is not appropriate. It may be an appropriate tactic for the union to adopt, but it is not an appropriate thing for the Commission to go along with.

PN94

THE DEPUTY PRESIDENT: Why would the Commission be going along with it? I mean, the Commission is not making any comment about it. It is an application before it.

PN95

MR ARGALL: By allowing the adjournment of matters that should be dealt with properly now expeditiously.

PN96

THE DEPUTY PRESIDENT: So you think that they should be dealt with?

PN97

MR ARGALL: If the Commission adjourns the matters as Ms Floyd is asking, that is what will happen and, in fact, the applications before the Commission will be used in the process of enterprise bargaining, they will be used in ways that are contrary to the objects of the Workplace Relations Act. We say that the objects of the Workplace Relations Act, section 4B - - -

PN98

THE DEPUTY PRESIDENT: I am familiar with them, you don't have to tell me.

PN99

MR ARGALL: Yes. So they give primacy to the resolution of matters during enterprise bargaining.

PN100

THE DEPUTY PRESIDENT: And they also seek for a set of safety net awards, which is a safety net application.

PN101

MR ARGALL: That is right, your Honour, they do. But they don't envisage that the Commission will entertain applications that it knows can't be dealt with now. It doesn't seem to be in contention that section 170N precludes the Commission from granting these applications at this stage. It doesn't envisage that the Commission would allow such application to be made, allow them to remain on open files so that they can be used this way in enterprise bargaining to prejudice the outcome of enterprise bargaining. We say that would be turning the scheme of the Act upon its head if the Commission were to allow itself to be used in that way.

PN102

THE DEPUTY PRESIDENT: Well, it is your submission that the Commission is being used in that way.

PN103

MR ARGALL: Well that is right, this is all my submission. We say that in those circumstances the Commission ought to encourage the NTEU to withdraw its applications in relation to redundancy completely. As I say, I believe that they have already done so in relation to the institutional awards in matters 4517, 4519, 4520 and 4521. It should also be encouraged to do so in relation to the remaining matters.

PN104

If the NTEU is unwilling to do so, the Commission ought to deal with these applications now. It ought, we submit, find that section 170N prohibits the Commission from arbitrating in relation to them, and on that ground reject the applications and close the files. It can close those files on those matters now. It will then leave the parties free to resolve the matters in enterprise bargaining that the Act envisages that they be allowed to settle, and the parties can then get on with enterprise bargaining as the Act envisages.

PN105

At some later stage if and when section 170N is no longer an impediment to this matter, it is open to the unions, of course, to re-apply, and I see nothing wrong with that, but that would be after the process of enterprise bargaining has gone its full course. I acknowledge, of course, that if the Commission takes this action with the NTEU and CPSU applications it should also do so with the AHEIA application in matter 4770 only if the NTEU does not withdraw its application or if the Commission does not dispose of the NTEU and AHEIA applications in the way I have suggested, do I then submit that the AHEIA application too ought to be adjourned so that it can travel with the NTEU applications and be heard with and at any such time as they are called back on, because we say that these matters are intrinsically related.

PN106

I just want to make a further submission, your Honour, in relation to these claims. In terms of the way the principles apply, the wage fixation principles apply, I have already made the point I think that if granted, the NTEUs applications in relation to redundancy would have a practical effect that goes beyond the intention of the Full Bench in the redundancy test case decisions because it would increase the level of severance payment payable to fixed term employees under the Higher Education Contract of Employment Award.

PN107

The principles say at principle 10 that any application to vary an award for wages or conditions above or below the safety net may be made by a Full Bench or (b) by a single member provided the President has had the opportunity to consider whether the application should be dealt with by a Full Bench, and has decided not to refer the application to a Full Bench. A variation according to the principles is not a variation above the safety net when it involves the incorporation of test case standards.

PN108

We say that in the present case, while the change to the redundancy pay provisions in awards is consistent with a test case standard, its actual practical effect if granted would go well beyond that, and that is because section 4.1.3 of the Higher Education Contract of Employment Award relates the payments under that award to the - and I will quote:

PN109

Severance payment or retrenchment benefit payment, how so ever called, in accordance with the relevant award as it would apply to a full time employee engaged in an equivalent classification in the following circumstances.

PN110

And then some circumstances are prescribed.

PN111

THE DEPUTY PRESIDENT: So there would have to be an application to vary that award, would it, to deal with what you say is the difficulty?

PN112

MR ARGALL: Well, yes, that is right. We made that application, and that is 4770. The consequential but nonetheless very real effect of granting the NTEU and CPSU applications would be to increase severance pay for fixed term employees under the HECE Award. The test case standard makes it clear that it does not apply to fixed term employees. Therefore the NTEU application would not be simply granting a new test case standard into an award and would not be a matter that could be dealt with, with respect, your Honour, by a single member of the Commission under the principles. In fact, principle four talks about this, and says:

PN113

Test case standards involving allowable award matters established and/or revised by the Commission may be incorporated in an award. Where disagreement exists as to whether a claim involves a test case standard or a non allowable award matter, a party asserting that it does must make and justify an application pursuant to section 107. It will then be a matter for the President to decide whether the claim should be dealt with by a Full Bench.

PN114

THE DEPUTY PRESIDENT: Is this an application pursuant to 107?

PN115

MR ARGALL: Well, I am not making that application because I am not the party claiming - we are not claiming that it does involve a test case standard. We are saying that it goes beyond the test case standard. So what I am saying is - and this may be - what I am saying is, if this matter is to be progressed, I think it would necessarily require an application of that type from the applicants rather than from us.

PN116

THE DEPUTY PRESIDENT: Well, I don't think we split hairs about who makes the application. I think either party can make it. But you are not making it, I guess is what I am asking you?

PN117

MR ARGALL: I am not making it, that is right. This may be what the CPSU is driving at, and I notice in the correspondence from David Mendelssohn he does suggest - and I think a copy of that correspondence is also on the file - he suggests the matter be referred to the President. But I would be interested in hearing what Mr Mendelssohn has got to say as to his reasoning for that. So we say as well as the 170N considerations the Commission needs to take into account, the considerations I have raised in relation to the principles. If it please, your Honour.

PN118

THE DEPUTY PRESIDENT: Ms Floyd?

PN119

MS FLOYD: Your Honour, given the time it may be prudent to ask for an adjournment of all matters, including the safety nets.

PN120

THE DEPUTY PRESIDENT: Well, I think there is one where there is not a problem. Would you like to deal with that. Canberra, was it?

PN121

MS FLOYD: The University of Canberra one, okay. I wouldn't mind dealing with that one.

PN122

THE DEPUTY PRESIDENT: It just reduces the paperwork a little bit.

PN123

MS FLOYD: Yes. And then I will make some general comments in response to what Mr Argall said.

PN124

THE DEPUTY PRESIDENT: I think that is 4521.

PN125

MS FLOYD: 4517.

PN126

THE DEPUTY PRESIDENT: 4517, is it?

PN127

MS FLOYD: Yes. Your Honour, this is an application from the NTEU for a variation to the University of Canberra General Staff Award 2001, to give effect to the safety net review 2002, 2003 and 2004, and in accordance with print PR002004, and also to give effect to the redundancy test case standard. We notified the Commission that we were not pursuing through the draft order the application for redundancy, and that was in response to an application from the AHEIA, where at point five of that application they indicated that there were formal bargaining periods in place and there was entitlements for fixed term employees between the parties, and that it was affected by a 170N.

PN128

However, with respect to the University of Canberra, there are no matters between the parties, the matters are not at issue. The University of Canberra has completed enterprise bargaining, so we say that that is not affected by 170N. However, given the time we would seek to have that matter adjourned and have some timetabling.

PN129

THE DEPUTY PRESIDENT: That is in respect to the redundancy part?

PN130

MS FLOYD: Yes, and only with respect to the University of Canberra.

PN131

THE DEPUTY PRESIDENT: Yes.

PN132

MS FLOYD: It is not affected by 170N. However, as was indicated by Mr Argall, as a matter of prudence we say that you may refer it to the President. We say it is not above or below, however, it is a variation of the test case. And if I can just refer to a couple of recent decisions by SDP Watson in PR948884 on 2 July '04, and SDP Kaufman in print PR949586 on 19.7.04. In both those applications the unions have sought to remove the reference to small businesses. In the case of SDP Watson, he was not prepared to vary it, and suggested that if they wanted to have a variation the union should refer it for a 107 referral.

PN133

In the case of SDP Kaufman he did refer it to the President, who then referred it back to them, and he made the variation. So if your Honour is of the same mind, we would have no problems in that matter being referred to the President.

PN134

THE DEPUTY PRESIDENT: And we are talking Canberra?

PN135

MS FLOYD: We are talking Canberra, which is not affected by 170N, and can go ahead and be arbitrated.

PN136

THE DEPUTY PRESIDENT: Yes.

PN137

MS FLOYD: With respect to the safety net increases, the full time rates have been increased by $991, and the allowances have been increased in accordance with principle five, and the necessary absorption clause has been given. And I will hand up a copy of the notice of service, and a draft order, and a spreadsheet, sorry, a spreadsheet which outlines. It was brought to our attention that there was an error in my calculations where I had not included a whole year's CPI. My original calculations came in at 3.3 per cent increase. It is actually 5.5 per cent increase.

PN138

I would suggest that perhaps seven days for the employers to just check the figures. And on that basis, if there is no other further questions, we commend the application to you.

PN139

THE DEPUTY PRESIDENT: So the draft order that you have tendered has got the amended figures in it?

PN140

MS FLOYD: Yes, your Honour.

PN141

THE DEPUTY PRESIDENT: So that is the document that the parties should check?

PN142

MS FLOYD: The document we wish to have made.

PN143

THE DEPUTY PRESIDENT: All right.

PN144

MR ARGALL: Can I just respond to that?

PN145

THE DEPUTY PRESIDENT: Yes.

PN146

MR ARGALL: Thank you, your Honour. First of all, I am surprised by Ms Floyd's claim that enterprise bargaining has finished at the University of Canberra, and I think they would be surprised too. It is an assertion only, and one with which we do not agree. I would think that enterprise bargaining is over, and bargaining periods terminate upon certification of agreements. And the University of Canberra is not at that point at this stage, so it is wrong to suggest that 170N is no longer, or shortly will no longer be a consideration.

PN147

Although people are very optimistic in enterprise bargaining and think that things are almost over. It can sometimes take several more months and, indeed, has in this industry on many, many occasions. So we absolutely reject the suggestion that 170N is no longer a consideration.

PN148

THE DEPUTY PRESIDENT: But there is no opposition to the safety net adjustment.

PN149

MR ARGALL: I notice that. There is no opposition to what Ms Floyd has suggested. I am happy to discuss with her these figures. I was the one that, in fact, pointed out, I think, to her or to the union that the figures were too low in relation to the expense related allowances. But this does have relevance for the question of what happens to the remaining part of their application. What we say is that the NTEU has made application, sought leave to have its application varied so that it now only relates to the draft order now sought. There is nothing to adjourn because there is no current application in relation to redundancy provisions in relation to the University of Canberra General Staff Award.

PN150

And if there is, if we are wrong on that, and there is, then the considerations I have raised with you in my previous submissions apply, and the Commission ought to determine that section 170N precludes the granting of that application, reject the application on that basis and close the file. Thank you.

PN151

THE DEPUTY PRESIDENT: All right, thank you. Mr Mendelssohn and Mr Kentish I think are both party to this award as well, is that correct?

PN152

MR MENDELSSOHN: Yes, your Honour.

PN153

THE DEPUTY PRESIDENT: Okay. Did either of you or both of you wish to speak to the application in respect to the safety net adjustment?

PN154

MR MENDELSSOHN: Yes, your Honour. What I would indicate in relation to the safety net adjustment is that we consent to the application being granted subject, of course, to just checking.

PN155

THE DEPUTY PRESIDENT: The order.

PN156

MR MENDELSSOHN: Yes. And would you like me to address the other aspect of the application at this stage?

PN157

THE DEPUTY PRESIDENT: Yes, if you wish to.

PN158

MR MENDELSSOHN: Or the other parties indicate their attitudes to the safety net adjustment first?

PN159

THE DEPUTY PRESIDENT: I think Mr Kentish is the only party, is that correct?

PN160

MR KENTISH: Yes, that is correct.

PN161

THE DEPUTY PRESIDENT: What is your position on the safety net adjustment part of the application, Mr Kentish?

PN162

MR KENTISH: Thank you, your Honour. Your Honour, the AMWU supports the NTEUs application. We give the necessary commitment to absorption required by the principles. Our consent or support for the application would be subject to seeing the final draft, and I think a time period of seven days would be an appropriate one.

PN163

THE DEPUTY PRESIDENT: All right. Do you have a copy of the final draft, or would you wish us to provide you with one?

PN164

MR KENTISH: I would seek to be provided with one, your Honour.

PN165

THE DEPUTY PRESIDENT: All right, we will make one available to you. That is possibly the easiest way. Mr Mendelssohn, did you wish to speak about the other part of the application?

PN166

MR MENDELSSOHN: Yes, thank you, your Honour. First of all, my understanding of section 170N seems to be a little bit at variance to that of Mr Argall, in that, as I read the section, the mere fact that a bargaining period has not yet been terminated, does not mean that section 170N is enlivened. The matter, the subject of the application, has to be at issue between the parties as well, and my understanding is that the position at the University of Canberra is that bargaining there is beyond the stage where anything is still at issue between the parties, whether the subject of this application or anything else.

PN167

Now, if that turns out to be incorrect, of course, I am happy to be corrected, but as far as I am aware, my understanding of section 170N is correct, then the University of Canberra is not affected by section 170N as far as the redundancy part of it is concerned.

PN168

THE DEPUTY PRESIDENT: Other than I think that Mr Argall's understanding of the position is different. I don't think it is an argument about 170N, I think it is an argument that Mr Argall is not of the view that the bargaining process has been completed. Is that it?

PN169

MR ARGALL: That is right. And it seems to me that given the fact - - -

PN170

THE DEPUTY PRESIDENT: And it will have to be subject to argument by the parties if it goes any further.

PN171

MR ARGALL: Up to this point I had understood that the unions conceded on this point, but now that it is being raised, I guess if it is to be a point we would want to bring evidence on it.

PN172

THE DEPUTY PRESIDENT: That is right, that is another point, and that will be subject to what Ms Floyd wants to do with her application. So I am going to do the sporting thing and give it back to her, and she can decide whether she wants to proceed with that part of it, and because of your submission and Mr Mendelssohn's position there needs to be some proper hearing so that the University can put their position, because you are at odds as to where the bargaining is it.

PN173

Did you want to add anything else in respect to that, Mr Mendelssohn, because the difference is not about 170N, it is about what is the actual position between the parties.

PN174

MR MENDELSSOHN: The factual situation, yes, your Honour, I accept that.

PN175

THE DEPUTY PRESIDENT: All right.

PN176

MR MENDELSSOHN: If my understanding is correct, then I would submit that the matter would, or should be dealt with in the manner suggested by Ms Floyd, because the application does depart from the model clause that was approved by the Full Bench in the test case, and that would be consistent with the approach adopted by Senior Deputy President Watson and Senior Deputy President Kaufman in the matters Ms Floyd referred to.

PN177

If, on the other hand, Mr Argall's understanding of the factual situation is correct, I would disagree with his contention that the NTEU should have to withdraw this or any of the other applications that are especially affected by section 170N, because it is, in my submission, fanciful for Mr Argall to suggest that this would be a serious point upon institutions in bargaining, because even if the applications are withdrawn they know very well that you or the CPSU or another union party is going to make the application once the section 170N would no longer be an issue at that university.

PN178

THE DEPUTY PRESIDENT: But we are dealing with the University of Canberra Award.

PN179

MR MENDELSSOHN: So adjourning the application would have the same practical effect as the NTEU withdrawing it. May it please.

PN180

THE DEPUTY PRESIDENT: All right. What is your position on this one? Would you like to - - -

PN181

MS FLOYD: Well, I would just like to comment once again about 170N. The advice I was given, in my absence - I was in Perth on Friday - my advice from the union was that a final document was passed by our executive so the matters are no longer at issue. I can say no more, and if I am incorrect then I will stand to be corrected. I would just like to make some - have we finished with the University of Canberra?

PN182

THE DEPUTY PRESIDENT: No. This was going to be the quick one, remember?

PN183

MS FLOYD: It was going to be the quick one.

PN184

THE DEPUTY PRESIDENT: I am sorry I ever said that. Look, can I just deal with this one, the University of Canberra one.

PN185

MS FLOYD: Yes, certainly.

PN186

THE DEPUTY PRESIDENT: It can be varied in respect to the safety net increases effective from today, and that is by consent, so there is no difficulty with that. I shall hold onto the file, and you can advise me what you wish to do in respect to the other part of the application.

PN187

MS FLOYD: Yes, your Honour.

PN188

THE DEPUTY PRESIDENT: The difference between you being the factual position rather than an issue and an argument over 170N.

PN189

MS FLOYD: Yes.

PN190

THE DEPUTY PRESIDENT: It may then develop into other issues, but subject to you finding out what the factual issue, and perhaps talking to Mr Argall, if he is representing the university, to see what you want to do with that.

PN191

MR ARGALL: Your Honour, I see no reason, if what Ms Floyd is saying is correct, why the matter couldn't be programmed to be heard reasonably soon.

PN192

THE DEPUTY PRESIDENT: That might be all right for you. I don't know what you mean by reasonably soon.

PN193

MR ARGALL: I mean within the next couple of weeks or so. I don't see that there is any reason to delay this particular matter if we can resolve the question of where they are at with enterprise bargaining, reasonably quickly I would have thought, and then argue the rest.

PN194

THE DEPUTY PRESIDENT: All right. I shall consider what Ms Floyd wants to do with her application, and then we will decide how we deal with it.

PN195

MS FLOYD: Just to finish off the University of Canberra, we commend that application to you with respect to the safety net increases.

PN196

THE DEPUTY PRESIDENT: All right. So that award, the University of Canberra General Staff Award 2001 will be varied to give effect to the safety net decisions. I think there were three, the last three decisions. And an order will issue in due course in respect to that, and the parties have seven days to check that the figures are correct. Right, next?

PN197

MS FLOYD: Just some general comments in response to Mr Argall. I certainly don't intend to go into any submissions on the merits of our application or in opposition to the merits of Mr Argall's application. Your Honour, the employers were sent a copy of the application on 2 July, so they have had four weeks in which to consider this. So we were a bit bemused when at a late date we had this application certainly in response to it.

PN198

Can I say from the outset, we would have been more than happy to have not had the spectre of 170N hanging over either our head or the AHEIA head, and we would have been more than happy to have both cases presented on their merits. However, having made the submissions that the AHEIA have made, we are arguably prevented from doing that with our application.

PN199

And I would also like to say that, of course, the AHEIA are quite clearly prevented from pursuing their application because they have said the matter of entitlements for fixed term employees is at issue between the parties, their words, not our words, which means that the application to vary HECE with respect to severance payments for fixed term employees cannot proceed because of 170N.

PN200

With respect to the withdrawal of consent to the 2004, I guess as a threat, they will withdraw the consent to the 2004, we have not - we will be quite happy just to have the 2002 rates put in.

PN201

THE DEPUTY PRESIDENT: Which one are we looking at, all of the others?

PN202

MS FLOYD: All of the others, and most of them are 2002, I think.

PN203

THE DEPUTY PRESIDENT: Are they? So they haven't been varied, what, for three years or something?

PN204

MS FLOYD: No. The award was made in 2001. Some may be, I think most of them 2002. But if the universities want to play games and withdraw consent because we won't do what they would like us to do, then we will just proceed with the 2002, which we don't have to have consent for, and we will just have to wear it, and in 12 months time we will back getting 2003, and we will just be behind. So that is certainly not an impediment to us proceeding, and therefore I would have to submit a new draft order.

PN205

In terms of our application to - and I would just like to make it very clear - we didn't make an application for leave to amend the application. We sought - I think I am correct - we sought leave to amend the draft order.

PN206

THE DEPUTY PRESIDENT: Yes, leave to vary the draft orders.

PN207

MS FLOYD: Yes. So we have not sought leave to variation the application, we don't seek leave to vary the application. There is no impediment to any part of an application being held over. There is many occasions when that has been done. We have been to the Commission where the matter of casual rates was held over for a later day because the parties couldn't agree. I won't say any more about that.

PN208

So I guess our position is, we will not withdraw our applications. If that means that some universities will withdraw their consent to rolling up all the safety net increases, then we will amend the applications accordingly. We seek to have the University of Canberra either referred to the President or, if your Honour decides not to do that, to have a date listed for programming and mentioning along with the CPSU applications, none of which are affected by 170N. Thank you.

PN209

THE DEPUTY PRESIDENT: All right. That was in respect to all of your other applications?

PN210

MS FLOYD: Yes, all seven.

PN211

THE DEPUTY PRESIDENT: Seven is there? I never got round to counting them actually. You have said all you want to say in respect to all of those?

PN212

MR ARGALL: Yes, thank you.

PN213

THE DEPUTY PRESIDENT: Okay. Is there anybody else? Mr Waugh, did you want to throw your two bob's worth in?

PN214

MR WAUGH: If I can just say something very quickly, your Honour. The University of Melbourne is in the lucky situation of not being caught up in safety net adjustments. I might just make a few comments about the applications with regard to termination and redundancy. The university does oppose the NTEU application, but it notes the request by the NTEU to adjourn them. I can confirm that the matters are at issue at the university, and 170N would appear to apply.

PN215

The university would prefer a withdrawal of that application rather than an adjournment for similar reasons to those that Mr Argall has raised, however, we would reserve our right to present argument at a later time on the merits of the NTEUs application, should it be withdrawn or adjourned. We see the logic applying to the withdrawal adjournment of the NTEUs application also applying to the AHEIA application, and would not disagree with either resolution in that case either. If the Commission pleases.

PN216

THE DEPUTY PRESIDENT: All right, thank you. Is there anybody in any of the other places that wants to respond to anything that has been put by either Ms Floyd, Mr Argall or Mr Waugh in respect to the seven NTEU applications?

PN217

MR WARD: Your Honour, it is Mr Ward here from the University of New South Wales. I might put on the record that from the University of New Wales' point of view, we are in the lucky situation of being one of the four, I think, universities that Mr Argall indicated would not be affected by 170N, and on that basis I don't propose to make any comment as to whether the matters should be adjourned or withdrawn. It makes no real difference to the University of New South Wales.

PN218

THE DEPUTY PRESIDENT: All right, thank you. Anybody else?

PN219

MR HARRIS: Hr Harris, University of Sydney. Your Honour, our agreements are currently just being voted on, and there should be - but technically there is still a bargaining period occurring, and the University of Sydney would ask that the matters be withdrawn for this reason, your Honour. And your Honour may have read in the press that there is a bit of goings on about Orange.

PN220

In the last week the NTEU and the CPSU has made a claim in relation to Orange for further redundancy payments for fixed term and continuing employees over and above that which has been agreed and voted upon by employees of the University, which will shortly be part of an application for certification of the new agreements, and recision of the current agreements, and the university would prefer that, in effect, there be a new application in relation to the redundancy application some time in the future, and that the matters be withdrawn. If your Honour pleases.

PN221

THE DEPUTY PRESIDENT: That is in respect to redundancy, and are you saying that the claim that has been put on the university is over and above this application, is it another application?

PN222

MR HARRIS: Well, the claim hasn't been put in particular weeks, it is just that there has been general statements that more payments should be made for employee at Orange.

PN223

THE DEPUTY PRESIDENT: Well, there is no formal application been made that you are aware of?

PN224

MR HARRIS: There is no numbers of weeks, just more put - it would exceed what is proposed in the new agreement.

PN225

THE DEPUTY PRESIDENT: That is the one that is being voted on?

PN226

MR HARRIS: Which has just been voted on last Friday and counted this Monday, which exceeds the current awards which are part of the NTEUs applications, and well exceeds those awards, and yet there is now a further, or what I will call an informal claim by officers not of the national office of the CPSU or the NTEU, but it did involve a New South Wales official at the NTEU.

PN227

THE DEPUTY PRESIDENT: And that is at one particular location, is it?

PN228

MR HARRIS: In relation to academic and general staff and fixed term employees of both academic and general staff.

PN229

THE DEPUTY PRESIDENT: All right, thank you. I understand what you are saying. Mr Mendelssohn?

PN230

MR MENDELSSOHN: May I just respond to that, your Honour. There is no section 170N aspect to that, because to the extent that - well, there are bargaining periods which technically have not concluded at the University of Sydney, but they relate to the agreements which have now been voted on, and there is certainly no issues, no matters still at issue between the parties in relation to the matters that were the subject of those bargaining periods.

PN231

MR KENTISH: Your Honour, we support the adjournment of the redundancy aspect of the applications, and I just wish to note that we reserve our rights with respect to the merits.

PN232

THE DEPUTY PRESIDENT: All right, thank you, Mr Kentish. Anybody else?

PN233

MR BEASLEY: Your Honour, Mr Beasley from ANU.

PN234

THE DEPUTY PRESIDENT: Yes, Mr Beasley?

PN235

MR BEASLEY: The 170N aspect of the submissions that have been made by the AHEIA aren't in question with respect to the Australian National University. However, one of our enterprises has been served with an initiating period by the NTEU, which may give rise to section 170N, but it is not something I wish to go into in detail at this stage. As far as the issues of the redundancy provisions are concerned, we certainly support the position that has been put forward by the AHEIA and other members of the GO8. We would stress that because the applications that have been made, or the draft orders are consistent with the test case standards, and if the Bench was to entertain the application, then it should be referred to, as suggested earlier, in accordance with section 107.

PN236

THE DEPUTY PRESIDENT: So are you making an application pursuant to section 107?

PN237

MR BEASLEY: Sorry, your Honour?

PN238

THE DEPUTY PRESIDENT: Are you making an application pursuant to section 107, that it be referred to the President?

PN239

MR BEASLEY: No, not at this stage, because dependent on the conduct or the position of the NTEU, and obviously dependent upon what your Honour's views are, what we are seeking at this stage is the application be withdrawn, which would obviously provide the opportunity afforded to the parties to try and resolve the issues. But it certainly wouldn't be helpful in regards to moving forward in a constructive manner if the matters are left live on file. We certainly support the view of the AHEIA, that while negotiations are going on it is not helpful with regards to the way those negotiations would go, move forward with respect to other members of the GO8. May it please.

PN240

THE DEPUTY PRESIDENT: Sorry, what is the GO8?

PN241

MR WAUGH: If your Honour pleases, the group of eight universities. It is a colloquial term for those universities who are not members of Mr Argall's association.

PN242

THE DEPUTY PRESIDENT: I am sorry, I got lost on that one. GO8, is it, not GOA?

PN243

MR WAUGH: Group of eight.

PN244

THE DEPUTY PRESIDENT: All right, thank you. Mr Beasley, can I just confirm with you, you have a bargaining period served on you, is that your position, that 170N - - -

PN245

MR BEASLEY: On one of our enterprises, your Honour, as far as the negotiations, so the university wide enterprise agreement is concerned, that concluded some time ago, and a variation to the enterprise agreement went forward on the 15th of this month before his Honour, Duncan. But as I say, one of our enterprises has been served with a process initiating a bargaining period, and there may be an argument that we could mount, but I am not saying that I am at this stage, that 170N could apply.

PN246

MS FLOYD: Could I just respond to that?

PN247

THE DEPUTY PRESIDENT: You could.

PN248

MS FLOYD: There is no 170N matter for those employees who are covered by these applications. The employees who are covered by these applications at ANU have an enterprise bargaining agreement.

PN249

THE DEPUTY PRESIDENT: In place, is it?

PN250

MS FLOYD: Yes. If we have served it on one of the other entities, and I am not sure if it is ANUTECH or the student union, they are not covered by this agreement, and the matter is not at issue.

PN251

THE DEPUTY PRESIDENT: All right.

PN252

MR BEASLEY: Your Honour, on that point, obviously if these applications go forward we are of the view that it provides an ambit with regard to the claim with regards to our other enterprise be affected.

PN253

THE DEPUTY PRESIDENT: Why is that? Sorry, Mr Beasley, what do you mean that it provides an ambit? This application doesn't apply to the people that you say there has been a notice served on, is that correct?

PN254

MR BEASLEY: That is quite - well, yes, technically that would be the case. But the fact that the small business provisions haven't been dealt with in these applications, that this is where the ambit comes in with regards to the other enterprise, that it could be used as a way of threatening those forms of negotiations and putting undue pressure with regards to the parties who are going to be negotiating over that particular agreement. And the absence of small business provisions is a real and genuine concern for the university, and also particularly when it comes to research with grants and so on, it has a significant impact.

PN255

THE DEPUTY PRESIDENT: Thank you. I understand what you are saying. Where did we get to with these? There is somebody else?

PN256

MR McMAHON: Your Honour, I have nothing to add to the debate.

PN257

THE DEPUTY PRESIDENT: Thank you, Mr McMahon. It is a pity. Confuse me even further. So all of your seven applications?

PN258

MS FLOYD: My seven applications with respect to redundancy with the exception of the University of Canberra, we would say we will adjourn until a later date.

PN259

THE DEPUTY PRESIDENT: Yes, will adjourn. All right.

PN260

MS FLOYD: With the University of Canberra, depending on what happens with CPSU, we should say that should be joined, we should say the University of Canberra should be joined for programming and mentioning with the CPSU applications. I think that given the time we will ask for another listing for the safety net increases for these three outstanding matters, given the fact that I have just been advised today that there isn't consent, and we need to talk further about that.

PN261

THE DEPUTY PRESIDENT: Yes. And it may be that you need to provide the Commission as well as yourself and the other parties with a list of just where all of these awards stand, what the position is on each one, so that we can re-list those that you wish to re-list, so that the parties will have the opportunity to put proper argument.

PN262

MS FLOYD: Thank you.

PN263

THE DEPUTY PRESIDENT: All right. We will deal with yours now, Mr Argall. What do you want me to do with that one?

PN264

MR ARGALL: Thank you.

PN265

THE DEPUTY PRESIDENT: First of all, we should take appearances in 4770, which is an application by the Higher Education, AHEIA.

PN266

MR ARGALL: AHEIA, your Honour.

PN267

THE DEPUTY PRESIDENT: As opposed to GO8.

PN268

MR I. ARGALL: That is right. Your Honour, with your leave I appear for the Australian Higher Education Industrial Association in this matter.

PN269

THE DEPUTY PRESIDENT: Thank you. Who else is appearing in this one?

PN270

MR N. WAUGH: I appear on behalf of the University of Melbourne.

PN271

THE DEPUTY PRESIDENT: Thank you. Anybody else on the employers side appearing in this one?

PN272

MR B. BEASLEY: I appear on behalf of the Australian National University.

PN273

THE DEPUTY PRESIDENT: Thank you.

PN274

MR D. WARD: I appear on behalf of the University of New South Wales.

PN275

MR G. HARRIS: I appear on behalf of the University of Sydney.

PN276

MR M. McMAHON: I appear on behalf of the University of Queensland.

PN277

THE DEPUTY PRESIDENT: Thank you. Ms Floyd, I take it, is appearing in this one? Any of the other unions appearing in this one?

PN278

MR D. MENDELSSOHN: I appear on behalf of the CPSU.

PN279

MR A. KENTISH: I seek leave to intervene on behalf of the AMWU.

PN280

THE DEPUTY PRESIDENT: Thank you. Any objection to the AMWU intervening?

PN281

MS FLOYD: None from us, your Honour.

PN282

THE DEPUTY PRESIDENT: No objection, Mr Mendelssohn?

PN283

MR MENDELSSOHN: No objection, your Honour.

PN284

THE DEPUTY PRESIDENT: All right, leave is granted to Mr Kentish on behalf of the AMWU to intervene. Mr Argall?

PN285

MR ARGALL: Thank you. This application made by the Australian Higher Education Industrial Association was made in order to avoid the flow on effect of the granting of the redundancy test case provisions in the matters that we have just been dealing with, the industry wide awards and the institutional awards covering higher educational institutions. It was designed to preserve the effective level of severance payment payable to fixed term employees under the Higher Education Contract of Employment Award 1998 at the levels at which they currently are.

PN286

If that had been granted, if this could be granted that would remove the objections that AHEIA and its members have to the applications made by the NTEU and CPSU in relation to redundancy provisions. However, I understand, and Ms Floyd has corresponded with me as recently as 26 July, indicating that she does not consent to our application, and arguing that section 170N considerations apply equally to our application as they do to the NTEU applications, a point which I concede.

PN287

And therefore my submission is, what ought to happen with this application is exactly what ought to happen - what the Commission decides to do with the NTEU and CPSU redundancy applications it ought to take a similar course with our application. That is, what I am saying in the first instance is. And I hadn't known until now that it was in contention as to whether a section 170N was a consideration, but if the Commission is prepared to accept that section 170N does apply, what it ought to do is dismiss the AHEIA application along with dismissing the NTEU and CPSU applications in relation to redundancy for that reason and close the files on them.

PN288

Presumably we could all make application at a later stage when section 170N doesn't apply. Let me just say something about that too. There is this suggestion that seems to be being made by the unions here that, you know, tomorrow or next week or in a couple of weeks or something this will all be over, enterprise bargaining will be over, and section 170N will no longer apply. I don't think so. This has been going on for a year now, and we have got four universities - - -

PN289

THE DEPUTY PRESIDENT: This being what, the negotiations?

PN290

MR ARGALL: Enterprise bargaining negotiations have.

PN291

THE DEPUTY PRESIDENT: So you are just getting warmed up, are you?

PN292

MR ARGALL: Wel,l the last bunch of agreements ran out over a year ago, and we have got four universities it can be truly said to have finished. At this rate, if we continue to do four a year, it is going to take us 10 more years. I don't think it is really going to take that long. But what I am saying is, it may very well be that this is not a thing that will be over quickly, although we all hope and pray it will be over quickly. The reality is that it is probably going to take quite a length of time. The Commission needs to consider that too.

PN293

THE DEPUTY PRESIDENT: But the difficulty is that 170N doesn't apply to all of the respondents.

PN294

MR ARGALL: That is right.

PN295

THE DEPUTY PRESIDENT: And that is what needs to be sorted out. There is the factual position that needs to be clarified, which would require a proper formal hearing.

PN296

MR ARGALL: I would submit that it doesn't apply to four universities. Only two of those universities are members of my association. All the rest of them, what I would say, without proof otherwise, that it does apply because they are still negotiating, although we could argue the point, we could argue the evidence on any particular case.

PN297

THE DEPUTY PRESIDENT: Sure. And that may well have to be what happens.

PN298

MR ARGALL: If the Commission doesn't do what I say ought to be done with our application, that is, that it ought to be dismissed because 170N precludes it from being granted, and if you choose to, if the Commission chooses to adjourn the NTEU and CPSU matters, then we say that you should also adjourn C4770 along with it, and associate those files so that the matters when they're called on can be called on and heard together.

PN299

THE DEPUTY PRESIDENT: You agree they should all be dealt with as one job lot rather than spread around?

PN300

MR ARGALL: Yes.

PN301

THE DEPUTY PRESIDENT: All right. I tend to agree with that if they need to be dealt with.

PN302

MR ARGALL: If it please the Commission.

PN303

THE DEPUTY PRESIDENT: Mr Waugh, did you want to add anything?

PN304

MR WAUGH: Not particularly, your Honour.

PN305

THE DEPUTY PRESIDENT: It is not compulsory.

PN306

MR WAUGH: No, it is not compulsory. Although we would say that the same logic applies to the AHEIA application as it applies to the NTEU application. Thank you.

PN307

THE DEPUTY PRESIDENT: Yes, all right, thank you. Mr Beasley, did you wish to add anything in respect to the AHEIA application?

PN308

MR BEASLEY: Your Honour, nothing other than supporting the submissions that have been made by the AHEIA at this stage, which has similar effect upon our institution.

PN309

THE DEPUTY PRESIDENT: Yes. Mr Ward? Is Mr Ward still there?

PN310

MR WARD: Yes, sorry, your Honour.

PN311

THE DEPUTY PRESIDENT: There is a bit of a delay that is causing some difficulties.

PN312

MR WARD: The University of New South Wales, your Honour, would support the proposed way forward suggested by Mr Argall.

PN313

THE DEPUTY PRESIDENT: Thank you. Mr Harris, what is your position?

PN314

MR HARRIS: Your Honour, I have nothing further to add apart from the previous submission, except your Honour is probably aware, or should be award that the previous HECE decision was made by a Full Bench back in 1998.

PN315

THE DEPUTY PRESIDENT: Which decision was that?

PN316

MR HARRIS: The HECE decision which is the main decision, the basis of Mr Argall's application, the HECE Award.

PN317

THE DEPUTY PRESIDENT: Okay, yes, the award. Thank you.

PN318

MR HARRIS: There was a Full Bench decision back then.

PN319

THE DEPUTY PRESIDENT: Okay. Mr McMahon?

PN320

MR McMAHON: Nothing to add, except to support the AHEIA position, your Honour.

PN321

THE DEPUTY PRESIDENT: Thank you. Ms Floyd, I think it is back round to you.

PN322

MS FLOYD: Your Honour, we certainly oppose having our application dismissed. We haven't made that submission. Those that are affected by 170N, I will just reiterate, should be held over until such time as they can be reactivated when 170N does not apply. In respect to the University of Canberra, we say 170N does not apply. We are quite happy to have a hearing to put in submissions on that and bring some evidence, and if we are correct that should be listed for programming and a mentioning.

PN323

Having raised the 170N, as the AHEIA have done, they have risked having their application not heard at all, and given the opportunity for those where 170N does not apply, to be actually heard. And we don't think that they should all be put into the same barrel. If 170N does not apply, those matters should be tested on their merits, and the AHEIA can oppose them on their merits. But where 170N does apply, as we said, they should be adjourned until such time as they can be arbitrated. Thank you, your Honour.

PN324

THE DEPUTY PRESIDENT: All right, thank you. Mr Mendelssohn?

PN325

MR MENDELSSOHN: Thank you, your Honour. The problem as I perceive, quite as Mr Argall suggested, is that section 170N does not apply as far as I am aware to any of the CPSU applications. If Mr Argall says that it does apply - - -

PN326

THE DEPUTY PRESIDENT: We haven't got to the CPSU applications yet.

PN327

MR MENDELSSOHN: - - - at either of the institutions which his members that are covered by two of those applications, it certainly does not apply to the CPSU applications in respect of the University of New South Wales and the Australian Defence Academy Awards. And as Mr Argall conceded, there are a number of institutions to which the Higher Education Contract of Employment are affected by section 170N, and for that reason it would be impracticable to program the AHEIA application only with respect to those institutions that are not affected by section 170N because it isn't by its nature an award that applies to all institutions in the sector unless specifically accepted.

PN328

And therefore I would suggest, or my submission would be that just as the NTEU applications that are affected by section 170N should be adjourned for relisting as and when - - -

PN329

THE DEPUTY PRESIDENT: I am sorry, we are losing you.

PN330

MR MENDELSSOHN: My submission would be that the NTEU applications so far as they deal with redundancy should be adjourned until they are not affected by 170N, and likewise the AHEIA application should be adjourned until it is no longer affected by section 170N. In my submission, as I indicated earlier, whether an application is withdrawn on the understanding that it is going to be made again at a later date, or whether it is simply stood over until the appropriate time to reactivate it, in my submission makes no practical difference, and would have no appreciable impact on the way parties conduct their enterprise bargaining negotiations.

PN331

In conclusion I would repeat what Mr Harris said, in that the Higher Education Contract of Employment Award was made by a Full Bench, and it should not be readily varied, or should not be varied without very careful thought.

PN332

THE DEPUTY PRESIDENT: I think most variations are given careful thought. Mr Kentish, did you wish to add anything?

PN333

MR KENTISH: Your Honour, the AMWU supports the adjournment of the matters, your Honour. On the face of 170N, I can't read anything in it which would require or even encourage matters to be struck out or dismissed because they were subject to that section.

PN334

THE DEPUTY PRESIDENT: There were some factual matters that have to be dealt with first.

PN335

MR KENTISH: Yes. Well, even should it be decided that they are caught, I wouldn't see that it would be necessarily appropriate for the Commission to take action to dismiss matters in that way. I don't believe that is the intention of 170N. But I don't wish to take the matter much further.

PN336

THE DEPUTY PRESIDENT: All right, thank you. Did you want to make any further comment, response or submission in respect to your application?

PN337

MR ARGALL: Very briefly. The adjournment of the AHEIA application, 4770, if it is there, might be brought on in part, that is, if, for instance, in two weeks time the University of Canberra application is brought on, or whatever CPSU application is brought on, then we would want to invoke that aspect of the AHEIA application that applies to those universities.

PN338

THE DEPUTY PRESIDENT: As it affects those, yes.

PN339

MR ARGALL: Yes. So what I am saying is, the whole thing might not wait till everything was over, but it can be brought on piecemeal.

PN340

THE DEPUTY PRESIDENT: Yes. No, I understand what you are saying, yes.

PN341

MR ARGALL: That is my proposal.

PN342

THE DEPUTY PRESIDENT: All right. I don't think we need to hear any more on 4770. Anybody else want to add anything? Any of the employers wish to add anything else? No. Good. All right, I will deal with that one along with the NTEU applications, and try and put all of those together. The other applications, there is eight listed which are, in fact, only four applications. The Registry very kindly did them twice. So there are four applications by the CPSU. So perhaps if I could take appearances in those matters, and see where we go with those please.

ADJOURNED ACCORDINGLY [5.00pm]