BP2007/2927, Transcript of Proceedings [2007] AIRCTrans 301 (19 June 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17010-1

COMMISSIONER DEEGAN

BP2007/2927

s.451(1) - Application for order for protected action ballot to be held
CPSU, the Community and Public Sector Union
and
Australian Institute of Aboriginal and Torres Strait Islander Studies
(BP2007/2927)

CANBERRA

10.00AM, THURSDAY, 07 JUNE 2007

PN1

MR M TULL: I appear for the CPSU.

PN2

THE COMMISSIONER: Hearing, Mr Tull. Are you going to stand? It’s a hearing.

PN3

MR TULL: I appear for the CPSU.

PN4

THE COMMISSIONER: Thank you.

PN5

MR R GENTLE: I am from AIATSIS, ma’am.

PN6

THE COMMISSIONER: Yes, go ahead, Mr Tull.

PN7

MR TULL: Commissioner, we’re here to make an application for orders for a protected action ballot. What I’d like to do is just briefly outline the circumstances of the application and then address the requirements of the Act. Commissioner, the CPSU has been trying to make an agreement with the Australian Institute of Aboriginal and Torres Strait Islander Studies for a long period now.

PN8

We commenced negotiations in August of 2006. CPSU endorsed a log of claims and that log of claims was served on the employer in August. The current agreement reached its nominal expiry date in December of last year. On 22 January this year the CPSU initiated a bargaining period in respect of the ongoing negotiations.

PN9

Commissioner, on 28 February we actually reached agreement. The negotiations were concluded. They were a hard set of negotiations we produced but all the parties thought it was a good-quality agreement that met the interests of our members and of the Institute. However, from that point on we have been - to be blunt - mired in a bit of a circus of red tape. In April AIATSIS informed us that they now need to make substantial changes to the agreement and that those changes will be based on the advice that they had received from DEWR as DEWR had gone through the standard process of checking the agreement against the Public Service Bargaining Policy parameters.

PN10

Over April the CPSU has met with AIATSIS on a couple of occasions to discuss those proposed changes. Again, those negotiations produced a draft agreement. That agreement was then, to the best of my knowledge, on or about 16 May, forwarded to DEWR for their final approval against the policy parameters. Commissioner, it’s now June; we do not have an agreement. Our members in AIATSIS last received a pay rise in January of 2006. It’s now 18 months since the last pay rise.

PN11

We have bargained well, we have bargained in good faith, we have met all the requirements of the Act and yet it’s now June and we do not have an agreement. We have reached the point where we have done everything that we can to get an agreement. We have now reached agreement twice and for our members on AIATSIS it has got to the point where the situation is intolerable, hence the application today.

PN12

THE COMMISSIONER: Do you want to say something, Mr Gentle?

PN13

MR GENTLE: Mr Tull is correct in his - in what he stated but let me also add to that. AIATSIS has sought advice through the policy parameters, the assessor, which is DEWR. Management took originally in February that advice and went back to the CPSU and went back to the table. Management has made a decision that we have now re-amended our document. We have actually just sent it back and as Mr Tull said, that that assessment returned last week from the assessment against the policy parameters of government.

PN14

We have now taken - we received and we organised for yesterday a consultative committee meeting last week. We met yesterday. The morning before, on Tuesday - sorry, Monday afternoon I received advice back from our legal advisors on the assessment provided by DEWR. Mr Muffatti and myself met after yesterday’s meeting and finalised the bits and pieces and there were changes that we have made from yesterday’s document and as advised to staff not only last week but there was also yesterday an email from me that we have had our consultative meeting yesterday.

PN15

We have agreed that we are - or management has agreed to send that document through DEST, our portfolio agency, up to the minister for, hopefully, approval with a brief to that effect from the management. And we’re actually preparing that at the moment. The principal of AIATSIS returns from the Native Tribunal Conference in Cairns over the weekend and on Tuesday hopefully he will be able to sign that document to go through DEST to the minister for approval.

PN16

THE COMMISSIONER: It doesn’t have to go back to DEWR at all, Mr Gentle.

PN17

MR GENTLE: DEWR have advised us, if we’re only making minor changes not to go back to DEWR. We can go straight through to the - we have made some minor changes but basically the assessment stands as it is.

PN18

THE COMMISSIONER: Mr Tull, are those circumstances - I can understand your frustration but it doesn’t have to go back to DEWR.

PN19

MR TULL: The issue for us is that this final assessment, which is now the third time that DEWR has looked at this agreement - I should point out that this agreement contains nothing that’s not already in other public sector agreements, post Work Choices public sector agreements.

PN20

THE COMMISSIONER: It doesn’t surprise me at all.

PN21

MR TULL: Yes. DEWR found it non-compliant. But to be clear, the words I used before, “This is circus of red tape”, and I mean that very genuinely. For example, DEWR are opposing a simple clause that would allow an employee returning from maternity leave to apply for part-time work.

PN22

THE COMMISSIONER: They’re opposing it?

PN23

MR TULL: They are opposing it. They are saying that it’s administrative detail, that it’s not the substance of a collective agreement and that it shouldn’t be in there. Ourselves and the employer, we all feel it’s a relative straightforward, simple provision. It has been in numerous agreements previously. It’s in many current agreements. It’s the sort of simple thing that should be covered in a collective agreement. DEWR oppose it. This then leads us to the situation where while we are happy with what the employer is doing, they’re now proceeding to take the agreement to the minister, our experience is in recent times that ministers are reluctant to approve an agreement that has not been - - -

PN24

THE COMMISSIONER: But I thought it had been signed off by DEWR?

PN25

MR TULL: No, it hasn’t been signed off by DEWR. No.

PN26

THE COMMISSIONER: Mr Gentle?

PN27

MR GENTLE: The assessment that we provided is that it doesn’t meet certain aspects of the policy parameters - - -

PN28

THE COMMISSIONER: I see.

PN29

MR GENTLE: - - - and it’s just an assessment. The management has decided, as we have discussed with the CPSU and out legal advice says that - the type of things we want in the document are exactly what CPSU have said and what we’re saying is that it is an entitlement. It’s a management tool, it’s a tool for staff, it’s part of the tool for retention - - -

PN30

THE COMMISSIONER: So you don’t actually agree with what DEWR say, so you’re taking it forward anyway?

PN31

MR GENTLE: That’s right. We have actually spoken with a couple of other agencies that have had their agreement since post Work Choice. They did the same thing. Their agreements have similar stuff to what we have. We’re confident that the minister will say yes on that basis.

PN32

THE COMMISSIONER: And you have put that in your minute to the minister?

PN33

MR GENTLE: Yes, I will, ma’am, yes.

PN34

THE COMMISSIONER: Mr Tull, your application meets all the requirements and I’m happy to make the order. I’m reluctant to make order that’s unnecessary but I can see that - - -

PN35

MR GENTLE: Ma’am, we’re not opposing the order.

PN36

THE COMMISSIONER: I didn’t think you were, Mr Gentle.

PN37

MR GENTLE: We’re just stating the facts.

PN38

THE COMMISSIONER: I can understand that after six months, going on for seven months - well, it’s more than that. It’s nearly a year, isn’t it, if you started bargaining in August the matter has been - and I know these things tend to - - -

PN39

MR TULL: Commissioner, if we were confident - and while we respect the efforts that AIATSIS is making, they have put an enormous amount of hard work into it, our experience post Work Choices is that ministers are reluctant to sign off on an agreement that DEWR has found not to be compliant with all of the policy parameters. There are some examples but they are few and far between.

PN40

There was actually evidence given in Senate Estimates last week from DEWR. They said it was only six of 28 agreements had been dealt with in that way. Each of those agreements had extenuating circumstances and, to be blunt, it is one thing for the taxation office, for example, to take their agreement which covers 22,000 workers to the Treasurer, but it’s not a DEWR compliant agreement. They are always going to get their agreement through. It’s another matter for AIATSIS.

PN41

We’re not confident despite the good work that AIATSIS has done, that the minister will sign off given the circumstances. Therefore we feel that we need to exercise our rights under the legislation to give them the impetus, give all the parties the impetus to get this done as quickly as possible.

PN42

THE COMMISSIONER: So these people haven’t had a pay rise for 18 months?

PN43

MR TULL: January, yes. January 2006.

PN44

THE COMMISSIONER: All right. Well, do you want to - yes, Mr Gentle?

PN45

MR GENTLE: Commissioner, can I just add to that, please?

PN46

THE COMMISSIONER: Yes, Mr Gentle, please.

PN47

MR GENTLE: One of the ministers has actually signed off on a post Work Choices agreement, it was actually the Foreign Affairs Minister, for AUSAID. We have a very good relationship with our minister.

PN48

THE COMMISSIONER: Who is your minister, Mr Gentle?

PN49

MR GENTLE: Minister Bishop. And we have actually just been able to acquire through the recent budget $10.2m for AIATSIS which actually helps with our ongoing - we have 38 staff, on ongoing contracts. I’m not opposing the application. What I’m saying is that this order may damage our own reputation, not only within the - you know, I’m not saying it would damage the minister but I’m putting up a proposal to sell the good points of this agreement and then tacking on the end of it that industrial action is proceeding. And the minister - I’d be sitting there going, “Well, why is this proceeding if that’s - if we’re already there?” This could be put back a couple of weeks and - - -

PN50

THE COMMISSIONER: Yes, I can see that it could - - -

PN51

MR GENTLE: - - - and sort of say, “Look, it doesn’t happen”, then you can sign the order, ma’am.

PN52

THE COMMISSIONER: Mr Tull.

PN53

MR TULL: Commissioner, we have considered the circumstances carefully and we are also of course acting on the very strong feeling and advice and direction of our members. They have had more than enough. Like us, they’re not confident the matter is going to get dealt with, and any further delay would be untenable. If we were to adopt that suggestion we could wait a week, two or three weeks then find ourselves back here before tabling what is finalised.

PN54

THE COMMISSIONER: Well, I mean, as I said, I’m happy to - if the order is to be made I’m happy to make it if you meet all the requirements, obviously. It’s certainly obvious to me - some of them, so far. Mr Gentle is saying perhaps I could agree not to make the order until a certain date to see whether the minister is going to agree without the ..... might have opposite effect.

PN55

MR GENTLE: We’re as keen as everyone, ma’am, to get a pay increase. We’re also affected ourselves. It’s in all our interests to this agreement go through.

PN56

THE COMMISSIONER: And you’d like to have your staff content and working hard.

PN57

MR GENTLE: Exactly, ma’am, and in the best environment of working relationships.

PN58

THE COMMISSIONER: Yes, I’m sure about all that, Mr Gentle. It would appear that everybody has tried very hard to get this agreement up.

PN59

MR TULL: Yes.

PN60

THE COMMISSIONER: From the parties, shall we say, but this is not unknown.

PN61

MR TULL: Yes.

PN62

THE COMMISSIONER: Well, look, Mr Tull, if you make out the requirements for the order and you want to go ahead with it, there’s nothing I can do to dissuade you really if the requirements of the Act are met. It’s not one of the matters I’m to take into account that it might upset somebody.

PN63

MR GENTLE: No, no, I understand.

PN64

THE COMMISSIONER: Yes, Mr Tull?

PN65

MR TULL: Commissioner, the Act at section 461 requires us to meet certain tests and they are that during the bargaining period the applicant genuinely try to reach agreement with the employer, or the relevant employees. Clearly that is the case here. Our evidence is that we haven’t ..... agreement.

PN66

THE COMMISSIONER: You’ve met agreement with the employer several times.

PN67

MR TULL: Yes. We have done what we need to do. The applicant is genuinely trying to reach agreement with the employment. Again, Commissioner, we have a draft agreement. As soon as the employer has that signed off by their minister, they can make us an offer. We will take the final steps of making that agreement and we are certainly not engaged in pattern bargaining.

PN68

THE COMMISSIONER: And all the technical requirements have been met, Mr Tull?

PN69

MR TULL: Yes. In terms of - - -

PN70

THE COMMISSIONER: Everybody has been served that should have been served within 24 hours of the application?

PN71

MR TULL: Yes.

PN72

THE COMMISSIONER: There is no doubt about that?

PN73

MR TULL: The employer and the AEC.

PN74

THE COMMISSIONER: You’re not - yes, the employer and the AEC.

PN75

MR GENTLE: Yes, and we posted on our intranet and alerted all staff to the notification yesterday.

PN76

THE COMMISSIONER: And both parties have seen the draft order that’s been supplied, it’s been suggested a postal vote to - have you seen that, Mr Tull?

PN77

MR GENTLE: I have that here, ma’am, yes. Can I ask a question, ma’am?

PN78

THE COMMISSIONER: Yes.

PN79

MR GENTLE: Just on the employer to provide a list of all the names of employees, I think it’s approximately 60 staff are union members. We don’t know who the union members are.

PN80

THE COMMISSIONER: So you’re not supposed to know - - -

PN81

MR GENTLE: No, no, I understand that.

PN82

THE COMMISSIONER: - - - you’re just required to provide all the names of employees who fit within the parameters, who are going to be covered by the collective agreement, so I think - it usually says, “Not anybody who's on a unexpired AWA”, or whatever, but any employee working for AIATSIS is supposed to be covered by the collective agreement. The CPSU will provide to the Electoral Commission a copy of their membership records and the Electoral Commission will work out who should be - - -

PN83

MR GENTLE: That’s fine, yes. It’s just that the CPSU aren’t getting the whole list of all staff?

PN84

THE COMMISSIONER: No, no.

PN85

MR GENTLE: I just wanted to guarantee that, that’s all.

PN86

THE COMMISSIONER: No, and I suggest that the CPSU probably want to guarantee that you’re not getting a list of their members. So, either way, the only people who’ll have them are the Electoral Commission. They marry the two to make sure that only those people who are eligible to vote do vote. And it’s a secret postal ballot?

PN87

MR GENTLE: Yes.

PN88

THE COMMISSIONER: I assume the envelopes are being sent to people’s home addresses?

PN89

MR TULL: Yes.

PN90

THE COMMISSIONER: So nobody is going to know who’s actually voting but the process has worked well up till now, to ensure that only those people who are entitled to vote get to vote. All right then. I’m pretty satisfied that everything that’s in there needs to be in the order is in the order as drafted and if nobody has any problems with it I’m afraid that - well, not afraid, I can see your problem, Mr Gentle, and I hope it doesn’t have the effect that you think it’s going to have.

PN91

Industrial action isn’t actually being taken. I daresay you can say to the minister that the employees have been frustrated by the process where you thought you had agreement, several times, and now the only sticking points appear to be matters which don’t seem to be problems in other public service agencies or departments. And that’s driven these employers, it would departments. And that’s driven these employees, it would appear from what Mr Tull has said, to feel a sense of frustration where they are not confident anything is going to happen. And the only thing they think they can do is take the only action available to them through the appropriate processes.

PN92

So, I will make an order in terms of the draft. I am satisfied that all the requirements of the Act have been met and all the technical requirements that are necessary to make such an order and that order will issue today.

PN93

You’re in a position to meet with the requirements of the draft?

PN94

MR GENTLE: Yes, Commissioner.

PN95

THE COMMISSIONER: To provide the documentation required in the timeframe provided by the Electoral Commissioner. Right. I’ll issue those orders.

<ADJOURNED ACCORDINGLY [10.17AM]