C2005/1566, Transcript of Proceedings [2005] AIRCTrans 1475 (7 July 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12027-1

DEPUTY PRESIDENT HAMPTON

C2005/1566

UNIVERSITY OF SOUTH AUSTRALIA
AND
NATIONAL TERTIARY EDUCATION INDUSTRY UNION-SOUTH AUSTRALIAN DIVISION NATIONAL TERTIARY EDUCATION INDUSTRY UNION
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/1566)

ADELAIDE

11.24AM, TUESDAY, 28 JUNE 2005

Continued from 18/5/2005

PN387

MR SHORT: I appear with MR GLADIGAU for the university.

PN388

MS HANNON: I appear with MS WALSH for the NTEIU.

PN389

THE DEPUTY PRESIDENT: Thank you, Ms Hannon.

PN390

MR SHORT: You will be aware that following your decision and directions that draft orders should be filed after consultation that the university filed a draft order. You're aware of the background to that. Since that time the union has also filed a draft order while Ms Hannon and I have had discussion we felt rightly or wrongly that the most practical course would be to bring the matter back, put our respective views to you and enable you, sir, to make a decision.

PN391

THE DEPUTY PRESIDENT: That's fine.

PN392

MR SHORT: In that light sir, you'll have seen that our draft order is based on paragraphs 39 and 43 of your decision and has had regard to your conclusion of paragraph 45 that the orders to be issued should ..... application of the agreement in the matter determined. Obviously our position is that our proposed draft order appropriately sets out the proper application of the agreement in relation to the dispute considered by the Commission. In relation to the union's draft order at paragraph 1, we say, does not appropriately collect what you determined.

PN393

It's important to note that you've referred to all eligible employees while the union's paragraph 1 is not so limited. That is important because an employee whose position is declared redundant will not be eligible for an option in the event of a 75 per cent skills match and placement in an alternative position. The employee then has no choice and that arises in clause 22.9.2 of the enterprise agreement. So, paragraph 1 would not appropriately reflect the proper application of the agreement or your determination, sir, that qualification is important.

PN394

As to paragraph number 2 of the union's draft, sir, we say we've captured that appropriately. I note that the words, "But only where", and the words, "That outcome", which appear in paragraph 43 on which the paragraph is based, do not appear. Whereas your determination with, "But only where circumstances warrant", their draft is, "Where the circumstances warrant", and that may be a matter of emphasis. We say that our wording correctly reflects the position. As to paragraph 3 of the union's draft, that goes beyond your reasons in your determination, sir. It appears to be based on clause 86.3.5 of the agreement which defines reasonable period or period of redeployment.

PN395

Sir, you'll see it's defined as:

PN396

A maximum of six months from the date the staff member is informed in writing that the position they occupy is declared redundant -

PN397

and it goes on also to deal with funded fixed term contracts. But there was no dispute about clause 86.3.5 and it's not been a matter determined by you. We say that is not appropriate.

PN398

THE DEPUTY PRESIDENT: Is there any objection that's not a correct application to the agreement?

PN399

MR SHORT: I can't see any because 86.3.5 defines when the reasonable period of period of redeployment commences. So we're just saying, we've been ordered to reflect your determination and that is what we've done.

PN400

THE DEPUTY PRESIDENT: So it's unnecessary and it's in the agreement already.

PN401

MR SHORT: That's so. It was not - the orders were to reflect your determination - you made no determination on that because it was never in dispute before you.

PN402

THE DEPUTY PRESIDENT: Thank you.

PN403

MR SHORT: Paragraph 4 of the union's draft is reflected in our order already. Paragraph 5 of the union's draft is likewise reflected in our draft. It's based on paragraph 44 of your reasons. I note that the words, "In particular", have been left out of the union's draft although they appeared in your determination. Again, that may be a matter of emphasis as to the genuine prospect being if you like of a
sub set of the circumstances rather than a separate issue.

PN404

Paragraph 6 of the union's draft appears to find it's origin in paragraph 44 of your reasons but there is a material difference between the union's wording and your reasons. You'll see that the union in its paragraph 6, talks of the length of the redeployment period and that it shall be subject to review. That was not your determination. There is no obligation to conduct a review in every case. Paragraph 44 of your reasons talked of a particular period, might well be subject to some review. It equally follows that it might not. The proposed order reflecting that it shall be subject to review, goes outside of your determination and does not properly reflect it.

PN405

Paragraph 7, there did not appear to be any dispute between the parties about the existence of the grievance and review mechanism although sir, you've referred to mechanisms plural. As I understand the agreement there is one grievance in review mechanism. It is that in clause 78 that we say there simply was no dispute about the application or operation of clause 78 and it's unnecessary to refer to it - that it would be inappropriate. Sir, in a nutshell, that's our position unless there's anything further.

PN406

THE DEPUTY PRESIDENT: Mr Short, operative date for the order ultimately issued.

PN407

MR SHORT: I suppose when you issue it, sir, because what that will do is then give the parties an operative framework in which to understand, from that date, that's what we do.

PN408

THE DEPUTY PRESIDENT: Thank you. Ms Hannon.

PN409

MS HANNON: Sir, I'll go through each clause of the university's draft order in due course but initially just explain the reason for it being drafted in a more detailed and perhaps fulsome than the uni's more minimalist draft that was submitted to you. The reason essentially is to attempt to properly reflect what we understand the meaning of your determination or your judgment to have been. It is particularly necessary, we say, to do that because of some developments that there have been since your judgment was delivered which have indicated to the union a concern in the way that the university has interpreted and is attempting to apply your judgment.

PN410

The position has been put to the union by the university in the period between the judgment and now that in fact what your judgment has done is not provide anything other than an illusionary right for an employee to elect whether to seek voluntary redundancy or redeployment. That in fact, the judgment leads to a situation where the university in fact has fairly much the entire discretion to decide what it's going to do as regards redeployment. I think the proposition that was put at one stage was that now we can say the redeployment period is two days and that's the end of it.

PN411

That sir, is not our interpretation or our reading of your judgment. Our reading of your judgment is that the redeployment process is to be a genuine and considered process and that it needs to be spelled out in detail what the steps are that are involved in the process so as to avoid there being any misunderstanding or misapplication of your judgment in its application. Paragraph 1 of the draft order, we say is necessary to clarify and specify that the choice that is available is at the option of the employee and not at the option of the university. It's necessary to be spelled out in these terms so that we are sure that it is a real option and again not some Mickey Mouse option which the university can undermine or take away from an employee by telling them that their redeployment period will be one day or two days as might have been suggested.

PN412

We say that it's not necessary to specify the employee as an eligible employee in the draft order because the managing change process which might lead to someone with 75 per cent skills match being offered another position will mean that they're therefore not necessarily subject to clause 22.9.7 of the agreement in any event. Either way, if you're inclined to accept the university's submissions in that regard, we say that, that order, order 1 would mean much the same whether the reference in it is to employee or eligible employee. It's simply a matter of semantics probably.

PN413

Likewise, with paragraph 2 of the union's draft order, again because of concerns about there being some record of the appropriate time for the redeployment period and because of the necessity to clearly spell out the process by which the redeployment is to be determined. We say that it's necessary to include that aspect of your judgment sir, which comes, as of course you'll be aware from paragraph 43 of the judgment. The omission of the words, I think, "But only" and "That outcome", at the end of it, we say, don't change the meaning at all, just make the clause a bit neater and a bit more precise.

PN414

Paragraph 3, we say is important. It is the case that clause 86.3.5 of the enterprise agreement specifies that the reasonable period of redeployment is defined as the maximum of six months from the date on which the staff member is informed in writing that the position they occupy is declared redundant. But we say, sir, there needs to be clarity in this process. If the university in fact is not really arguing that the meaning of 86.3.5 is as we have drafted in paragraph 3 of our draft order. We say that's all the more reason that it should stay in. It's not the case, sir. We say that the issue covered by paragraph 3 is outside of the terms of your judgment or the issues that were covered by your judgment.

PN415

There were two fundamental issues and one was the question of whether redeployment or voluntary redundancy was to be an option available at the election of the employee. The other was the period of the redeployment - the length of the period of the redeployment. Clause 3 we say is important in terms of defining when that period specifically begins. Clause 86.3.5 may well do that but we say that it needs further clarification as well. In 4 and 5, I don't think there's actually any disagreement between us regarding those two clauses. They're taken directly from paragraph 43 of your judgment and set them out really in a way which we say just makes them easier to read and a little clearer.

PN416

We don't see there being any significant difference caused by the removal of the phrase, "And in particular", but that's a matter for you, sir, obviously. The reason for including clause 6 in the draft order is similar to the reason for including clause 3 in the draft order which is to ensure that when we're talking about a redeployment period, we're talking about a genuine redeployment period, a sensible redeployment period, a period which is set, which is determined by the university at the commencement of a redundancy process, when an employee has been declared redundant and which will run for a period of a maximum of six months. We would say usually a period six months but for a particular period which then should be subject to review to ensure its genuineness and its reasonableness.

PN417

Paragraph 7, sir, again I don't think there's really dispute between us about that. That's simply a reflection for the sake of completeness within the order of the terms of what you have decided sir. So unless there're any questions, those are my submissions.

PN418

THE DEPUTY PRESIDENT: In relation to an operative date, do you concur with Mr Short?

PN419

MS HANNON: I do, sir.

PN420

THE DEPUTY PRESIDENT: Very well thank you. Mr Short?

PN421

MR SHORT: Just three brief points in reply. First, we don't accept evidence from the bar table regarding circumstances post your determination. Whatever those assertions are should not be taken into account - had no impact on your orders. Secondly, my friend made some submissions about clause 22.9 and indicated that 22.9.7 would be, as I understood it, the solution to any difficulty. It would not. If paragraph 1 of the union's order goes forward then when an employee's position is declared redundant your order would say they must be offered a choice of redundancy or redeployment.

PN422

That is so, despite the terms of 22.9.7 because your order would tell us that we would have to, even though under 22.9.2 we'd found another position for them, we would still, because their position had been declared redundant, have to offer them that choice. That would be a material change in relation to the operation of the enterprise agreement and it would not be a proper reflection of your orders of your determination. The third point in relation 86.3.5 and paragraph 3 of the union's draft order. Paragraph 3 of the union's draft order would not properly reflect 86.3.5 because 86.3.5 deals with two situations.

PN423

One is, if you like, an ongoing staff member and the other is a fixed term contract. But paragraph 3 of the union's order, we say that the redeployment period in all cases is a maximum of six months from when they're informed in writing the position they occupy is declared redundant and would not cater for the situation of the funded fixed term contract and so would not - well obviously it wouldn't - reflect in your determination - because you made no determination about 86.3.5 but it also wouldn't properly reflect the operation of the enterprise agreement. Because paragraph 3 of the union's order caters for one situation and does not cater for both situations reflected in that paragraph.

PN424

So, we would be opposed to the union's draft - put to you that the union's draft is the appropriate way to proceed. Those are our submissions, sir.

PN425

THE DEPUTY PRESIDENT: Yes. What I propose to do is consider what both counsels have usefully advanced in support of their versions of the draft order and to issue the draft order as soon as possible.

<ADJOURNED INDEFINITELY [11.44AM]