C0075/598, Transcript of Proceedings [2004] AIRCTrans 473 (5 February 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N F8934

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C No 00755 of 1998
C No 00757 of 1998
C No 00761 of 1998
C No 00762 of 1998
C No 00766 of 1988
C No 00767 of 1998
C No 00939 of 1999

THE AUSTRALIAN NATIONAL UNIVERSITY EMPLOYEES
(GENERAL CONDITIONS OF EMPLOYMENT) AWARD 1980

AUSTRALIAN NATIONAL UNIVERSITY STAFF (SPECIFIC CONDITIONS AND SALARIES) AWARD 1981

AUSTRALIAN NATIONAL UNIVERSITY MAINTENANCE STAFF (SPECIFIC CONDITIONS AND SALARIES) AWARD 1989

AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS
WORKERS UNION - ANU CLEANERS, SECURITY OFFICERS,
ETCETERA (SPECIFIC CONDITIONS AND SALARIES) AWARD 1988

LIQUOR AND ALLIED TRADES, ANU (SPECIFIC) CONDITIONS
AND SALARIES) AWARD 1980

METALS AND ENGINEERING WORKERS UNION - ANU TECHNICAL STAFF (SPECIFIC CONDITIONS AND SALARIES)
AWARD 1980

ANU ADMINISTRATIVE, MANAGERIAL AND EXECUTIVE STAFF
(SPECIFIC CONDITIONS AND SALARIES) AWARD 1982

Reviews under Item 51 Schedule 5,
Transitional WROLA Act 1996 re review

C2003/2786
C2003/2787
C2003/2789
C2003/2790
C2003/2791
C2003/2793

AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS
WORKERS UNION - ANU CLEANERS, SECURITY OFFICERS
ETCETERA (SPECIFIC CONDITIONS AND SALARIES) AWARD 1988

ANU ADMINISTRATIVE, MANAGERIAL AND EXECUTIVE STAFF
(SPECIFIC CONDITIONS AND SALARIES) AWARD 1982

AUSTRALIAN NATIONAL UNIVERSITY MAINTENANCE STAFF
(SPECIFIC CONDITIONS AND SALARIES) AWARD 1989

AUSTRALIAN NATIONAL UNIVERSITY STAFF (SPECIFIC
CONDITIONS AND SALARIES) AWARD 1981

LIQUOR AND ALLIED TRADES, ANU (SPECIFIC
CONDITIONS AND SALARIES) AWARD 1980

METALS AND ENGINEERING WORKERS UNION - ANU TECHNICAL STAFF (SPECIFIC CONDITIONS AND SALARIES)
AWARD 1980

Applications under section 113 of the Act
by The Australian National University to vary
the above awards re safety net review - May 2002 and 2003

C2004/1417
C2004/1418

LIQUOR AND ALLIED TRADES, ANU (SPECIFIC CONDITIONS
AND SALARIES) AWARD 1980

AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS
WORKERS UNION - ANU CLEANERS, SECURITY OFFICERS
ETCETERA (SPECIFIC CONDITIONS AND SALARIES)
AWARD 1988

Applications under section 113 of the Act
by Australian Liquor, Hospitality and Miscellaneous
Workers Union to vary the above awards re salaries
and classifications

SYDNEY

9.45 AM, TUESDAY, 27 JANUARY 2004

Continued from 6.11.03

THESE PROCEEDINGS WERE CONDUCTED BY VIDEO CONFERENCE IN SYDNEY

PN305

THE SENIOR DEPUTY PRESIDENT: Good morning everybody. The last time some of these matters were before the Commission was 6 November 2003 when today was appointed for a further report back. For the purposes of keeping the transcript in some form of order, we'll adopt the same basic approach as we have previously. That is the item 51 matters will be the lead matters and the report will deal totally with the specific item 51 matter and related section 113 matters. Some of which have been filed for some time, a couple of which are quite recent files, but they will all be dealt with under the heading of the relevant item 51 C number. Are there any variations to appearances?

PN306

MS COOPER: No, your Honour, not in Canberra.

PN307

THE SENIOR DEPUTY PRESIDENT: I don't think there are in Sydney either.

PN308

MR KENTISH: If it pleases, your Honour, today I also appear on behalf of the CEPU.

PN309

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Kentish.

PN310

The first one is C No 7005 of 1998, The Australian National University Employees General Conditions of Employment Award 1980. Ms Cooper I rely on you to link if you will the relevant section 113 numbers to that matter.

PN311

MS COOPER: Yes, your Honour. There is actually no 113 applications for that matter. Primarily because the 113 applications that the ANU put forward were to increase the salaries by the safety net adjustment. That Award doesn't actually contain salaries. So for that one it is just the 755 of 1998. Would you like me to just give you a brief update on what has been happening?

PN312

THE SENIOR DEPUTY PRESIDENT: I would and then the other parties can speak after you.

PN313

MS COOPER: With regard to that particular Award, the General Conditions of Employment Award, we haven't had much progress at all unfortunately. The main outstanding issues are those that we discussed last time which is the parental leave, the redundancy and the citizen forces training. We did receive information from your associate - Mr Stephen Stone - about the citizen forces training which did help out with that matter. I thank Stephen for that.

PN314

With regard to the parental leave clause, and the redundancy clause, there is quite a complicated drafting exercise which is complicated further by the casuals case that has been going in the sector and the issue of the eligible casuals in the parental leave clause and the proposed inclusion of the conversion mechanism into these Awards. So there has been a bit of a delay on the drafting of that clause which has held up that Award, unfortunately.

PN315

THE SENIOR DEPUTY PRESIDENT: I see. There are no union representatives in Canberra so, Mr Kentish, have you got anything to add to that?

PN316

MR KENTISH: Your Honour, I have nothing further to add to that on behalf of the AMWU or the CEPU.

PN317

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Rankin?

PN318

MR RANKIN: Your Honour, I guess the only - being that this matter was some time ago and only refreshing my memory last week where we are at, and reading the comments that I had sent Ms Cooper last year, especially in regard to parental leave, I need to have a further look into that. But to put forward that the LHMU has a position that it is opposed to people being forced to provide doctor's certificates at their own personal cost. Especially in today's circumstances where bulk billing is not readily available in all sectors of the community. I just thought that I would put that on transcript.

PN319

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Tyrrell?

PN320

MR TYRRELL: Senior Deputy President, the HSUA has nothing to add to Ms Cooper's points.

PN321

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Tyrrell. Does that mean that this one will have to be handed back to the parties for further discussions in these items that Ms Cooper has flagged? There are nods at this end, Ms Cooper.

PN322

MS COOPER: Yes, your Honour, I would have thought so too. Just for your knowledge, the ANUs Enterprise Agreement has just been wrapped up. So my time can be better used to this purpose, so it should be a lot quicker process from this point on, hopefully.

PN323

THE SENIOR DEPUTY PRESIDENT: As you say, hopefully, Ms Cooper. We will see how we go. The next one, in order, is C No 00756 of 1998.

PN324

MS COOPER: Your Honour, I have got 757 as next.

PN325

THE SENIOR DEPUTY PRESIDENT: Yes, I was going from the old transcript and it has got 756 but the files I have in front of me, the next one is 757. The ANU Staff (Specific Conditions and Salaries) Award 1981.

PN326

MS COOPER: Yes, I believe that 756 was the Gardiners Award which we were able to finalise last year.

PN327

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN328

MS COOPER: No 757, your Honour, which is the Australian National University's Staff Award. That is related to C No 2790 of 2003. It was a safety net adjustment application. Again, the outstanding issue on this matter was the parental leave clause. What the parties had proposed was if this Award was simplified first then that clause would be incorporated into this Award. If the general conditions Award was simplified first there would be a connection to it. So the same response as with the General Conditions Award; the issue is still being drafted. So there has not been much progress on this one, unfortunately.

PN329

THE SENIOR DEPUTY PRESIDENT: Does anyone on the union side want to add to that? No. All right then. That is noted, Ms Cooper.

PN330

MS COOPER: Thank you, your Honour.

PN331

THE SENIOR DEPUTY PRESIDENT: The next one is C No 00761 of 1998.

PN332

MS COOPER: Thank you, your Honour. The relevant section 113 application is 2789 of 2003. Since our last report back I have been given an indication from both the CEPU AND THE CFMEU that they are satisfied with the draft order. On 20 January I forwarded the draft order to yourself for your consideration to hopefully finalise the matter.

PN333

THE SENIOR DEPUTY PRESIDENT: Let me just check that I have got that - 20 January. Yes, I have. I think what we have to do is check it for layout and we will attend to that. But I will note that - and I don't hear any union voice to the contrary - I note that this particular Award the ANU Maintenance Staff (Specific Conditions and Salaries) Award 1989 is the subject of a final draft which is to be considered by the Commission. And C2003/2789 effectively will, when granted - and it can be taken that it will be granted - will bring the rates in it up to the May 2003 SNA adjustment.

PN334

MS COOPER: Thank you, your Honour.

PN335

THE SENIOR DEPUTY PRESIDENT: The next one is C No 00762 of 1998. The ALHMWU-ANU Cleaners, Security Officers, Etcetera (Specific Conditions and Salaries) Award 1988. Ms Cooper?

PN336

MS COOPER: Thank you, your Honour. The relevant section 113 application in relation to this are the 2786 of 2003 which is the application for the Safety Net Adjustment to be added on and 1418 of 2004 which is the LHMUs application that came through last week. Your Honour, the University has forwarded to you its version of what it believes is the simplified version of this award should be. We understand that the LHMU have put on an application to vary the award, but it's our position that that should not holt this exercise and in fact the version that the ANU has submitted corresponds to the same structure that you've taken with regards to the Gardener's Award, the Maintenance Award and the Printing Award which I'll speak to soon and we believe that it is as equally relevant to this award - that salary structure.

PN337

The other thing that taking the ANUs version at this point will do, will limit the issues for argument in the application to vary the award just to basically whether or not the ANU officer four to ten or the U levels four to ten from the Higher Education Federal Staff Salaries and Classifications Award 2002 should be added to this award.

PN338

THE SENIOR DEPUTY PRESIDENT: Yes, that's the whole purport of 1418, is it not?

PN339

MS COOPER: Well, that's the only real matter of disagreement between the parties.

PN340

THE SENIOR DEPUTY PRESIDENT: Of contention, I see. What do you say, Mr Rankin?

PN341

MR RANKIN: Thank you, your Honour. The LHMU does not consent at all to the proposed award with the salary structures that have been proposed by the ANU. We have members within that university that we believe have a work value of greater than level 3 in both hospitality and in the Security and Cleaning Award. Now, we believe that this process is a process by pigeonholing our members when the Institutional Specific Award is made, in only limiting those workers to three bands. What we've been told by Ms Cooper in the past is that this industry's specific award only applies to people in levels 1, 2 and 3 and then they move them out of that award to another award which is entirely inappropriate for an institutional specific award.

PN342

These Salary Structure and Classification Levels apply to security and cleaners in other awards made by this Commission. It's not entirely inappropriate for us to discuss a full range of U levels that give these people a proper career structure within this award. There is also the issue that these particular individuals, as I note in the award, do not have necessarily leading hand allowances and level 3 may require someone to supervise. This is another issue being that from level 4 you have supervisory levels. There are shift supervisors. There are area managers for those particular job families as such, so they do extend greater than a level 3 in the particular award and that's why the application needed to be made.

PN343

On the other hand, we are willing to talk to the ANU to make sure that these particular classifications are included to ensure that the awards are inclusive of the right amount of classifications. We may concede at some point that some of those workers may not get to a U level 10, but at this point we think it's appropriate that they have the opportunity, like everyone else within the university sector, to move through that classification structure according to their skill base. We also wish to flag that the Gardener's Award and the award that covers the printers are going to be spoken to a little bit later.

PN344

Those awards were made by consent with the parties and from my conversations with the relevant unions they believe that their people wouldn't be stepping outside of those structures anyway and we believe our people do extend above level 3. The other option that we've possibly got open to us if we've moved through a work value case to determine where these people sit. Now, that's not necessarily the most appropriate course of action. It would be very time consuming and costly to the parties. We don't necessarily want to do that, but feel like it might have to be an option if we can't reach consensus because of this particular paid rate award. It's not being varied to incorporate a U level structure that was agreed upon by the parties in the first place.

PN345

Now, in saying all that, the LHMU wants to resolve this matter as quickly as it possibly can and we want to be able to incorporate the appropriate career structures so that when we do get to a point where we have to merge them into the one institutional award, as Ms Cooper said we don't have to have the arguments about where people sit, however, at the moment, what would be argued by the ANU if we go down this particular path that they're proposing, is that security and cleaners and the other people incorporated by that award will only ever fit into that three level structure. So that clause will only apply to them and there will just be an amalgam of these awards where that would just add to confusion in terms of where people sit in the long term moving forward.

PN346

Now, it has also been put to me that this particular application might be seeking to extend an existing award or award provisions under the item 51 review, however we believe that the Commission has the power to determine or to include this particular variation under, I think it is item 51(4) being that it was a paid rates award and, as such, they were not intended to operate as minimum rates whereas these particular ones that we're proposing be included are properly fixed minimum rates and it's a classification structure that's appropriate to the industry. I think I'll leave it at that for the minute.

PN347

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Rankin. I'll give that some thought. Do you want to make any brief response, Ms Cooper?

PN348

MS COOPER: Yes, your Honour, just that the ANU is also very willing to sit down and talk to LHMU about these matters prior to any further hearing or possible work value case. In fact we thought that we were going to have further discussions on this matter, but then received the section 113 application instead. So, it's just the fact that the ANU is willing to discuss the matter further.

PN349

THE SENIOR DEPUTY PRESIDENT: The LHMU shot first and asked questions later, did it?

PN350

MS COOPER: That's right.

PN351

MR RANKIN: It was a very quiet Christmas period.

PN352

THE SENIOR DEPUTY PRESIDENT: What I'll do is, I'll just make sure the record shows the only union involved in this award is the LHMU, that's my understanding. I direct that the ANU and the LHMU confer about the matters that have been raised by Mr Rankin and addressed by Ms Cooper. I say nothing more about it at this stage with one exception and that is while I make no ruling generally about the order in which an item 51 simplification should proceed when there's a matter that is arguably an additional matter to be dealt with. I do specifically say that if we get to the stage of a work value case, this award will be simplified on its current basis before the work value case is finished.

PN353

I can't let the extra items so delay this particular item 51 matter that - well, you may have to get another member of the Commission to deal with it. I may no longer be around. That's that one. The next one is 766 of 1998 the Liquor and Allied Trades ANU Specific Conditions and Salaries Award 1980. There appears to be a draft in this one Ms Cooper.

PN354

MS COOPER: Yes, thank you, your Honour. With regard to 766 of 1998 the relevant 113 applications are 2791 of 2003 which is the application for the additional safety net adjustment and 1417 of 2004. Your Honour our statements and arguments in relation to this award actually mirror the previous ones so we've got nothing further to add except what we've said in relation to 762 and its corresponding 113 applications.

PN355

THE SENIOR DEPUTY PRESIDENT: 762?

PN356

MS COOPER: Sorry, the one - - -

PN357

THE SENIOR DEPUTY PRESIDENT: Yes, of course, because it has got in C 2004/1417 it's got a similar point that is raised in the 762 series of applications.

PN358

MS COOPER: That's right your Honour.

PN359

THE SENIOR DEPUTY PRESIDENT: Mr Rankin, I think you are involved in this. You are not Mr Kentish are you?

PN360

MR KENTISH: No.

PN361

THE SENIOR DEPUTY PRESIDENT: Mr Rankin, is that?

PN362

MR RANKIN: Thank you your Honour. Our arguments and comments are pretty much similar to the previous matter being discussed. The only other sort of comment I wish to make and I probably should have made it prior to, was that the other option that is available to us is to refer in these particular matters back to the HECS Award for the salaries and classification structure whilst we are trying to sort this matter out. The reason - - -

PN363

THE SENIOR DEPUTY PRESIDENT: That can be the subject of discussion with the ANU.

PN364

MR RANKIN: Yes. The reason I say that is because within the drafts that have been put to you the classification levels have been referred to the HECS Award in terms of the descriptors which wouldn't be moving too far away from the ANU position on that at present so that's the other thing that I would add in the two matters.

PN365

THE SENIOR DEPUTY PRESIDENT: All right then, well that means that comment applies to the 762 series of applications as well and I issue the same direction with the same comment as I have in 762 of 1998. The next one I've got is - - -

PN366

MS COOPER: Excuse me your Honour. May I just make comment in relation to that?

PN367

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Cooper.

PN368

MS COOPER: It is the ANUs view that simply referring to that award would have exactly the same effect as incorporating the entire structure which is the issue of debate here. So that wouldn't resolve the issue.

PN369

THE SENIOR DEPUTY PRESIDENT: All right, I note that. The next one I have is 767 of 1998 the Metals and Engineering Workers Union ANU Technical Staff Specific Conditions and Salaries Award 1980. Ms Cooper?

PN370

MS COOPER: Thank you your Honour. The section 113 application relevant to this award is 2793 of 2003. Your Honour this falls under the same category as the staff award and the general conditions award in that the major outstanding issue is the parental leave clause which is still being drafted and hopefully will be finalised soon.

PN371

THE SENIOR DEPUTY PRESIDENT: I see. Mr Kentish?

PN372

MR KENTISH: Your Honour the AMWU has nothing to add there. The parental leave clause is the clause which is outstanding there. It is a difficult clause to draft and certainly the AMWU looks forward to receiving a fresh draft from the ANU and we will endeavour to give that the tick off as soon as possible.

PN373

THE SENIOR DEPUTY PRESIDENT: Very well, thanks Mr Kentish. That's that one. The next one I have is C 00939 of 1999 the ANU Administrative Managerial and Executive Staff Specific Conditions and Salaries Award 1982. There is a draft in that also I believe Ms Cooper.

PN374

MS COOPER: Yes, your Honour, I forwarded the draft to the NTU late Friday afternoon and indicated to them that I didn't wish to talk to the specifics of it because obviously they hadn't had enough time to read through it but just to indicate that there was a new draft on the table which hopefully deals with some of the issues that the NTEU had concerns about last time. In particular they were concerned about where the salaries had come from and how they corresponded to the Higher Education General Staff Salaries and Classifications Award and I actually found that what I think could have been the concern was that there was a mistake in 12.3 which read that the:

PN375

The ...(reads)... levels 1 to 10 correspond to the ANU officers levels 1 to 10.

PN376

But it actually should have read 2 to 10. And what actually made that a little bit more difficult to see that we already added the safety net adjustment to those figures so that weren't easily identifiable when you looked at the HECS Salaries and Classifications Award. So I've sent an email to Mr Thomas at the NTU outlining those issues and we are hoping to progress the matter as soon as possible.

PN377

THE SENIOR DEPUTY PRESIDENT: I see. That doesn't have an SNA file travelling with it, is that right?

PN378

MS COOPER: Sorry, your Honour, forget to say, yes it's 2787 of 2003 and that's why the draft has already incorporated the higher salary rates, sorry.

PN379

THE SENIOR DEPUTY PRESIDENT: I see, 2787, right. Now, I don't know what has happened in the Commission but I've got an orphan file filed on 17 September 2003, an application to vary the ANU Staff Specific Conditions and Salaries Award 2790.

PN380

MS COOPER: Sorry, your Honour that relates to 757 of 1998.

PN381

THE SENIOR DEPUTY PRESIDENT: 757 of 1998 right. I don't believe there is anything more to report. Am I correct?

PN382

MS COOPER: Yes, your Honour.

PN383

THE SENIOR DEPUTY PRESIDENT: We'll go off record to determine what we do.

OFF THE RECORD [10.11am]

RESUMED [10.14am]

PN384

THE SENIOR DEPUTY PRESIDENT: The report which has been taken in transcript speaks for itself. It is obvious that a further report will be necessary. I fix Friday, 27 February at 4 pm for that purpose. It will be another video hearing for the purposes of the report. I adjourn these matters in accordance with that arrangement.

ADJOURNED UNTIL FRIDAY, 27 FEBRUARY 2004 [10.15am]