C2004/6011, Transcript of Proceedings [2004] AIRCTrans 3866 (4 October 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 13931

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HAMBERGER

C2004/6011

CPSU, THE COMMUNITY AND PUBLIC
SECTOR UNION

and

MACQUARIE UNIVERSITY

Application under section 170LW of the Act
for settlement of a dispute re continuation of
the Managing Change Process in the Centre for
Flexible Learning Audio Visual Services

SYDNEY

11.03 AM, FRIDAY, 24 SEPTEMBER 2004

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning everyone. Can I have the appearances, please?

PN2

MR G. CONROY: If it pleases the Commission, I appear for CPSU and also Mr HOLLAND appearing for CPSU, and also Ms SALOMON appearing for the CPSU.

PN3

MS S. LITCHFIELD: May it please the Commission, I appear for Macquarie University. Also appearing with me is MR T. SPRAGUE and MR T. COLLINS, the Manager in the area concerned.

PN4

THE SENIOR DEPUTY PRESIDENT: What I was going to suggest was that initially we just get some brief from both parties - we get a brief outline of what you think the situation currently is, what you think has happened, what you would like to happen - if I could put it that way - and we will keep that fairly brief I thought and then we will go into conference and try and talk this one through. So perhaps I can hear from Mr Conroy first.

PN5

MR CONROY: The position of the CPSU, your Honour, is that in relation to the staff in AVTS at Macquarie University undergoing the change of management process, we see that the situation involving those staff is that they have pretty much the same positions as they currently hold but with some new equipment added which would take some type of minor level training in order for the staff to be able to successfully take up the newer duties that could be added onto their current positions.

PN6

The CPSU, your Honour sees that rather than the University taking the approach of retraining of staff under the career progression and development approach, that rather there has been a type of a spill and fill approach in relation to an intention to delete the old positions and then approach the matter in a way that may see some staff in AVTS at Macquarie, lose their jobs.

PN7

Your Honour, we have under the enterprise agreement, asked that the University while this dispute matter is on the table, and we have lodged a dispute under the enterprise agreement, your Honour, under 14.03 Dispute Settlement Procedures, we have asked the University to cease any matter in relation to the dispute until the dispute has been resolved and one of the reasons we are here today, your Honour, is because from our perspective the matters relating to the dispute are continuing.

PN8

THE SENIOR DEPUTY PRESIDENT: How many people are involved?

PN9

MR CONROY: I think there's approximately 13 to 15 people.

PN10

THE SENIOR DEPUTY PRESIDENT: So you say that there is actually the same number of positions? There 's not actually a reduction in the number of positions.

PN11

MR CONROY: We don't see there's a reduction, your Honour, in the number of positions, but we understand from our members, your Honour, that there was an intention from the University to delete the old positions.

PN12

THE SENIOR DEPUTY PRESIDENT: From your point of view has there been any formal consultative process at all about this - - -

PN13

MR CONROY: There has been, your Honour, some consultation process as per the changed management clause in the agreement, but the CPSU asserts that that consultation process did not take into account or respond to concerns put forward by the union on behalf of its members and other staff in the AVTS. So we are of the view that that consultative process was unsuccessful in taking into account the major concerns of the union and its members, and other staff in AVTS.

PN14

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Litchfield.

PN15

MS LITCHFIELD: Thank you, your Honour. Your Honour, would it be convenient for you if I was to tender the extracts of the enterprise agreement that - - -

PN16

THE SENIOR DEPUTY PRESIDENT: You can. I mean I have got the agreement with me, so if you take me to the relevant sections I can actually - - -

PN17

MS LITCHFIELD: Could I also, in these brief initial submissions, convey to you that the dispute has developed in the course of consultation between the University and one of the representative unions party to the enterprise agreement. The workplace change arises in a subsection of an area called the Centre for Flexible Learning in the University. The Centre for Flexible Learning is a relatively new part of the University and it seeks to be an incubator and a service delivery arm to increase options and quality of educational services, so it's a somewhat innovative part of the university.

PN18

THE SENIOR DEPUTY PRESIDENT: Is this specifically focused on external education? I was trying to work out what flexible learning meant. Is that only about external education, people doing distance learning or does it include people learning on campus as well?

PN19

MS LITCHFIELD: Yes, your Honour's inclinations are quite correct, it's certainly an important area for external students. However it's quite significant for people who attend the campus as well. The audio visual technical services area has traditionally provided technical support to lecture theatres. You might be familiar, your Honour, with the size of some lecture theatres and amplification is certainly necessary in those environments. It has also been traditionally involved in the audio recording of lectures, particularly to supply to the external students your Honour was thinking of earlier. It's involved in assisting lecturers with visual aids.

PN20

I will also observe for the Commissioner's benefit, that its technology platform has been based on what's known as analog technology and a change in that technology is afoot and is the contents in which this disagreement arises. A desire by the University to move to digital technology and a new service delivery mode underpins the workplace change proposals presented to unions and staff in April of this year for consultation under the Macquarie University Enterprise Agreement. Your Honour, might I tender the details of the change proposals as this point so that they are before you?

PN21

THE SENIOR DEPUTY PRESIDENT: Yes. Exhibit M1.

PN22

MS LITCHFIELD: Thank you.

EXHIBIT #M1 CHANGE PROPOSALS

PN23

MS LITCHFIELD: Your Honour, that document was supplied to the unions pursuant to clause 16 of the enterprise agreement and if you would allow me to make a few observations about clause 16. That's found on page 253 of the certified version of the agreement. If I could just draw your Honour's attention to the first four subparagraphs.

PN24

THE SENIOR DEPUTY PRESIDENT: Obviously you agree that this is a significant effect type of change. Is that right, you agree it was - - -

PN25

MS LITCHFIELD: Yes, your Honour, we say that when - if I could just speak in money terms - we are introducing about $10 million worth of digital technology.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes, but I suppose I mean in terms of the significant effects refers to the effect I think really more on the employees.

PN27

MS LITCHFIELD: Yes, your Honour.

PN28

THE SENIOR DEPUTY PRESIDENT: But you would say that this was something that involved significant effects?

PN29

MS LITCHFIELD: Yes, we would say it's squarely within clause 16 and we would say that it would be unwise for the University to introduce technology of this scope without also looking at the human parts of that technology, the positions available, the kind of duties involved and in particular the customer service aspects of this new technology, and the ways of using it to gain best advantage from the investment. So hence the University from the outset recognised it as a managing change exercise requiring consultation.

PN30

If I could just briefly allude to what that consultation means within the environment of this enterprise agreement. Can I direct your attention, your Honour, to clause 3 of the agreement on page 8 of the Commissioner's document. Within the seeds of the definitions there is the definition of consult or consultation. This is an important word in workplace relations and at Macquarie we define it as written on the page there. That imposes on the University a duty to have meaningful discussions with a full exchange of relevant information and that the views expressed will be taken into account before final decisions are made. The University asserts that it has accepted that obligation. This is an enterprise agreement we have negotiated, we've signed and we've sincerely sought to apply over the years since it was certified in 2001. Exhibit 1, previously tendered, is an illustration of that commitment to observing the enterprise agreement.

PN31

Your Honour, I am making all of these submissions about the contents of the enterprise agreement knowing that we all have this thing called the Electrolux decision around us everywhere and of course the University is turning its mind to the impact of that decision both on the prevailing enterprise agreement and the replacement enterprise agreement that's hopefully going to be certified really soon. So if I could respectfully reserve our rights in relation to the impact of that important decision I will do so.

PN32

The consultation proceeded for several meetings and through several exchanges of correspondence, but did come to an end when the union communicated to the University that it considered that there was a dispute between us as to the substance involved in the change proposals and therefore consultation has in a sense ended and been interrupted by use of the dispute settling procedures in clause 14 of the agreement. Mr Conroy has alluded to those in his brief opening. If I might just briefly address the impact of that clause, which is as Mr Conroy has stated in clause 14.03. I am not going to say anything about pagination.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes, I have got 14.03.

PN34

MS LITCHFIELD: In particular, those involved in drafting the present enterprise agreement, and I have to confess some involvement in that, recognise the interaction between managing change and the disputes settling procedures, and some of the preliminaries back within the area incidents and duration part of the agreement. Might I draw your Honour's attention to the material under 14.03.05?

PN35

THE SENIOR DEPUTY PRESIDENT: Yes.

PN36

MS LITCHFIELD: There are two things I want to respectfully submit. That the University recognises that there's a restraint on it in this clause until certain procedures have been exhausted. That is stated in there, your Honour. And of course the University submits that it did observe the dispute settling procedures and they were exhausted before any change in the status quo was attempted.

PN37

THE SENIOR DEPUTY PRESIDENT: What are you saying is exhausted? You're saying the procedures described in 14.03.04 have been exhausted?

PN38

MS LITCHFIELD: Yes, that is so, your Honour, by way of correspondence and the meeting of a disputes committee as prescribed in the subclause. Your Honour, I would also like to draw your attention to a specific discussion within the agreement of the interaction of clause 16 and clause - what's described in this part of the agreement as 3.04.06. We need to take you back to clause 3 and I will need to confess that I think there's an error of cross-reference in there. I beg your pardon, it's 3.05.

PN39

THE SENIOR DEPUTY PRESIDENT: Do you mean 3.05.04?

PN40

MS LITCHFIELD: Yes, I think that can be the only reasonable view of what the cross-reference that we were looking at a moment ago means.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes.

PN42

MS LITCHFIELD: So I have noted it with interest for the next agreement.

PN43

THE SENIOR DEPUTY PRESIDENT: Yes.

PN44

MS LITCHFIELD: The submission that the University wishes to present is that the rights within clause 14 are not available to frustrate the implementation of change proposals when consultation has occurred. Your Honour, I am almost at the point where I will conclude these initial submissions but I did want to turn attention now to the substance of the change proposals.

PN45

Mr Conroy has presented the submission that the changes brought about by this new technology platform and a desired new way of working are somewhat inconsequential. The University of course views that as not the case and that the changes are in indeed very consequential. That is reflected in the grading profile and the number of positions, both of which have increased. There has been an increase in the amount of continuing work offered in the proposed new structure that is previously part-time jobs have been built up to full-time jobs, the number of jobs has increased, the number of continuing positions has increased and the grading profile has increased to recognise the significant alteration in operating conditions and to provide and enhance career prospects and so on for the staff involved. Hence the University is unable to conclude that the changes are inconsequential and that direct appointment of the existing workforce is desirable.

PN46

THE SENIOR DEPUTY PRESIDENT: Do you agree with the numbers in terms of how many people are affected or currently employed?

PN47

MS LITCHFIELD: I'm instructed that there are - - -

PN48

MR CONROY: Your Honour, currently there are six permanent positions, and the holder of one of those positions is on extended sick leave and has been on for six months. There are two 40-weeks part-time positions and there are three casual positions. The new structure will have nine permanent positions and there will be an increase in - there will be a creation of three on two different levels, which are assistant supervisor and also a maintenance technician in the maintenance area, and that would involve the level that most of the operators are at the moment, they're a level 3. The lowest level of work to be offered is a level 4 in the new structure.

PN49

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN50

MS LITCHFIELD: Your Honour, at that point perhaps it seems wise to conclude the preliminary submissions on the University's behalf and we certainly support your Honour's inclination to conduct a conference.

PN51

THE SENIOR DEPUTY PRESIDENT: Mr Conroy, are you happy to go into conference now?

PN52

MR CONROY: Yes.

PN53

THE SENIOR DEPUTY PRESIDENT: I was just going to make the point that this matter has been referred to me for conciliation and/or arbitration, and leaving aside the use of the terminology I suppose - I notice your point about Electrolux and let's not go there at the moment, but leaving that to one side, I would like to try and sort this out by conciliation obviously and the Commission does have the power under this procedure to, if you like, arbitrate. Maybe that's not quite technically the correct term, but can everyone agree though that if I go into conciliation you are not going to turn around later on and say, but I can't deal with it if I have to make a formal binding recommendation?

PN54

MS LITCHFIELD: Your Honour, we concur with the merits of a conference and if arbitration proves to be necessary we will deal with that constructively.

PN55

THE SENIOR DEPUTY PRESIDENT: We will go off the record.

OFF THE RECORD [11.25am]

RESUMED [1.04pm]

PN56

THE SENIOR DEPUTY PRESIDENT: The parties have had some useful discussions. I think we are all agreed that their current employees need to be given a reasonable opportunity to translate into the new positions if at all possible, if they have the aptitude and willingness to learn the new skills that will be necessary, including both technical skills and also what is sometimes termed the soft skills, customer service skills, et cetera, that will be necessary.

PN57

There is obviously still some concern about the way the process has been operated up until now, concern from the union. We have agreed that at this stage the interviews that were scheduled for next Wednesday will go ahead as planned, but that at this stage nobody will be made any formal job offers and no offers will be made until certainly we have had an opportunity to look at this matter again. But what is going to happen in the meantime is that Macquarie University will make available to the CPSU, and indeed the Commission, more detailed information about the process that is being used to apply the selection criteria for the new positions. In particular I suppose, drawing out the extent to which people are genuinely being able to be assessed for their capacity to learn to do the new jobs rather than just being expected to already have all the skills and knowledge.

PN58

Also the University will make available information about what kind of training has been made available to the existing staff in the area over, let's say the last 12 months or so, to enable them to equip themselves to be capable of performing in the new roles and also what is planned for those staff over the forthcoming period, maybe the next 12 months or so, in light of helping bring them up to speed to be able to perform effectively in the new positions.

PN59

Also, following the interviews on Wednesday there will be an indication given to the Commission and to the CPSU, in broad terms, I don't think we need to go into individuals, but in broad terms about I suppose essentially how many of the current employees actually would be offered new positions if this all went ahead based on the interviews that have been conducted so far. So what we will do is we will adjourn now and we will find a time in the near future to resume again and see if we can finalise this matter. Thank you everyone.

ADJOURNED INDEFINITELY [1.07pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #M1 CHANGE PROPOSALS PN23