C2004/254, Transcript of Proceedings [2004] AIRCTrans 4478 (18 November 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 8990

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

C2004/254
C2004/255
C2004/5711
C2004/5714

APPLICATION FOR A COMMON
RULE AWARD

Application under section 141 of the Act
by Australian Education Union and Another
for a common rule award

MELBOURNE

2.01 PM, MONDAY, 8 NOVEMBER 2004

PN1

THE SENIOR DEPUTY PRESIDENT: I will take appearances in each of the matters and we will work through them. If you could identify which matters you are appearing in.

PN2

MR N. NIVEN: I appear on behalf of the Victorian Trades Hall Council.

PN3

MS C. BALL: I appear on behalf of the Australian Education Union.

PN4

MS R. FRENZEL: I appear for the LHMU with respect to the Airport Catering Award 2002 and the Liquor Industries Breweries Award 1997.

PN5

MR D. AMESBURY: I appear on behalf of Kindergarten Parents Victoria in the matter of the Early Childhood Teachers Interim Award, the common rule declaration.

PN6

MR D. TWYFORD: I appear on behalf of the independent schools from the Association of Independent Schools of Victoria and the matter that we have notified an interest in today is also the Early Childhood Teachers Interim Award 1999, your Honour.

PN7

MS K. RICHARDS: I appear from the Victorian Employers Chamber of Commerce and Industry. We appear in each of the matters that are listed before the Commission today.

PN8

THE SENIOR DEPUTY PRESIDENT: Thank you. How do the parties wish to proceed with these matters? Singly, together?

PN9

MS FRENZEL: I think I might lead the charge, figuratively speaking.

PN10

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Frenzel.

PN11

MS FRENZEL: I think with respect to the two matters that the LHMU is applicant in that there is consent as between the parties about the declarations being made and we would therefore ask that the Commission list those matters at a convenient time to have the declarations made.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes, very well, and what is the position of VECCI in relation to that, Ms Richards?

PN13

MS RICHARDS: Thank you, your Honour. We concur with the submissions put by Ms Frenzel and we would seek to have the matters listed some time possibly next week or thereafter.

PN14

THE SENIOR DEPUTY PRESIDENT: That is the Airport Catering and Liquor and Accommodation, Breweries, and the application in respect to Maltsters was withdrawn, is that correct?

PN15

MS FRENZEL: It was, your Honour, because there was no way in a month of Sundays that I could put a reasonable argument to the Commission that it should be common rule, given that there are five Maltsters in Victoria and four of them are bound by the award. If the Commission pleases.

PN16

THE SENIOR DEPUTY PRESIDENT: Are you talking about individual persons or companies?

PN17

MS FRENZEL: Maltsters in the Yellow Pages, your Honour.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes, very well. All right, I can certainly set down a date for the other matters. How far out, Ms Frenzel, from your point of view?

PN19

MS FRENZEL: Your Honour, we would be ready to do them this week.

PN20

THE SENIOR DEPUTY PRESIDENT: Ms Richards, is there any difficulty from your point of view if the matters are listed, say, Friday of this week?

PN21

MS RICHARDS: There is no difficulty with that, your Honour.

PN22

THE SENIOR DEPUTY PRESIDENT: Very well, I will relist both matters at 10 am on Friday, the 12th. That is 2004/5711, 5714, so that dispenses with those. The other two matters are yours, Ms Ball.

PN23

MS BALL: That is right.

PN24

THE SENIOR DEPUTY PRESIDENT: And what is the position in respect to those?

PN25

MS BALL: With respect to those two matters, your Honour, the draft declaration has been circulated to the parties and whilst I haven't received any outstanding issues with the Disability Services Award, it seems that KPA may have an issue with Early Childhood which needs to be clarified.

PN26

THE SENIOR DEPUTY PRESIDENT: Very well, perhaps we will deal with Early Childhood first. There is majority interest in that matter. Mr Amesbury, what is KPVs position?

PN27

MR AMESBURY: Yes, your Honour, we don't have any in principle objections to the declaration of common rule award. However, we just need some clarity about clause 5 of the declaration, being the Early Childhood Teachers Common Rule Award 2005 shall not apply to employers respondent by any means other than award of the Commission in respect of the employment by them to awards covered by that award.

PN28

The reason why I mention that, your Honour, is that kindergarten teachers in childcare centres are traditionally covered by the Children's Services Award and there is a distinct difference in terms and conditions of that award to this one and if the common rule award was to supersede or have impact upon kindergartens, community managed and private, in childcare centres, the conditions would change and have significant financial impact and operational impact upon those programs.

PN29

For instance, the kindergarten programs in childcare centres go for the full year, whereas kindergarten programs in a stand alone setting do have term breaks or term school holidays, so there is an impact upon the declaration of those common rule awards within that setting.

PN30

THE SENIOR DEPUTY PRESIDENT: I apprehend that that provision was one of the template provisions which indicated that the common rule award did not apply to employers where bound as named respondents to an existing award. That was the intention of that provision, Ms Ball?

PN31

MS BALL: Yes, your Honour.

PN32

MR AMESBURY: So, your Honour, just to assist - - -

PN33

THE SENIOR DEPUTY PRESIDENT: So the existing award binding the named respondents would continue. In effect, the common rule award would not apply to those employers.

PN34

MR AMESBURY: By the way of the application of the Children's Services Award, yes.

PN35

THE SENIOR DEPUTY PRESIDENT: That is correct, whatever award they were named respondents to would continue to apply to those employers. Does that clarify the position?

PN36

MR AMESBURY: Your Honour, it does clarify the position slightly, but I would still like some clarity. Maybe my learned friend from the AEU and I can have some discussions about clarity of clause 5 and who it does apply to and who it doesn't apply to, your Honour.

PN37

THE SENIOR DEPUTY PRESIDENT: Yes, very well, and you are obviously available to conduct those discussions at whatever time is appropriate?

PN38

MR AMESBURY: Absolutely, your Honour.

PN39

THE SENIOR DEPUTY PRESIDENT: Mr Twyford, do you have a position in respect to that?

PN40

MR TWYFORD: Thank you, your Honour. I have two fairly easy matters I think to resolve today. I appear on behalf of independent schools more for consequential reasons. There is another award covering early childhood teachers which is the subject of common rule proceedings brought by the Independent Education Union of Australia.

PN41

That is an award that members of my association are respondents to and it is my understanding that there is an intent for that award, the Victorian Independent Schools Early Childhood Teachers Award 2004, to apply in independent schools who employ early childhood teachers and that the Early Childhood Teacher common rule award, the matter before your Honour today, to apply in other settings and I think that this is dealt with by way of the definition of industry in the draft declaration that was circulated by Ms Ball late last week which refers to the fact that it excludes registered non-government schools, registered with the Registered Schools Board, which is the registering authority of the schools or any successor thereto, so that is the first matter.

PN42

I would just seek clarification that, really, the AEU is seeking to exclude non-government schools from the coverage of the declaration before you today. The second one is a very minor matter, your Honour, and that is throughout the declaration, I notice it refers to award.

PN43

THE SENIOR DEPUTY PRESIDENT: Rather than declaration.

PN44

MR TWYFORD: And I think that the decision has recently been made that it will refer to common rule declaration, your Honour. It is a minor matter and I assume it will be sorted out in time, but if we could have those matters clarified by Ms Ball.

PN45

THE SENIOR DEPUTY PRESIDENT: So I take it if the first matter is clarified in the manner you understand it, then your membership wouldn't be affected by the common rule.

PN46

MR TWYFORD: No, your Honour, we wouldn't envisage taking any active part in proceedings beyond today, if that could be clarified.

PN47

THE SENIOR DEPUTY PRESIDENT: Very well.

PN48

MR TWYFORD: As I say, it is a consequential reason that I am here today.

PN49

THE SENIOR DEPUTY PRESIDENT: Yes. Before I come to you, Ms Richards, perhaps I will let Ms Ball deal with those two issues.

PN50

MR TWYFORD: Thank you, your Honour.

PN51

THE SENIOR DEPUTY PRESIDENT: Ms Ball.

PN52

MS BALL: Thank you. Yes, I just confirm that we are seeking exclusion with registered non-government schools and if I could just clarify that I have actually circulated this to the Independent Education Union who have okayed this draft as well.

PN53

THE SENIOR DEPUTY PRESIDENT: Yes, that appears fairly clear and obviously you will reflect the terminology declaration rather than award in the declaration.

PN54

MS BALL: Yes.

PN55

THE SENIOR DEPUTY PRESIDENT: Very well.

PN56

MR TWYFORD: Thank you, your Honour.

PN57

THE SENIOR DEPUTY PRESIDENT: So does that satisfy you, Mr Twyford? You don't have any continuing interest in the matter?

PN58

MR TWYFORD: That satisfies me and I have had some discussions with representatives of the Independent Education Union of Australia that Ms Ball referred to and they on the face of it were happy with the definition of industry and felt that is excised non-government schools.

PN59

THE SENIOR DEPUTY PRESIDENT: It does seem reasonably clear, yes.

PN60

MR TWYFORD: I think we are done, your Honour.

PN61

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Twyford. Ms Richards.

PN62

MS RICHARDS: Thank you, your Honour. With the remaining two matters that are before the Commission, I would just like to highlight perhaps that it is my instructions that VECCI has not received a copy of the Disability Services Award Victoria draft declaration and we would just be seeking a copy of that. If it pleases the Commission. I apologise. It may be an administrative error at our end.

PN63

THE SENIOR DEPUTY PRESIDENT: You have the other one, the early childhood teachers?

PN64

MS RICHARDS: We have, your Honour.

PN65

THE SENIOR DEPUTY PRESIDENT: It looks like the paperwork has gone astray, but that will be provided.

PN66

MS RICHARDS: Thank you.

PN67

THE SENIOR DEPUTY PRESIDENT: Where does that leave us, Ms Ball? Mr Amesbury wishes to have some discussions to clarify what I understood to be one of the template provisions, but I think he is seeking discussions to I guess satisfy himself that the application of that in respect to his members is satisfactory. On the basis that no other issue arises from Ms Richards once she has had the opportunity to see the Disability Services Award, what sort of time frame would you think appropriate for the matter to be set down again, hopefully for a consent declaration? If not, then we can deal with any outstanding issues in some detail in conference. What sort of time frame would you think appropriate?

PN68

MS BALL: I am happy to have discussions with Mr Amesbury immediately, so I am pretty confident that we can actually sort that out.

PN69

THE SENIOR DEPUTY PRESIDENT: Very well.

PN70

MR AMESBURY: Your Honour, we are happy to seek discussions immediately so we can expedite the matter. I might just bring to your attention, your Honour, there are a couple of other Community Childcare Association of Victoria that may want to have also additional discussions with the AEU about the declaration and to inform me of such, but I don't think they are in depth conversations, just clarity, your Honour.

PN71

THE SENIOR DEPUTY PRESIDENT: Yes, and they are not represented directly by you?

PN72

MR AMESBURY: No, they are not, your Honour.

PN73

THE SENIOR DEPUTY PRESIDENT: Have they notified an interest in the matter?

PN74

MR AMESBURY: I am not sure whether they have or haven't.

PN75

THE SENIOR DEPUTY PRESIDENT: But in any case, if you can identify them for Ms Ball, she can have those discussions as to avoid any potential problems, someone popping up at the last minute.

PN76

MR AMESBURY: Thank you, your Honour.

PN77

MS BALL: Your Honour, we would be happy to seek a listing on Friday as well.

PN78

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Well, I will set down both of those other matters again at 10 o'clock. I will deal with the Liquor Trade matters first and then go to the two education matters on Friday. As I said, if it is a situation where consent is obtained in respect to the two AEU matters, the matter can then be dealt with formally. If there are still some outstanding issues, we can go into conciliation. Now, I don't believe I have got a copy of the draft declarations, or are they in the file? They haven't changed at all?

PN79

MS BALL: Your Honour, that might be my omission, but I can rectify that.

PN80

THE SENIOR DEPUTY PRESIDENT: Do I have yours, Ms Frenzel?

PN81

MS FRENZEL: I am fairly certain you do, your Honour, but I will e-mail them again this afternoon.

PN82

THE SENIOR DEPUTY PRESIDENT: No, you don't have to do that if I have got them. Yes, I do have them. Thank you. Very well, if you can attend to that, Ms Ball, I will have everything before me and hopefully we can dispose of all the matters on Friday. Thank you.

ADJOURNED UNTIL FRIDAY, 12 NOVEMBER 2004 [2.16pm]