AG2005/7915, Transcript of Proceedings [2005] AIRCTrans 2570 (30 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13721-1

DEPUTY PRESIDENT HAMILTON

AG2005/7915

APPLICATION BY LIBRARY BOARD OF VICTORIA T/AS STATE LIBRARY OF VICTORIA & CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION-SPSF GROUP, VICTORIAN BRANCH
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/7915)

MELBOURNE

9.53AM, TUESDAY, 13 DECEMBER 2005

PN1

MR W TOWNSEND: I appear for the Community and Public Sector Union.

PN2

MR D FARRANT: I seek leave to appear on behalf of the State Library of Victoria.

PN3

THE DEPUTY PRESIDENT: Any opposition to leave? No? Leave's granted. Right, let's go though this agreement. Perhaps I'll start off by raising the issues I have. Clause 16.1, paid employee union meetings. Those meetings pertain to the employment relationship in the view of each side do they?

PN4

MR FARRANT: Yes, your Honour, it's limited to matters which are likely to have an impact on employees your Honour.

PN5

MR TOWNSEND: Your Honour that's a trial agreement that submission.

PN6

THE DEPUTY PRESIDENT: Clause 22.16, trade union training area. That pertains the employment relationship does it? Just remind me of the authorities on the issue. Sorry, 22.16, trade union training training area. I'm sure you've all done your homework before coming here.

PN7

MR FARRANT: Sorry your Honour, I can't find that clause.

PN8

THE DEPUTY PRESIDENT: 22.16. It's your agreement my friends. If you're not able to find the clause in your agreement I'm - - -

PN9

MR TOWNSEND: I believe that it was 22.1.6, but now I understand that you want - - -

PN10

THE DEPUTY PRESIDENT: No, it's 22, as I said, 22.16. I've said it for the fourth time.

PN11

MR TOWNSEND: Yes, I accept that.

PN12

THE DEPUTY PRESIDENT: Now.

PN13

MR TOWNSEND: Look your Honour as far as the union's concerned the clauses in the terms of other clauses that have been certified by this Commission and we would submit that such leave would be about pertaining to the employment relationship.

PN14

THE DEPUTY PRESIDENT: Right, what are the - what authority do you have for that?

PN15

MR FARRANT: Your Honour, the applicant seeks to rely upon the decision in Schefernacker in that case your Honour.

PN16

THE DEPUTY PRESIDENT: Right, I have it in front of me.

PN17

MR FARRANT: Sorry?

PN18

THE DEPUTY PRESIDENT: I have that in front of me.

PN19

MR FARRANT: Yes, your Honour.

PN20

THE DEPUTY PRESIDENT: Which part of Schefernacker?

PN21

MR FARRANT: Sorry your Honour, if you bear with me a moment.

PN22

THE DEPUTY PRESIDENT: Of course.

PN23

MR FARRANT: Your Honour, at paragraph 89, where the Full Bench indicates that the provision pertains to the employment relationship because it provides paid leave in absence for a specified purpose. We seek to rely upon that decision in that if you have a look at clause 22.16, the granting of the leave relates to where the library is satisfied that the course of training is likely to contribute to a better understanding of the industrial and employee relations, occupational health and safety, safe work practices and a relevant knowledge of the award.

PN24

THE DEPUTY PRESIDENT: Okay.

PN25

MR FARRANT: In our submission we say that they all pertain to the employment relationships your Honour.

PN26

THE DEPUTY PRESIDENT: Marvellous. Thank you very much for that. Finally the right entry clause in Schefernacker.

PN27

MR FARRANT: Your Honour if I may actually tender another case in relation to the right of entry clause and that's the decision of United Firefighters Union and Metropolitan Fire Brigade. It's a decision which your Honour sat on and - - -

PN28

THE DEPUTY PRESIDENT: For my sins.

PN29

MR FARRANT: I take you to paragraph 26, your Honour. I'll read that:

PN30

On the limited material before us we're prepared to accept that clause 10.5 -

PN31

Clause 10.5 there related to the right of entry provision. Sorry, no that's not correct. Sorry,10.5 related to employee representation your Honour, sorry. But I seek to rely upon this decision in any event in that what it demonstrates is that the right of entry for an employment related purpose is - - -

PN32

THE DEPUTY PRESIDENT: Is all right.

PN33

MR FARRANT: Pertains to the employment relationship your Honour.

PN34

THE DEPUTY PRESIDENT: Yes, indeed, and this one does, does it? I'm just reading it again.

PN35

MR FARRANT: That's correct. If you read it it's actually limited to the investigation for securing compliance with the agreement.

PN36

THE DEPUTY PRESIDENT: It's very tightly - it's tighter than the one in the case you've just tendered.

PN37

MR FARRANT: Absolutely.

PN38

THE DEPUTY PRESIDENT: Which of causes a lot of difficulty.

PN39

MR FARRANT: That's right.

PN40

THE DEPUTY PRESIDENT: This is quite clear.

PN41

MR FARRANT: The clause in the MFB case is actually broader than this one your Honour.

PN42

THE DEPUTY PRESIDENT: Indeed it is and of course there's a lot of difficulty and only in the circumstances was it approved.

PN43

MR FARRANT: Yes.

PN44

THE DEPUTY PRESIDENT: Which means that it may not have much relevance outside those particular circumstances.

PN45

MR FARRANT: Yes, your Honour.

PN46

THE DEPUTY PRESIDENT: Right, I don't think I've got any more questions. Thank you very much for those. Do you want to add anything anybody?

PN47

MR FARRANT: Yes your Honour. There is something that I need to draw your attention to your Honour.

PN48

THE DEPUTY PRESIDENT: Yes.

PN49

MR FARRANT: There appears to be - have been an error in the statutory declaration.

PN50

THE DEPUTY PRESIDENT: Right.

PN51

MR FARRANT: For quite some time the parties had incorporated, or not incorporated, but the agreement for the last two agreements has been underpinned by the public service, what I call the public service award.

PN52

THE DEPUTY PRESIDENT: Victorian public service award or?

PN53

MR FARRANT: No. Yes.

PN54

THE DEPUTY PRESIDENT: Is that its proper name is it?

PN55

MR FARRANT: Yes, well I'll just - yes the Victorian Public Service Award 2005 as it's currently known, your Honour. In its previous incarnation it was known as the Public Service Non-Executive Staff of Victoria Interim Award and the Public Service Non-Executive Staff Victoria Conditions Award.

PN56

Your Honour, I think that's what's led to this error in the statutory declaration. I think the parties assumed that the award had applied. I'm instructed that the award does not apply because the State Library of Victoria's not a public
service - - -

PN57

THE DEPUTY PRESIDENT: Respondent. Not a respondent.

PN58

MR FARRANT: That's right, it's not a public service body.

PN59

THE DEPUTY PRESIDENT: Are you going to make a section 170 - - -

PN60

MR FARRANT: Yes your Honour, I'd like to make a section 170XF application if I may and I apologise for the late notice. I understand that my learned friend will support this application. The application is made on the basis that there are no relevant awards that apply to these employees.

PN61

THE DEPUTY PRESIDENT: This is the right award is it?

PN62

MR FARRANT: Yes.

PN63

THE DEPUTY PRESIDENT: There isn't a library's award somewhere I need to look at?

PN64

MR FARRANT: Your Honour, I think my friend has something to say in relation to that, but if I may address you on two points in relation to why the applicant says it's the correct award.

PN65

THE DEPUTY PRESIDENT: Yes.

PN66

MR FARRANT: For quite a number of years, both the employer and the employee have been moving to, I guess have the agreement closely reflect the conditions in the Victorian Public Service Award, and in fact they've had quite a lot of discussion in relation to the classification structure in their current agreement. The current agreement now actually very closely reflects the classification structure and actually adopts a lot of the classification structures from the Victorian Public Service Award. As I said earlier, the last two agreements have actually been read in conjunction with the award, so since 2001 the employees have effectively been working under the terms of the award through its application under the previous certified agreements, your Honour.

PN67

THE DEPUTY PRESIDENT: All right, so let's go through it. First of all, do you have a written application?

PN68

MR FARRANT: Yes your Honour.

PN69

THE DEPUTY PRESIDENT: Pursuant to section 170XF?

PN70

MR FARRANT: I apologise for the form of this it's only been prepared this morning.- - -

PN71

THE DEPUTY PRESIDENT: No. At least you picked it up. It probably hasn't been picked up before.

PN72

MR FARRANT: I understand it hasn't your Honour.

PN73

THE DEPUTY PRESIDENT: All right, thank you. I'll take that as - I'm willing to waive various requirements. I take it this is by consent isn't it?

PN74

MR FARRANT: Correct your Honour.

PN75

THE DEPUTY PRESIDENT: So I'm willing to waive all requirements in the rules and so on.

PN76

MR FARRANT: I appreciate that.

PN77

THE DEPUTY PRESIDENT: As necessary. Secondly - so to get this straight let's go through it. The employer proposes to make a certified agreement. Firstly, there's no relevant award in relation to some or all of the persons to whom the agreement apply. Thirdly, you're asking them to look at an award, the Public Service Award 2005 which you say regulates employees engaged in the same kind of work as that of those persons under the agreement. So why is it the same kind of work?

PN78

MR FARRANT: Sorry, your Honour, I might hand up a copy of the award.

PN79

THE DEPUTY PRESIDENT: All right.

PN80

MR FARRANT: I should have done that earlier, sorry.

PN81

THE DEPUTY PRESIDENT: That's fine.

PN82

MR FARRANT: Your Honour.

PN83

THE DEPUTY PRESIDENT: So this is the award is it?

PN84

MR FARRANT: Yes, that's correct.

PN85

THE DEPUTY PRESIDENT: Victorian Public Service Award 2005 and - - -

PN86

MR TOWNSEND: Your Honour, if it may assist, I could perhaps provide some of the responses that you have.

PN87

THE DEPUTY PRESIDENT: No, no. Yes I'm sure you can. Just bear with me I've just got to work through this systematically. All right, perhaps you'll deal with the issue. Same kind of work. That's the test in section 170XF, why is this work in the library the same kind of work?

PN88

MR TOWNSEND: Okay, the classification structure that's in the award, which is appendix 1.

PN89

THE DEPUTY PRESIDENT: Yes.

PN90

MR TOWNSEND: The descriptors. These are the identical descriptors that are used by the library to classify the jobs that apply in the library. They're generic descriptors, they're used across the public service for all the occupations that currently apply in the Victorian Public Service.

PN91

THE DEPUTY PRESIDENT: All right.

PN92

MR TOWNSEND: In the case of this particular employer, the historic terms and conditions of employment were those of the Victorian Public Service and was only as a result of changes in government structures brought about by the Kennet government that the library was moved out of the public service back in the early 90s. The terms and conditions though have continued to mirror public service terms and conditions and more so in recent times with a realignment back into the classification structures that are applicable in the Victorian public service and that are referred to in this particular award.

PN93

THE DEPUTY PRESIDENT: Yes, I think it's the point Mr Farrant made and it does take you so far. I suppose a pedant would say that the fact that they've applied public service classifications means that you've decided it's the same kind of work, it doesn't mean that it is does it? But nevertheless, I'm not a pedant, I think it does take you so far.

PN94

MR TOWNSEND: One could say that your Honour.

PN95

THE DEPUTY PRESIDENT: If you think about it for a second.

PN96

MR TOWNSEND: Yes. The Victorian public service classification structure does provide for all the jobs that are within the Victorian state government. Now, a librarian employed in one of the government departments would be classified according to the Victorian - - -

PN97

THE DEPUTY PRESIDENT: I think what you're trying to say is this. The librarians perform a type of clerical work that is very similar in many respects to the types of clerical work covered by the Victorian Public Sector Award. There is not other award which covers that kind of work in its public sector nature in particular. For those reasons, it's the same kind of work. Is that what you're trying to say?

PN98

MR TOWNSEND: I couldn't put it better myself. Thank you.

PN99

THE DEPUTY PRESIDENT: Thank you very much. Right, well first of all I thank you Mr Farrant for picking up this issue and doing the work.

PN100

MR FARRANT: That's all right.

PN101

THE DEPUTY PRESIDENT: As a member of the Commission I'm always grateful when a party has done their homework and you'd be surprised how often that is not the case. Secondly, I'll grant the section 170XF application as sought by the parties. A certificate to that effect will be issued today. Secondly[sic], I'll certify the agreement as sought and a certificate will be issued today. Thank you very much, I'm sorry to ask you questions but it still is my job. Thank you.

<ADJOURNED ACCORDINGLY [10.08AM]