C2004/3048, Transcript of Proceedings [2004] AIRCTrans 4695 (3 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 3, 105 St George's Tce, PERTH WA 6000
Tel:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 1080

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER THATCHER

C2004/3048

ENTERPRISE BARGAINING AWARD

Application pursuant to section
111(1)(b) of the Act by the University
of Western Australia for making of an
interim award

PERTH

2.18 PM, WEDNESDAY, 24 NOVEMBER 2004

Continued from 11.11.04

THIS HEARING WAS CONDUCTED BY VIDEO LINK

PN36

MR D. RODGERS: I appear on behalf of the University of Western Australia and with me is MS M. McPHERSON.

PN37

MS J. van den HERICK: I appear on behalf of the Community and Public Sector Union.

PN38

MS K. SCOBLE: I appear on behalf of the CFMEU.

PN39

MR GILL: I appear on behalf of the LHMEU.

PN40

THE COMMISSIONER: Thank you. Who have we got on the video now? Yes. Who would like to go first on the video?

PN41

MR F. RANKIN: I appear for the LHMU National Office and we are just finding it a tad hard to hear you, Commissioner.

PN42

THE COMMISSIONER: Is it audio?

PN43

MR RANKIN: Yes, just audio. You are a little bit soft.

PN44

THE COMMISSIONER: Okay. I will speak up. How is that?

PN45

MR RANKIN: Thank you, your Honour.

PN46

THE COMMISSIONER: Yes, Mr Rankin. Who else? Mr Flatt? Mr Rankin, can you hear me?

PN47

MR RANKIN: I can.

PN48

THE COMMISSIONER: You can, yes. Mr Rankin is in Melbourne - in Canberra, sorry. So that is Melbourne on the left. We seem to have dropped out with Melbourne, that is the trouble. We are just trying to - - -

PN49

MR RANKIN: If it can help at all I can call Mr Flatt on his mobile and find out if there is an issue at his end.

PN50

THE COMMISSIONER: Would you be good enough?

PN51

MR RANKIN: Yes, I certainly will.

PN52

THE COMMISSIONER: Thank you.

SHORT ADJOURNMENT [2.29pm]

RESUMED [2.35pm]

PN53

THE COMMISSIONER: Now where is Melbourne? Did Melbourne say hello?

PN54

MR C. FLATTS: Melbourne here, it is Mr Flatt.

PN55

THE COMMISSIONER: You are representing the CEPU, are you?

PN56

MR FLATT: That is correct, Commissioner, yes. On behalf of the Communications, Electrical and Plumbing Union, Electrical Division.

PN57

THE COMMISSIONER: Yes. We've had a bit of a glitch but we will have another go now. Can someone tell me, is this all the parties now to the - I think the last time there was one of the other unions. Who was that, the AMWU - - -

PN58

MR GILL: Yes, the Metal Workers are not represented as I understand it. I don't know if anyone else knows any more than I do about that.

PN59

MR FLATT: I've been talking to Alastair ..... of the AMWU early today because I'm actually attending an ACTU industrial officer's conference here in Melbourne and I think the AMWU have conceded already by letter a while ago, I think that was the position of the AMWU. There should be something on the file, Commissioner, in relation to their views on that.

PN60

THE COMMISSIONER: I see. Okay, then. Well, perhaps, Mr Rodgers, you might give me your idea to start off, where is this at now?

PN61

MR RODGERS: Thank you, Commissioner. There were some outstanding items that we had with the LHMU and my suggestion, if we could would be to go into conference and just discuss the detail of that because I believe that the parties can manage to reach agreement about those outstanding matters. It would seem to be a matter of where they could be incorporated into the award and some gathering of understanding of how the award has been re-drafted since the discussions that I have had with Mr Gill.

PN62

As I understand it, they are the only matters that are outstanding and the other parties are consenting, unless Mr Flatt has any - - -

PN63

MR FLATT: Yes - - -

PN64

THE COMMISSIONER: Just hold on a second, Mr Flatt. When we at the last hearing on 11 November I had a draft and I had had a look at that, I think my chambers received another draft on 18 November and I think we've now got another one of 23 November. I've got copies of e-mails from Mr Flatt talking about some allowance. Is that the one you are talking about?

PN65

MR RODGERS: The district allowance, Commissioner, yes.

PN66

THE COMMISSIONER: Oh, the district allowance.

PN67

MR RODGERS: Sorry, Commissioner there were a number of allowances that Mr Flatt asked for initially which we were able to incorporate. The outstanding allowance was the district allowance of which we would say that it has no application because we don't actually have anyone that would fall under a district allowance and I've gone back to the University in relation to that and there is no one that falls under the application of a district allowance so we don't see that as being - - -

PN68

THE COMMISSIONER: Well, I've got an e-mail from you, Mr Flatt, to Mr Rodgers of 19 November, you cc'd my chambers, saying that you were going through the draft award and you reserved your final position.

PN69

MR FLATT: Yes, that is correct, Commissioner. Just as you are aware from my correspondence, before the last hearing of this matter the CEPU in accordance with directions from ..... Duncan last year undertook this process for the University of WA Award, we with the LHMU went into discussions over a draft award in April this year and actually sent e-mails to the University as I raised in that letter to the Commission. We heard nothing back in relation to this award until 10 minutes before the hearing two weeks ago requesting this adjournment.

PN70

After that adjournment we had discussions with Mr Rodgers in relation to the award. He indicated that he wanted to make the award - well, was seeking to have the award made today. I indicated that from our position and you may be aware this time of year is a very busy time and that we would give it urgency and I looked through the award briefly on the Monday after the hearing and got a number of allowances in a document to the university. Contradictory to what was Mr Rodgers has said, we didn't have all those allowances agreed to. We had some discussions in relation to the applicability of some of them such as the Morgan Abattoir allowance.

PN71

I'm still seeking to have that verified about the operations of the University with our WA branch. We also sent the district allowance, which was another matter that was found in one of the underlying State awards last week. I received an e-mail back from Mr Rodgers yesterday, before I was to get on to a plane for the ACTU industrial officers' conference today, that is why I'm in Melbourne. We just haven't had the opportunity to verify that the university doesn't employ people in the district allowance parameters and that we would be seeking today that this matter be adjourned just for another couple of weeks to finalise some of these last points. I don't see that the CEPU is going to withhold its consent in relation to this award, we just need some further time to go through it.

PN72

It just seems amazing that after six months of no activity we are being a little rushed along here by the university in relation to these allowances and also it is just some of the other provisions we would like to check off. My focus has been on the allowances and we've done some good work on that but there are just some other clauses that we just haven't had the ability to discuss with our WA branch. So our position isn't a consent position and that is why we sent those e-mails along to your Honour's chambers so that you are aware that we were reserving our position and so at the moment we still would like some further time, I can't envisage more than two weeks, to just verify some of these last points that the university has informed us about. So that is where we are really at at the moment and I would leave it to the other unions to put their position.

PN73

THE COMMISSIONER: Thank you, Mr Flatt. Let us hear from Mr Rankin? What is the position with the LMHU?

PN74

MR RANKIN: Thank you, your Honour. The LMHU concurs with Mr Flatts' view about the timing or the process that we've undergone. We were only made aware by our State branch, we were just following a lead that we may have dealt with this matter at an earlier occasion and we hadn't had any contact from the university when we last spoke with Ms McPherson since May and then we've been rushed along. So I've been working quite closely with Mr Gill in our Western Australian branch to try and meet the time lines with the Commission but we do have some outstanding issues and there are some issues that hopefully that we can resolve.

PN75

But whilst we've identified a number of issues, I believe that Mr Gill has researched through the gazettes that have been published in the Western Australian Industrial Commission and have some clauses that we haven't passed across to the university yet simply because we haven't had the opportunity, we've only finalised that research today. So in trying to come to a consent position, you know, today, we've done our best to try and liaise with the university to make sure that all allowable matters that were contained in the underlying awards have been included but we are not absolutely 100 per cent sure and we would agree to move along the path suggested by Mr Flatts of the CEPU.

PN76

I would like the opportunity to further look at the award to make sure that there are clauses or that there aren't any clauses that are now applying to workers that come under these underlying State awards that shouldn't apply to them. And that has been the case in a number of other awards where there have been amalgamations over time, but we simply haven't had the - well, I haven't had the opportunity to give it that sort of fine tooth comb research.

PN77

THE COMMISSIONER: Okay. Thanks, Mr Rankin. Have you got anything further that you want to add to that, Mr Gill, or is that - - -

PN78

MR GILL: Yes, thank you, Commissioner. I have been working closely with Mr Rodgers in relation to passing along to him the clauses within the, what we say are the relevant underlying awards that will eventually be rolled up into this award. I'm not sure if a copy of this e-mail was cc'd to yourself. It is just an indication of what, given the time limit - - -

PN79

THE COMMISSIONER: Yes, I've got that. Thank you.

PN80

MR GILL: Yes. I also, just to make it a little easier in relation to the exercise of bringing across those particular conditions into this new award, supplied a list of clauses that we would be looking at relying on. Obviously they will need some further attention in terms of the re-drafting. But I have been working on that as you can see, over the past weeks and we are really in a position where although we've given it our best shot, the short timeframe has left us in a position where we just aren't sure whether we have covered all of the terms and conditions that we say should be incorporated into the award.

PN81

THE COMMISSIONER: Okay, then. Thanks for that, Mr Gill? Ms Vandenhenrick, how are you placed with this?

PN82

MS van den HERICK: Commissioner, our outstanding issue on casuals, sir, on the insertion of the casuals' clause is now resolved.

PN83

THE COMMISSIONER: I see, okay.

PN84

MS van den HERICK: So we don't have any outstanding issues but there is no way that we are going to prejudice the interests of fellow employees and unions.

PN85

THE COMMISSIONER: Thanks, Ms Vandenhenrick. Yes, Ms Scoble? Have you got anything?

PN86

MS SCOBLE: Thank you, Commissioner. I haven't anything to add except we don't have any objection to the matter being adjourned for a couple of weeks.

PN87

THE COMMISSIONER: Have you got many matters that you are querying or are you a bit like the CPSU? So far nothing is particularly - - -

PN88

MS SCOBLE: Well, sir, I have to admit I haven't been able to give this probably the attention it deserves due to being involved in a rather complex and lengthy industrial dispute at present, but hopefully that should be sorted out soon.

PN89

THE COMMISSIONER: It is simple, sort out the dispute. Okay.

PN90

MS SCOBLE: If only it was that easy, sir.

PN91

THE COMMISSIONER: Mr Rodgers, I think the way forward is to sort of is to - I will issue a direction or something that the parties confer and by a particular date I want either, I want to know what is agreed and I want to know, so I want either a draft award which everybody has agreed to or I want that as well as a list of what is not agreed to. And if something is not agreed to, left hand side and right hand side, so I can sort of get my grip around this. Yes, I understand that as I said last time, everybody is busy and these things aren't necessarily the top of the priority but I think if we can do that, this is a far better way forward, isn't it? It is just a question of how long would be needed now. If we can just agree on a date that those, you know, when - I will issue a direction to that effect but I just wanted to get some idea of what that date will be.

PN92

Once I have got that final document, I just need to get, you know, we need to go through it ourselves and then set down for a hearing thereafter. At the moment I'm just wondering, let us pick a date, say parties to confer and to provide the Commission with, you know, an agreed document and/or those matters which are a disagreement actually, how long. I'm just looking to you, I'm just looking to everybody really, Mr Rankin, Mr Gill, Mr Flatts. You know we will need to get this out of the road before we get into the Christmas season, don't we? Otherwise it is just going to go on and on.

PN93

MR GILL: Commissioner, I think the parties are very close in relation to the issues that the LHMU raise and we had some brief discussions about that this afternoon and I think we can resolve those issues fairly much within this week, it is just a matter of work and some drafting. I need to get an idea from Mr Flatts in relation to what his concerns are. If he wants to note that we only have officers in Geraldton and Albany and that they fall outside of the district allowance but I'm happy to be corrected on that by one of his good members. The other allowances that have been raised again have no application. So that we really don't have a, I would say, a substantive matter to deal with and it is all about cleaning up some clauses and I would hope that that would not take longer than a week.

PN94

THE COMMISSIONER: Let us just hear from Mr Flatts about his availability? How are you placed at the moment, Mr Flatts? Have you got time to meet and confer with Mr Rodgers? I feel like just saying - - -

PN95

MR FLATTS: I won't be meeting with Mr Rodgers in Western Australia, but the other issue is that I, looking at my diary, I actually am flying to Perth on the week of 13 December. So if need be, so a meeting could be arranged but as Mr Rodgers has stated there is mainly a tidying up exercise and as Mr Rankin has indicated, just going through a number of those underlying awards and I just wanted to sort of make it clear that the unions aren't dragging their feet, it is just that the allowances section was the one we've started with. That is not to mean that there may be other sections we have to revisit but we are hoping we won't. It is just that in the short time frame the allowances took priority and we've at least got on to that so we could be working on some area of the award.

PN96

So my availability is rather - is full over the next few weeks but I could probably, as I said before, if need be around 13 December we should be in a position to have some form of agreed document if not consent to the whole award. As the Commissioner has indicated we want to get this wrapped up before the Christmas rush and close down and every other area. But on some of those allowances, such as the district allowance there are issues that may be applicable at some time in the future as well. And so we are concerned about possibly prejudicing future members rights as they currently stand. So around the week of 13 December I would say we would be in a better position to get back to the Commission.

PN97

MR RODGERS: Commissioner, I would just like to put something on the record and in particular in relation to the LHMU, that we sent this information out over 10 months ago and had very little response and none of these allowances that are now being raised, were not raised with us at that point. So I think it is untrue to be saying that the university is being - has left this to the last minute. We gave the parties a lot of opportunities and, in fact, Mr Flatts may be aware that this award has no application as it currently stands because we have a comprehensive agreement. One of the issues that I raised in the last hearing was to be able to, if there are issues that we can deal with during the course of some further negotiations outside of the making of this award, in fact, the Miscellaneous Workers Union are a party to the negotiations that we are currently having at an enterprise level. But be that as it may, I don't believe there is that amount of time. I don't think leaving this matter for another three weeks is going to benefit anyone. It just means that we are putting the matter off rather than dealing with it expeditiously.

PN98

THE COMMISSIONER: Okay. Thanks very much on that. What I propose to direct the parties to confer and amongst themselves circulate documents such that by no later than Thursday, 16 December, I request that Mr Rodgers provide me with a copy of the document which has been agreed - in all respects, that has been agreed to by all of the unions and also a schedule which summarises any matters that are in dispute at that time, so it would be left hand side what the university has proposed and right hand, the changes. Basically, hopefully that list is a very short list, maybe a nil list.

PN99

That gives you enough time to do things over the phone and circulate something, talk to Mr Flatts over the phone. Anything outstanding knock it off on the 13th when he is here and then that gives you a couple of days to get the paperwork to Kay. Has anybody got any problems with that time line? I think, yes, it has got to keep going and that doesn't mean to say that nothing should happen until the week of the 13th, of course, otherwise we will be in the same position again. Okay? We will just go around. Mr Flatts, that is okay with you? You will give it some priority and you will have telephone discussions with Mr Rodgers?

PN100

MR FLATTS: Commissioner, the CEPU has been giving it priority through the whole process and, you know, there was an e-mail of 21 April I could provide to the Commission and Mr Rodgers, if necessary showing what we had suggested needed to be done. But going forward, yes, that is fine and we have been given a priority and we will be continuing with looking through the award when we are actually in the office, so that is good.

PN101

THE COMMISSIONER: Thank you, Mr Flatts. Mr Rankin?

PN102

MR RANKIN: The LHMU National Office has no objection to the directions that the Commission have put. Once again, we concur with Mr Flatts, you know, we've had no contact since May and I think my contact with Ms McPherson in May it was left to her when we pointed her to the awards and the clauses that needed to be included in the award that was put forward to the Commission.

PN103

THE COMMISSIONER: Mr Gill, nothing to add, have you?

PN104

MR GILL: Nothing to add, sir.

PN105

THE COMMISSIONER: Yes. Ms Vandenhenrick? No? And Ms Scoble?

PN106

MS SCOBLE: No, sir.

PN107

THE COMMISSIONER: Very well. So let us think positive. What will happen is if I get that document by no later than then that will allow us sufficient time for my chambers to look at it and Kay will then get back to all of you for a time of hearing. Very well, thank you very much. This matter is adjourned.

ADJOURNED INDEFINITELY [2.57pm]