C1998/346, Transcript of Proceedings [2005] AIRCTrans 1186 (23 May 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11539-1

SENIOR DEPUTY PRESIDENT DUNCAN

C1998/346

Item 51 - Part 2 Schedule 5, WROLA Act 1996
(C1998/346)

MELBOURNE

10.05AM, THURSDAY, 12 MAY 2005

Continued from 11/4/2005

PN25178

THE SENIOR DEPUTY PRESIDENT: It has become my custom I believe to take appearances each time one of these reports takes place. So I will do that this morning and I will start at one end.

PN25179

MS P CROXON: I am appearing on behalf of the University of Sydney.

PN25180

MR D WEDGWOOD: I appear on behalf of the Australian Higher Education Industrial Association and those members who are party to the relevant award.

PN25181

MR D MENDELSSOHN: I appear on behalf of the CPSU.

PN25182

MR B RANKINE: I appear on behalf of the LHMU.

PN25183

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Rankine. Well, I note there is no appearance in Melbourne. Where do we go from here? Yes, if you are prepared to - - -

PN25184

MR WEDGWOOD: Your Honour, I am happy to say a few words. Your Honour, firstly may I thank your Honour for your assistance on Monday to the relevant parties in relation to the proposed University of Newcastle General Staff Award. In terms of a progress report, I can inform the Commission that the conference on Monday made significant progress in clarifying the outstanding issues between the parties and establishing a common understanding about the matters to be resolved and the method of resolution of each. I am optimistic, and I do not think unreasonably so, that in the not too distant future the parties may be able to present to the Commission, a draft University of Newcastle General Staff Award which could then be made by the consent of all the parties. And your Honour is aware that there is a couple of parties' questions to be resolved as part of that process.

PN25185

THE SENIOR DEPUTY PRESIDENT: Yes, that is right. While I think of it, Mr Wedgwood, I should perhaps note that the letter is either gone or is drafted to go in regard to that matter that the Commission undertook to do something.

PN25186

MR WEDGWOOD: Thank you, your Honour. In relation to other institutions responding to HEGS who are members of AHEIA, there is no further progress that I can report. There is, however, one important factor which should appropriately be reported to the Commission today. Your Honour, if it pleases the Commission I seek to table a document in these proceedings. The document is a joint media statement of the Minister for Employment and Workplace Relations and the Minister for Education, Science and Training and attached to the media release are the proposed Higher Education Workplace Relations Requirements under the Commonwealth grants scheme, referred to as the HEWRRs.

EXHIBIT #CG1 JOINT MEDIA RELEASE, DATED 29/04/2005

PN25187

MR WEDGWOOD: Thank you, your Honour. Your Honour, these requirements were announced on 28 April 2005 and applied Commonwealth funding for Universities or as they are referred to in the document, Higher Education Providers or HEPs, for grants made by the Commonwealth Government in the calendar years 2006 and 2007. As is evident from the documents themselves, the university will be required to have certified agreements which meet the HEWRRs either by 30 September 2005 or 31 August 2006.

PN25188

The determining factor in whether an agreement is required to comply this year or next year, is the nominal expiry date of the university's existing agreements, singular or plural, as at 29 April 2005. I can inform the Commission that AHEIAs assessment, confirmed in discussion with officers of the two departments, is that 25 institutions will be required to have complying agreements by 30 September 2005. As your Honour will appreciate, - - -

PN25189

THE SENIOR DEPUTY PRESIDENT: What was that date again? September of this year - - -

PN25190

MR WEDGWOOD: The 30th of September this year.

PN25191

THE SENIOR DEPUTY PRESIDENT: Yes.

PN25192

MR WEDGWOOD: As your Honour will appreciate, this means that enterprise bargaining at those institutions must now be brought to finality within a very short time frame. This bargaining must also include changes to any previously agreed clauses in proposed agreements that could be regarded as not meeting the requirements of the HEWRRs. It is also the case, your Honour, that those institutions that were significantly through the approval process of a new agreement, as at 29 April, but had not had it certified at that date, are also in that position. So, for instance, the University of New England which was recently certified.

PN25193

It's agreement as at 29 April had a nominal expiry date before 30 September this year and therefore it will have to re negotiate that very recently certified agreement by 30 September. Given this factor it is unlikely that institutional resources will be able to be made available to address outstanding matters in relation to the simplification of the HEGS award over the next few months. Even at those universities not required to comply in relation to their agreements until 31 August 2006 and that is the sort of second group which had an agreement with a longer term on 29 April. The HEWRRs still require that all the universities policies and procedures comply with those requirements except to the extent that compliance would contravene a certified agreement currently in force at that university.

PN25194

So to the extent that an agreement remaining in force after 30 September would contravene the HEWRRs, it is protected, if you like, until the 31st of August next year. Also, universities are required by the HEWRRs to offer Australian Workplace Agreements to all new staff employed after 29 April 2005 and to have done so by no later than 30 September this year. In addition, universities must also offer AWAs to all staff no later than 30 August next year. Thus there is unlikely to be any resources devoted within the higher education sector and certainly that is my feedback from the AHEIA members. So perhaps I am qualified to that extent.

PN25195

To award simplification matters, including this matter in relation to HEGS, probably before the last quarter of this calendar year. I would therefore submit that the next report back on this matter should not be scheduled for that time. Your Honour, I have nothing further that I wish to put to the Commission, but am happy to address any questions that may arise including out of the documents themselves.

PN25196

THE SENIOR DEPUTY PRESIDENT: All right. Well I only have one and it is for clarification. The requirement about the offer of AWAs involves all employees. There is no distinction between academic and general staff?

PN25197

MR WEDGWOOD: No distinction between the types of staff, your Honour. The one distinction is that from 29 April to 30 September this year, any new employee must have been offered an AWA by 30 September this year. Now, that may not necessarily have to be done the day they walk in the door but has to be done by 30 September this year. There is time to prepare them. Then all staff, that is all those who are already employed at 29 April this year, must, by the end of August next year, have been offered an AWA. So, in the short term there is a limited group and in the long term there is a much larger group.

PN25198

THE SENIOR DEPUTY PRESIDENT: Thank you. I think I will go to you, Ms Croxon, do you wish to add anything?

PN25199

MS CROXON: Thank you, your Honour. The University of Sydney is in a very fortunate position in that it's certified agreements don't expire until 30 June 2006.

PN25200

THE SENIOR DEPUTY PRESIDENT: Oh so you are in the second group.

PN25201

MS CROXON: We are in the second group. Now, there has been some progress made on the stand alone award. Not as much as I had hoped, but there has been some progress made. What I would propose, and this is subject to obviously the agreement of my colleagues here, I understand Mr Wedgwood's position with regard to the AHEIA organisations. I have no instructions other than to proceed with the stand alone award. I would propose to keep working on that and get a draft copy to the CPSU and in our case the NTEU. I am still not sure what the CFMEU is doing.

PN25202

And perhaps then, if the Commission would be so kind, when we have a draft circulated, perhaps a private conference could be arranged with the parties? So that we can actually sit down and go through the document and hopefully then get everyone's consent or do any last minute amendments before it is filed. If that is acceptable?

PN25203

THE SENIOR DEPUTY PRESIDENT: Yes. All right, Ms Croxon. I frankly see no difficulty with that.

PN25204

MS CROXON: Thank you, your Honour.

PN25205

THE SENIOR DEPUTY PRESIDENT: Mr Mendelssohn?

PN25206

MR MENDELSSOHN: Thank you, your Honour. Sadly I have to concur with Mr Wedgwood's assessment of the likelihood of any progress for the great majority of universities over the next six months or so. Even though there are a couple of institutions where there is substantial progress towards an institutional award, because of the situation, because those universities are in the situation where enterprise bargaining is not yet concluded, therefore they will have to - - -

PN25207

THE SENIOR DEPUTY PRESIDENT: Be in the first group.

PN25208

MR MENDELSSOHN: In the first group.

PN25209

THE SENIOR DEPUTY PRESIDENT: Yes.

PN25210

MR MENDELSSOHN: And therefore they will have to look again at what has been agreed thus far and virtually in the entire enterprise bargaining ground, that those universities would start all over again in the light of the government's new requirements. I would also add to what Mr Wedgwood has said, that the requirements announced by the government, are very specific in some respects. For example, the timeline for offering Australian Workplace Agreements to employees. It is very specific and clear on that but there are other aspects which are very vague and imprecise and open to differing interpretations and what the Minister for Education will actually require in respect of those matters, is, at the moment, a matter of speculation.

PN25211

And if I may just take your Honour to a couple of those? One is that, on the last page, the third page of exhibit CG1, under point 4, in the second paragraph it says, the HEPs Workplace Agreements Policies and Practices must include a fair and transparent performance management scheme which rewards high performing individual staff. Consistent with this, the HEPs Workplace Agreements Policies and Practices must also include efficient processes for managing poor performing staff.

PN25212

Now, it is quite conceivable that a particular university in consultation with the unions who represent academic and general staff employees at that university, may come to what all parties agree is a performance management scheme which achieves what the government expects and agree on efficient processes, what they consider to be efficient processes for managing poor performing staff, only to find that the Minister or the department or his department say no, no that is not good enough. That we foresee as a real possibility. And finally, if I may take your Honour to point 5 of the next sub-heading, Freedom of Association, the very last line on the page.

PN25213

The HEP must not use CGS funds to pay union staff salaries or fund union facilities and activities.

PN25214

Well, that is quite vague and imprecise as to what is intended by the phrase, "union staff salaries" and what is intended by the phrase, "fund union facilities and activities". Does it just mean that the university cannot pay the salary of, say, a union organiser who is based on the university campus? Or does it include time release for the union branch president? Is trade union training leave, which is common in many agreements, "funding union activities" in the eyes of the Minister or the Department?

PN25215

These are matters at the moment we have no clarity on, we have received at this stage nothing more than what is in this media release and in my submission, all the parties in the sector, employers and unions, are going to be involved very intensively over the coming months with trying to get not only renegotiating existing agreements even ones which have been recently certified as Mr Wedgwood said in the University of New England Agreements, but will also be trying to obtain from the department, what they will see as coming up to the mark in terms of the sorts of areas to which I have just taken your Honour.

PN25216

And another matter that arises is that the requirement is that the university must not use Commonwealth grant scheme funds to fund union activities but is it possible to disentangle or extrude what is paid for with Commonwealth grant scheme funds from the general pool of the money available to the university. Is it open to the university to say, no we are not funding these particular provisions in our enterprise agreement out of CGS funds, we are funding them from somewhere else. Or is that just an artificial, or will that be seen as just an artificial construction to get around the requirements.

PN25217

So until we get clarify on many of these matters, I fear that parties are going to be primarily engaged in trying to sort out what they need to do in order for universities to qualify for the Commonwealth grant scheme funding and then trying to work out how they can do that in a way that does not cause too much chaos and disruption to industrial relations in the sector. On a less dire note, I concur with Ms Croxon that there has been some worthwhile discussions in relation to a University of Sydney General Staff Award.

PN25218

I would however feel obliged to let the Commission and Ms Croxon know that this is my last day of work for two months and it is unlikely that there will be anybody else in my office who will have sufficient background in the matter to progress it in that time. So, being realistic, I would be suggesting that if we are to have a private conference, that it be say from sometime in mid- to late July.

PN25219

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Mendelssohn. Mr Rankine?

PN25220

MR RANKINE: Thank you, your Honour. I think Mr Wedgwood and Mr Mendelssohn set a pretty reasonable scene of the activities that may be undertaken in the higher education sector over the next year, I guess. But there are universities, like the University of Sydney, that are still progressing and the University of Western Australia, I believe, are having a teleconference, next week or the week after, to try and progress their award and hopefully have that simplified, and there may be some others that are in the same boat. There is also the issue that, you know, with the pending industrial relation changes that may come after 1 July that that will set a different scene, and we may need to review what we have started and what has been continuing. And I guess if we take that into account, I would concur it might be worthwhile just letting things lay a little bit before we have another report back.

PN25221

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Rankine.

PN25222

MR RANKINE: Thank you.

PN25223

THE SENIOR DEPUTY PRESIDENT: In light of the report that has been given this morning, it is clear to me that there is little point in attempting to proceed and fix a further report date. I therefore formally adjourn the matter generally. There is liberty to apply both generally and in particular. My reference to the particular position is a reference to that put forward by the University of Sydney. What has been outlined by Ms Croxon is open to the university and union parties as far as the Commission is concerned, and that is also open to other institutions which may find themselves in a similar situation. Apart from that, I adjourn generally.

<ADJOURNED INDEFINITELY [10.25AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CG1 JOINT MEDIA RELEASE, DATED 29/04/2005 PN25186