C2004/4517, Transcript of Proceedings [2004] AIRCTrans 4043 (19 October 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

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

TRANSCRIPT OF PROCEEDINGS


O/N 8734
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT LEARY

C2004/4517, 5112, 5113,
5114, 5116

UNIVERSITY OF CANBERRA
GENERAL STAFF AWARD 2001

AUSTRALIAN MARITIME COLLEGE
(GENERAL STAFF) AWARD 2002

THE UNIVERSITY OF NEW SOUTH
WALES GENERAL STAFF AWARD 2003

THE UNIVERSITY OF NEW SOUTH WALES,
AUSTRALIAN DEFENCE FORCE ACADEMY
GENERAL STAFF AWARD 2003

UNIVERSITY OF TECHNOLOGY, SYDNEY,
GENERAL STAFF AWARD 2002

Applications under section 113 of the Act
by the NTEU and Others to vary the above
awards re redundancy test case decisions

MELBOURNE

10.13 AM, TUESDAY, 5 OCTOBER 2004

PN1

THE DEPUTY PRESIDENT: Thank you. The hearing this morning is following a direction from the President to get some further information in respect of the reference applications made pursuant to section 107. Perhaps if we take appearances first.

PN2

MR D. MENDELSSOHN: I appear for the CPSU, Community and Public Sector Union.

PN3

MS E. FLOYD: I appear on behalf of the NTEU.

PN4

MR B. RANKIN: I appear for the LHMU.

PN5

THE DEPUTY PRESIDENT: Thank you. Any other union representation?

PN6

MR C. FLATT: I appear on behalf of the Communications, Electrical and Plumbing Union, CEPU.

PN7

MR A. KENTISH: I appear on behalf of the AMWU in matters 4517, 4113 and 4114.

PN8

MR I. ARGALL: I appear for the University of Canberra in matter 4517, for the Australian Maritime College in matter 5112, and for the University of Technology, Sydney, in matter 5116. I also seek leave at this stage to intervene on behalf of the Australian Higher Education Industrial Association in the other two matters, 5113 and 5114.

PN9

MR J. SANDLER: I seek leave to appear for the University of New South Wales in matters C5113 and for the - again for the University of New South Wales, Australian Defence Force Academy, in matter C5114 and seeking to intervene in the other matters before the Commission to the extent that that is necessary on behalf of the University of New South Wales, but in addition on behalf of Adelaide University, the Australian National University, Monash University, the University of Melbourne, the University of Queensland, the University of Sydney and the University of Western Australia.

PN10

THE DEPUTY PRESIDENT: Is this the G8?

PN11

MR SANDLER: The GO8, if I can - - -

PN12

THE DEPUTY PRESIDENT: Thank you. Now that I know what that means it is easier to refer to them as that.

PN13

MR SANDLER: Yes. In respect of the GO8 and the remaining GO8 members who would wish to intervene in the University of New South Wales application.

PN14

THE DEPUTY PRESIDENT: Thanks, Mr Sandler. Anybody else? No. Anybody else on the video who is making an appearance? No. All right. Any objection to Mr Argall seeking to intervene in 5113 and 5114? There is no objection, apparently, so leave is granted to Mr Argall to intervene in those two matters. In respect of Mr Sandler, leave granted for him to appear and to intervene in - I guess it is in all matters basically. It makes it easier. There doesn't appear to be any objection, so leave is granted to Mr Sandler to appear and to intervene.

PN15

All right. I understand that there is agreement that we deal with the three, the four, sorry, CPSU matters first and the NTEIU application second, although the issues are the same. I hope that means that it won't take too long.

PN16

MR MENDELSSOHN: Well, I think, your Honour, that simply goes to the order of speakers, but I will - - -

PN17

THE DEPUTY PRESIDENT: You are first cab off the rank.

PN18

MR MENDELSSOHN: I am first cab off the rank for the union, and then Ms Floyd will be next cab off the rank.

PN19

THE DEPUTY PRESIDENT: Okay, that is fine, thank you.

PN20

MR MENDELSSOHN: And as your Honour has already adverted, the purpose of this morning's hearing is to obtain some further information for the President in relation to the references, and in the memorandum which the President issued on 30 August 2004 his Honour asked your Honour to provide a report concerning each application specifying four particular matters, and it may be most appropriate if I address those four matters in order - - -

PN21

THE DEPUTY PRESIDENT: I think so, thank you.

PN22

MR MENDELSSOHN: - - - but in order to properly address the first of those matters, the effect of the application on the entitlements of fixed term employees, that will take me some little time, because I will need in order to be of the greatest assistance, to set the context and background, although your Honour would now be aware of some of that from the previous hearing.

PN23

THE DEPUTY PRESIDENT: Yes.

PN24

MR MENDELSSOHN: But the other three matters follow fairly quickly on from the first. But the applications affect the entitlements of fixed term employees in that there is another award in the sector called the Higher Education Contract of Employment Award 1998. That was made by a Full Bench of the Commission, Munro J, Watson SDP, and Smith C, on 11 May 1998, and clause 4.1.3 of that award says:

PN25

A fixed term employee whose contract of employment is not renewed in circumstances where the employee ...(reads)... appointed or is to be appointed to the same or substantially similar duties.

PN26

And (c) is a third circumstance which we believe no longer applies. The two circumstances described in paragraphs 2.3.1 and 2.3.2 are in the case of 2.3.1:

PN27

That the employee is employed to perform a specific task or project -

PN28

which is defined in that subclause, and 2.3.2 is -

PN29

That the employee is employed to perform research activity -

PN30

which is defined as meaning -

PN31

...work activity by a person engaged on research only functions for a contract period not exceeding five years.

PN32

So the Full Bench which made the Contract of Employment Award established that employees on fixed term contracts employed to do work in those two particular circumstances who were on a second - who were terminated at the end of a second or subsequent contract will receive a severance payment in the same terms that a fulltime which in the language of the Full Bench that made the Contract of Employment Award meant a continuing employee in similar circumstances or doing the same type of work.

PN33

And it is important in terms of the case that will be presented by the unions that the Full Bench that made the Contract of Employment Award made that provision in light of the redundancy test case provisions that then applied, which was in 1984, the redundancy test case, and fixed term employees were excluded under the terms of that test case, so the Full Bench which made the Contract of Employment Award gave consideration to whether any fixed term employees should receive any form of retrenchment payment, and they did so in the light or in the knowledge, anyway, that fixed term employees were excluded from the provisions of the 1984 test case.

PN34

There is consideration given or the consideration of the Full Bench to these matters is found in print QO702 at pages 33 and 34, and at page 45 of that decision, and I won't read all of that.

PN35

THE DEPUTY PRESIDENT: No, I can access it properly if that - - -

PN36

MR MENDELSSOHN: So - and the reason that the Full Bench which made the Contract of Employment Award expressed it in the way they did was that in making the Contract of Employment Award the Full Bench was making an award which was to apply to the sector as a whole, and to employees in the sector, both academic employees and general staff employees, who were employed under one of a number of award provisions. And some of the - and so the continuing employee in working - doing the same type of work as the fixed term employee, either on a - performing a specific task or project or research only function, that different continuing different employees might be entitled to different severance payments under the awards under which they were primarily employed.

PN37

So, it was not - so for that reason, the Full Bench didn't specify a scale in the Contract of Employment Award, simply referred to the award under which the relevant employees would be employed. Now, the principal awards at the time that the Contract of Employment Award was made applying to general staff in the sector were the Higher Education General and Salaried Staff Interim Award 1989, commonly referred to from its initials as the HEGSS Award, and the Higher Education Workers Victoria Interim Award 1993, again commonly referred to from its initials as the HEWV Award.

PN38

And many of the - and both of those awards were put together in a relatively hurried way by incorporating the existing state or federal awards or agreements or other types of industrial instruments into schedules in those two awards. Some of those instruments may have provided for severance payments in certain circumstances, but certainly a large number of them did not, and so in I think it was late 1998 the Australian Services Union applied to vary the HEGSS Award, I think also the HEWV Award, to incorporate the 1984 test case provisions, which were the then test case standard, into those two awards.

PN39

So, at that point we - if relating that back to the provisions of the Contract of Employment Award at the very minimum general staff would - general staff fixed term employees in the qualifying circumstances would receive at least the test case provisions as they were at that time, at least as from the time of variation of the HEGSS and HEWV Awards. The applications now before the Commission to vary the five awards that are before your Honour this morning are to apply the provisions of the redundancy test case decisions of earlier this year, and they also seek to apply that new test case standard to the fixed term employees who would qualify for fixed term payments under the Contract of Employment Award.

PN40

And the applications actually do that in a slightly different way, or slightly different ways. And if I may just refer to the CPSUs applications, the HEGSS Award has been subject to, of course, like all other awards of the Commission, to the item 51 process, and the way the parties have sought to implement the item 51 review of the HEGSS Award is by the progressive making of specific awards applying to particular universities, or in some cases to groups of universities with either a common industrial history such as the three Queensland universities which started life as Colleges of Advanced Education, all with some geographical community of interest, such as three of the four public universities in Western Australia.

PN41

THE DEPUTY PRESIDENT: So instead of being attachments to HEGSS they are now stand alone basically. Is that the - yes.

PN42

MR MENDELSSOHN: They are now stand alone awards. And each of the awards that is before the Commission this morning have been made to give partial effect to the item 51 review of the HEGSS Award. Now, because they are awards applying to particular institutions, the provisions of the Contract of Employment Award are not necessarily dealt with the same way by each award, and for example, the University of Technology Sydney General Staff Award 2002 does not contain the subject matter dealt with by the Contract of Employment Award, and so in respect of the subject matter of the Contract of Employment Award, that award still applies to general staff at the University of Technology, Sydney.

PN43

So, in the CPSUs application in that matter the - in the clause relating to employees exempted we say employees engaged for a specific period of time or for a specified task or tasks other than employees entitled to severance payments under subclause 4.1.3 of the Higher Education Contract of Employment Award 1998, but in the application relating to the University of New South Wales General Staff Award 2003 a different approach is taken because the University of New South Wales wanted the provisions of the Contract of Employment Award to be incorporated into a stand alone award.

PN44

And so the reference there is to employees engaged for a specific period of time or a specified task or tasks other than employees entitled to severance payments under 12.5, which is a reference to the relevant subclause in the University of New South Wales General Staff Award, which carries over the entitlement that - to those categories of fixed term employees that was originally - that was established by the Contract of Employment Award. So, some institutions have simply not dealt with that subject matter and left the Contract of Employment Award to apply to their general staff. Other institutions have sought to incorporate it - they have incorporated the subject matter of the Contract of Employment Award into their own award.

PN45

THE DEPUTY PRESIDENT: The end result is the same. It is just a different method of application. Is that correct? Yes.

PN46

MR MENDELSSOHN: Yes. So that would be, we believe, the effect of the application on the entitlements of fixed term employees, that those fixed term employees who would qualify for severance payments under the Contract of Employment Award would and where the equivalent continuing employee would have received the test case standard as an award entitlement, that is qualifying fixed term employees doing similar work would also receive the test case provisions, and the test case provisions have changed - - -

PN47

THE DEPUTY PRESIDENT: Yes.

PN48

MR MENDELSSOHN: - - - and the position of the CPSU, and as I understand it, the other unions, is that the intention of the Full Bench in making the Contract of Employment Award is that those fixed term employees who qualify should obtain whatever were the standards applying to continuing employees doing the same type of work as it may be prescribed from time to time. So the position of the CPSU, and as I understand it, the other unions, in relation to this is that the test case standard is varied, so it should be varied for those categories of fixed term employees.

PN49

THE DEPUTY PRESIDENT: So your submission is that the application seeks to give effect to the test case decisions? The method of applying it varies from award to award, perhaps.

PN50

MR MENDELSSOHN: Yes. Well, it seeks to give effect to the test case provisions but in the light of the Contract of Employment Award and the intention of the Full Bench as we would see it.

PN51

THE DEPUTY PRESIDENT: Which gave effect to the TCR decision. Is that - - -

PN52

MR MENDELSSOHN: Well, which made the - the Full Bench that made the Contract of Employment Award. Yes.

PN53

THE DEPUTY PRESIDENT: Yes, right. Which incorporated in general terms the TCR.

PN54

MR MENDELSSOHN: Well, the Contract of Employment Award didn't, because as I indicated earlier, the Full Bench which made that award - - -

PN55

THE DEPUTY PRESIDENT: Yes.

PN56

MR MENDELSSOHN: - - - were cognisant of the varying provisions which might be included in other awards under which the employees in the sector work, which is why they didn't actually incorporate a scale into the Contract of Employment Award.

PN57

THE DEPUTY PRESIDENT: No, no, but it referred back to the TCR decision or the TCR entitlement that was perhaps in the other awards. Is that - - -

PN58

MR MENDELSSOHN: Yes. If - well, not in so many words.

PN59

THE DEPUTY PRESIDENT: No.

PN60

MR MENDELSSOHN: But that is the effect of what the - - -

PN61

THE DEPUTY PRESIDENT: That is what I am looking for.

PN62

MR MENDELSSOHN: Yes.

PN63

THE DEPUTY PRESIDENT: And do I understand what the current applications seek to do is to what, bring up to date that old provision with the current or the new test case standards for redundancy, in general terms?

PN64

MR MENDELSSOHN: I think that encapsulates it.

PN65

THE DEPUTY PRESIDENT: I guess that I am asking you is, you are not seeking any more than what the test case decision provides.

PN66

MR MENDELSSOHN: Well - - -

PN67

THE DEPUTY PRESIDENT: It is the continuation of the principles of the previous decision.

PN68

MR MENDELSSOHN: With respect to fixed term employees, we are not seeking any more - well, we are seeking that certain fixed terms employees will have the same - - -

PN69

THE DEPUTY PRESIDENT: To maintain the relative position.

PN70

MR MENDELSSOHN: To maintain the relative position. That is the - thank you, your Honour. That is a good way - - -

PN71

THE DEPUTY PRESIDENT: The terminology sometimes gets a bit confused.

PN72

MR MENDELSSOHN: Yes. I am happy with the way your Honour just put it.

PN73

THE DEPUTY PRESIDENT: Right. Okay. So that is what the applications seek to do, and in some cases it is through the Contract of Employment Award and in some cases it is specific to the individual award.

PN74

MR MENDELSSOHN: Yes.

PN75

THE DEPUTY PRESIDENT: Okay. I understand. Thank you.

PN76

MR MENDELSSOHN: And so that is - I think that deals with the first two matters that the President asked your Honour to report to him on. In terms of the likely time for the presentation of the cases, when I first turned my mind to this I thought, well, because it is really an argument about the proper application of the recent redundancy test case decisions in the light of the decision of the Full Bench which made the Contract of Employment Award, it is - and so it is really about proper interpretation of the decisions and rewards. It really should only be a half day matter and could be largely dealt with by written submissions.

PN77

THE DEPUTY PRESIDENT: Yes.

PN78

MR MENDELSSOHN: But I have a feeling that the gentlemen physically to my left may have a different position to put, but I will - but subject to what they say I will still say that in terms of the matters before your Honour this morning it should be a half day matter and should, could be dealt with by written submissions.

PN79

THE DEPUTY PRESIDENT: Yes, by written submission.

PN80

MR MENDELSSOHN: And the - none of the matters before the Commission today are affected by 170N subsection (1) of the Act. In the case of the University of New South Wales General Staff Award, the Australian Defence Force Academy Award, the University of Technology Sydney General Staff Award and the Australian Maritime College General Staff Award there are certified agreements in place at each of those universities, and I am confident that however this case develops it will be concluded before the next round of bargaining starts at any of those institutions, and in the case of the University of Canberra, Ms Floyd will be able to more full inform your Honour, but I understand that there is - that an application has been to the Commission to certify an agreement, so subject to or as a consequence of section 170NG of the Act we would say that the bargaining period has ended at that university, and that view is consistent with the view of the Full Bench in the - - -

PN81

THE DEPUTY PRESIDENT: Yes, I think there was some confusion about that on the last occasion.

PN82

MR MENDELSSOHN: Well, since the last occasion the Full Bench of this Commission brought down the - its decision in the Alcheringa matter, and I think that clarified the matter, and it is clear that there is no longer a bargaining period in place at the University of Canberra. May it please the Commission.

PN83

THE DEPUTY PRESIDENT: All right. Thank you. Ms Floyd.

PN84

MS FLOYD: Thank you, your Honour.

PN85

THE DEPUTY PRESIDENT: Thank you. Ms Floyd.

[10.40am]

PN86

MS FLOYD: Thank you, your Honour. We adopt the submissions of the CPSU and I will just add a few further points. I certainly won't go into the same details that Mr Mendelssohn did. In the Redundancy Test Case decision of 26 March 2004 in print 03204, at paragraph 386 of that decision, the Full Bench said:

PN87

It was the expectation of all those who participated in the case that the result of our decision in the various applications would be reflected in the revised version of the TCR standard clause and that the proceedings were in the nature of a test case.

PN88

And then the next sentence we say is the most important:

PN89

We should make it clear, however, that like all test case provisions the TCR standard clause, while embodying the general principles, may require modifications to suit the circumstances of particular industries.

PN90

And we say that Mr Mendelssohn has outlined the particular circumstances of this industry that requires modification to the test cast clauses. And just to emphasise, this is an industry where fixed term - certain fixed term employees are entitled to redundancy in the same manner as though they were continuing employees. And when Commissioner Smith varied the HEGSS Award he summed it up quite succinctly as to what the intention of the Full Bench was and this is in print Q9092 of 27 November 1998. And that was his decision that led to the variation of the HEGSS Award which Mr Mendelssohn described, where the TCR provisions were inserted into it. And he said:

PN91

Specifically in relation to fixed term employment the Full Bench created an entitlement in defined circumstances for certain benefits associated with continuous service. The approach adopted by the Full Bench as to what benefits might apply to fixed term employees was simple and straightforward. Where service by a full-time employee resulted in an award benefit, then similar service by a fixed term contract employee would generally receive the same award based benefits. See clause 4.2 of the HECE Award.

PN92

Now, as described by Mr Mendelssohn the Full Bench did not determine a quantum. They determined that there was a nexus between continuing employees and the fixed term employees for severance benefits. When they determined that entitlement they were aware of the fact that the standard TCR of the day excluded fixed term employees. So this is not a new provision that the 2004 Redundancy Full Bench determined. In fact, they didn't turn their mind to that particular aspect of the 1984 and the wording of the exclusion for fixed term employees in the 2004 is exactly the same as the wording in 1984, and the wording that was in force when the Full Bench in the HECE case made that decision.

PN93

One of the reasons that the Full Bench didn't put the quantum in is that in some cases fixed term employees received entitlements in excess of TCR. For example, general academic staff receive an entitlement in - the full-time employees receive an entitlement from four to eight weeks. So they don't have the nil. So that anyone who is a fixed term employee would receive those more superior benefits. And Commissioner Smith made it clear in his decision that he wasn't seeking, by inserting the TCR into that award, to take away superior entitlements. In effect, the TCR became the default. So when there was nothing else TCR became the default.

PN94

When the institutional awards were made, as Mr Mendelssohn said, the matter of the HECE provisions were dealt with in a variety of ways. In some cases the award operates in conjunction with the HECE Award and so the severance payments for continuing employees are embedded in the award and by reference to HECE fixed-termers receive that same amount. Where that is the case we would be able to put in the standard test case provisions without any modifications because the HECE Award, notwithstanding the fact that fixed-termers are entitled to redundancy, would still receive the same severance benefits.

PN95

In some cases the award superseded HECE and the TCR provisions are set out in the award for continuing employees. I have to say in all cases where the award was to supersede HECE the NTEU opposed that provision. It was always our position, the NTEUs position, that the award should operate in conjunction and we wouldn't have this problem if that had been the case. However, because of the employer's position, which we are all aware of, that the nexus should be broken and the increased severance payments shouldn't apply to fixed-termers, we have found it necessary to make that absolutely clear out of an abundance of caution in the application, which is why we - I will come to it in a minute - why we had to vary the test case.

PN96

And we say that the effect of the applications, if granted, will provide the revised redundancy for the fixed term employees, those categories that are entitled to it, but we also say that is consistent with the Full Bench decision in HECE where they determined that there should be a nexus and that nexus should not be broken. And we say that there is nothing in the Redundancy Test Case that would give the Commission any reason to vary the HECE Test Case decision.

PN97

If I can just turn to the University of Canberra General Staff Award. The University of Canberra Award at 6.1 says that this award supersedes the HEGSS Award. So what that means is that the provisions for TCR, as outlined in the HEGSS Award don't apply because they haven't been incorporated into the award for fixed-termers. However, it also says at 6.3 that this award will be read subject to the HECE Award. So in the University of Canberra we could impart the whole of the TCR without variation but as I said before, and we are confident that HECE would give them that increased benefits.

PN98

But given the attitude of the employers that that shouldn't be the case, out of an abundance of caution, we have in our application, where it says "employees exempted", and I am reading from the redundancy provisions, "this clause does not apply to", and then there are a few dot points. And in one of the dot points we have said:

PN99

Employees engaged for a specific period of time or for a specific task or tasks.

PN100

And then we have added:

PN101

Other than those employees entitled to severance payments under clause 4.1.3 of the award referred to in clause 6.3.

PN102

Which is the HECE Award. So what - all we have done is maintained the status quo. No increases for any other categories. It is just whatever is the situation now, the increased benefits for full entitlements will flow onto the fixed termers. Now we say that it probably wasn't necessary to put that exemption - that additional phrase in there. But we wanted to be absolutely sure that it was clear to everybody that the entitlements do flow onto fixed termers.

PN103

I don't intend to go over any of the matters that Mr Mendelssohn - I think he has adequately explained the consequences of the variations to the test case, the consequences to fixed termers and what the HECE case - the HECE Award is all about. In terms of timelines, we would say - we don't rely on any evidence, we don't think evidence is necessary. As Mr Mendelssohn said, and we agree, it is just an interpretation of how various test case - Full Bench test cases interact with each other. We wouldn't be leading any evidence.

PN104

We probably need a little bit more time to go through the salient points of the various test case decisions and hand those documents up. So we would say that we could present our submissions in half a day. However, we may need more time to respond if the employers are asking for more time. Regarding 170N, agreement has been reached - the University of Canberra therefore there is no bargaining period in place. And I think Mr Argall contacted you by letter and agreed with that position.

PN105

THE DEPUTY PRESIDENT: Yes.

PN106

MS FLOYD: Agreement has been reached. Due to the problems with Electrolux, there might be a little bit of tinkering about with that agreement.

PN107

THE DEPUTY PRESIDENT: That is another story.

PN108

MS FLOYD: However, the parties have reached agreement. The matter is not at issue. There is no bargaining period in place therefore 170N doesn't apply. Unless there is any other questions, your Honour, that is the end of my submissions.

PN109

THE DEPUTY PRESIDENT: That is fine. Thank you. Mr Rankin?

PN110

MR RANKIN: Thank you, your Honour. I don't intend to make a lengthy submission. We are adopting the submissions of the NTEU and CPSU. They have quite adequately described the history and the applications of the awards and how they were made over the period of time. The one thing that I will say, though, is that it is our understanding that the variations that have been put forward are standard - pretty much standard variations that maintain the status quo which is my understanding of the HECE Award in that it maintains the status quo of the full time employees along with the fixed term employees when it was made back in '98.

PN111

Now, I guess, the thing that needs to be considered here is that the universities, or the nature of the industry, is that there is a lot of fixed term employees. And at the University of New South Wales they have incorporated, you know, the clauses into the HECE Award or into their own university award which gives specific rights to fixed term employees to attain severance payments and redundancy payments. So the applications that have been put forward doesn't necessarily change that, it just changes the scale and obviously the University of Canberra is really the subject of HECE anyway.

PN112

I think if the application is not granted, it is going to seriously disadvantage a group of workers that were entitled to these provisions for a number of years. And where the Full Bench made it clear that these people would be entitled to them back in '98. So our - the position of the LHMU is that we are supporting the applications put forward by the CPSU and NTEU. In terms of time for preparation of the case, we certainly wouldn't be the leading parties in any sort of case. We would be more of a supporting role so I can't necessarily give you a clear time frame that we would need to present our case.

PN113

It would probably have a lot to do with the employer side. But - and as far as we are aware, we believe that there is no barriers in the way of the Commission arbitrating this on the 170N.

PN114

THE DEPUTY PRESIDENT: So half a day sounds reasonable?

PN115

MR RANKIN: Pretty fine with us. Thank you.

PN116

THE DEPUTY PRESIDENT: From your position. All right.

PN117

MR RANKIN: Thank you, your Honour.

PN118

THE DEPUTY PRESIDENT: Thank you. Mr Flatt?

PN119

MR FLATT: Sorry, we missed that. Sorry, your Honour? Was that - - -

PN120

THE DEPUTY PRESIDENT: Mr Flatt.

PN121

MR FLATT: Yes. Yes, your Honour. The CPEU supports the NTEU and CPSU applications that have been put forward today. We further support and adopt the submissions that have been put forward by the NTEU and CPSU and a lot of the history of this matter. At this time, the CPEU has nothing further to add and would also support the half day suggestion in hearing this matter.

PN122

THE DEPUTY PRESIDENT: All right.

PN123

MR FLATT: Thank you, your Honour.

PN124

THE DEPUTY PRESIDENT: Thank you. Mr Kentish?

PN125

MR KENTISH: Thank you, your Honour. Your Honour, with respect to the effect of the applications on the entitlements of the fixed term employees, the AMWU agrees with the assessment which has been given by the CPSU and the NTEU. While the AMWU would like to reserve its position on the broader applications, the AMWU can indicate its support for the applications so far as they relate to fixed term employees. In terms of the likely time for presentation of the cases, we would agree with the CPSU and the NTEU and we are also of the view that 170N is not relevant to the matters which are currently before the Commission. If it pleases.

PN126

THE DEPUTY PRESIDENT: All right. Thank you, Mr Kentish. Mr Argall?

PN127

MR ARGALL: Thank you, your Honour. I am indebted to Mr Mendelssohn for his explanation of the workings and relationship between the HECE Award - the Higher Education - - -

PN128

THE DEPUTY PRESIDENT: Not half as much as I am.

PN129

MR ARGALL: - - - Contract of Employment Award and the other awards and we would generally agree with that subject to a couple of comments. In order to take these issues in the order in which the President has asked, in relation to the effects of the application on the entitlements of fixed term employees, each of these applications seeks to vary the relevant award to replace the existing redundancy clause with one based on, but not identical, to the termination and redundancy model clauses contained in the supplementary decision of the Commission of 8 June, 2004 in the redundancy test case. And that is print PR06/2004.

PN130

The AHEIA, on behalf of its member institutions takes no particular issue with this insofar as the applications would apply to ongoing employees terminated by reasons of redundancy. Its concern is with - and that is for a number of reasons but particularly important in our mind is the fact that there are in each of those institutions already existing enterprise agreements that provide for more beneficial redundancy benefits for employees made redundant.

PN131

THE DEPUTY PRESIDENT: Does that cover fixed term employees as well?

PN132

MR ARGALL: No.

PN133

THE DEPUTY PRESIDENT: No.

PN134

MR ARGALL: I am talking - at this stage, I am talking about the entitlements as they apply to ongoing employees - - -

PN135

THE DEPUTY PRESIDENT: Yes.

PN136

MR ARGALL: - - - terminated by reasons of redundancy.

PN137

THE DEPUTY PRESIDENT: Yes.

PN138

MR ARGALL: I make a distinction between that circumstance and the circumstance of severance payment payable under the HECE Award to fixed term employees whose contracts are not renewed. And fundamental to our position is the distinction between, on the one hand, the circumstances of employees terminated due to redundancy and, on the other, fixed term employees whose second or subsequent contract in certain circumstances has expired and not been renewed. The circumstances in relation to the latter is, at law, there is no termination of employment. No act of termination by the employer.

PN139

I think that is well established. And therefore, in the absence of an award like the HECE Award, there would be no entitlement to a redundancy or severance benefit for those fixed term employees. There is because of the HECE Award. And its - our concern is with the indirect effect of the granting of these applications on the entitlements of fixed term employees and why that would - why that - an increase in the redundancy clause provisions for ongoing employees would have a consequential effect on the entitlements of fixed term employees - has been explained by Mr Mendelssohn.

PN140

The HECE Award, at clause 4.1.3, as Mr Mendelssohn has said, calls up the entitlements under other awards and the words - and in relation to fixed term employees, it provides them with an entitlement to:

PN141

A severance payment or retrenchment benefit payment, howsoever called, in accordance with the relevant award as it would apply to a full time employee engaged in an equivalent classification.

PN142

Now that in - that provision in the HECE Award in turn, in relation to the matters involving our members, calls up the following retrenchment or severance benefit. I don't know whether you have in front of you the particular awards? The University of Canberra award, the - - -

PN143

THE DEPUTY PRESIDENT: No, I don't.

PN144

MR ARGALL: - - - AMC General Staff Award.

PN145

THE DEPUTY PRESIDENT: No, not the whole of the award.

PN146

MR ARGALL: I do have copies available. I can hand them up. In fact, it might be useful if we hand around copies of each of the three awards. In the case of our members it is the University of Canberra General Staff Award, the Australian Maritime College General Staff Award and the University of Technology Sydney General Staff Award.

PN147

THE DEPUTY PRESIDENT: All right. That would be helpful.

PN148

MR ARGALL: I think we have only got five copies so we may not have a copy for everyone but they are Commission documents - - -

PN149

THE DEPUTY PRESIDENT: Yes.

PN150

MR ARGALL: - - - and should be accessible.

PN151

THE DEPUTY PRESIDENT: Reasonably easily accessible. Okay.

PN152

MR ARGALL: The University of Canberra General Staff Award, which is award 821906 at clause 13.3 has a severance payment provision and it is our submission that this is the provision that will be called up by clause 4.1.3 of the HECE Award - - -

PN153

THE DEPUTY PRESIDENT: Yes.

PN154

MR ARGALL: - - - in this case. That provides - that appears to me to be an attempt to incorporate the 1984 TCR test case standard but the omission of any entitlement for employees who are made redundant upon the - after the completion of four years service, seems to me to be, well, first of all, inexplicable. If I do try and explain it, it may very well be that it wasn't intended. That somehow a line has been dropped out of that clause. But the truth of the matter is that at the University of Canberra, the existing severance payment or retrenchment benefit payment is not exactly identical to the 1984 test case standard.

PN155

It, in fact, is less generous perhaps because of that omission. At the Australian Maritime College, its award is award number AW816411. The retrenchment or severance benefit provisions called up by the HECE Award are at clause 45.2 through 45.4 and I will read that, your Honour, because I think it does indicate that there are significant differences between the existing retrenchment benefit entitlements under these awards. Clause 45.2:

PN156

Notice. Where an employee is declared an excess employee the period of notice shall in all cases be 26 weeks and the date of effect of the notice shall be one month after the employee was declared excess pursuant to subclause 2. 45.3. Pay in lieu of notice. By agreement between the AMC and an excess employee, payment may be made in lieu of notice. 45.4. Calculation of pay in lieu of notice. Where an excess employee elects pay in lieu of notice, his or her severance benefits shall be the equal of the sum of: 45.4.1. Eight weeks salary plus, 45.4.2. A sum equal to 2.5 weeks salary for each completed year of service plus a pro rata amount for completed months of service since the last completed year of service provided that the maximum payment shall be 56 weeks salary.

PN157

And that is the end of the quote. The scheme of this, which is the award entitlement scheme for ongoing employees terminated by reasons of redundancy - and indirectly because of the HECE Award for fixed term employees whose contracts aren't renewed, in my submission, is more generous in some respects and less generous in other respects than the application in this case by the CPSU would bring about. The scheme is that instead - the scheme seems to me here is that instead of being entitled to a scale of severance payments, retrenched employees are entitled to a very long notice period.

PN158

That presumably is to enable them time to find other work and so on. In circumstances where it is agreed between the employer and the employee, payment may be made in lieu of notice and that payment is at a scale, eight weeks plus two and a half weeks per annum of completed service, which is more generous than the new TCR - the new redundancy standard. So, in answer to what - part answer to his Honour's question, the granting of the NTEU - of the CPSU application in relation to the Australian Maritime College General Staff Award, would be alter significantly the level of award retrenchment benefits and severance benefits of fixed term employees.

PN159

In some cases by making them more generous, in other cases making them less generous. It depends on how one assesses the benefits of a long notice period as against an amount of money. It is only in certain circumstances that the - what they call, pay in lieu of notice is - becomes available.

PN160

THE DEPUTY PRESIDENT: Well, it is an election, made by the employee?

PN161

MR ARGALL: It is - well, it is an election but - 45.4 says that it is an election by the employee. 45.3 says it is by agreement between the AMC and the excess employee. My submission is that that ought to be interpreted in this way, one should read 45.4 as subject to 45.3 and so that the election of the employee can only be an - - -

[11.07am]

PN162

THE DEPUTY PRESIDENT: Subject to agreement, yes.

PN163

MR ARGALL: - - - effective election when it is subject to the agreement of the employer. So the employer might say to you, well, in these circumstances, don't want to pay you that amount of money, we would rather give you another 26 weeks work. Then you have got 26 weeks to look for other jobs and you will get paid during that 26 weeks so there is some benefits available to the employee there but they are different, they are different benefits. The University of Technology Sydney General Staff Award at clause 11.3 contains a scale of severance payment that I believe is identical to the 1984 test case standard, that is, it has that scale between nil for persons employed for less than one year and up to eight weeks pay for persons employed for four years and over.

PN164

So, the answer to his Honour's question in the first instance is that the effect of granting the union applications at the University of Canberra and the University of Technology Sydney would be to increase the level of severance pay for fixed term employees because of the effect of clause 4.1.3 of the Higher Education Contract of Employment Award. In the case of the Australian Maritime College, it is subject to those considerations that I have mentioned.

PN165

THE DEPUTY PRESIDENT: Yes.

PN166

MR ARGALL: The position of our association or on behalf of its members in this case is that the Commission ought not to grant the union applications without considering the effect of that action on the entitlements of fixed term employees. Generally, that effect would be to increase the level of entitlement to fixed term employees under the HECE Award, in some cases doubling the amount of severance benefit.

PN167

This would in AHEIAs submission represent a significant change to the award safety net, and therefore ought to be properly dealt with by the Commission in those terms, that is it should be dealt with as a special case under the wage fixation principles. We also believe that the granting of those applications would be inconsistent with the redundancy test case standard clause, which makes it very clear that employees exempted include, and I quote - this is from clause R8 of the standard redundancy clause in the supplementary decision, Print PR062004. It says:

PN168

Employees exempt: This clause does not apply to...

PN169

And then a number of dot points, but then finally, or penultimately:

PN170

...employees engaged for a specific period of time or for a specific task or tasks.

PN171

Now, I have heard what Mr Mendelssohn and Ms Floyd have said about the intention of the Full Bench that gave us the HECE Award back in 1998, but we say this about that. The Full Bench in 1998 can't possibly have contemplated what would have happened in 2004 with a new redundancy test case; that the circumstances in which they made the HECE Award have now significantly altered, and those significant alterations ought to be taken into account in a revisitation of those issues.

PN172

THE DEPUTY PRESIDENT: What are the circumstances that have altered?

PN173

MR ARGALL: Well, that the - well - - -

PN174

THE DEPUTY PRESIDENT: Other than the new decision.

PN175

MR ARGALL: Well, the new decision is one of them. But the circumstances of universities will have changed necessarily in those six years since 1998. The circumstances, the use and incidence of fixed term employment in universities will necessarily have altered, largely in response to the introduction of the Higher Education Contract of Employment Award.

PN176

THE DEPUTY PRESIDENT: So has it increased or - - -

PN177

MR ARGALL: Sorry?

PN178

THE DEPUTY PRESIDENT: Has it increased?

PN179

MR ARGALL: No, it has actually - the figures actually show that there has been a decrease - - -

PN180

THE DEPUTY PRESIDENT: Has there?

PN181

MR ARGALL: - - - in the incidence of fixed term employment. Across the board. Institutions might vary.

PN182

THE DEPUTY PRESIDENT: Yes.

PN183

MR ARGALL: But taken as an industry whole. The other thing we say about this is that when the Full Bench in relation to the new redundancy standard case occurred this - was convened this year, it included on the Bench Commissioner Smith. Commissioner Smith, of course, was a Member, as we have been told, of the Full Bench that gave rise to the HECE Award back in 1998. The relevance of the Commission making a specific statement to exempt employees engaged for a specific period of time, or for a specific task or tasks from the new redundancy test case standard has to be seen in the light of the fact that there was certainly at least one Member of that Full Bench who would have been cognisant of the potential flow-on effect through to fixed term employees.

PN184

It is one thing to say, as they did in 1984 before the HECE Award existed, that these standards don't apply to fixed term employees. It is another thing to say that after the making of the HECE Award, when the Full Bench making it at least had one Member who would have been well familiar with that award, and we say that it is arguable that the Full Bench in making that statement in the standard clause, and its decision earlier this year, actually did intend to do what it says it did, to exclude employees engaged for a specified period of time.

PN185

THE DEPUTY PRESIDENT: Was there any submission put to the Full Bench hearing the latest redundancy matters about this particular award or the effect - - -

PN186

MR ARGALL: No. No.

PN187

THE DEPUTY PRESIDENT: No.

PN188

MR ARGALL: Not that I am aware of. We say that because these applications involve not just the application of the Commission test case standard, but its extension to a class of staff explicitly excluded from the Commission test case standard, it would be incumbent upon the union applicants to justify that extension on the merits. AHEIA has already made application to vary the Higher Education Contract of Employment Award 1998 and its application - this is the matter that was listed previously at C2004/4770. That application was designed to limit the impact of the granting of the union applications to ongoing employees terminated for reasons of redundancy.

PN189

We have now - our organisation has now made application to vary, or sought leave to vary its application in that matter and I have copies here that I can hand up - - -

PN190

MS FLOYD: Your Honour, we object to this. That matter is not before the Commission, and if there are variations to that application then it should be dealt with at some other time, as were all our other matters that were not listed today.

PN191

MR ARGALL: Can I say something, your Honour, about this?

PN192

THE DEPUTY PRESIDENT: Yes, please.

PN193

MR ARGALL: I mean, the fact that it is not listed doesn't mean we can't mention it, does it? It seems to me that this is a relevant matter. It bears upon the issues that we are directly considering here. What weight you give to my submissions is a matter for you, but the fact that I can't mention it seems strange.

PN194

THE DEPUTY PRESIDENT: Well, it does - it does respond in some - in part to the President's question.

PN195

MR ARGALL: Yes, that is right.

PN196

THE DEPUTY PRESIDENT: And that is in respect to the position of your members.

PN197

MR ARGALL: That is right.

PN198

THE DEPUTY PRESIDENT: All right. But I don't want to get into a - - -

PN199

MR ARGALL: No, I am not going to. I merely - - -

PN200

THE DEPUTY PRESIDENT: - - - submission about whether it should be varied or not.

PN201

MR ARGALL: Yes. No. But it bears upon the questions.

PN202

THE DEPUTY PRESIDENT: Yes.

PN203

MR ARGALL: It bears upon the questions - - -

PN204

THE DEPUTY PRESIDENT: All right.

PN205

MR ARGALL: - - - of how long it will take for us to deal with this matter.

PN206

MR FLATT: Your Honour, could I just note that parties in Sydney will be unable to see the variation that Mr Argall proposes to make.

PN207

THE DEPUTY PRESIDENT: The amendment, you mean?

PN208

MR ARGALL: I will explain it to you.

PN209

THE DEPUTY PRESIDENT: Yes.

PN210

MR ARGALL: I am happy to do so.

PN211

THE DEPUTY PRESIDENT: Yes. Perhaps if you read it out so that - - -

PN212

MR ARGALL: Yes, okay.

PN213

THE DEPUTY PRESIDENT: - - - the people on the video can understand it.

PN214

MR ARGALL: Well, rather than hand it up - it has been lodged with the Registry.

PN215

THE DEPUTY PRESIDENT: Has it? Right. Okay.

PN216

MR ARGALL: All it does is this, and there is a covering letter that says:

PN217

The Australian Higher Education Industrial Association seeks leave of the Commission to vary its application in this matter by substituting the attached draft order for that which accompanied the original application.

PN218

And the attached draft order simply deletes the existing clause 4.1.4 of the HECE Award. What it actually - what it does is it inserts a new 4.1.4 and re-numbers 4.1.4, 4.1.5. So after 4.1.3, which as we know says that:

PN219

...fixed term employees are entitled to severance or retrenchment benefits, howsoever called - - -

PN220

THE DEPUTY PRESIDENT: Yes.

PN221

MR ARGALL:

PN222

- - - as it would apply to ongoing employees.

PN223

It would say:

PN224

Notwithstanding the provisions of clause 4.1.3 a fixed term employee subject to...

PN225

and then I list the three awards, the Maritime College, the University of Canberra General Staff Award, and the University of Technology Sydney General Staff Award:

PN226

...whose contract of employment is not renewed in circumstances where the employee seeks to continue employment, and to whom the circumstances of 4.1.3(a), (b) and (c) apply, shall be entitled to a severance payment as follows...

PN227

and then it produces a table which replicates the entitlements under the 1984 test case standard. So again, maximum of eight weeks pay. So what it does, only in relation to those - - -

PN228

THE DEPUTY PRESIDENT: Those three awards.

PN229

MR ARGALL: - - - member universities of ours - what it does in relation only to those member universities of ours that are subject of these applications before the Commission today, it attempts to freeze the severance benefit for fixed term employees at the level of the 1984 TCR test case standard.

PN230

THE DEPUTY PRESIDENT: Does that then reduce the entitlement for the Maritime College people?

PN231

MR ARGALL: Well, it is arguable.

PN232

THE DEPUTY PRESIDENT: Subject to - yes. It changes it, anyway.

PN233

MR ARGALL: Yes, it would change it.

PN234

THE DEPUTY PRESIDENT: Yes, yes.

PN235

MR ARGALL: That is right.

PN236

THE DEPUTY PRESIDENT: And perhaps increase the Canberra one, because it brings that - - -

PN237

MR ARGALL: That is right.

PN238

THE DEPUTY PRESIDENT: - - - up to eight weeks rather than seven. Is that correct?

PN239

MR ARGALL: That is right.

PN240

THE DEPUTY PRESIDENT: All right. Okay. Well, that saves me asking you the question I was going to ask. You have clarified that.

PN241

MR ARGALL: The reason we had made that is because the objection - made that application to vary is because of the objection of the NTEU in particular to our previous application on the grounds that it is affected by section 170N(1) of the Workplace Relations Act. We say that in order for these matters to be properly canvassed and for the merits of the extension of the new test case standard on redundancy to fixed term employees at those member institutions to be properly canvassed, that our application should be joined with and heard with the union applications.

PN242

THE DEPUTY PRESIDENT: Are there no issues of 170N about that application still, or - - -

PN243

MR ARGALL: Well, that is the last question - - -

PN244

THE DEPUTY PRESIDENT: Yes.

PN245

MR ARGALL: - - - but I will jump to it. The Australian Maritime College has a current general staff, that is, persons affected by the CPSU application at the AMC are covered by a current certified agreement, the nominal expiry date of which I think is January next year. January 2005. Persons covered by - persons who would be affected by the CPSU application at the University of Technology Sydney are covered by a certified agreement, the nominal expiry date of which I think is July 2006.

PN246

Persons at the University of Canberra who would be affected by the NTEU application are, as Ms Floyd has said - they are not yet subject to an enterprise agreement because it has not been certified - - -

PN247

THE DEPUTY PRESIDENT: But there is an agreement in place, subject to - - -

PN248

MR ARGALL: - - - but there is an application, I understand, before the Commission at the moment.

PN249

THE DEPUTY PRESIDENT: All right.

PN250

MR ARGALL: Even if there are some Electrolux related issues, it seems to us in all probability that those will be resolved by the time we get to arbitrating this matter in any case. So for the practical purposes, but reserving our rights in relation to what might or might not - whether the wheels might or might not fall off the University of Canberra, I think there is no - - -

PN251

THE DEPUTY PRESIDENT: Right.

PN252

MR ARGALL: That there is no section 170N issue in relation to either the union applications, or indeed in relation to our application as amended. We hereby make application, by the way, for the - our application as amended to be joined with and heard with the union applications in these matters.

PN253

THE DEPUTY PRESIDENT: On the basis that there is no 170N issues.

PN254

MR ARGALL: Well, on the basis that they - on the basis that - - -

PN255

THE DEPUTY PRESIDENT: And that it is related.

PN256

MR ARGALL: - - - those matters are relevant. That the matters that would be canvassed by that application are relevant, and secondarily, that there are no 170N issues that would preclude that from happening. As for the time likely to present our case, this depends of course on the cases of the applicants, but AHEIA will want to bring evidence about the cost impact of the granting of union applications on universities in relation to fixed term employment. As I said earlier, there are enterprise agreement provisions at each of those universities at least as generous, when it comes to the redundancy benefit for terminated employees. But that is not the case - that is not the case that the - in relation to the severance benefit for fixed term employees.

PN257

THE DEPUTY PRESIDENT: No.

PN258

MR ARGALL: The increase in the award safety net for those persons would have a real effect, and we would want to bring evidence on the real effect of the cost impact of granting those union applications; and because any decision on these matters are likely to serve - would be likely to serve as a precedent in relation to other union applications, we would also seek to produce such evidence in relation to other member institutions than those directly affected by the applications. While there are only five applications currently being dealt with by the Commission, the truth is that next week or next month some other university or universities are going to complete enterprise bargaining.

PN259

They will reach agreement and/or have their agreement certified, and at that point we know very well that the unions will make application for those - for the relevant awards at those institutions to be varied in the same way that they have made application with these five awards. That seems inevitable to us. So whatever the Commission decides in relation to these five awards would clearly serve as a precedent in the determination of those other matters, and therefore our other members have an interest in these matters, and that is why I say we would also reserve our rights to produce evidence in relation to those member institutions not directly affected by the applications, but recognising the fact that they would be affected by any precedent that the Commission decided.

PN260

THE DEPUTY PRESIDENT: I understand.

PN261

MR ARGALL: And I think I have covered the final point, which is the 170N point, so those are my submissions.

PN262

THE DEPUTY PRESIDENT: Yes, I think you have.

PN263

MR ARGALL: Thank you.

PN264

THE DEPUTY PRESIDENT: Thank you. Mr Sandler?

PN265

MR SANDLER: As the Commission pleases. Mr Mendelssohn was right when he said the gentleman to his left may take a different view of the world. Perhaps I would ask leave to hand out outlines of submissions to your Honour.

PN266

THE DEPUTY PRESIDENT: Thank you.

PN267

MR SANDLER: Which may - - -

PN268

THE DEPUTY PRESIDENT: Could I just intervene for a moment.

PN269

MR SANDLER: Yes.

PN270

THE DEPUTY PRESIDENT: Mr Flatt, could you either move the microphone, or move the papers. The rustle comes through very loud and I can't hear.

PN271

MR FLATT: It is the same for us in Sydney as well, your Honour.

PN272

THE DEPUTY PRESIDENT: Is it? Yes.

PN273

MR FLATT: We have been having some difficulties hearing some of those submissions before. It has been moved now.

PN274

THE DEPUTY PRESIDENT: Okay. Thank you. All right.

PN275

MR SANDLER: Yes. We were originally directed to the applications which were listed today. All of them - some of which have now disappeared from the matter. But it does not detract from the points which the universities, Go8 universities wish to make, and in particular I suppose the University of New South Wales in relation to the specific applications. Our starting point, your Honour, is what is the position of the parties before I hear objections from my right. The position of the Go8 universities is that the University of New South Wales matters which are before you today should be dealt with together with the applications which were filed on 1 October but which are not before you today, but should be dealt with those applications jointly.

PN276

It is our submission that a Full Bench should be constituted to deal with the applications insofar as they were made in relation to the University of New South Wales General Staff Awards by the CPSU today; and the University applications which were filed on 1 October, that the Full Bench should start this - that the starting point is for a Full Bench to be constituted to deal with those applications first, and that the other applications which are before you, and the application which has been made here late yesterday or early this morning, those matters should be put to the side for the time being, and there are a number of reasons why we say that that should be - - -

PN277

THE DEPUTY PRESIDENT: I am sorry. You are saying the matters that we are dealing with. Which ones should be put aside?

PN278

MR SANDLER: Well, one of the - the question that is then - - -

PN279

THE DEPUTY PRESIDENT: Yes.

PN280

MR SANDLER: - - - posed by the President - - -

PN281

THE DEPUTY PRESIDENT: Yes.

PN282

MR SANDLER: - - - is what is the position of the parties?

PN283

THE DEPUTY PRESIDENT: Yes.

PN284

MR SANDLER: You have before you today, insofar as the University of New South Wales is concerned, an application - two applications. One in relation to the ADFA Award - - -

PN285

THE DEPUTY PRESIDENT: Yes.

PN286

MR SANDLER: The ADFA Award, and the other in relation to the UNSW General Staff Award.

PN287

THE DEPUTY PRESIDENT: Yes.

PN288

MR SANDLER: Although they are not before you today, the Commission would be aware that the university has in its own right made four applications in relation to the HECE Award, the Academic Award, and in relation to the two awards which are before you today.

PN289

THE DEPUTY PRESIDENT: Yes. The position of the GO8 is that a Full Bench should be constituted to deal with all the applications concerning the University of New South Wales, that is, those before you today and those which were made on Friday. And that those matters should be dealt with first, let us conveniently call it, a University of New South Wales focused application, before the Commission goes on to deal with the other applications. And to put it simply, your Honour, we say that if the Commission adopts that approach it will place before the Full Bench all the issues, we say, that have been raised in the various applications, some of which are before you today, some of which were before you previously and some of which are about to come before you in due course.

[11.27am]

PN290

And so we are putting is that, we say, that that is, in our view and in our submission, a very pragmatic way to deal with the array of issues that confronts the Commission in relation to the various awards in this industry. And perhaps - I am starting with our position because that explains where we are coming from in our submissions and I don't intend to take you through everything. You have heard from Mr Mendelssohn who has explained to you certain aspects of the HECE decision but we do take issue with the unions in the way that they have put that to you.

PN291

So perhaps I can then go - I can take you to the first document, the outline of submissions. And what we say, importantly, is what is the effect of the applications or the application made by the union in relation to the HECE Award and we set out what we say the HECE Award is. We say the HECE Award provides for severance payments to be made in the context of this particular application to academic and general staff employed by universities on fixed term contracts in certain defined circumstances.

PN292

And the point was made by Mr Argall that an entitlement to severance payment by fixed term contract employees under the HECE Award does not arise by virtue of redundancy. This is a very, very important point. It does not arise by virtue of redundancy but arises by virtue of the non-renewal of the fixed term contract in specific circumstances. And we say that is an important point because we say that is the distinction between simply seeking to apply test case provisions to deal with redundancy to an award which was, we say, made and framed with a completely different set of circumstances in mind.

PN293

So we say that the HECE - the Full Bench and the HECE decision apply different considerations. To the considerations that were applied in the 1984 redundancy case and different considerations - well, considered what was applied recently. But, again, applied different considerations to the 1984 redundancy case and in fact if you - I won't take you to the interim decision but thee is a comment by the Full Bench saying we are not adopting TCR. We then go on to say, however, the severance pay entitlement in the HECE Award, in determining it, the Full Bench referred to severance pay scales and we have referred to HEGSS and academic award - the HEGSS and academic awards of the Commission.

PN294

And also it should be noted that the academic award severance pay standard is different to the test case and again that is the point made by Mr Argall this morning. He said some of the awards referred to by HECE are different. It is not a simple matter of simply saying, we are here simply to flow on test case standards. The HECE Award, we submit, doesn't work that way. The effect of the CPSU application to vary the UNSW and ADFA award will be to increase the severance pay entitlements for fixed term employees.

PN295

That is clearly the effect and I think there is general agreement. And then that explanation has been given to you today. This is because the HECE Award which applies to fixed term employees sources its severance pay scale from each of the HEGSS and academic awards and from the awards that the university has - its institutional awards. So that is how - what we say the effect of the application on the entitlements of fixed term employees will be. Now, all the university, including the University of New South, but all of the universities are opposed to the CPSU applications and in a broader context we will oppose the other applications because we say properly characterised those applications do not simply flow on a test case standard.

PN296

And we say that, having explained the relationship between the awards - the institutional awards and HECE - we say the Commission created a separate and distinct entitlement to severance pay for fixed term employees in the HECE Award and did this by including a reference to the severance pay scale in the HEGSS and academic awards. It didn't flow on a test case standard. And we say in such circumstances it is inappropriate simply to vary the awards in the manner sought by the unions.

PN297

If one looks again at the CPSU applications in relation to the institutions - in relation to the University of New South Wales, we say the starting point with the test case - the recent test case - is that fixed term employees are excluded. So the recent test case considered the circumstances in which employees who have more than five years of service, whether and to what extent, that group of employees should receive - the severance pay scale should be extended to that group of employees.

PN298

And in so deciding the Full Bench of the Commission determined, yes, it would extend the severance pay scale to that group of employees but it also decided that fixed term employees were to be excluded. So we say that if the CPSU wishes to extend the entitlements of fixed term employees beyond the entitlements which currently exist then it is for the CPSU to demonstrate extraordinary circumstances, that is, circumstances that justify departure from the test case decision and that alone, we would say, merits consideration by a Full Bench.

PN299

We also have some things to say about the applications that are before you today and we say they are not consistent with the test case scale - the severance pay scale in the redundancy test case decisions. The applications by the CPSU are not consistent with those scales. The key component of the test case decision was that the Commission decided to increase the scale to employees from years, five to 10 because of the loss of non-transferable credits and in particular long service leave.

PN300

And we say in relation to the two awards which the CPSU is seeking to vary which are before you today, those employees do have those credits because they get pro rata long service leave in years five to 10. So the scale determined by the Full Bench in the test case, we say, is not applicable. And if one goes to the test case decision - I could take you there, but I will put it in general terms. The test case decision contemplates that there are circumstances in which the applications will need to be made for a departure from the test case scale by virtue of the fact that employees covered in particular awards have long service leave entitlements between years five and 10.

PN301

And that is set out in paragraphs 154 and 155 of the test case in which 155 - and I haven't got copies of the test case with me, your Honour. But the Full Bench says:

PN302

It should be clear that our decision in relation to the new severance pay scale is based on the standard Federal long service leave provision.

PN303

Then it talks about the fact that - it goes on to talk about the fact that there wasn't sufficient material and then says:

PN304

For that reason we shall provide for applications to be made to vary the severance pay amounts to take such situations into account, that is, situations ...(reads)... decided in the circumstances of the particular case.

PN305

So we say it is quite clear from the test case itself that there is a question to be determined by the Commission in circumstances where employees in years five to 10 have long service leave benefits. Whether the test case scale should still apply and if not what an appropriate test case scale may be. Now, although those matters are not before you today, the two applications which were filed by the University of New South Wales on Friday in relation to these two awards, seek to achieve exactly that.

PN306

But in any event we are confined to what is before you today. We say that those - the scales in those two awards do not seek to achieve or should not, or not appropriate and actually don't reflect the test case decision, given that at the University of New South Wales in relation to those two awards, employees get pro rata long service leave. And we would say that that matter in itself, being a departure from a test case standard, that that application and that question is a matter which should be dealt with by a Full Bench of the Commission.

PN307

If I can simply take you to the additional submissions on behalf of the University of New South Wales. We put forward a number of grounds. I have said to you this morning that the position of the GO8 universities is that there are two applications before you this morning by the CPSU. There are a number of applications made by the University of New South Wales. And the position of the GO8 is that we believe and submit that in a practical sense the most convenient, pragmatic and simplest way of dealing with all the issues that are before the Commission arising from the various application is really to start with the University of New South Wales because its applications and the applications of the CPSU touch all issues, or give rise to consideration of all those issues.

PN308

You have heard from Mr Argall that the Commission would be aware that section 170N creates issues for universities who are still bargaining, and you have also heard that over a period of time some universities will then want to intervene, want to participate. So there is a piecemeal approach which may occur if one simply seeks to deal with everything at the same time.

PN309

So we say that in support of the contention that the Commission should deal with the University of New South Wales first, we refer to the section 170N(1) of the Act and say that insofar as the University of New South Wales is concerned, the Commission is not precluded. It is not precluded from arbitrating in relation to the matters before you today or the matters which have been filed. We say that given the possibility of the new parties entering the fray and the matter going on and on and on, the university and its employees are entitled to certainty. And it is in the public interest that as far as the university is concerned, that these matters are determined expeditiously.

PN310

We would say that if all the applications in relation to the University of New South Wales were determined, that these would also be determinative in relation to the other applications and matters before the Commission. We say what we are putting to you avoids a piecemeal approach in respect of the various applications and who may enter the fray. We do say that the matters raised in the applications before you today, and certainly the view that we take in relation to those matters as well as the matters raised in our applications, on their merits - merit being dealt with by a Full Bench because they deal with the appropriate standard, severance pay scale for general staff and academic staff in the context of an award which provides long service leave entitlements to employees in years 5 to 10, and because there is also the question of the HECE Award and what that decision meant.

PN311

And as you have heard from Mr Argall and myself this morning, we say it was not simply an adoption of the termination change and redundancy case because it could never be; we weren't dealing with redundant employees.

PN312

THE DEPUTY PRESIDENT: Can I just ask you, the four applications that the University of New South Wales has made which are not before the Commission - - -

PN313

MR SANDLER: Yes.

PN314

THE DEPUTY PRESIDENT: - - - or they haven't been listed, my very - - -

PN315

MR SANDLER: I can tell you what they are if you would like.

PN316

THE DEPUTY PRESIDENT: Yes. I was just going to ask you to clarify them.

PN317

MR SANDLER: The University of New South Wales has made four applications.

PN318

THE DEPUTY PRESIDENT: Yes.

PN319

MR SANDLER: The first application relates to the academic award, the post academic award. And that application seeks to insert a scale of severance pay in a schedule in relation to the University of New South Wales on its own. So it seeks a severance pay scale, and that severance pay scale is calculated on the basis and factors into account that the entitlement to long service leave that academics enjoy from year one. So that is the first application. So it seeks to deal with, we would say, what is the - what should be the scale for academic employees in an award where there is a long service leave entitlement from year one of employment.

PN320

The second application by the University of New South Wales relates to the Higher Education Contract of Employment Award, and that seeks to add a schedule to that award, and for that schedule to contain an award of severance pay to fixed term employees in situations where the contract of - their fixed term contract are not renewed as specified by the HECE Award, but also seeks to add an additional requirement which we - an additional requirement in relation to the circumstances under which an entitlement to that severance pay scale arises.

PN321

But what it does is it seeks to insert into that award a severance pay scale for the University of New South Wales academic staff, because the situation within the University of New South Wales is that academic staff who are employed under fixed term contracts currently source their severance pay entitlement under the HECE Award by reference to the post - the Universities and Post Compulsory Academic Conditions Award.

PN322

THE DEPUTY PRESIDENT: So it quantifies an entitlement.

PN323

MR SANDLER: Yes, exactly.

PN324

THE DEPUTY PRESIDENT: This is for the benefit of those people in Sydney who wouldn't have seen the applications.

PN325

MR SANDLER: Yes. No, no, and for the benefit - well - - -

PN326

THE DEPUTY PRESIDENT: Yes. Possibly neither has anybody else.

PN327

MR SANDLER: I think a number of parties round the table would have seen the applications because we have - we have certainly sent them to the parties.

PN328

THE DEPUTY PRESIDENT: Good.

PN329

MR SANDLER: The other two applications, your Honour, relate to the UNSW General Staff Award and the ADFA Award and those simply - those seek to in relation to general staff who are not fixed term employees, that award seeks to insert a scale which we say is consistent with the test case decision but does not adopt the scale from the test case because we factored into that scale long service leave, entitlements for employees from years 5 to 10. And in relation to general staff employed on fixed term contracts, we seek to insert the current entitlement we say that general staff have with reference to the HEGSS Award, and we seek to insert - we seek to retain - well, we seek to retain that by implication because in our awards general staff under fixed term contracts have a separate - have a scale separate. So they are dealt with separately in our agreement. So we don't seek anything there.

PN330

THE DEPUTY PRESIDENT: Good.

PN331

MR SANDLER: So our application is that we do seek to create an additional criteria in relation to when that entitlement arises. So we are not seeking to insert a severance pay scale into those awards because those scales are already there and they are already separate in relation to fixed term employees.

PN332

So we would say, even that those matters are not before the Commission that, in our submission, the convenient way of tackling the issues facing everybody around the table would be to hear and determine the applications of the University of New South Wales and the CPSU first. And if that was so, and on the assumption that all parties would be seeking to intervene and would be granted leave to intervene, we would say that a Full Bench should be convened.

PN333

We would anticipate that that kind of hearing, given the fact that we say the unions need to demonstrate why an additional amount of severance pay should be avoided - should be awarded to fixed term employees in circumstances where their contracts are not renewed in later years, that there is a - the unions need to make that application and demonstrate why a departure from the current test case standard of not having the test case apply to fixed term employees, we say that a matter like that we anticipate would take two weeks.

PN334

THE DEPUTY PRESIDENT: I don't know whether the redundancy case took that long, did it?

PN335

MR SANDLER: I don't know. I am only estimating. Happy to - - -

PN336

THE DEPUTY PRESIDENT: I thought it was a typographical error.

PN337

MR SANDLER: No, we would - - -

PN338

THE DEPUTY PRESIDENT: No, two weeks. Okay.

PN339

MR SANDLER: Well, having regard to the way - yes, the redundancy case didn't take that long but, having regard to the HECE Award decision, perhaps that is possibly a better guide in terms of looking at fixed term contracts in years 5 to 10 which is what we say needs to happen. If it is less than two weeks, I am sure that the universities for whom I act would be delighted but we would anticipate that it could take two weeks. We would say that the matter could be heard in Sydney in one location. The Commission would not have to do a tour around the country as it might have to do if it entertains all applications. And so we say that that is a convenient way of dealing with the matter.

PN340

In relation to those - the applications before you and in relation to the applications that were filed on Friday there were no section 170N(1) issues in relation to those applications that they are clear, they are not caught by section 170N(1). Subject to any further questions, your Honour, those are our submissions.

PN341

THE DEPUTY PRESIDENT: No. I think I have asked you all that I need to ask you at this stage.

PN342

MR MENDELSSOHN: As the Commission pleases.

PN343

THE DEPUTY PRESIDENT: Thank you. There were no other employer submissions, were there? I forgot to ask Mr Argall, or maybe I didn't hear you, did you give an estimation of how long?

PN344

MR ARGALL: No, I didn't. And it was because I don't - - -

PN345

THE DEPUTY PRESIDENT: And reconsidered your position?

PN346

MR ARGALL: That is because I am thinking about - I am thinking about it now. I did talk about the - our desire to bring evidence - - -

PN347

THE DEPUTY PRESIDENT: Yes.

PN348

MR ARGALL: - - - about the impacts of these upon universities, and I suspect that may take a week at least - so, a week plus is my best guess.

PN349

THE DEPUTY PRESIDENT: All right. Somewhere between a week and two weeks.

PN350

MR ARGALL: Yes.

PN351

THE DEPUTY PRESIDENT: Okay. Mr Mendelssohn.

PN352

MR MENDELSSOHN: Thank you, your Honour. I don't intend to respond at great length, because much of what has been put goes to the position of the employer parties and obviously that will be - goes to the merits of the applications and that is not really a matter to be canvassed at great length today, but one thing I would wish to point out is that the -certainly the CPSU applications, and I believe also the NTEUs application with respect to the University of Canberra General Staff Award were essentially a cut and paste of the model clause that was issued by the Full Bench in the redundancy test case supplementary decision, and with two variations, one which appears to be non-controversial, the deletion of the exemption of employers with less than 15 staff, because we say no university is ever going to be in that position and still have its doors open.

PN353

And the other, of course, the more controversial matter, which the President has asked your Honour to report about, and that is that we - and we say that notwithstanding what has been put by Mr Argall or Mr Sandler, that essentially what we are trying to do is where the - as an award entitlement the relevant continuing employee would be entitled to the TCR test case standard from time to time, that we would seek also that the qualifying fixed term employees would be also entitled to the relevant test case severance payment as it is established from time to time.

PN354

And it is important in this respect to note that the only payment or the only benefit related to this matter that the Full Bench which made the Contract of Employment Award felt should apply to those qualifying fixed term employees is a severance payment, because - and we would take no issue with the - what Mr Argall or Mr Sandler said that we are not dealing with a redundancy, and the Full Bench in print Q0702 was quite clear about that, and the words they used were: that it is - we - that there were circumstances to be - they considered those circumstances to be sufficiently akin to redundancy to warrant a severance payment.

PN355

So, nobody is saying that it is a redundancy situation, but that where you have fixed term employees in the circumstances specified in the Contract of Employment Award who are terminated at the end of a second or subsequent contract, that they are circumstances sufficiently akin to redundancy to warrant a severance payment, and those fixed term employees are not entitled to other incidents of the redundancy test standard such as notice periods because they are on a fixed term contract - - -

PN356

THE DEPUTY PRESIDENT: Yes.

PN357

MR MENDELSSOHN: - - - redeployment to lower duties where available because they are there to perform a specific task or project or under research funding or you know, other matters or other benefits or entitlements provided in the standard test - redundancy test case clause, so it is only the payment that is at issue and, the - we would still say that the union's primary case would be still essentially on the proper interpretation of the various Full Bench decisions and the interaction of the contract of employment award with other instruments and would still be largely dealt with, or could largely be dealt with, by written submissions.

[11.57am]

PN358

But, in the light of what Mr Argall has said about the - his Association's intention to bring witness evidence we cannot preclude that we would wish to bring some witness evidence in response to the employer's case. However, we do consider that Mr Sandler's estimate of a two week matter is - we certainly don't agree that it would take that long. We would still see it as being, at the maximum, a week - possibly less.

PN359

THE DEPUTY PRESIDENT: So your half day is perhaps extending a little bit.

PN360

MR MENDELSSOHN: Well, in the light of what Mr Argall had - - -

PN361

THE DEPUTY PRESIDENT: Yes.

PN362

MR MENDELSSOHN: - - - and it would depend very much on how many witnesses Mr Argall and Mr Sandler actually do bring in the event and whether we - and the NTEU or other unions have witnesses in reply. But we would resist the suggestion of Mr Sandler that the matters pertaining specifically to the University of New South Wales should be dealt with ahead of all other matters because the CPSU and the NTEU have made applications to the Commission long before any employer applications in reply were made and the first employer application, in response to the union applications, was that made by the Australian Higher Education Industrial Association and we would see it inappropriate for the University of New South Wales to be able to come in on the basis of applications which were served on at least a number of the parties on Friday afternoon - should be able to at this stage say that we - our matter should have priority.

PN363

As to whether the matter should go to a Full Bench we say that is a matter for the President in the light of the report that your Honour makes to him.

PN364

THE DEPUTY PRESIDENT: Thank you. Can I just, before I hear from the other unions, clarify with both Mr Argall and Mr Sandler - the witnesses that you may bring, is that in respect to the cost of the application - other than that what sort of witness evidence would you be bringing?

PN365

MR MENDELSSOHN: Well, yes - - -

PN366

THE DEPUTY PRESIDENT: I am trying to get some indication of the time.

PN367

MR ARGALL: Well, partly. But both Mr Sandler and I have said that we believe that in these circumstances there is an onus of proof on the unions - - -

PN368

THE DEPUTY PRESIDENT: Yes.

PN369

MR ARGALL: - - - to demonstrate that their claims ought to be granted. Presumably they don't accept that, but if that turns out to be the case - - -

PN370

THE DEPUTY PRESIDENT: Well, that's what their position - yes.

PN371

MR ARGALL: - - - then I suspect that the union evidence would be not just in response to employer evidence, it would also be evidence in its own right but, as I say, it depends on which way - - -

PN372

THE DEPUTY PRESIDENT: Yes.

PN373

MR ARGALL: - - - that particular disagreement is resolved, I suppose. But, yes, it would be - what I was talking about, about our evidence would be specifically in relation to the impact - the actual impact - - -

PN374

THE DEPUTY PRESIDENT: Yes.

PN375

MR ARGALL: - - - of increasing, and in some cases, doubling the amount of severance payment upon the operations of the University. Yes.

PN376

THE DEPUTY PRESIDENT: Right. Would your be similar?

PN377

MR SANDLER: No. Well, it might - I think what our evidence - it just depends what we are dealing with.

PN378

THE DEPUTY PRESIDENT: Well, yes - - -

PN379

MR SANDLER: Our evidence would not simply be confined to the cost of having to live with the scale which the union's seek to have inserted into the awards. Our evidence will also deal with whether, on the merits, whether there is any merit in extending the severance pay scale beyond that which, we say, currently exists for fixed term employees in certain circumstances - whether that is justified. And that then goes to the nature, we say, and the circumstances under which fixed term contracts operate at the University and, as optimistic as Mr Mendelssohn may seem, we think that that will take some time and there is one point that I wish to make in relation to the - what is being put by the GOA today.

PN380

We are not saying, "Give the University of New South Wales priority", we are saying, "There is one location which is a matter of convenience for all parties, given the issues raised, and the issues that are before you today and the issues that are around in other applications", that we are saying it's from a practical point of view we are putting this as the most useful pragmatic way of approaching the entire proceedings. It's not a question of priority, "Hear us, hear us"; we are saying this makes the most sense, given where this could go if one entertains every single application and those applications which may be made along the way.

PN381

MR ARGALL: Your Honour, if I could - - -

PN382

THE DEPUTY PRESIDENT: But your response would be in some way driven by what the unions put.

PN383

MR SANDLER: Yes.

PN384

THE DEPUTY PRESIDENT: Yes.

PN385

MR ARGALL: And I would say the same of us, too.

PN386

THE DEPUTY PRESIDENT: Yes.

PN387

MR ARGALL: It may very well be that if the unions bring evidence about certain things we would want to bring counter-evidence. So it's a difficult question to answer as to both the - - -

PN388

THE DEPUTY PRESIDENT: Yes. I realise that.

PN389

MR ARGALL: - - - amount of evidence and the nature of the evidence - - -

PN390

THE DEPUTY PRESIDENT: It's a question that I have got to respond to.

PN391

MR ARGALL: - - - at this stage but I probably should have suggested that we would also probably want to bring evidence about the differences in circumstances between fixed term employees, whose contracts aren't renewed, and redundant employees. You know, persons - ongoing employees made redundant as well. But, again, that's possibly largely in response to what I anticipate union evidence might be.

PN392

THE DEPUTY PRESIDENT: All right.

PN393

MR MENDELSSOHN: Your Honour, I think - - -

PN394

THE DEPUTY PRESIDENT: I don't know whether I'm any - any wiser than when we started. Nevertheless - - -

PN395

MR MENDELSSOHN: And, your Honour, I don't know that I am but can I just reiterate we do not see that we need to mount an evidentiary case.

PN396

THE DEPUTY PRESIDENT: Yes.

PN397

MR MENDEL: We see that it's an argument about - that can be run from the documents.

PN398

THE DEPUTY PRESIDENT: I understand your position. Yes.

PN399

MR MENDELSSOHN: Yes. And while Sydney may be a convenient location for some of the parties, including I have to say the CPSU, it certain - it may not be a convenient location for all of the parties, for example the NTEU is Melbourne based in terms of its National office and the main office of the AHEIA is in Melbourne. They do have a Sydney office but, as I understand it, it may be their - some of their Melbourne people who have the carriage of the case. So it's - Sydney is not necessarily the most convenient location to everybody who may have an interest in the matters.

PN400

THE DEPUTY PRESIDENT: I am sure the President will decide which is the appropriate location. Ms Floyd.

PN401

MS FLOYD: Thank you, your Honour. Just on that last point I would just emphasise we don't see this as a case that needs evidentiary material. We are and we have said it several times, we are seeking to maintain the status quo and that is that the severance payments were determined by the Full Bench to have a nexus with continuing employees. And we say that what the AHEIA and the University of New South Wales are trying to do with their applications is to actually vary the decision of the HECE Full Bench. In effect a de facto appeal against that original decision.

PN402

There is no dispute between the parties that that nexus exists. In terms of the AHEIAs application to vary their application actually decreases the severance payment with respect to those academics who would be entitled to the severance payments. The entitlement to academics - - -

PN403

MR SANDLER: It doesn't apply to any academics - in its amended form.

PN404

MS FLOYD: I haven't seen the amended form. I am sorry. Okay. I don't need to see it. We say, with respect to the application to vary the HECE and the Academic Salaries Award that the UNSW and the AHEIA put forward we say that while it's true that with respect to the variations 170N doesn't apply but we would say that that is a National award - both of those are National awards, the same provisions apply to every single person who is covered by that and therefore we would say that, if some of those respondents are subject to 170N, then the Commission should not entertain a piecemeal approach to varying that award.

PN405

If the Commission is against us on that then we would also seek to bring on our application to vary the Academics Award with respect to those same universities and they would be heard as competing applications. So I would just like to foreshadow that if the applications are accepted we will be doing the same thing.

PN406

THE DEPUTY PRESIDENT: Remembering of course that the four applications by the University of New South Wales are not before me this morning, nor were they subject to the reference.

PN407

MS FLOYD: No. But if - sorry, but if - - -

PN408

THE DEPUTY PRESIDENT: But they are relevant to the overall - - -

PN409

MS FLOYD: Sure. That's right.

PN410

THE DEPUTY PRESIDENT: - - - confused picture.

PN411

MS FLOYD: But if the Commission accepts the AHEIAs variations to the HECE Award go ahead - - -

PN412

THE DEPUTY PRESIDENT: Yes. I understand. I understand the point you are making.

PN413

MS FLOYD: - - - then we would be doing the same with the Academics. Mr Argall mentioned the fact that Commissioner Smith was on both Full Benches and implied that he had actually turned his mind to the fact that fixed termers were excluded. We would say that the Full Bench in the redundancy did not actually consider whether fixed termers should be excluded or not. And I have set out, at paragraph 8:

PN414

The issues which require resolution can conveniently be dealt with under the following headings...

PN415

Now, the only exempt employees that they considered in the case was casual employees. It's not true to say that they specifically turned their mind to fixed term employees because all they did with respect to that was incorporate the exact wording that was in the 1984 - but if I can just read the 1984 TCF - TCR standards, as varied by the Award Simplification, it exempts a whole lot of employees and it says:

PN416

It does not apply in the case of dismissal for conduct that justifies instant dismissal including inefficiency within the first 14 days; neglect of duty or misconduct and, in the case of casual employees, apprentices or employees engaged for a specific period of time or for a specific task or tasks.

PN417

So, it's just not true to say that the Full Bench in 2004 put in that provision for the first time. That provision was there, when Commissioner Smith was on the HECE Full Bench and he was well aware of the fact that fixed term employees were excluded from the provisions of redundancy. The HECE Full Bench didn't determine that the redundancy provisions should apply to fixed term employees and that's conceded to by the employers. The Full Bench said they should be entitled to the severance payment.

PN418

If some of the orders that have been put forward by the CPSU and the NTEU are deficient then we are quite prepared to sit down with the assistance of the Commission or the parties to do whatever is necessary to make those comply with the fact that it is maintaining the nexus. And if i could just take the Australian Maritime College application which AHEIA said is giving them an increasing entitlement - - -

PN419

MR SANDLER: I didn't say that. I didn't say that.

PN420

MS FLOYD: Sorry?

PN421

MR SANDLER: I didn't say that.

PN422

MR MENDELSSOHN: You said it may be more generous.

PN423

MS FLOYD: More generous.

PN424

MR SANDLER: It may or may not be.

PN425

MR MENDELSSOHN: In circumstances or less generous in others.

PN426

MS FLOYD: Yes. The problem with that one is - it highlights the problem of institutional awards in the way that HECE has been dealt with. The Australian Maritime College, before the Institutional award was made, arguably fixed term employees were entitled to TCR as set out in the HEGSS Award. Now the Australian Maritime College has superseded the HEGSS Award but the negotiator in the NTEU was not one of the negotiators - the negotiators failed to put in a severance payment for fixed term employees. So, arguably, the only severance payment available to those people is that eight weeks plus so many years per year of service.

PN427

So, we would say, that's a problem with the drafting but it's certainly not the intent of either the CPSU or the NTEUs application to increase any benefits other than those that apply through the HECE Full Bench decision. I would just like to finalise by saying, your Honour, that we are seeking to maintain the status quo. We are not seeking to increase any entitlements other than those that are available through the HECE Full Bench decision. We say that the employers' decision - the employers' applications are seeking to break the nexus and should not be heard in conjunction with this case. That should be a separate application which seeks to vary the Full Bench decision in the HECE case. Thank you.

PN428

THE DEPUTY PRESIDENT: Thank you.

PN429

MR RANKIN: Your Honour, the LHMU doesn't have any further submissions. We concur with the CPSU and NTEU.

PN430

THE DEPUTY PRESIDENT: All right. Thank you, Mr Rankin. Mr Flatt.

PN431

MR FLATT: Yes, your Honour. Just some minor housekeeping before - I noticed on the Memorandum from the President, dated 30 August, that these applications are listed as applications made by the CEPU and I think that should be reading, the "CPSU" obviously. But just some minor errors on those memorandums.

PN432

THE DEPUTY PRESIDENT: Yes.

PN433

MR FLATT: Apart from that the CEPU has nothing further to add at this point. Thank you, your Honour.

PN434

THE DEPUTY PRESIDENT: Thank you. Mr Kentish, anything further?

PN435

MR KENTISH: Your Honour, yes. The AMWU would oppose any applications or amended applications of the employers being joined to the CPSU and the NTEUs applications in circumstances where the parties have not been properly served and the matter hasn't been listed in its own right. So if those matters are to be joined we would submit that it would be an appropriate thing if the matters were first listed formally before the Commission.

PN436

THE DEPUTY PRESIDENT: Yes. I understand what you are saying. The only reason they were raised was so that there was some understanding as to what the applications were doing. But they are not before the Commission at the moment, nor are they subject to the direction of the President. But I hear what you say. Is that all we need to say? Is that - no-one has anything else they want to put?

PN437

MR SANDLER: For the purposes of your report, your Honour - - -

PN438

THE DEPUTY PRESIDENT: Yes.

PN439

MR SANDLER: It seems judging - gauging by Mr Mendelssohn's reply that, even though the unions may not accept or that they have a case to mount in order to change the HECE standard, that certainly they would be filing evidence in response it is - whoever puts their evidence forward first and whoever responds to it, I would suggest, is irrelevant. If for the purposes of your report you want to factor that in to - that there will be some response and there will be material coming from the unions then it might assist - - -

PN440

THE DEPUTY PRESIDENT: I am sure there will be a response, yes.

PN441

MR SANDLER: - - - in terms of your - the original half day to a week time frame and I would submit that our estimate is slightly more realistic.

PN442

THE DEPUTY PRESIDENT: Yes. I understand that your estimates are more than half a day.

PN443

MR MENDELSSOHN: Sorry, your Honour, but could I just clarify the - we are not saying that we don't have to mount a case. My submissions went to the nature of the case we should have - - -

PN444

THE DEPUTY PRESIDENT: Yes. It's limited to what you have previously put - - -

PN445

MR MENDELSSOHN: Yes.

PN446

THE DEPUTY PRESIDENT: - - - and that's what you will be putting - - -

PN447

MR MENDELSSOHN: Yes. But we don't say that we don't need to mount a case though.

PN448

THE DEPUTY PRESIDENT: No. I didn't take that as being the position. All right. Thank you for your submissions this morning. I shall report to the President on what has been put and you will be advised in due course as to the further process of these matters. Thank you.

ADJOURNED INDEFINITELY [12.15pm]