C2005/413, Transcript of Proceedings [2006] AIRCTrans 779 (30 May 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15112-1

SENIOR DEPUTY PRESIDENT KAUFMAN

C2005/413

APPLICATION BY AUSTRALIAN EDUCATION UNION
s.113 - Application to vary an Award
(C2005/413)

MELBOURNE

9.24AM, FRIDAY, 24 MARCH 2006

Continued from 17/3/2006

PN1

THE SENIOR DEPUTY PRESIDENT: Yes I apologise for the late start. Who wants to tell me where the parties have reached?

PN2

MR D BUNN: Your Honour can I first of all indicate a change in appearance. MS R CUMMINS is appearing with me for the Australian Education Union today. In relation to report back I suggest your Honour that the employers indicate to you what's transpired.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes Mr Eberhard.

PN4

MR P EBERHARD: Thank you your Honour. Your Honour following the conciliation conference last Friday and the report back here, VECCI and VHIA received the information from the AEU on the Monday. We then saw to it to distribute it as best as we could to the employers that we represent in these proceedings and we had a meeting yesterday morning with respect to a number of members who are subject to the award and who would be - who have a direct interest in part 2 of the Disability Services Award.

PN5

As a result of that meeting I can advise the Commission that we're not in a position where agreement has been reached, we are instructed to oppose the application but we are also instructed that in part the application could proceed should that be the wish of the AEU and that reflects or relates to clause 33, time off in lieu and overtime. Clause 35.2 which relates to annual leave, clause 36 which is annual closedown, clause 38 which is salary packaging and then also part 4 with respect to clause 59, which is also salary packaging.

PN6

With respect to those five particular clauses, VECCI would not be opposing the application to proceed to a - vary the award should the AEU proceed with that component of the application. With respect to the other components of the application, we are instructed that we do oppose the application and that there is no agreement. There's a range of matters I suppose - I won't go into them but it's just quite simply to say that I think time has got the better of us and we're just not in a position where we can agree to the entirety of the draft order that was tendered last Friday. If the Commission pleases.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes thank you. What's the position of the VHIA?

PN8

MR HOOPER: Senior Deputy President, our position is in alliance with VECCI. We've run out of time. Negotiations have been productive regarding the certain direction but we haven't managed yet to align.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes. Well Mr Bunn?

PN10

MR BUNN: Your Honour, the Australian Education Union does not wish to proceed with a variation to the award today. The five clauses - I think it was five - that Mr Eberhard pointed to were matters in which employers had sought concessions from the union in the bargaining process. They're not ones that we're prepared to concede without the elements of the package which we had sought being agreed.

PN11

If the employers in this sector want to make the salary sacrifice arrangements legal - because many of them are conducted in defiance of the taxation law - then they'll have to strike agreements under Work Choices legislation, with employees and their representatives. If they find the annual leave provisions as they are amended with VECCI's consent by you on 9 January your Honour, if they find those provisions inconvenient or difficult to work with then they'll have to strike agreements with us under Work Choices or with their employees.

PN12

If they find the time off in lieu clause is cumbersome as they obviously do then they'll have to strike agreements and so on - - -

PN13

THE SENIOR DEPUTY PRESIDENT: Mr Bunn, do you withdraw your - you don't pursue your application, you don't need to.

PN14

MR BUNN: I don't need to your Honour. I do want to place on record what the union's view is and the reasons why it will not pursue the application. There's one particular reason for that your Honour and that is that you have expended a significant amount of effort seeking to assist the parties to come to an agreement and I don't want to simply indicate in some flippant shrug of the shoulder that all that work has been for nothing.

PN15

THE SENIOR DEPUTY PRESIDENT: No, it's time we got to the better of people and I'm not convinced that the Commission has no powers to vary an award under the regime that comes into play on Monday, but I'm not quite clear to exactly to what extent and how. But I've had a look at the legislation and - - -

PN16

MR BUNN: I'm sure you have your Honour and I'm sure you've been able to devote more attention to it than I.

PN17

THE SENIOR DEPUTY PRESIDENT: But I - anyway - - -

PN18

MR BUNN: I've had to re-read Schedule 13. I've had to operate on the basis of the advice I've had which is that we believe that at the very best it's doubtful that the Commission will have an ability to vary, particularly in relation to the subject matter that relates to territory that will be covered by the Australian Fair Pay Commission.

PN19

THE SENIOR DEPUTY PRESIDENT: I hope that's - I haven't looked at the legislative changes in the context of this particular - - -

PN20

MR BUNN: So your Honour I - - -

PN21

THE SENIOR DEPUTY PRESIDENT: Yes go on.

PN22

MR BUNN: Can I - I did briefly just want to say that from the union's point of view, the removal to the extent as we've just discussed, the extent that we understand the removal with the arbitrary power from the Commission is the lamentable event for these - for this group of workers who we represent here today. They work with vulnerable and powerless people and disregarded people and they have been properly reluctant to put the interests of those people at risk by taking industrial action. It's exactly those sort of workers and their employers who've benefited from access to a third party to set fair minimums.

PN23

What the union sought in this matter was to set fair minimums. It's been suggested to me by the other side that we should now go and negotiate what's been discussed here with willing employers. That is not what we will be doing. We'll be going to discuss with employers over the award bargains - that's what bargaining's about and we certainly won't be going cap in hand to ask them to agree to fair minimums that they've refused to agree to in these proceedings.

PN24

I want to thank you your Honour for the assistance you've given us in attempting to reach an outcome in these proceedings.

PN25

THE SENIOR DEPUTY PRESIDENT: All I've done is my job Mr Bunn.

PN26

MR BUNN: I understand that but I also understand that you and your associate have moved dates around and found ways to accommodate us and we certainly regret that as we understand it from Monday next week you would no longer be able to provide the same assistance that - your ability to do that will be in a significant reduced. That's over a hundred years of significant contribution by this institution to social cohesion.

PN27

THE SENIOR DEPUTY PRESIDENT: This isn't the time or place for this - - -

PN28

MR BUNN: It's the only time your Honour and I don't intend to go on with it, but there's been a lot of discussion about social cohesion - in the end the contribution of this institution to social cohesion has been, I think, almost totally neglected in discussions of the last six months.

PN29

THE SENIOR DEPUTY PRESIDENT: I'm glad somebody loves us.

PN30

MR BUNN: Yes and look, that relationship's untroubled but it's as well that the union places on record that - its regret. If the Commission pleases.

PN31

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Bunn. I don't think the employers need to reply to what Mr Bunn has said. The parliament has enacted legislation that comes into effect at midnight on Sunday night that will affect the manner in which this matter proceeds, if it is to proceed at all. All I can do is adjourn the matter sine die and the parties will take whatever steps they deem to be necessary. I appreciate that both sides of - placed a good deal of effort into trying to reach an agreement and for one reason or another it hasn't been possible. I don't attribute blame to anybody. All I can do in the circumstances is adjourn the Commission.

<ADJOURNED ACCORDINGLY [9.33AM]