C2004/7020, Transcript of Proceedings [2005] AIRCTrans 534 (3 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10603

SENIOR DEPUTY PRESIDENT LLOYD

C2004/7020

s.111(1)(b) - application for an award or order

National Tertiary Education Industry Union
and
Australian National Academy of Music
(C2004/7020)

MELBOURNE

10.10AM, TUESDAY, 22 FEBRUARY 2005

PN1

MR R HUTCHINS: I appear on behalf of the National Tertiary Education Industry Union.

PN2

MR N RUSKIN: I seek leave to appear on behalf of the Australian National Academy of Music.

PN3

THE SENIOR DEPUTY PRESIDENT: Any objections to leave, Mr Hutchins?

PN4

MR HUTCHINS: It is tempting. No. If the Commission pleases.

PN5

THE SENIOR DEPUTY PRESIDENT: Leave is granted. Yes, Mr Hutchins?

PN6

MR HUTCHINS: Your Honour, Senior Deputy President Watson found that a dispute existed between the NTEU and the Australia National Academy of Music on 2 December 2002. The parties were directed by his Honour to confer. I have to advise that those conferences, those communications were fruitful and the parties have created a proposed award for consent to be made under section 111(b) of the Act. Our required R24 has been forwarded up to the Commission with the documents and subsequent to submitting the agreed draft award, amendments were necessary to clauses 16 and 17 of that award in order to comply with the test case model clause on termination of redundancy. And the parties are in agreement with the changes that are now in the document before your Honour. The proposed award is consistent with Part VI of the Workplace Relations Act and we believe that it complies with the allowable items and the minimum rates provisions of clause 89 of the Act.

PN7

The proposed award does not include any item which is not specifically an allowable item under the Act and provides for an anti-discrimination clause, clause 6, which complies with 88B(3)(d) and (e) of the act. The proposed award does not discourage the making of agreements. The general staff descriptors and the minimum salaries and the salary relatives are in accord with the Higher Education Workers Victoria Interim Award 1993 and, in keeping with clause 88B(3)(a) of the Act, the wage relativities have been agreed to as per that award. At this point, your Honour, I would like to just defer from my formal submissions and advise that late notice has been provided from the employer of some required amendments. Now, I am not quite sure how your Honour would like to proceed with that matter. I am happy with the amendments that have been proposed, unfortunately at this late notice I can't enumerate on them but my colleague I am sure will expand upon those. May I proceed?

PN8

THE SENIOR DEPUTY PRESIDENT: Yes. Look, I will get Mr Ruskin to put forward what changes he proposes and if you want to you can have the opportunity to respond to that.

PN9

MR HUTCHINS: Thank you, your Honour. The rates in the proposed award comply with the safety net adjustments to 2004, in compliance with clause 143I(b) of the Act, the award does not hinder or restrict efficiency of the organisation by prescribing work practises. The maternity and adoption leave provisions, however, I should draw your attention to, provide for a paid leave component of three weeks per each year of service up to a maximum of 12 weeks. 12 weeks' paid leave is a standard within the Higher Education sector, it's common in all our awards and I will leave that at that. The proposed award, as I said before, is in accordance with the first award principles of the Commission, complies with the relevant sections of the Act in providing a safety net of minimum wages and conditions which are allowable under the Act. Subject to any further questions, your Honour, that concludes my submissions.

PN10

THE SENIOR DEPUTY PRESIDENT: One question, Mr Hutchins. Early on in your submission you mentioned there were changes made which were reflected in my copy. What changes were they, could you just clarify for me please?

PN11

MR HUTCHINS: In our original submission of the draft, we had some clauses that didn't quite comply with the requirements of the draft model clause in discussions with your associate, we have been able to bring that up to scratch and employers are on side with the proposed wording.

PN12

THE SENIOR DEPUTY PRESIDENT: Okay, thank you.

PN13

MR HUTCHINS: Thank you, your Honour.

PN14

THE SENIOR DEPUTY PRESIDENT: Mr Ruskin.

PN15

MR RUSKIN: Thank you, your Honour, I have 20 which I can hand up to the Commission. It is signed by my client. The award in the form that you have is agreed with my client but there are a few little matters that need to be clarified within the award which I can go through. As to the parental provisions in the award, it is something which my client supports should go into the award. We don't adopt the submissions of Mr Hutchins that it is standard in the Higher Education sector but certainly I adopt the view that it should be in this award. I can take the Commission to those small little things in the award that might help clarify its terms. There are only about four, if we could go through them now?

PN16

THE SENIOR DEPUTY PRESIDENT: Yes.

PN17

MR RUSKIN: Okay. In clause 9.4 there is a list of clauses which casual employees are excluded from and we should have added, for clarity, though it might be clear from within the award, clause 20, carers leave and clause 21, Parental Leave. Secondly, in clause 13.5, there is a clause about the overtime salary barrier and it says:

PN18

An employee who is classified at or paid a salary equal to that payable to an employee classified at employee level 6 shall not be eligible for payment for overtime.

PN19

It should say, to be clear:

PN20

An employee who is classified at or paid salary equal to -

PN21

or greater than. Obviously, it doesn't mean that if you are level 6 you don't get overtime but if you are at level 7 you do. Clause 17.4, the redundancy clause, refers to clause 41 on the first line of 17.4. There isn't a clause 41, that should be a reference to the redundancy clause so it should say:

PN22

as set out in clause 16.

PN23

Pedantically, I saw that at 21.1.9 the Employer, on the last line, was an "E" rather than an "e", that could be rectified, or not. And the last matter is 21.2.2, that is a clause which provides for spouse leave of five consecutive days leave with pay. It provides that eligible casual staff employees get that paid leave, whereas that was not intended. Under the maternity leave provision, continuing and fixed term employees get paid maternity leave but eligible casual employees only get it without pay. So that clause should read:

PN24

A fixed term or continuing,

PN25

Or get rid of the words:

PN26

or eligible casual staff member -

PN27

casual, staff, so:

PN28

a fixed term or continuing employee shall be entitled to five days leave without pay.

PN29

And, I think one could add the words:

PN30

whereas an eligible casual employee is entitled to such leave without pay.

PN31

All these are issues that I have identified. Otherwise my client supports the making of this award today.

PN32

THE SENIOR DEPUTY PRESIDENT: Mr Hutchins, I understand you agreed to those changes being made?

PN33

MR HUTCHINS: We do, your Honour.

PN34

THE SENIOR DEPUTY PRESIDENT: It is now to just decide how best to handle this. I imagine you would resubmit a final version including those changes. An alternate, which is probably easier, is we would make any changes when we issue the final award.

PN35

MR RUSKIN: I think, sir, if you have the changes I would be happy for you to just make them if that is all right with you, sir.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes. They are all pretty straight forward. I think just the terminology of that additional sentence in 21.2.2, what would you propose for that?

PN37

MR RUSKIN: Shall I go through it again?

PN38

THE SENIOR DEPUTY PRESIDENT: Yes. Just give us the terms.

PN39

MR RUSKIN: Yes. It says:

PN40

A fixed term or continuing employee shall be entitled to five consecutive days leave with pay, whereas an eligible casual employee is entitled to such leave without pay.

PN41

THE SENIOR DEPUTY PRESIDENT: Okay.

PN42

MR RUSKIN: Thank you.

PN43

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Ruskin. I accept those changes being made to the application and therefore I can go ahead and make a decision. This application was made pursuant to section 111(1)(b) of the Workplace Relations Act, the making of an award by consenting parties, the new award is to be known as the Australian National Academy of Music Award 2004. It is a product of extensive negotiations and discussions between the NTEU and the academy. I am satisfied that the award meets the requirements of section 143 of the Act.

PN44

I am further satisfied that the award is consistent with the proper application of the relevant test case provisions. A final proposed award incorporating amendments canvassed this morning is to be drafted, once that is done, I will confirm my transcript decision in an order to take effect on or after 22 February 2005 and to remain in force for a period of 12 months. Commission is adjourned.

<ADJOURNED INDEFINITELY [10.25AM]