AG2004/8359, Transcript of Proceedings [2005] AIRCTrans 516 (1 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10630

DEPUTY PRESIDENT BLAIN

AG2004/8359

s.170LJ - agreement with organisations of employees (division 2)

APPLICATION BY UNIVERSITY OF WESTERN AUSTRALIA AND ANOTHER
(AG2004/8359)
Higher Education Contract of Employment Award 1998

PERTH

11.33AM TUESDAY, 18 JANUARY 2005

PN1

MS T BORWICK: I appear for the National Tertiary Education Industry Union, I seek leave to appear.

PN2

THE DEPUTY PRESIDENT: Thank you. On what basis do you seek leave to appear, is it as counsel or as agent?

PN3

MS BORWICK: I am the industrial officer for the National Tertiary Education Union. It's definitely not counsel.

PN4

THE DEPUTY PRESIDENT: Nor solicitor?

PN5

MS BORWICK: Nor solicitor.

PN6

THE DEPUTY PRESIDENT: So would it be agent?

PN7

MS BORWICK: It would have to be agent.

PN8

THE DEPUTY PRESIDENT: Thank you.

PN9

MS BORWICK: Thank you.

PN10

MS M MACPHERSON: I appear on behalf of the University of Western Australia.

PN11

THE DEPUTY PRESIDENT: Thank you. And you have no objection to the appearance of Ms Borwick as agent?

PN12

MS MACPHERSON: No, I don't.

PN13

THE DEPUTY PRESIDENT: Thank you. Leave is granted. The application having been made by the University of Western Australia, please commence Ms Macpherson.

PN14

MS MACPHERSON: Thank you, your Honour. This is the fifth agreement which has been negotiated with the academic staff at the University of Western Australia and each agreement has built on the previous one. Clause 18 of the agreement and schedule A of the agreement provide for eight salary increases which total a minimum of 23 per cent over the life of this agreement. The agreement also provides for the ability to pay an additional increase during the second half of 2007. I have a summary which outlines all the changes which I can go through if you wish, the information was provided in the statutory declarations lodged with the agreement and are outlined at point 7.4, 7.5 and 7.6 of the statutory declarations.

PN15

THE DEPUTY PRESIDENT: From my point of view it's not necessary, but again, if you would wish to inform me of that please do so.

PN16

MS MACPHERSON: No, that is fine. Sections 170LJ(3) and 170LT(7) require the employer to have taken reasonable steps to explain and provide access to the agreement. All academic staff were advised by an all staff email and by memorandum on Thursday, 2 December 2004 that the draft agreement and a summary of changes were on the world wide web. Staff were further advised that if they did not have access to the web they could contact human resources to receive a copy of the agreement. Details to the changes to the agreement were outlined in a communication to all staff prior to the commencement of the ballot process and an all staff information session was held on Thursday, 9 December 2004 and details of the agreement were discussed in this forum. Staff were also invited to contact human resources if they required any further information.

PN17

Section 170LJ(2) and 170LT(5) of the Act require that the agreement was approved by a valid majority. A ballot was being conducted and was open from 16 to 20 December 2004 resulting in 97 per cent of the votes cast in favour of the agreement.

PN18

I now move to the points raised by your Honour in relation to information provided in the statutory declarations. In particular, question 1.4. The university submits that the academic staff of the university are a distinct operational or organisational unit within the single business. The nature of the work performed by the academic staff is distinctly different to the general staff of the university and therefore the academic staff are an operationally distinct part of the single business.

PN19

It's the position of the university and it has been historically in terms of the enterprise bargaining process that academic staff, as defined in the agreement, are an operationally distinct group of employees to other staff of the university who are general staff.

PN20

Further, the university acknowledges that there is a difference in interpretation in terms of the NTU submission, however, it has no material impact in terms of the certification of the agreement and therefore the university believes it does not preclude the certification of this agreement.

PN21

Question 6.4 and 6.7 that your Honour has raised which is directed to the NTEU, however, the university could provide some further information here. I can provide copies of all staff emails and related information which was sent to all academic staff of the university as the university outlined in our statutory declaration should your Honour so wish.

PN22

THE DEPUTY PRESIDENT: From my point of view that is not necessary as I am persuaded by your statutory declaration.

PN23

MS MACPHERSON: Thank you. Clause 55 - - -

PN24

THE DEPUTY PRESIDENT: But if you would wish to tender them, please do so.

PN25

MS MACPHERSON: No, that is fine, I will not tender those today, if unnecessary. Clause 55.2.1 of the agreement - clause 55 sets out the procedures for dealing with disputes and includes at 55.2.1(b) that no industrial action shall be taken by management of the university or the unions whilst in dispute. It's the university's view this clause does not replace our obligations under section 170MN of the Workplace Relations Act. The no disadvantage test - the university verifies that the agreement passes the no disadvantage test at the date of certification. The expiry date of this agreement is three years from the date of certification.

PN26

THE DEPUTY PRESIDENT: Thank you. You mentioned one section of the Act, 170MN.

PN27

MS MACPHERSON: Yes.

PN28

THE DEPUTY PRESIDENT: Are you able to confirm that there is no other provision of the Act which would be inconsistent with the procedures outlined in clause 55.2?

PN29

MS MACPHERSON: Could I take leave for one moment to confer with my colleague please, your Honour?

PN30

THE DEPUTY PRESIDENT: Yes.

PN31

MS MACPHERSON: Your Honour, I don't believe there is, I don't believe so.

PN32

THE DEPUTY PRESIDENT: Thank you for that assurance. I have one further question in relation to 55.2.1(b) which uses the word, as I read it, "unions" in the plural. I am wondering if you could clarify for me whether that should in fact be "union" in the singular.

PN33

MS MACPHERSON: I do believe it should be, your Honour.

PN34

THE DEPUTY PRESIDENT: Thank you. Has your submission concluded in relation to the intention of the parties in this case, at the University of Western Australia, in relation to the coverage of employees as well as the university and the union?

PN35

MS MACPHERSON: Yes it has, your Honour.

PN36

THE DEPUTY PRESIDENT: Did I understand that correctly to be that the employees would also be covered by that provision as you understand it?

PN37

MS MACPHERSON: Actually, the university can confirm that, in answer to your question, that the management of the university do not intend and will refrain from taking any industrial action, however, the university management, with respect, do not believe that we can confirm that for our employees.

PN38

THE DEPUTY PRESIDENT: I understand that, but I am asking a different question which is what is the intention of the university in agreeing to this particular provision 55.2.1(b) in the agreement? Is that subclause intended to cover industrial action in relation to employees in addition to management of the university or the union?

PN39

MS MACPHERSON: May I take leave to confer with my colleague please, your Honour?

PN40

THE DEPUTY PRESIDENT: Yes.

PN41

MS MACPHERSON: Thank you, your Honour. It's the university's view that clause 55.2(b) relates back to clause 55, the dispute settling procedures and 55.1. So the dispute would be raised from the union to the university and it's the university's view that clause 55.2 builds on section 170MN of the Workplace Relations Act that binds our employees.

PN42

THE DEPUTY PRESIDENT: Thank you. That final response clarifies the matter to my satisfaction. I have no further questions, does that conclude your submission?

PN43

MS MACPHERSON: It concludes the university's submission, your Honour.

PN44

THE DEPUTY PRESIDENT: Yes, thank you. Ms Borwick?

PN45

MS BORWICK: If it pleases, your Honour. Again, similar to the general staff agreement, your Honour is asked a number of questions which you would have received a response from Mr Ken McAlpine by way of facsimile on 17 January, and I trust that you will have that letter and those submissions.

PN46

THE DEPUTY PRESIDENT: Yes, that has been received, thank you.

PN47

MS BORWICK: If it pleases. Your Honour, again, similarly the union and the university haven't been engaged in a long time over the negotiations of this agreement, and we believe support the submissions of the university although we do depart on a number of issues which your Honour has already received our response on and that goes to the issues - one of the questions that you raised namely question 1.4 where you ask about the distinction between the union and the university between the single business to which the agreement is to apply is a geographically distinct part or a distinct operational or organisational unit within the single business. Mr McAlpine's response to that question is found on page 1 of his letter to you, and I thought it would be appropriate to read that response into transcript, if your Honour pleases:

PN48

The NTEU states that the agreement covers academic staff of the university it does not cover general staff. The union's submission is that the agreement cannot be said to cover a geographically or organisationally distinct part of the business.

PN49

The NTEU goes on to state:

PN50

There can be no question that under section 170LB, the university is a single business, academic staff are part of that business, section 170LB(3) provides only examples of what constitutes part of a business.

PN51

If your Honour pleases, that is the NTEUs submissions in response to question 1.4. Whilst making those submissions we do say that this is not necessarily an impediment to the Commission certifying the agreement if we are apart on that particular point. There is no impediment to refuse to certify the agreement.

PN52

Secondly, the Commission asks - - -

PN53

THE DEPUTY PRESIDENT: Perhaps, just before you go on.

PN54

MS BORWICK: Certainly, your Honour.

PN55

THE DEPUTY PRESIDENT: I would just like to clarify one matter. A statutory declaration is made by an individual not by an organisation or by a party and the statutory declaration was made by Graham McCullough, so from the point of view of the Commission, today's hearing is the opportunity to provide to me further submissions and evidence to clarify the questions that were raised in relation to Mr Graham McCullough's statutory declaration. So it is in effect, the import of what I am saying is, that it is your submissions in evidence today which will be given the weight in relation to my satisfaction under the Act if that assists.

PN56

MS BORWICK: Can I just add, your Honour, that I omitted to indicate that our national organisation also provided you with an outline of the structure of the university to support the submission it was making and so it was supporting those submissions by way of pointing out the structure of the university and showing that where the university has within its faculties, it goes general staff and academic staff, and so that is why we did not see them as being distinct operational units I think which is the question, the clarification your Honour is wanting to seek, clarification.

PN57

THE DEPUTY PRESIDENT: Yes. So in effect what I was just putting to you is that what is important is your submissions and evidence today whilst written submissions in advance certainly I take into account the more important consideration is what you are putting today. Do you understand what I am saying?

PN58

MS BORWICK: Certainly, I do understand what you are saying. The submissions I would be making would be consistent with what is being put to you by way of written submission.

PN59

THE DEPUTY PRESIDENT: Yes, I understand that.

PN60

MS BORWICK: They are not different from those at all.

PN61

THE DEPUTY PRESIDENT: I accept that.

PN62

MS BORWICK: If your Honour pleases, if we can turn to question 6.4 to 6.7 and similarly, your Honour, has raised this matter in relation to the general staff agreement and if your Honour would require, I am more than happy to give evidence to say that the communications which the university engaged and in terms of advising staff of the enterprise agreement, the making of the enterprise agreement and the terms and conditions of those enterprise agreements were done on the basis that I have been in receipt personally of the email communications that were sent to all academic staff in the university. I am happy to give that as evidence if your Honour requires that.

PN63

THE DEPUTY PRESIDENT: It would assist given that the Act requires me to be satisfied under section 170LT(7) and 170LJ(3)(b) and that would certainly be of assistance in that regard.

PN64

MS BORWICK: If it pleases, your Honour.

<THERESA BORWICK, AFFIRMED [11.52AM]

PN65

THE WITNESS: If your Honour pleases I am able to confirm that the emails sent to all academic staff by the university advising them of the terms of the enterprise agreement that were negotiated between the union and the university has occurred on the basis that I am in receipt of those emails.

PN66

THE DEPUTY PRESIDENT: Thank you. To the best of your knowledge the necessary steps were taken in relation to question 6.4 and 6.7?---Correct.

PN67

Thank you for that, you may step down.

<THE WITNESS WITHDREW [11.53AM]

PN68

MS BORWICK: If your Honour pleases, the third question which your Honour posed is in relationship to the dispute settlements procedure which is clause 55 of the academic agreement, and in particular, point 2.1(b) of that clause. Certainly, your Honour, one of the tests for certification of the agreement is that the agreement does need to provide a dispute settlements procedure so all enterprise agreements do need to have a dispute settlements procedure which is in accordance with section 170LT(8) of the Act. It would be our submissions that this particular dispute settlement procedure would meet that test. However, your Honour does go on to ask that the parties will be required to confirm in transcript that it is their intention that no industrial action should be taken unless in accordance with the Act. Further your Honour indicates that the parties should confirm that it is intended that the employees covered by the certified agreement should also refrain from industrial action as well as management of the university or the unions.

PN69

Prior to turning to the submissions which Mr McAlpine has made to your Honour in response to that question, what Mr McAlpine has indicated to your Honour is that the NTEU will not give the undertaking as requested and I guess in making that submission and me appearing before you, it would be useful to have some clarification from your Honour as to the reason for the question, if your Honour pleases. What we are saying is that this is part of the dispute settlements procedure, it is about the status quo remaining should the union and the university by in dispute over the meaning and application of this agreement and it is an undertaking that the parties have given to each other that the status quo should remain and that no industrial action would occur.

PN70

Mr McAlpine certainly goes further in his written response to say that:

PN71

It is the respectful submission of the NTEU that the Commission should not refuse to certify the agreement simply because of the union's failure to give such an undertaking.

PN72

If I can pause there and ask for some clarification as to the reason for the Commission's question.

PN73

THE DEPUTY PRESIDENT: Thank you. Let me again explain that this hearing today has been listed to enable to the parties to make submissions and give evidence as appropriate to satisfy me that the agreement should be certified, therefore, the view of another person by way of correspondence is not the matter before me today, it's your submissions that are relevant and important. You can take it as read that any written correspondence or submissions that have been given to the Commission in advance of the hearing have been read, but the purpose of this hearing is quite different today.

PN74

In relation to your question which I understand, is the consideration that pursuant to section 170LT(7) of the Act, I must not certify an agreement unless I am satisfied that the agreement includes procedures for preventing and settling disputes between the employer and employees covered by the agreement. I would have considerable difficulty in being so satisfied if I had formed the view that a party intended the relevant provision in the agreement that we are referring to here, being 55.2.1(b), to be in breach of the Act. It was my assumption that it was not the intention of the parties to the agreement that that provision be in breach of the Act. I am satisfied by the submissions of the University of Western Australia that that is not the intention and I have accepted those submissions and this is your opportunity to give me your position in relation to that question.

PN75

MS BORWICK: If you Honour pleases, it would not be our intention in accordance with the dispute settlements procedure to engage an industrial action in terms of what is set out here in the agreement. I think that is all we can say that in accordance with the Act allows for some industrial action, or protected industrial action, outside of the nominal expiry dates of the agreement. However, in accordance with the dispute settlements procedure, and which would rightfully be something happening in the life of the agreement, there is an additional I would submit undertaking which the union is giving, namely that no industrial action will occur in the context of a dispute about the meaning and application of the agreement.

PN76

THE DEPUTY PRESIDENT: You referred to protected industrial action. Protected industrial action as defined within the Act is provided for by the Act and is in accordance with the Act. My question to you today is to give you the opportunity to given an assurance that the relevant provision of the dispute settling procedure is intended to comply with the Act.

PN77

MS BORWICK: That is its intention, I can't see it being any other intention other than complying with the Act.

PN78

THE DEPUTY PRESIDENT: Thank you. That answers the question. The supplementary question was also the question of the employees as distinct from the union and the management of the university. I just seek your confirmation that it's your view that is intended to apply as well.

PN79

MS BORWICK: It would be our submissions that that would apply to employees and I guess adding to that we would be submitting that the agreement, the application of the agreement is between the university and the union and staff who are members of the union so to the extent that we would have some I guess control over employees who are members of the union, we could give that undertaking, but I am not sure whether the union could give an undertaking on behalf of all employees of the union if they were not union members.

PN80

THE DEPUTY PRESIDENT: Yes, I understand that and I wasn't asking that question.

PN81

MS BORWICK: Right.

PN82

THE DEPUTY PRESIDENT: It was just to clarify it was a question of intention and you have answered that question.

PN83

MS BORWICK: If it pleases your Honour. The final question that your Honour posed was the test of the no disadvantage test and as Ms Macpherson outlined the statutory declaration details the elements in the enterprise agreement which on balance do not reduce terms and conditions of employment in fact we would be making submissions to say that they are an improvement on existing terms and conditions of employment in a number of areas, namely, salary being one of those, parental leave being another, improve pay, parental leave provisions, however, those are listed for your Honour to consider at 7.5 of the statutory declaration. So we believe the no disadvantage test is met.

PN84

THE DEPUTY PRESIDENT: As of today's date?

PN85

MS BORWICK: As of today's date, your Honour.

PN86

THE DEPUTY PRESIDENT: Thank you.

PN87

MS BORWICK: If it pleases your Honour.

PN88

THE DEPUTY PRESIDENT: I have no further questions. If there are no further submissions, I turn to the agreement noting it is pursuant to an application under part IVB, division 2, section 170LJ of the Act for an agreement to be known as the University of Western Australia Academic Staff Agreement 2004. Having heard Ms Macpherson on behalf of the University of Western Australia, UWA and Ms T Borwick as agent on behalf of the National Tertiary Education Industry Union, the NTEU, and having read the statutory declarations filed by Alan David Robson on behalf of UWA and Graham McCullough on behalf of the NTEU, and having received the sworn evidence of Ms Borwick, and the submissions that have been given today by both Ms Borwick and Ms Macpherson, I am satisfied that the agreement filed relates to a constitutional corporation, namely the University of Western Australia established under the University of Western Australia Act 1911 WA.

PN89

The NTEU has at least one member employed in the part of the single business to which the agreement relates, and is entitled to represent the industrial interests of the member. The agreement passes the no disadvantage test, was made in accordance with section 170LJ. A valid majority of persons employed at the time whose employment would be subject to the agreement genuinely approved it. The explanation of the terms of the agreement was appropriate. It includes procedures for preventing and settling disputes between the employer and the employees whose employment would be subject to the agreement and it specifies a nominal expiry date of not more than 3 years after the date on which the agreement will come into operation.

PN90

Although UWA and the NTEU had different views regarding whether the agreement covered a distinct operational or organisational unit, I am not satisfied having regard to section 170LU(8) that there are grounds for me to refuse to certify the agreement. I am satisfied that there are no other reasons set out in section 170LU of the Act why I should refuse to certify the agreement. Accordingly, it will be certified with effect from 18 January 2005 to operate in accordance with its terms from that date. The formal certificate will issue in due course. I adjourn this hearing.

<ADJOURNED INDEFINITELY [12.06PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

THERESA BORWICK, AFFIRMED PN64
THE WITNESS WITHDREW PN67