C2004/4992, Transcript of Proceedings [2004] AIRCTrans 4366 (12 November 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 8933
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

C2004/4992

APPLICATION FOR A COMMON
RULE AWARD

Application under section 141 of the Act
by the National Tertiary Education
Industry Union for a common rule award

MELBOURNE

11.10 AM, WEDNESDAY, 3 NOVEMBER 2004

PN1

MS E. FLOYD: I appear on behalf of the NTEU and with me is MR M. BJORK-BILLINGS.

PN2

MR M. RUSSELL: I appear on behalf of the members of Adult and Community Education Victoria.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Russell. Anyone further?

PN4

MS B. PIMM: I appear on behalf of members of Jobs Australia.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Pimm. Yes, Ms Floyd.

PN6

MS FLOYD: Thank you, your Honour. The NTEU seeks that the Adult and Community Education Professional Administrative Clerical Computing and Technical (PACCT) Staff Award 1999 be declared common rule. In support of our application we have forwarded a draft declaration, a statement from Mr Graham McCulloch, General Secretary, and outline of submissions.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes. I will mark the 1 November correspondence, NTEU1. That contains the submissions of the NTEU, the statement of Mr McCulloch and various attachments. The draft declaration was forwarded separately, I will mark that NTEU2.

EXHIBIT #NTEU1 CORRESPONDENCE DATED 1 NOVEMBER CONTAINING SUBMISSIONS, STATEMENT OF MR McCULLOCH AND ATTACHMENTS

EXHIBIT #NTEU2 DRAFT DECLARATION

PN8

MS FLOYD: With respect to the draft declaration, your Honour, I must apologise. During the time that the two latest documents, print PR952542 and print PR952589, I have been working in Perth the last fortnight and actually didn't receive those. So the draft - - -

PN9

THE SENIOR DEPUTY PRESIDENT: Yes. So there is a reference to "award" rather than "declaration".

PN10

MS FLOYD: Yes. So we certainly undertake to make those corrections if all else is okay.

PN11

THE SENIOR DEPUTY PRESIDENT: Very well.

PN12

MS FLOYD: In respect to the undertaking, I actually haven't seen that but I am sure we can give it once I see that document. The attachment prior to Mr McCulloch's statement contains the update of the most current award which is updated to 22 June 2005. That award was made as a first award in the Federal Commission on 23 May 1996 and it had its genesis as a Victorian award, an award of the Victorian Commission, and the scope clause is identical with the exception that the previous award also included the Council of Adult Education.

PN13

The Council of Adult Education doesn't seek to be bound by this common rule and wasn't bound by the new award that was made in the Federal Commission. The award has been updated to the 2004 safety net and it is used for any test cases that the Commission brings forward. Your Honour, I don't intend to go through my submissions unless there are any questions that you wish me to address.

PN14

I would just like to emphasise that the scope clause maintains a demarcation that has always existed between the Australian Services Union and ourselves with respect to the SACS Award and the Adult Ed Award, and that scope clause was the subject of discussion when the award was made and correspondence from the ASU is included in Mr McCulloch's statement at GMC3, and that proposal from the ASU was inserted into the award. If there are no further questions, I commend the application to you and undertake to provide the declaration in that dated version within seven days.

PN15

THE SENIOR DEPUTY PRESIDENT: Thank you for that, Ms Floyd. Mr Russell.

PN16

MR RUSSELL: Thank you, your Honour. The only issues I would raise from within the documentation provided by the NTEU would be a minor matter in the witness statement of Graham McCulloch. There is a characterisation of the sector at paragraph 7:

PN17

Generally the industry is characterised by small employers employing between two and eight employees, many of whom open and close operations or change names.

PN18

I think that, somewhat, unfairly characterises the industry and I would like to have it on the record that it is relatively stable and doesn't change names unless it absolutely has to.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes.

PN20

MR RUSSELL: The only other matter would be that - and I am aware that my colleague has not yet had an opportunity to see PR952589 and I would seek the undertaking from the NTEU to have that. Thank you, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: I will provide the print to Ms Floyd and she can examine - - -

PN22

MR RUSSELL: Okay. Aside from that, we have no objections to the application.

PN23

THE SENIOR DEPUTY PRESIDENT: Very well. Thanks for that, Mr Russell. Ms Pimm.

PN24

MS PIMM: If the Commission pleases, at this stage Jobs Australia hasn't actually seen the submissions of the NTEU of 1 November, so at this point we are not really in a position to consent to this being made a common rule award. We also have some concerns in that we feel that this award is actually above the community standards so we would have some objections that we would like on the record at this stage, so - - -

PN25

THE SENIOR DEPUTY PRESIDENT: Well, how do you wish to deal with that, Ms Pimm?

PN26

MS PIMM: I think if we could have some discussions, that would be the best way to try and deal with it. We just have some concerns in relation to some of the matters, including long service leave. As this award was actually confined to very few respondents and was made by consent between those parties we have concerns with it being extended to the entire sector because there are issues with portability of long service leave among other things.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes. Have Jobs Australia indicated an interest in this matter?

PN28

MS PIMM: Yes, we have, your Honour.

PN29

THE SENIOR DEPUTY PRESIDENT: You have. So you have received the draft order?

PN30

MS PIMM: We did but we didn't - we have received everything but the submissions so I am not entirely sure why that is.

PN31

MS FLOYD: Your Honour, I am a bit confused. This is the first I have heard of Jobs Australia having any interest in this, I have had no correspondence with them.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes.

PN33

MS FLOYD: So I certainly haven't sent them anything.

PN34

MS PIMM: We did file a notice of appearance and - - -

PN35

MS FLOYD: I don't have a copy.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes, a notice was served on the 10th - sorry, 20 October. You have no record of that, Ms Floyd?

PN37

MS FLOYD: No, as I say, I have been out of the state during that period of time but certainly up until 20 October - - -

PN38

THE SENIOR DEPUTY PRESIDENT: Yes. Although it appears the relevant documents have been forwarded to Jobs Australia. Yes. Very well. Yes, Ms Floyd, what do you wish to say in response?

PN39

MS FLOYD: Yes. Well, I am not sure of what Jobs Australia's interest is because, as I said, it is our view that there is no overlap between the SACS Award which has - which doesn't have as generous conditions, and the Adult Ed Award. So I am not sure of what their concerns are but certainly if they have legitimately intervened then obviously we have an obligation to discuss it with them. I am just concerned that they left it so late to let us know.

PN40

THE SENIOR DEPUTY PRESIDENT: And Jobs Australia is affected by the other award, is it, the - - -

PN41

MS FLOYD: By the SACS Award, yes.

PN42

THE SENIOR DEPUTY PRESIDENT: The SACS Award rather than this award.

PN43

MS FLOYD: Yes, yes, that is correct.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes. Presumably, if that is the case - - -

PN45

MS PIMM: Your Honour, we actually have respondent members to both so we do have - members of our CSIR service actually use the PACCT Award and we have other members who use the SACS Award, so we do have members in Victoria who are respondent to the PACCT Award.

PN46

THE SENIOR DEPUTY PRESIDENT: Very well. Have you got anything in respect to the undertaking, Ms Floyd, that - - -

PN47

MS FLOYD: Yes, we give the undertaking.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes, very well. I will get that back from you before we end these proceedings. What I will do in the circumstances is to adjourn this matter to allow some discussions between the NTEU and Jobs Australia. What I would ask is that - Ms Pimm, that if Jobs Australia advise me by next Tuesday, 9 November, of its position, presumably the NTEU will provide a copy of the submissions and some discussions can occur.

PN49

If Jobs Australia could indicate what its position is, having had the benefit of the submissions and the discussions of the NTEU by close of business on 9 November, if, other than the issues raised by Jobs Australia, and I am not entirely sure what they are, I have no difficulty in respect of the draft declaration. If there are at that point no problems I will issue the draft declaration. If there are any difficulties I would ask you, Ms Pimm, if Jobs Australia could provide its position in writing to me by close of business on Thursday, 11 November, I will then consider the submissions of the NTEU and Jobs Australia.

PN50

If necessary, I will re-list the matter at 2 pm on 17 November, but if I am able to deal with the matter on the basis of the written materials obviously giving the NTEU an opportunity to respond, I will. If I believe that there is a necessity to bring the matter back on for further hearing I will do that at 2 pm on 17 November. So those dates are clear, Ms Pimm?

PN51

MS PIMM: Yes, thank you, your Honour.

PN52

THE SENIOR DEPUTY PRESIDENT: Okay. We will proceed on that basis. As I said, if there is no issue, or the issues are resolved, I will issue the draft declaration, otherwise I will consider the written submissions in the first instance and, if necessary, re-list the matter. Very well, I will adjourn that matter and call on each of the remaining matters for this session, if I can describe it as that.

ADJOURNED ACCORDINGLY [11.23am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #NTEU1 CORRESPONDENCE DATED 1 NOVEMBER CONTAINING SUBMISSIONS, STATEMENT OF MR McCULLOCH AND ATTACHMENTS PN8
EXHIBIT #NTEU2 DRAFT DECLARATION PN8