C2004/6754, Transcript of Proceedings [2004] AIRCTrans 4829 (10 December 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 9294

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LLOYD

C2004/6754

APPLICATION FOR AN AWARD

Application pursuant to section 111(1)(b)
of the Act by National Tertiary Education
Industry Union for an award

MELBOURNE

2.11 PM, WEDNESDAY, 1 DECEMBER 2004

Continued from 30.11.04 not transcribed

PN1

MR R. THOMAS: I appear on behalf of the NTEU.

PN2

MS R. TREVASKIS: I am from AHEIA. I seek leave to appear on behalf of the Australian Human Resources Institute.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. Any objection to leave?

PN4

MR THOMAS: None at all, your Honour.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, Mr Thomas?

PN6

MR THOMAS: Okay, thank you. Thank you, your Honour. If the Commission pleases. This, as stated, is an application by the NTEU under section 111(1)(b) of the Act for the making of an award between the NTEU and the Australian Human Resources Institute. This is a consent application so the subject matter of the award finally before you is a consent document. The Australian Human Resources Institute is the subject of a dispute finding with NTEU and that number is C2003/1976. The wages and conditions of employment of the employees of AHRI are not regulated by an award at this stage but the purpose of this application is to achieve that as stated.

PN7

This is a first award for AHRI and as such the award reflects the first award principles that were established in the Safety Net Review (Wages) Decision of 2001 and I make particular reference to section 88A of the Act which are the objects and that we assert that this award meets that objects. And, again, at 88B(3) the wage relative, is the wages contained in this application are derived from the HEW (Vic) Interim Award which is the generic award for general staff employees in or in connection with a higher education industry in Victoria.

PN8

The award itself certainly complies and falls within the scope of section 89A of the Act in that it is restricted to the 20 allowable matters as they exist today. And, certainly, reference to clause 7 of the award which is the dispute settling procedure to deal with disputes between the parties. And further, with reference to the requirements of section 143(1)(b) of the Act, this application and the matters of the award do not restrict or hinder work practices in any way. Most of the conditions or provisions of this award comply with test case standards or industry standards.

PN9

But I will draw your attention to clause 20 which is the provision of paid maternity leave. There is six weeks paid maternity leave in this award which is - whilst above test case standards is certainly below the industry award standards as it exists within or in connection of higher education where the standard in our industry tends to be 12 weeks of paid maternity leave. The - - -

PN10

THE SENIOR DEPUTY PRESIDENT: Is that in awards, you say? Not in agreements, in awards?

PN11

MR THOMAS: No, that is in the awards. In the agreements our standard has now reached 26 weeks, your Honour. It will be a while before we make an application to get that into the award. As your Honour may well be aware, the draft application that was initially submitted to the Commission contained a few typographical errors and after - between yesterday morning and today they have been addressed and fixed and I might bring your Honour's attention to a number of particular clauses. Certainly in clause 6.2, which is the anti-discrimination clause, there was a cross-reference to the dispute resolution procedures but it had mistakenly referred to clause 8 when it is in fact clause 7.

PN12

That has been addressed. In clause 8.4.3, which is part of the clause that deals with casual employment, the titles of the indicated clauses there have been fixed to show - to reflect the actual names of the clauses themselves within the agreement and they have been re-ordered into numerical order. Similarly, in clause 10.3, as part of the hours of work, there was a doubling up of the word 'in' so one of the 'in's was removed and there is now only one "in" in that clause, your Honour. Similarly, in clause 16, under redundancy, that clause is in fact the test case clause.

PN13

There were extra words added at one of the dot points in 16.1.5. Those extra words have been removed so it does, in fact, reflect the test case standard. And then, finally, clause 19, carer's leave, 19.1, it did - it had referred to, "a member of the his/her family". The word 'the' was deleted to ensure some form of clear expression. I hope - I think that they may have - might have addressed the typos and some of the inconsistencies that have been picked up by various parties to that matter, your Honour. One final thing.

PN14

The requirement of the Act is the - for applications of consent award, a statement of authorisation under rule 20 of the Act. With the original application, you - there would have been a statement of consent signed by Graham McCulloch, the General Secretary of the NTEU, dated 19 November. And it is my understanding that the Australian Human Resources Institute will be furnishing the Commission will a similar statement of authorisation today. I think that covers the range of issues that the NTEU needs to deal with at present, your Honour.

PN15

And, pending the representation of AHRI, we would seek that the Commission exercise its authority under section 111(1)(b) and make this consent award. If your Honour pleases.

PN16

THE SENIOR DEPUTY PRESIDENT: Mr Thomas, clause 20, the parental leave matter.

PN17

MR THOMAS: Clause 20?

PN18

THE SENIOR DEPUTY PRESIDENT: Yes. Now, you mentioned, I think, that there was a variation from the test case standard.

PN19

MR THOMAS: Yes.

PN20

THE SENIOR DEPUTY PRESIDENT: Was that in respect of clause 20.1.1(a), is that right?

PN21

MR THOMAS: In - yes, that is correct. In relation to the amount of paid maternity leave available, your Honour.

PN22

THE SENIOR DEPUTY PRESIDENT: Right. Can you refresh me? What is the amount of paid leave in the test case standard?

PN23

MR THOMAS: Zero, your Honour.

PN24

THE SENIOR DEPUTY PRESIDENT: Zero, yes.

PN25

MR THOMAS: It is - the Act provides for 52 weeks unpaid leave and - which is still the - I suppose, the entry point standard, if you can call it that. But, certainly, paid leave in an award is not an uniform standard in the country.

PN26

THE SENIOR DEPUTY PRESIDENT: There is a procedure which I think involves section 107 of the Act if an award is being varied which differs from a test case standard. As I understand, your submission was that in the industry, in other awards - - -

PN27

MR THOMAS: Yes, in higher education industry.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes, there is awards incorporating this type of clause with a standard of paid leave above six weeks?

PN29

MR THOMAS: Yes. The - of 12 weeks is a generic provision within our awards.

PN30

THE SENIOR DEPUTY PRESIDENT: Do you know if that was considered through a section 107 type procedure at all?

PN31

MR THOMAS: That is section - sorry, I couldn't quite - - -

PN32

THE SENIOR DEPUTY PRESIDENT: I think it is - well, in test case standards and the principles says that if there is a disagreement, it says, about whether a claim involves a test case standard there follows, if you like, an application under section 107 and the President then decides whether the matter should be dealt with by a Full Bench. We are going through some of those processes with giving effect to the recent redundancy test case standard - - -

PN33

MR THOMAS: Yes.

PN34

THE SENIOR DEPUTY PRESIDENT: - - - where there is a departure from the test case decision.

PN35

MR THOMAS: Does that apply in relation to a consent application as well - in the same way?

PN36

THE SENIOR DEPUTY PRESIDENT: Yes, I think so. Yes. And I think that it is incumbent on the Commission to be very careful given our minimum - the safety net nature of the awards has to be very careful about departing from a test case standard.

PN37

MR THOMAS: Yes. We - I mean, we - if - I mean, I understand the technicalities of the reference to the Full Bench but whether or not - if your Honour requires some form of further submission to indicate the examples and refer to the appropriate awards, I am sure we could - we would be more than happy to do that if that is the requirement.

PN38

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Thomas. I will think about that. I just might hear from Ms Trevaskis now.

PN39

MR THOMAS: Thank you.

PN40

MS TREVASKIS: Your Honour, if the Commission pleases. I am instructed on behalf of AHRI to concur with Mr Thomas' submission and to consent to the award being made in the terms applied for. I have the rule 20 - insofar as the referral under section 107, I must admit to only getting these instructions this morning and haven't read the award in its entirety and that is as far as I can take the Commission in that. If the Commission pleases.

PN41

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, Ms Trevaskis, can I take you to clause 27. Mr Thomas might be able to help me out on this as well but I will ask you first because you are appearing for AHRi. The public holidays are stated as those consented by the Victorian government. Does AHRI only operate in Victoria.

PN42

MS TREVASKIS: Sorry, your Honour. Yes, AHRI does only operate in Victoria.

PN43

THE SENIOR DEPUTY PRESIDENT: Right, okay. Yes?

PN44

MR THOMAS: AHRI is - I think, Burke Street is their postal address and they are a corporate entity who are owned 100 per cent by Deakin University.

PN45

THE SENIOR DEPUTY PRESIDENT: Okay. Thank you. Now, Mr Thomas, given your submission that other awards in the higher education industry incorporate paid parental leave of greater than six weeks - paid maternity leave, I consider that that satisfies the safety net requirements - - -

PN46

MR THOMAS: Yes.

PN47

THE SENIOR DEPUTY PRESIDENT: - - - of the various provisions about the making of awards. And I don't think we need to take the issue any further.

PN48

MR THOMAS: Okay.

PN49

THE SENIOR DEPUTY PRESIDENT: An application was made pursuant to section 111(1)(b) of the Workplace Relations Act for the making of an award by a consent of the parties. The award is to be known as the Australian Human Resources Institute Award 2004. It is the product extensive negotiations and discussions between the union and the institute and they are to be congratulated on satisfactorily concluding the exercise. I am satisfied that the award meets the requirements of section 143 of the Act.

PN50

I am further satisfied that the award is consistent with the proper application of principle 11, first award and extension of an existing award contained in the Safety Net Statement of Principles, the Full Bench decision of - in print RS - sorry, go to that print number, thank you - the Safety Net - the Full Bench Safety Net decision. The parties have filed a final proposed award. I will confirm this decision of mine in an order to take effect on or after 1 December 2004 and to remain in force for a period of 12 months. The Commission is adjourned.

ADJOURNED INDEFINITELY [2.30pm]