D2003/40, Transcript of Proceedings [2004] AIRCTrans 5001 (21 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
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Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N 9392

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

D2003/40

APPLICATION UNDER SECTION 158(1) OF
THE ACT RAO SCHEDULE BY AUSTRALIAN
EDUCATION UNION FOR ALTERATION OF
ELIGIBILITY RULES

OBJECTIONS THERETO

MELBOURNE

11.35 AM, THURSDAY, 9 DECEMBER 2004

Continued from 20.7.04

PN101

MS L. GALE: If your Honour pleases, I appear for the AEU.

PN102

MR M. PERICA: If your Honour pleases, Mark Perica in Melbourne and David Mendelsohn in Sydney for the CPSU.

PN103

MS M. BISSETT: If the commission pleases, I appear for the ACTU.

PN104

MS L. HEAP: Your Honour, I appear for the ASU.

PN105

THE SENIOR DEPUTY PRESIDENT: I've listed this matter this morning at the request of Mr - - -

PN106

MR B. RANKINE: If it pleases the commission, I appear for the ITU in Sydney.

PN107

THE SENIOR DEPUTY PRESIDENT: Mr Mendelsohn, you're appearing with Mr Perica; is that right?

PN108

MR MENDELSOHN: That's correct, your Honour.

PN109

THE SENIOR DEPUTY PRESIDENT: Just to continue, I listed this matter this morning at the request of the ASU and the CPSU following upon the directions that I issued for filing materials for the hearing of this matter. And those directions arose out of a request that was made by the AEU to have the listing for 7 December - sorry, 6 December vacated and relisted for a date in February 2005. I'm concerned about the fact that this matter was lodged in the Registry on 16 December 2003.

PN110

It was only referred to me on 3 May 2004 and I had indicated to the parties on a previous occasion that I had hoped that the matter would be finished before 16 December 2004. That's one year after the date of the lodgement. Now, I understand from the ASU and CPSU that they're disadvantaged by the directions that have been issued given the holiday period that's coming up in December and January.

PN111

So I listed the matter, I suppose, to ascertain where the matter is going and what the AEU proposes about prosecuting its application.

PN112

MS GALE: Thank you, your Honour. The AEU certainly doesn't take issue with the points raised by the ASU and the CPSU and their correspondents. There has been some discussion between the parties but not much this year. It has been a difficult year for a number of reasons. However, the AEU is pursuing our application. We are committed to a process that's been negotiated through the ACTU where that organisation is assisting the parties to negotiate and narrow the are of difficulty.

PN113

We are confident, at this stage, that we will reach settlement with the ASU and we certainly agree with the points made in the ASU's letter that it would be desirable to have directions which enable such a settlement to be reached before they are put to the task of preparing evidence in relation to their objection. And - - -

PN114

THE SENIOR DEPUTY PRESIDENT: Well, the ASU, in effect, on 18 May informed me in writing that there had been an agreed draft settlement proposal and they were waiting for the final document.

PN115

MS GALE: That is correct, your Honour.

PN116

THE SENIOR DEPUTY PRESIDENT: Well, what's the delay in getting the final document?

PN117

MS GALE: The delays have largely been to do with work load and internal consultative processes within the AEU in terms of finalising a draft and, in part, due to the Federal election being held during this year which - given our union is representing members entirely employed within government employment, the Federal election tends to supplant all other activities for a period of time and that has certainly impacted on the time lines within the AEU.

PN118

THE SENIOR DEPUTY PRESIDENT: What sort of time frame are you suggesting it will take now?

PN119

MS GALE: We have had some discussions about that this morning, your Honour, and the problem that faces us at the moment is that January is a very difficult month to get any business done in the education industry. The AEU hold our federal conference in January which tends to - again, to be a major piece of work load for all of us. However, in terms of consulting the members and the branches, January is a very difficult period because it is the common leave period for all sectors of the education industry.

PN120

On that basis we've had some discussions with the ASU and we're proposing that some dates be set which would enable - which would require the AEU to have made an offer, a formal offer to the ASU by 14 February 2005 which is a time line we think is realistic and achievable in light of the other commitments that both organisations already have in January.

PN121

THE SENIOR DEPUTY PRESIDENT: All right. What about CPSU?

PN122

MR PERICA: Your Honour, I've got three - I've got a minute - directions but I want to make some submissions and three points. Your Honour, you're on the money that it's the responsibility of the applicant to prosecute their application. It's clear from the letter that you've received from our federal secretary of the CPSF group that we've been attempting to move along settlement discussions for various - what may be - legitimate reasons, the AEU have not been in a position to engage us on those.

PN123

As well as the processes here there's been a parallel process involving the ACTU which - and there's a document been signed by the federal secretary of our union of both the PSU group and the SPSF group as well as the federal secretary of the AEU that imposes obligations on the parties to consult about these things and we've been tempting to prosecute that. Now, what I make out of those submissions is that we've been trying to move things along, it hasn't been possible to do so.

PN124

Now, the directions you propose are currently - specifically penalise us. Now, I am going to be away in January I'm hopeful of - our solicitors and the barristers we retain in Sydney, I understand, are also going to be absent during that period so, from that point of view, there is difficulties internally for us to prosecute it. Which leads me to the second point that I want to lead you to and Ms Gale has raised it. It's a peculiarity of this industry that it will be closed down during January until the first term starts.

PN125

It's hard enough trying to get witnesses inside the school gate when they are available - when they are at school let alone trying to search around for them at home or on holidays. So that makes January a problem for us as far as proofing witnesses on site that have relevant foot to the proceeding. Which takes me to the third point which is the evidence required. Now, we've got experience in these multi State matters in the NTEU case and in the precursor to this case which was the 118A before Munro J.

PN126

The evidentiary requirements for a case like this are prodigious. The class of employees in issue is not merely employees outside the school gates but employees in or in connection with which includes departmental employees. Now, the class is incredibly broad. Now, the successful rebuttal of an assertion of capacity in those circumstances will need a large number of witnesses and in our experience it pays to be conservative in the setting of dates.

PN127

Now, I had a timetable proposed. I've talked to my comrades at the bar table in relation to this and there has been some amendments to the proposal. Can I just hand that up and make sure I've got my copy. Now, the first date, 14 February 2005, relates to the AEU making an offer to the ASU by 14 February 2005. That on or before 29 April 2005 each objective file and serve - they're outlined in the other materials.

PN128

Now, that used to take cognisance from the fact that until first time starts it will be difficult for us to lead evidence from our witnesses who are on site.

PN129

THE SENIOR DEPUTY PRESIDENT: When does term start?

PN130

MR PERICA: It varies from school to school, from - - -

PN131

THE SENIOR DEPUTY PRESIDENT: Yes.

PN132

MS HEAP: First week of February basically.

PN133

MR PERICA: First week of February. So limbo between now and the end of January as far as getting - possibly getting - - -

PN134

THE SENIOR DEPUTY PRESIDENT: Yes.

PN135

MR PERICA: June 24, the AEU file and serve their material and then 29 July we put statements in end July. Now, it's been our experience with these cases, given that's going to be a travelling road show extending from state to state, that we have a programming day shortly after the reply material is in so that an assessment can be made of the evidence. And then have first date set down in August. Now, as far as the SPSF group is concerned, we're amendable to having dates set down in August.

PN136

And then, you know, at the programming day dates can be set down in each of the relevant states hoping that there is some capacity for us to limit the scope of the dispute between the CPSU and the ASU in the settlement discussions.

PN137

THE SENIOR DEPUTY PRESIDENT: When you say "state to state" you mean which states, New South Wales and Victoria or other states?

PN138

MR PERICA: Well, not necessarily - well, New South Wales and Victoria - we're going to lead evidence from there, of course.

PN139

THE SENIOR DEPUTY PRESIDENT: Yes.

PN140

MR PERICA: But the main state - what's in issue is Northern Territory, Western Australia to a limited degree, Tasmania and the ACT. Insofar as the - or the connection with is concerned that takes in all states other than New South Wales and Queensland.

PN141

THE SENIOR DEPUTY PRESIDENT: Yes. I note your initial proposal was for 28 March.

PN142

MR PERICA: Yes.

PN143

THE SENIOR DEPUTY PRESIDENT: Why was that a bad month?

PN144

MR PERICA: Pardon?

PN145

THE SENIOR DEPUTY PRESIDENT: Why have you changed that a month?

PN146

MR PERICA: After discussions with our comrades at the bar table - it's fair to say the 28th was my proposal but - - -

PN147

THE SENIOR DEPUTY PRESIDENT: Are we going to finish this before the next election may I ask?

PN148

MR PERICA: Yes. Well, I'm hopeful, we're all hopeful.

PN149

THE SENIOR DEPUTY PRESIDENT: Thanks, Mr Perica. Yes, Ms Heap.

PN150

MS HEAP: Thank you, your Honour. Perhaps - may be you're only just 12 months out in terms of when you'd like this matter to be deal with. It might be in December 2005 that it's all concluded.

PN151

THE SENIOR DEPUTY PRESIDENT: It's starting to look - - -

PN152

MS HEAP: Unfortunately.

PN153

THE SENIOR DEPUTY PRESIDENT: It's starting to look very much like that, isn't it?

PN154

MS HEAP: Your Honour, just in relation to our submissions, you noted that the ASU indicated that it would be inconvenient on the basis of holidays. But it's more than that. Our view is that we are inconvenienced more that just that - I'd just like to make that point on the record. And that is that effectively we have done very little internally, we are prepared to admit, in preparation for a case to be run on evidence to be presented.

PN155

THE SENIOR DEPUTY PRESIDENT: You indicated in May that you expected to have the matter resolved.

PN156

MS HEAP: That's correct. And so we're really starting back behind that in the directions that you have set which would see us having to have evidence in in February would mean that, you know, we're starting from scratch basically to get that material together by February.

PN157

THE SENIOR DEPUTY PRESIDENT: That's true.

PN158

MS HEAP: So that's our main concern about that. We do also reiterate the point that it is for the AEU to prosecute its application and therefore given the delays in relation to the ASU have been delays of their own making, they shouldn't receive any advantage from the process that's been set down by you. In relation to the putting back of the orders - or the draft orders that Mr Perica has presented, we agree with those draft orders as amended as he has taken you through them.

PN159

One of the reasons for putting back the 28 March date is the fact that we've put in that step beforehand where it's hoped that with a discipline of a direct time table in orders in relation to the making of the offer, that might focus the democratic process of the AEU to a point where they could actually finalise the offer. And that will give us sufficient time to make the assessment, have our decision making processes dealt with and, hopefully, have us out of this process very quickly at that stage.

PN160

But if we aren't out of the process, ie agreement is not reached, we think 29 April date will give us the time then between getting that offer and making the assessment to also have our material in in the event that we don't reach agreement and we're very, very hopeful that we will. So that's really the main reason for moving that step back, that month. So we would endorse the directions put before to you. We reiterate that we hope that we're going to be out of this process at the first step and wish everyone luck for the rest of it. But in the event - - -

PN161

THE SENIOR DEPUTY PRESIDENT: Would you see any point in a report back in March to confirm what steps have been taken or if any agreement has been reached?

PN162

MS HEAP: Your Honour, perhaps if we could have leave to make application if there's something - if that first step is not achieved and then we could come - we could alert you to that concern and make application at that time if that's needed.

PN163

MR PERICA: Can I just interpolate there, your Honour. I mean, the ASU - they're more sanguine about getting a fix than us.

PN164

THE SENIOR DEPUTY PRESIDENT: Yes, you don't sound very confident about getting any agreement at all, Mr Perica.

PN165

MR PERICA: The - Clarendon Street, we've dealt with these people before, your Honour, but, yes, we are, we are confident that we will be able to narrow it but - - -

PN166

THE SENIOR DEPUTY PRESIDENT: Yes, yes.

PN167

MR PERICA: - - - there's just going to be a dispute. There is - and hopefully it will be narrow, but I think maybe your suggestion is a sensible one from the SPSF group point of view.

PN168

THE SENIOR DEPUTY PRESIDENT: To report back in March, yes.

PN169

MR PERICA: Yes, report back because then we can tell you what process or if any limitations have been made as to the scope of the application.

PN170

THE SENIOR DEPUTY PRESIDENT: The ACTU still involved in conciliation for your group, isn't it?

PN171

MR PERICA: Yes, we've just been talking about this morning.

PN172

THE SENIOR DEPUTY PRESIDENT: Yes. I'll come back to you. Did you want to say anything more, Ms Heap?

PN173

MS HEAP: Nothing further, your Honour, from my point of view.

PN174

THE SENIOR DEPUTY PRESIDENT: Nothing, thank you. Did you want to add anything after the ACTU?

PN175

MS BISSETT: Not to add anything specifically except that we would endorse the submissions of the CPSU and the ASU with respect to the time table and believe that it will give all parties the capacity to narrow the scope of the dispute between the parties.

PN176

THE SENIOR DEPUTY PRESIDENT: I will obviously be assisted by any work that the ACTU can do in resolving the issues between the parties.

PN177

MS BISSETT: Yes, your Honour. Thank you.

PN178

THE SENIOR DEPUTY PRESIDENT: Thanks very much. Yes, Ms Gale, did you want to say anything about the proposed directions - sorry, Mr Rankine, is there anything you want to add?

PN179

MR RANKINE: I don't think that there's anything substantial that we need to add other than we support - issues by the CPSU group in terms of the time table that's been proposed. The LHMU is always keen in these matters to try and resolve issues and settle them prior to going to a lengthy hearing and that's what we aim to be working towards. Thank you, your Honour.

PN180

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Rankine. Did you want to add anything, Mr Mendelsohn?

PN181

MR MENDELSOHN: No, thank you, your Honour.

PN182

THE SENIOR DEPUTY PRESIDENT: Ms Gale, what do you have to say about the proposed directions?

PN183

MS GALE: The AEU supports the proposed directions.

PN184

THE SENIOR DEPUTY PRESIDENT: What about the - or a date in March for a report back?

PN185

MS GALE: We would also support that.

PN186

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Did you have any date in mind, Mr Perica?

PN187

MR PERICA: It depends on Easter, your Honour. I have got some dates in March that are problematic but nothing that couldn't be shifted for this. Yes, subject to avoiding Easter, your Honour, I think we're pretty clear in March.

PN188

THE SENIOR DEPUTY PRESIDENT: All right. 25 March a suitable date?

PN189

MR PERICA: Yes, your Honour.

PN190

THE SENIOR DEPUTY PRESIDENT: I'll mark the minute of proposed directions as CPSU1.

EXHIBIT #CPSU1 MINUTE OF PROPOSED DIRECTIONS

PN191

THE SENIOR DEPUTY PRESIDENT: I will direct that the directions already issued in this matter or given in this matter be vacated and will issue directions in accordance with the document CPSU1 subject to addition of a further direction for listing of the matter on 25 March for report back. And I'll add at the very bottom liberty to any party to apply on 24 hours notice to any other party. And obviously if the parties feel that they can be assisted by conciliation, then you can simply contact my associate and every endeavour will be made to find a convenient date to conciliating the matters.

PN192

But, as I say, I'm greatly assisted by anything the ACTU can do in that regard.

PN193

MS BISSETT: Your Honour.

PN194

THE SENIOR DEPUTY PRESIDENT: Anything else? Thank you all, the matter is adjourned.

ADJOURNED UNTIL WEDNESDAY, 30 MARCH 2005 [11.55am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CPSU1 MINUTE OF PROPOSED DIRECTIONS PN191