AG2004/7552, Transcript of Proceedings [2004] AIRCTrans 4163 (27 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 11161

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS
DEPUTY PRESIDENT HAMILTON
COMMISSIONER TOLLEY

AG2004/7552

APPLICATION FOR MULTIPLE
BUSINESS AGREEMENT

Application under section 170LC of the Act
by Independent Education Union of Australia
-Victorian Independent Education Union and
Another for certification of the Victorian
Catholic Schools and Catholic Education
Officers Certified Agreement 2004-2007

MELBOURNE

4.02 PM, MONDAY, 18 OCTOBER 2004

PN1

MR A. ODGERS: I appear on behalf of the Independent Education Union of Australia.

PN2

MR A. PRENDERGAST: I appear on behalf of the Victorian Catholic Schools Association and proposed respondents to the agreement.

PN3

VICE PRESIDENT ROSS: Thank you. I might deal with some of the statutory tests questions first, and then turn to the public interest considerations, if that is all right. Which of you would like to answer - well, is prepared to answer those questions?

PN4

MR ODGERS: I am, your Honour, but can I, before you do that, simply point out that there were some errors in Mr Keenan's statutory declaration, and I would like to hand up a replacement statutory declaration in respect of that.

PN5

VICE PRESIDENT ROSS: Okay.

PN6

MR ODGERS: He is not the head of an unincorporated organisation of employers, as he claimed in his first declaration.

PN7

VICE PRESIDENT ROSS: You pointed that out to him, have you? Other than that there is no substantive change?

PN8

MR ODGERS: The only changes - the other error, apart from the heading, your Honour, was that the figures on voting had been omitted. They were included in Mr Prendergast's statement, and they are now included in the second statement.

PN9

VICE PRESIDENT ROSS: Yes, that is the - - -

PN10

MR ODGERS: The number of those who voted, and the number of those who voted in favour.

PN11

VICE PRESIDENT ROSS: Eleven thousand, 225 and 11,002 voted to approve the agreement. Just in relation to that, I take it all persons who are covered by the agreement have had an opportunity to vote in the ballot?

PN12

MR ODGERS: They did, and I believe that both statutory declarations state that that is the case.

PN13

VICE PRESIDENT ROSS: Yes.

PN14

MR ODGERS: In fact, the parties went to very considerable lengths to ensure that those who, for example, were not at the workplace at the time were advised of what was going on, and they had a copy sent to them at their home address. There were times made - it was made obvious in that correspondence that there were times where they could ring persons form both the employers side and my organisation side to ask questions. There was available information in language other than English, if their first language was other than English.

PN15

VICE PRESIDENT ROSS: Okay. I note the agreement was filed within the 21 day time period. Are the employers party to the agreement employers within Victoria?

PN16

MR ODGERS: They are, in their entirety.

PN17

VICE PRESIDENT ROSS: And I note a written a copy of the agreement has been submitted for certification. Do you say that the agreement is about matters pertaining to the employment relationship?

PN18

MR ODGERS: It is.

PN19

VICE PRESIDENT ROSS: And that the agreement is in respect of parts of single business? Would that be an accurate description, being the teachers employed?

PN20

MR ODGERS: I think it would be.

PN21

VICE PRESIDENT ROSS: Being a distinct organisational or operational unit within the schools?

PN22

MR ODGERS: Yes, it is best looked at, your Honour, in terms of excluding only a couple of organisational units within a school. My organisation doesn't maintain coverage of nurses who have separate arrangements.

PN23

VICE PRESIDENT ROSS: Well, it can be a large part of these single entities.

PN24

MR ODGERS: The overwhelming majority.

PN25

VICE PRESIDENT ROSS: Yes. And does your organisation have at least one member employed in the single business or parts of the single business whose employment would be subject to the agreement?

PN26

MR ODGERS: It does in every instance, your Honour.

PN27

VICE PRESIDENT ROSS: And is your organisation entitled to represent the industrial interests of its members so employed?

PN28

MR ODGERS: It is.

PN29

VICE PRESIDENT ROSS: I note from the statutory declaration the steps as you have just outlined that were taken to ensure that at least 14 days before approval was given every person either had a copy or ready access to a copy of the agreement in writing, and that they were given an opportunity to vote in respect of the agreement. I should have dealt with this at the outset, but there is a 170XF application which I gather is necessary, because not all of the employees listed in schedule 1 are covered by the relevant award, is that the - - -

PN30

MR ODGERS: That is right, your Honour, and in fact the names of those employers are listed in the statutory declarations.

PN31

VICE PRESIDENT ROSS: Yes. And you say the kind of work that the persons under the proposed agreement are engaged in is the kind of work that is covered by the Victorian Catholic Schools and Catholic Education Officers Award 1998?

PN32

MR ODGERS: It is, your Honour, it is the same kind of work that is covered by those persons who are covered by the award.

PN33

VICE PRESIDENT ROSS: Yes. We will make the determination as sought under 170XF and determine for the purpose of deciding whether or not the agreement answers the no disadvantage test, we will designate the Victorian Catholic Schools and Catholic Education Officers Award 1998. I note - you say that certification of the agreement would not result on balance in a reduction in the overall terms and conditions of employment of the employees covered by the agreement?

PN34

MR ODGERS: Yes, your Honour.

PN35

VICE PRESIDENT ROSS: And I note there is a dispute settlement clause in the agreement, and the agreement specifies a nominal expiry date, being three years from the date of certification, is that right?

PN36

MR ODGERS: It does.

PN37

VICE PRESIDENT ROSS: In relation to termination of employment, are any provisions of the agreement inconsistent with a provision under Division 3 of Part VIA, an order by the Commission under that division or any injunction granted or any order made by a court under that division?

PN38

MR ODGERS: Not so far as I am aware, your Honour, no.

PN39

VICE PRESIDENT ROSS: In relation to negotiating conduct, are there any matters under section 170LU(3) which would lead us to refuse to certify the agreement?

PN40

MR ODGERS: No, your Honour.

PN41

VICE PRESIDENT ROSS: In relation to discrimination, do any provisions of the agreement discriminate against an employee whose employment will be subject to it, because of or for reasons including race, colour, sex, sexual preference, age, political opinion, national extraction or social origin?

PN42

MR ODGERS: Most certainly not, your Honour.

PN43

VICE PRESIDENT ROSS: Does the agreement contain any objectionable provisions within the meaning of section 170LU(2)(a)?

PN44

MR ODGERS: It doesn't.

PN45

VICE PRESIDENT ROSS: Thank you. I note what is said about the public interest test in paragraphs - or part 4 of the statutory declarations. That is all for you Mr Odgers, was there anything you wanted to add? No?

PN46

MR ODGERS: Nothing, your Honour.

PN47

VICE PRESIDENT ROSS: Mr Prendergast, do you adopt the answers that Mr Odgers has given to the questions that have been put to him in respect of the relevant statutory tests?

PN48

MR PRENDERGAST: I do in their entirety, your Honour, yes.

PN49

VICE PRESIDENT ROSS: All right, thank you. We propose to proceed immediately to decision.

PN50

These proceedings are in relation to an application under Part VIB of the Workplace Relations Act to certify an agreement to be known as the Victorian Catholic Schools and Catholic Education Officers Certified Agreement 2004-2007. The parties to the agreement are the Independent Education Union of Australia and the employers listed in schedule 1 to the agreement. As the agreement applies to businesses carried on by more than one employer, it is a multi-business agreement within the meaning of section 170LC.

PN51

Multi-business agreements can only be certified by a Full Bench of the Commission, and section 170LC(4) is relevant in that regard. In addition to those requirements the agreement must meet the legislative requirements set out in sections 170LT and 170LU. Once we are satisfied these requirements have been met we must certify the agreement. The parties submitted that it is in the public interest to allow the certification of the agreement and we are so satisfied, having regard to the agreement's advance by the parties and, in particular, (1) that the employer's operate as a system under the auspices of the Catholic Education Commission of Victoria.

PN52

The Commission has a responsibility for the distribution of government funding to all systemically funded schools in the state of Victoria. Under this arrangement, schools operate in cooperation with each other and not in competition. (2) The history of industrial regulation in this sector of education is that a single award and/or agreement is regulated to the terms and conditions of employment of all employees in all schools. In this regard, we note this will be the seventh such agreement.

PN53

(3) Maintaining the status quo in respect of industrial regulation is essential in ensuring that employees within Catholic Education are able to maintain portability of conditions and entitlements and assist in encouraging mobility within Catholic education. Similarly, employers are assisted in recruitment and retention of employees. And finally, it would be inappropriate and inefficient to have the matters dealt with by an agreement other than a multiple business agreement.

PN54

We also note that we are satisfied that the matters dealt with in the agreement could not be more appropriately dealt with by agreements other than a multiple business agreement under part VIB of the Act. We are also satisfied that the other relevant requirements of the Act and rules have been met and we will certify the agreement and issue a certificate certifying the agreement if not this afternoon, then tomorrow. Nothing further. Thank you. We will adjourn.

ADJOURNED INDEFINITELY [4.12pm]