C0075/598, Transcript of Proceedings [2004] AIRCTrans 946 (17 March 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 9896

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

4.08 PM, FRIDAY, 27 FEBRUARY 2004

Continued from 27.1.04

THESE PROCEEDINGS WERE CONDUCTED BY VIDEO CONFERENCE IN SYDNEY

PN385

THE SENIOR DEPUTY PRESIDENT: Good afternoon everybody. I notice from the appearances that are here this afternoon that Mr Kentish isn't in attendance, is that a problem or is it something we'll - - -

PN386

MS KELLY: Alistair informed me that he wouldn't be here today but the AMWU have actually sent correspondence in relation to the awards that they're a party to.

PN387

THE SENIOR DEPUTY PRESIDENT: I see, yes, that is a letter of 25 February 2004.

PN388

MS KELLY: That is right, your Honour.

PN389

THE SENIOR DEPUTY PRESIDENT: Well, we will go through them all in the order that they always go I suggest and the first one is 755, the General Conditions of Employment Award. Ms Cooper?

PN390

MS COOPER: Thank you, your Honour. The parties generally have made some very good progress in the last month. Unfortunately, this being the first of the awards in numerical order, this is actually the award that we haven't made significant progress on. The main two issues outstanding are the redundancy clause and the parental leave clause. Unfortunately, the amalgamation of the Maternity Leave Act of 1973 and the parental leave provisions for the current test base standard have proved to be a very difficult process and extremely time consuming. I am wondering, your Honour, if we could get some guidance from you as to the appropriateness of leaving the reference to the Maternity Leave Act in the simplification context because that might actually help to speed the process along significantly.

PN391

THE SENIOR DEPUTY PRESIDENT: You mean that all other things being settled the award would be issued partly simplified?

PN392

MS COOPER: If it is your view that that doesn't actually fulfil the requirements of simplification then I understand that we have to actually go ahead and do that but if leaving a reference to an Act does not prohibit the simplification from going ahead I just believe that that might expedite this a lot quicker.

PN393

THE SENIOR DEPUTY PRESIDENT: Can you take me to the provision in the existing award that we are talking about?

PN394

MS COOPER: I don't have the full award here. It is actually clause 45 I believe of the current award.

PN395

THE SENIOR DEPUTY PRESIDENT: 45?

PN396

MS COOPER: I believe so. Sorry, your Honour, I have just realised that I haven't actually brought the entire award with me.

PN397

THE SENIOR DEPUTY PRESIDENT: No, it is not 45. It is clause 49.

PN398

MS COOPER: 49, sorry, your Honour. It simply makes a reference to the provisions of the Maternity Leave Act, that the parties have been attempting to redraft the provisions of the Maternity Leave Act and amalgamate that with the provisions of the test case parental leave and that has proven to be an extraordinarily difficult time consuming process. It's one that, of course, where we would have to go down or would be more willing to go down if it is necessary for the simplification but my understanding is that there's a great rush in getting these simplifications done. If your Honour doesn't believe that that would prohibit the simplification from going ahead that might be the most expeditious route.

PN399

THE SENIOR DEPUTY PRESIDENT: Yes, you are suggesting we leave 49 as it is for the moment.

PN400

MS COOPER: I'm seeking guidance as to whether or not you believe that that would be appropriate.

PN401

THE SENIOR DEPUTY PRESIDENT: I would have no difficulty with it at all if it was understood that to leave it as it is at the moment would be a stage along the road to eventual total simplification.

PN402

MS COOPER: Thank you, your Honour. Well, I'd like, if possible, to take that back to the parties - - -

PN403

THE SENIOR DEPUTY PRESIDENT: Yes.

PN404

MS COOPER: - - - in terms of our negotiations to support the record and then between them and then report back on that matter.

PN405

THE SENIOR DEPUTY PRESIDENT: That is all right.

PN406

MS COOPER: Your Honour, I move now to 757 of 1998 and the corresponding section 113 application for that one is 2790 of 2003, that's the Australian National University Staff Specific Conditions and Salaries Award. Your Honour, in the last month the parties have come to a consent position regarding this award and that the draft has actually been forwarded to you yesterday. Mr Kentish of the AMWU has provided relevant undertakings in regard to the section 113 and his unions formal consent by his letter of 25 February 2004 and Mr Flatt of the CEPU and Mr Rankine of the HSUA have both indicated verbally that they would be doing so at today's report back.

PN407

Just one minor error that we found which I will forward to you in that final formalised document is that clause 20.1 currently reads that the allowance of 30 cents, that should be 54 cents. Clause 20.3 currently reads that the allowance is 54 cents, that should read 40 cents. So for those two allowances it is just a transposition error. In all other respects, your Honour, I believe that this award is ready for your consideration as to simplification.

PN408

THE SENIOR DEPUTY PRESIDENT: Very well. Can you let me have a version which makes those changes to the figures?

PN409

MS COOPER: Shall do, your Honour.

PN410

THE SENIOR DEPUTY PRESIDENT: I note that Mr Kentish has dealt with the matter. Mr Flatt?

PN411

MR FLATT: Yes, your Honour. I can confirm on behalf of the CEPU that there has been discussions in relation to this award and that a number of documents have been tendered. There is another document that Ms Cooper has also tendered to the Commission which we at the CEPU and the Metal Workers requested be submitted, it is in relation to obsolete classifications. We hand up that reference that we thought would be useful to have on the Commission's record.

PN412

THE SENIOR DEPUTY PRESIDENT: It certainly would. That's been a matter which we've had to give some attention to, isn't it?

PN413

MS FLATT: Yes, it has. That being the case, apart from the typographical error information to the allowances, the CEPU can provide its consent to the proposed award and also provide all necessary undertakings in relation to the statement of principles, absorption benefits and we can supply a letter to the Commission, that's required also - - -

PN414

THE SENIOR DEPUTY PRESIDENT: It is on the record, Mr Flatt. Mr Tyrrell, you're a party to this award.

PN415

MR TYRRELL: Yes, your Honour. We haven't as yet forwarded documentation with regard to our consent but I'm happy to put that on record now if you like.

PN416

THE SENIOR DEPUTY PRESIDENT: Yes, it will mean that you don't have to send a letter.

PN417

MR TYRRELL: Yes. The HSU formally puts forward its consent to the proposed draft put forward by the ANU in relation to the section 113 application to increase salaries as per 2002 and 2003 safety nets. We undertake the commitment required in accordance with principle 8D of those safety net review decisions, your Honour.

PN418

THE SENIOR DEPUTY PRESIDENT: That means that this award, the ANU Staff Specified Conditions and Salaries Award 1981 is at the stage where the Commission can consider the document that's been presented and all being well will adopt it as the simplified award and issue it in due course. I think that means we can move to the next one which is 761. Ms Cooper?

PN419

MS COOPER: The relevant section 113 application in relation to this award is 2785 of 2003 and with the Maintenance Staff Award, both the CEPU and the CFMEU have indicated their satisfaction with the draft order. On 20 January I forwarded that draft order to you for your consideration. On 18 February, Mr Flatt of the CEPU wrote to you outlining his union's consent and giving the appropriate undertaking.

PN420

I've had discussions with Mr Stirling today and I understand he's also spoken to your chambers and Mr Stirling has indicated his consent and that he is willing to draft a letter to yourself in the future to outline that formally.

PN421

THE SENIOR DEPUTY PRESIDENT: Yes, that's right, I understand that, thanks, Ms Cooper and I'll await that. There seems to be nothing else, other than to ask you, Mr Flatt, is there anything on that one?

PN422

MR FLATT: Again, your Honour, the CEPU provided a letter to the Commission and to Ms Cooper and Mr Stirling on 18 February, it appears that that may not have arrived where it should have or on the file but that letter provided the consent from the CEPU for the proposed simplified award and also, providing the necessary commitments and undertakings in relation to the safety net absorption in that proposed award.

PN423

THE SENIOR DEPUTY PRESIDENT: That being done again on the record, so that's fixed that, Mr Flatt, thank you. All right, that is also in the position where it's up to the Commission to satisfy itself with the arrangement and to issue the simplified award. The next one is 762 of 1998 and C2003/2786 and C2004/1418, Ms Cooper?

PN424

MS COOPER: Thank you, your Honour. Following the last report back the parties have had further discussions with regards to the three matters in relation to this award and the parties have come to a consent position as to how the application to vary the award and the certification should be dealt with. The position is basically that the ANU agrees to insert the classification levels 4, 5 and 6 in satisfaction of the LHMU section 113 application for settlement of t hat application.

PN425

The LHMU have given a undertaking to make statements on the transcript today in relation to the making of a single ANU General Staff Award and the removal of the ANU from respondency to the HEGSS Award, the HEGSS Salary, the Classification Award and the HECE Award. I forwarded to you a version of the award as I see it, encompassing all three matters that are listed today, this is being finalised at today's - or after your consideration of today's report back.

PN426

There has been indicated from Mr Rankine that there's a mistake in relation to the LHMUs title. We've actually got the ALHMWU, so I will undertake to correct those mistakes within the title of the award and if the mistake is also in the respondency the parties bound, I will correct those and provide you with a final version of the award - - -

PN427

THE SENIOR DEPUTY PRESIDENT: Very well, thank you, Ms Cooper. Mr Rankine?

PN428

MR RANKINE: Thank you, your Honour, as Ms Cooper said, we've had some discussions and we have decided to settle with the inclusion of 4, 5 and 6 in this particular matter and as part of that settlement, as Ms Cooper mentioned, we were give an undertaking on record which I'll do now. The LHMU commits to working with the AMU to create a single ANU General Staff Award that incorporates the salaries and classifications from the Higher Education General Staff Salaries and Classifications Award 2002 which has always been our intent right from the process and I'm sure you'll remember Mr Warburton argued quite profoundly that we go down that path in the first instance.

PN429

On achievement of that the ANU will be seeking to remove its respondency from the HEGSS Award and the Higher Education Salaries, Staff and Classifications Award 2002 which we won't oppose. In terms of the HECE Award we don't oppose their removal from that either but we are not a respondent to that award, so we won't have too much bearing in those particular procedures but we won't oppose it. Now, I think that suffices Ms Cooper's needs.

PN430

THE SENIOR DEPUTY PRESIDENT: It's pretty complete, Ms Cooper.

PN431

MS COOPER: Yes.

PN432

THE SENIOR DEPUTY PRESIDENT: Although you sent a draft yesterday, Ms Cooper, I note that you will grace us with another one which takes account of those couple of matters that have been raised this afternoon.

PN433

The next is?

PN434

MS COOPER: Thank you, your Honour, this is 760 of 1998 and the corresponding section 113 applications of 2791 of 2003 and 1417 of 2004 and your Honour, generally the submissions in relation to the award just dealt with are the same, the parties have come to a settlement agreement in relation to the application to vary the award and the document that I've provided to you is our version of the completion of the three matters that are before you. Again, there is a mistake with the titling of the award which the LHMU brought to my attention and which I'll provide a draft version to correct that.

PN435

The final point is that the settlement is again continued on the undertaking from the LHMU in relation to the HECE classifications, salaries and the respondency issue.

PN436

THE SENIOR DEPUTY PRESIDENT: Yes, all right then. Mr Rankine?

PN437

MR RANKINE: Thank you, your Honour. To save the Commission's time my undertaking is exactly the same as the words that I've used in the previous matter and I don't think I really need to say anything more on that.

PN438

THE SENIOR DEPUTY PRESIDENT: No, Mr Rankine, you don't. Yes, 767.

PN439

MS COOPER: Your Honour, the relevant section 113 application is 2793 of 2003 and this award has been consented to by the AMWU by virtue of Mr Hinch's letter of 25 February, that letter outlines the consent and also, gives the relevant undertakings in relation to the safety net adjustment. Once again, the ANU believes it's ready for your consideration.

PN440

THE SENIOR DEPUTY PRESIDENT: Yes, that's right and that particular one needs no further minor adjustments, does it? The draft that has been supplied is the draft to be considered.

PN441

MS COOPER: As far as I know, your Honour, I'm pretty sure that it's right.

PN442

THE SENIOR DEPUTY PRESIDENT: Yes. What have we got there, 939 of 1999.

PN443

MS COOPER: Yes, your Honour the relevant section 113 application for that ward is 2787 of 2003. The ANU ordered its version of the award to you for consideration on 17 February and the AWU has indicated its consent and the relevant undertakings in relation to section 113 application by virtue of the letter of 24 February and as indicated before we went on record, Mr Thomas of the NTEU would be making his submissions today.

PN444

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Thomas?

PN445

MR THOMAS: Thank you, your Honour, just to confirm that yes, the NTEU has received this draft application from ANU and we have had discussions with both the university and with the Health Services Union. The NTEU notes the draft application and we do not oppose the application but the position of the NTEU is not one of consent to it being made.

PN446

THE SENIOR DEPUTY PRESIDENT: Yes, I see, you don't consent but - - -

PN447

MR THOMAS: Without needing to go into the underlying arguments that have stemmed from the - - -

PN448

THE SENIOR DEPUTY PRESIDENT: You don't have to do it again, Mr Thomas.

PN449

MR THOMAS: But in relation to the actual application you have before you, your Honour, just a number of matters, certainly clause 10 which goes to the commensurate salary provisions because of the cross-reference to the General Conditions of Employment Award, t hose clause numbers are correct at present but if, as the General Conditions of Employment Award has yet to be finalised, those clause numbers may undergo some changes as we go through that process and also in relation to clause 12, we noticed that that is a reasonably expanded clause as to the one that exists in the current award with reference to issues of certainly clause 12.7 which is the salary movement within a classification. The NTEU is not opposed to that provision, but just to highlight that for the record. In relation to the table of rates that are there, whilst our position on the inclusion of rates is known, the NTEU can find no fault in the mathematical calculations that led to the construction of that table.

PN450

THE SENIOR DEPUTY PRESIDENT: I see, very well. That's all, Mr Thomas?

PN451

MR THOMAS: That is all we have to say on the matter, your Honour.

PN452

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Tyrrell, the HSUA has written to the Commission in the matter.

PN453

MR TYRRELL: Yes, your Honour, I believe you have received that letter, is that correct, and that gives the undertaking and the consent required, I hope.

PN454

THE SENIOR DEPUTY PRESIDENT: It does, it does everything that is required, Mr Tyrrell, thank you. Can I just go through with you my understanding in brief of where the Commission is at the present time. I will be referring to the C numbers of the Item 51 matters. With 755, there is still further work to be done by the parties; 757 is ready to go ahead; 761 is ready to go ahead; 762, 766, 767 and 939 are ready to go ahead. Mr Thomas's comments about 939 are noted but it seems of the various matters that have arisen out of the simplification process it is only 755, the general conditions of employment award, which needs further attention. Ms Cooper, is that your understanding?

PN455

MS COOPER: Yes, your Honour, it is.

PN456

THE SENIOR DEPUTY PRESIDENT: Does anybody else have any variation on that?

PN457

MR THOMAS: No, it's agreed, your Honour.

PN458

MR FLATT: Your Honour, there's no variation but just picking up on something that Mr Thomas said, that there would be possible problems flying through to the other awards with number changes, and that was noted by both Mr Kentish of the Metal Workers and myself that there would be some further work, but apart from that, nothing further.

PN459

THE SENIOR DEPUTY PRESIDENT: Yes. I don't think you are suggesting that I should withhold issuing these awards, are you, Mr Flatt?

PN460

MR FLATT: No.

PN461

THE SENIOR DEPUTY PRESIDENT: No, but noting quite properly that we may have to vary them, in the strict sense of the word vary them, when that other matter is settled. Well, that is considerable progress, I thank you all for your contribution to what has been achieved in the matter and I trust that 755 won't be too long delayed. In the meantime, the Commission will proceed to consider and issue all the other awards that have been before the Commission this afternoon. I adjourn this matter indefinitely, I adjourn the Commission indefinitely.

ADJOURNED INDEFINITELY [4.33pm]