D2003/40, Transcript of Proceedings [2006] AIRCTrans 785 (31 May 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15126-1

SENIOR DEPUTY PRESIDENT LACY

D2003/40

APPLICATION/NOTIFICATION BY AUSTRALIAN EDUCATION UNION
s.158(1) RAO Schedule - Application for alteration of eligibility rules
(D2003/40)

MELBOURNE

10.05AM, WEDNESDAY, 12 APRIL 2006

Continued from 9/3/2006

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning, Ms Gale. Are you the only person appearing today? Is that right?

PN2

MS L GALE: I am, your Honour.

PN3

THE SENIOR DEPUTY PRESIDENT: And you appear for the AEU.

PN4

MS GALE: I am, and I come bearing good news.

PN5

THE SENIOR DEPUTY PRESIDENT: I am pleased to hear that. It's a good start to Easter.

PN6

MS GALE: Absolutely. Your Honour, the AEU has now reached settlement with all the objector unions and final settlement with the ASU and the CPSU is reflected in correspondence which I would seek to tender. The first item is a set of correspondence between the ASU and the AEU reflecting the settlement of that objection.

PN7

THE SENIOR DEPUTY PRESIDENT: Thank you. Do you have any idea of what exhibit numbers we were up to?

PN8

MS GALE: I believe, your Honour, we're up to either AEU3 or ASU1.

PN9

THE SENIOR DEPUTY PRESIDENT: I will mark them as AEU. We already have AEU3?

PN10

MS GALE: We only have 1 and 2.

EXHIBIT #AEU3 LETTER FROM ASU ADDRESSED TO SUSAN HOPWOOD DATED 10/03/2006

PN11

THE SENIOR DEPUTY PRESIDENT: That includes the attachments. Perhaps I will just clarify what they are. The first attachment, the only attachment, is a letter from yourself to Mr John Nucifora dated 9 February 2006. Is that right?

PN12

MS GALE: That's correct.

PN13

THE SENIOR DEPUTY PRESIDENT: Very well, and that demonstrates an agreement reached between the ASU and the AEU settling the objection that the ASU - - -

PN14

MS GALE: That's correct, your Honour.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes, and it's withdrawn, the objection.

PN16

MS GALE: And the second document is a deed of agreement reached between the AEU and the CPSU which has a number of attachments to it, your Honour, which are enumerated in the deed itself and they include one attachment, schedule 4, I believe, which is a sealed schedule. It's a list of certain members of the CPSU as at the date of the deed and that is held by the parties and will remain sealed unless an issue arises in relation to those matters.

PN17

THE SENIOR DEPUTY PRESIDENT: I understand.

EXHIBIT #AEU4 DEED OF AGREEMENT BETWEEN CPSU AND ASU AND ATTACHMENTS

PN18

THE SENIOR DEPUTY PRESIDENT: Does that document tell me that the CPSU withdraws its objection?

PN19

MS GALE: Your Honour, the recitals on page 2 at clause C state that:

PN20

The AEU has agreed to seek leave to amend its application and the CPSU has agreed to withdraw its objection.

PN21

THE SENIOR DEPUTY PRESIDENT: And does so by this deed, obviously, I suppose.

PN22

MS GALE: That would be our understanding, your Honour.

PN23

THE SENIOR DEPUTY PRESIDENT: All right.

PN24

MS GALE: A meeting of the AEU federal executive was held on 15 and 16 March this year in Sydney and at that meeting, a resolution was passed authorising the deed of agreement with the CPSU and the terms of settlement with the ASU. The application for leave to amend the rule change application was also authorised at that meeting and that was followed by correspondence from the AEU to yourself, your Honour, seeking leave to amend the application in the terms set out in that letter of 17 March 2006. That correspondence was provided to all of the objecting organisations and the AEU has no reason to believe that any of the earlier objections have been re-animated in light of the current form of the proposed rule.

PN25

THE SENIOR DEPUTY PRESIDENT: Well, the ALHMWU, SDAEA, IEU, CFMEU, they have in fact given notice of the withdrawal of their objections, haven't they?

PN26

MS GALE: I believe so, your Honour.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes.

PN28

MS GALE: The effect of the proposed amendment to the application is to significantly narrow the scope of coverage which would be extended by the new rule, particularly in relation to the proposed sub-rule 6A(v) which relates to pre-school assistants, kindergarten assistants, et cetera, in the early childhood education industry in the state of Victoria. That rule has been narrowed by the express exclusion of two categories of employees as indicated in the dot points.

PN29

THE SENIOR DEPUTY PRESIDENT: Sorry, which one is that, Ms Gale?

PN30

MS GALE: I am sorry, your Honour. If you refer to the letter of 17 March which is the application for leave to amend the application - - -

PN31

THE SENIOR DEPUTY PRESIDENT: By looking in the deed, but go on. Yes, that's right. I'll refer to the letter.

PN32

MS GALE: The first clause referred to there is 6A(v) which is the preschool assistant rule in shorthand and that now includes two exemptions which were not expressed in the original application. The first of those relates to persons employed in registered non-government schools, registered with the Registered Schools Board of Victoria and that reflects settlement with the IEU in relation to preschools that are located as part of the structure of the private school system. The second exemption there is for employees of local government, unless the main function of their work is the delivery of or the support for the delivery of a preschool education program in conjunction with a preschool or kindergarten teacher.

PN33

THE SENIOR DEPUTY PRESIDENT: And that was the IEU settlement as well?

PN34

MS GALE: That's the ASU settlement.

PN35

THE SENIOR DEPUTY PRESIDENT: Yes.

PN36

MS GALE: The next part of the application is the proposed new sub-rule 16 which has two parts to it, A and B. Part A has been substantially limited. In its original form, it effectively went to all persons employed in or in connection with government schools in the five named states and territories of South Australia, Victoria, Tasmania, the ACT and the Northern Territory. In practical terms, that was an effective restatement of the AEUs existing coverage in relation to teaching classifications in all of those areas and a restatement of the AEUs existing coverage in relation to the non-teaching staff in South Australia and Victoria where the AEU already under other rules has broad coverage of those classifications.

PN37

In relation to the Northern Territory, Tasmania and the ACT, the proposed rule was a significant extension into the area of non-teaching classifications in those three jurisdictions. The result of the negotiations with the objectors and the terms of the settlement are that that extent of coverage has been narrowed and it's been narrowed in a number of ways. The first is by a provision which clarifies the inclusions within the term in connection with public schools in sub-rule 16A and that makes it clear that it is intended to include all persons whose primary work location is at a public school or other public education facility.

PN38

THE SENIOR DEPUTY PRESIDENT: Sorry, what is it you say it actually further defines?

PN39

MS GALE: It defines first by inclusion and then by exclusion, your Honour. The inclusions are (i), (ii) and (iii). The first of those includes all persons whose primary work location is at a public school or other public educational facility which is operated primarily for the delivery of education to public school students. The second inclusion is persons whose primary work location is not at a school, but whose work nevertheless involves regular contact with public school students and who regularly perform duties directly related to the education of public school students and the third inclusion relates to the teaching end of the spectrum of classifications and it relates to a specific category of workplaces in Victoria which are known in the industry as the strategic partnerships program. Examples of this would be the education program at the zoo or at the museum and some hospitals and other educational facilities.

PN40

These historically were operated directly by the Education Department, but with the restructuring, many of those public facilities into a variety of quango or other corporate structures, the question of coverage had become at least an academic interest to the AEU and this rule here reflects a clear agreement with the CPSU that the AEU will continue to have coverage of the teaching classifications in those workplaces, but it does not refer in any way to the non-teaching classifications, except to the extent that teacher, librarians, language assistants, instrumental musicians could be said to be non-teaching. Those are all classifications that are reflected in our existing Victoria public education rule. The next part of the proposes sub-rule is the clarification of what is not included in that expression in connection with public schools and these are the clauses with the capital letter numbering.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes.

PN42

MS GALE: Clause A excludes persons who are employed if you like as the core public service in the Department of Education. We and the CPSU have no quibble that the Department of Education works in connection with public education, but for the purpose of this rule, it's clear that persons who are employed in a departmental office in a professional, administrative, clerical or technical classification who don't have contact with school students in schools or other educational facilities of a like nature are not intended to be caught by this rule. Clause B provides that an employee of a Department of Education who is of that character described in clause A, but who by some quirk of office arrangement is actually physically located at a school is nevertheless understood to be excluded. We are aware of one example in the ACT where that circumstance arises, that rather than closing a small school down, the department has used some of the facilities for relocating other departmental activities which is obviously a flexibility that the AEU is supportive of.

PN43

THE SENIOR DEPUTY PRESIDENT: Does it actually happen?

PN44

MS GALE: We're aware of the one instance where it has happened. Clause C relates specifically to the state of Victoria and excludes persons employed as student support services officers and that is a specific sub-category of employment. There is another and much larger category called student support officers which the AEU already has coverage of and would be included within the scope of rule 16A as well, but student support services officers are a narrow category of employees particularly relating to psychological and therapeutic assistance to students and that reflects a long standing demarcation with the CPSU in relation to those employees.

PN45

In the state of South Australia, similarly, the same category of workers, that is speech pathologists, guidance officers, social workers, student attendance officers and psychologists are not caught by rule 16A and that again reflects a long standing demarcation in South Australia. In the state of Tasmania, we have limited the rule in such a way that persons employed in solely clerical, administrative, finance, network support or network management positions at a public school are excluded. That means the parties have adopted the expression front office as a concept, those people who are located in the front office of the school whose work does not directly involve them on a daily basis with the students in an educational role.

PN46

THE SENIOR DEPUTY PRESIDENT: What does network support and network management mean?

PN47

MS GALE: It relates to information technology networks. I am advised that in Tasmania, that's the term of art and there is no doubt on the ground in Tasmania as to what that - - -

PN48

THE SENIOR DEPUTY PRESIDENT: So what would that be? Something like a help desk, would it? If somebody is having trouble with their computer or their programs, they can ring up and say would you come down to have a look at this?

PN49

MS GALE: That's right, your Honour. I understand that they may also engage in a small amount of professional development for the school staff in use of new software, for example, but effectively, yes, they are the hardware maintenance and it's understood that the front office, as it were, in the state of Tasmania remains the exclusive domain of the CPSU and that is reflected in the deed of agreement. In the Australian Capital Territory and the Northern Territory, similarly, the front office employees are excluded from the operation or rule 16A. At clause G you will see effectively a restatement of the existing exclusion in the AEUs rules relating to persons employed in or by non-government schools, that is our broad private sector exclusion. We have restated it within the rule because the opening words of the clause are:

PN50

Without limiting the generality of the other parts of this rule, or being limited thereby.

PN51

So it was important to the IEU that the exclusion be restated within the terms of the rule and then H relates to the negotiations with the Australian Services Union and it particularly relates to persons employed by social and community Service organisations who perform duties unrelated to the delivery of education and that might, for example, include someone from a charitable organisation who visits a school site to work with school students, but in relation to charitable or family advice services. Rule 16B, your Honour may recall that the original application related to a range of states and territories and a range of indigenous employment categories.

PN52

It has as a result of negotiations with the CPSU and the LHMU been significantly narrowed and now the effect of the proposed rule 16B relates to the state of Western Australia and extends the coverage specifically in relation to the classification known as indigenous tutorial assistance scheme tutors. The nature of the scheme, it's a commonwealth funded scheme which provides tutorial assistance directly to indigenous students located in public schools.

PN53

It should be noted that it's our understanding of rule 16A that it encompasses ITAS tutors in all the other five named states and territories, but 16B should not be read as meaning that the AEU seeks coverage of ITAS tutors only in Western Australia. For clarify, your Honour, I should also refer to a note that appeared at the end of the original application. In the original application, there was reference to a second rule change application which was then - which related to sub-rule 4A.

PN54

THE SENIOR DEPUTY PRESIDENT: Who is dealing with that matter?

PN55

MS GALE: That matter has been concluded, your Honour.

PN56

THE SENIOR DEPUTY PRESIDENT: Who was dealing with it? I thought I saw in the list recently an AEU application before Senior Deputy President Kaufman.

PN57

MS GALE: There is a third application before Senior Deputy President Kaufman, your Honour.

PN58

THE SENIOR DEPUTY PRESIDENT: Is that affected by this application or does it affect this application?

PN59

MS GALE: This application might resolve the need for the other application in relation to these five states and territories, but not in relation to the remaining three states, your Honour. The determination of this application will not affect that application or vice versa.

PN60

THE SENIOR DEPUTY PRESIDENT: All right.

PN61

MS GALE: It relates specifically to a new category of institution which has been established by the federal government since this application was lodged known as Australian technical colleges. The application that was referred to in the original form was D2003/32 which related specifically to the renaming of the adult multicultural education service in the state of Victoria. That application has since been approved and the rule change made.

PN62

THE SENIOR DEPUTY PRESIDENT: You don't know who dealt with that?

PN63

MS GALE: I am sorry, your Honour, I can't recall.

PN64

THE SENIOR DEPUTY PRESIDENT: That's all right. I had better mark this letter from the AEU addressed to me dated 17 March 2006.

EXHIBIT #AEU5 LETTER FROM AEU TO SENIOR DEPUTY PRESIDENT LACY DATED 17/03/2006

PN65

THE SENIOR DEPUTY PRESIDENT: Now, do you have prepared for me a composite of the rule as amended or the rule change as amended, the rule alteration as amended?

PN66

MS GALE: I don't have that with me, your Honour, but I can provide it electronically.

PN67

THE SENIOR DEPUTY PRESIDENT: That would be helpful, if you would, yes, please. Thank you.

PN68

MS GALE: Your Honour, the objections have all been settled. We say that the facts on which you can rely in order to make this rule change are the facts as set out in the declaration accompanying the application. The rule change application has been properly authorised under the rules of the Australian Education Union. There is no other organisation to which persons encompassed by the proposed extension of the AEU eligibility rule could more conveniently belong or which would more effectively represent those persons.

PN69

The effect of this rule change would be to introduce a further overlap between the rules of the AEU and some of the objector unions and specifically the CPSU. However, we say that the detail of the terms of settlement in the case of each objector, the details of which have been provided to your Honour, demonstrate that the AEU have been willing to give undertakings to the objective unions which have the effect of avoiding demarcation disputes that might otherwise arise from this overlap. We also point out that the AEU already has a long standing overlap of coverage with the CPSU, the LHMU, the ASU and the IEU within the scope of its existing eligibility rule and that that overlap has not led to demarcation disputes.

PN70

The rule change sought does not contravene any agreement or undertaking to which the AEU is a party. We say that the proposed alteration will enable the better representation of school support staff as well as enhancing the industrial capacity of the AEU to represent its traditional membership base of teachers and principals by enabling all workers in Victorian preschools and all workers in the public school systems in all of the affected states and territories to combine in a single industrial association. Therefore, we say that the application as amended meets the requirements of the Act and no factor exists which should cause the Commission to refuse the application. The AEU requests that the leave to amend the application be granted and that the application as amended be consented to. If the Commission pleases.

PN71

THE SENIOR DEPUTY PRESIDENT: Just on the compliance with the rules in relation to the alterations, do I have any material before me - I realise you told me that the executive on 15 and 16 March ratified the ASU/CPSU agreements and resolved to make the amendments, but do I have any actual material or documentation before me to demonstrate that?

PN72

MS GALE: No, your Honour, only the submissions from myself. The AEU rules do not require that step to be taken. It was taken as a matter of political responsibility within the organisation rather than as required by the rules. I believe at this stage we only have unconfirmed minutes of that meeting, but I could provide the relevant excerpt to your Honour by this afternoon.

PN73

THE SENIOR DEPUTY PRESIDENT: That would be helpful, if you could fax that to my chambers, please, Ms Gale.

PN74

MS GALE: Certainly.

PN75

THE SENIOR DEPUTY PRESIDENT: All right. Subject to receiving that material, I will grant leave to amend the application in the terms set out in exhibit AEU5 and subject to receiving the relevant material and being satisfied as to those matters, I see no reason why I ought not grant the application for the alteration as well. When do you think you can get all that material to me?

PN76

MS GALE: By early afternoon, your Honour.

PN77

THE SENIOR DEPUTY PRESIDENT: Hopefully, if I don't get it out tomorrow, I will get it out early next week. When I say early next week, that will be after Monday, because Monday is a public holiday as well.

PN78

MS GALE: Indeed.

PN79

THE SENIOR DEPUTY PRESIDENT: Anything else?

PN80

MS GALE: That is all we have before you today, your Honour.

PN81

THE SENIOR DEPUTY PRESIDENT: Let me congratulate you on a job well done in negotiating your way through all of those objections that you've had to deal with. I think you've done an excellent job. Congratulations.

PN82

MS GALE: Thank you.

PN83

THE SENIOR DEPUTY PRESIDENT: The matter is adjourned.

<ADJOURNED INDEFINITELY [10.33AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AEU3 LETTER FROM ASU ADDRESSED TO SUSAN HOPWOOD DATED 10/03/2006 PN10
EXHIBIT #AEU4 DEED OF AGREEMENT BETWEEN CPSU AND ASU AND ATTACHMENTS PN17
EXHIBIT #AEU5 LETTER FROM AEU TO SENIOR DEPUTY PRESIDENT LACY DATED 17/03/2006 PN64