AG2008/1530, Transcript of Proceedings [2008] AIRCTrans 842 (24 December 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19492-1

COMMISSIONER WHELAN

AG2008/1530

cl.2A(1)(b) Sch. 7 - Application for an order to vary pre-reform certified agreement

State of Victoria (Department of Education and Early Childhood Development)
and
CPSU, the Community and Public Sector Union Liquor, Hospitality and Miscellaneous Union Australian Education Union
(AG2008/1530)
Victorian Government Schools - School Services Officers Agreement 2004

(ODN AG2005/3329)
[AG839670 Print PR957322]]




Melbourne

2.50PM, TUESDAY, 9 DECEMBER 2008

PN1

MR B AVALLONE: I seek leave to appear on behalf of the Department for Education and Early Childhood Development.

PN2

MS N KEPPERT: I appear on behalf of the CPSU.

PN3

MR D COLLEY: I appear on behalf of the Australian Education Union, together with MR P STEELE and MS K LEWIS.

PN4

THE COMMISSIONER: Thank you. Ms Keppert and Mr Colley, are there any objections to Mr Avallone’s appearance?

PN5

MR COLLEY: No objection.

PN6

MS KEPPERT: No objection.

PN7

THE COMMISSIONER: Leave is granted Mr Avallone. Thank you.

PN8

MR AVALLONE: Thank you, Commissioner. Commissioner, this is an application pursuant to clause 2(a) of schedule 7 to the Workplace Relations Act 1996 to vary and extend the Victorian Government School Services Officers Agreement 2004.

PN9

THE COMMISSIONER: Yes.

PN10

MR AVALLONE: An agreement which you will be familiar with, I believe.

PN11

THE COMMISSIONER: I think so, yes.

PN12

MR AVALLONE: We rely in this application upon the documents that have been filed with the Commission. Those are the application itself, a written statement signed by each of the parties, statutory declarations signed by, again, each of the parties or representatives of each of the parties.

PN13

THE COMMISSIONER: Yes.

PN14

MR AVALLONE: A draft order which we would propose would extend and vary the agreement, and we’ve also provided to the Commission - and I hope it’s on file - a copy of the agreement as it would be varied and extended.

PN15

THE COMMISSIONER: As varied, yes.

PN16

MR AVALLONE: Yes.

PN17

THE COMMISSIONER: Yes.

PN18

MR AVALLONE: Can I draw the Commission’s attention to three very minor variations.

PN19

THE COMMISSIONER: Yes.

PN20

MR AVALLONE: Which we would seek in addition to what is there, and in doing that we would seek that the Commission exercise its powers under section 111, to correct or waive any error.

PN21

THE COMMISSIONER: Yes.

PN22

MR AVALLONE: The first one is in clause 9, I believe. Clause 9 subclause 7.

PN23

THE COMMISSIONER: Yes.

PN24

MR AVALLONE: It begins with the words “Persons employed”.

PN25

THE COMMISSIONER: Persons employed, yes.

PN26

MR AVALLONE: The reference there to section 2.4.3 should then have (1)(c). Sorry, it’s insertions.

PN27

THE COMMISSIONER: Right, so it’s 2.4.3(1)(c).

PN28

MR AVALLONE: Correct.

PN29

THE COMMISSIONER: So the one has been left out.

PN30

MR AVALLONE: Yes, correct.

PN31

THE COMMISSIONER: Yes, all right.

PN32

MR AVALLONE: The other is at the start of schedule 3 which is on page 42 of the varied and extended agreement.

PN33

THE COMMISSIONER: It’s the Salaries and Allowances Schedule 1? Is that the right one?

PN34

MR AVALLONE: No, after that, sorry. It’s schedule 3.

PN35

THE COMMISSIONER: Sorry.

PN36

MR AVALLONE: Sorry, Commissioner, are you in the draft order?

PN37

THE COMMISSIONER: Yes, I’m in the draft order.

PN38

MR AVALLONE: All right, grand.

PN39

THE COMMISSIONER: So it’s schedule 3 which is Dimensions of Work Education Support; is that what we’re talking about?

PN40

MR AVALLONE: That’s right.

PN41

THE COMMISSIONER: Yes.

PN42

MR AVALLONE: Then there’s a heading ES1 Range 2.

PN43

THE COMMISSIONER: Yes.

PN44

MR AVALLONE: The third paragraph there which starts with the words “Technical roles will undertake”.

PN45

THE COMMISSIONER: Yes.

PN46

MR AVALLONE: On the second line there “adapts”.

PN47

THE COMMISSIONER: Yes.

PN48

MR AVALLONE: So it says “and adapts”. It should be “and adapt” so take off the S.

PN49

THE COMMISSIONER: Yes.

PN50

MR AVALLONE: Just a little bit further on the word “makes” should be make.

PN51

THE COMMISSIONER: Right, yes.

PN52

MR AVALLONE: So it will read going back a bit - - -

PN53

THE COMMISSIONER: They should both be singular not plural.

PN54

MR AVALLONE: Yes, grand.

PN55

THE COMMISSIONER: Yes, all right.

PN56

MR AVALLONE: So it’s just a grammatical error.

PN57

THE COMMISSIONER: Yes.

PN58

MR AVALLONE: So subject to those - - -

PN59

THE COMMISSIONER: No, they seem to me to be clearly errors of translation rather than changes to the substance.

PN60

MR AVALLONE: Correct, and I’m pleased to say that I don’t believe that those are contested either.

PN61

THE COMMISSIONER: No.

PN62

MR AVALLONE: So I’m happy to say that. Having dotted those I’s and crossed those T’s we rely upon the documents already filed. Going to the requirements of the Act the documents we would say should satisfy the Commission that all of the parties bound by the agreement have genuinely agreed to the variation and the extension as proposed; that none of the parties have on or after 14 February of this year organised or engaged in, or threatened to organise or engage in industrial action or applied for a protected action ballot order in relation to another party to the agreement, in relation to work performed under the agreement. The agreement as varied would not result on balance in a reduction in overall terms and conditions of employees bound by the agreement; so it has been compared to the relevant transitional award; and a valid majority of employees bound by the agreement genuinely agreed to the variation and extension of the agreement.

PN63

THE COMMISSIONER: A substantial majority.

PN64

MR AVALLONE: Yes, 97-odd per cent.

PN65

THE COMMISSIONER: Yes.

PN66

MR AVALLONE: I did ask the client if they couldn’t do better, but there we are. Commissioner, you’ll note that the date of effect that we have proposed in the draft order is to be the earlier of 1 December of this year - sorry, I withdraw that. The nominal expiry date would either be the earlier of 1 December 2011 or three years from the date of approval.

PN67

THE COMMISSIONER: That would be 1 December then.

PN68

MR AVALLONE: Yes, correct.

PN69

THE COMMISSIONER: Yes.

PN70

MR AVALLONE: Subject to that I’m happy to address the Commission on any other matters, but those are the submissions.

PN71

THE COMMISSIONER: No. All right then, thank you very much Mr Avallone.

PN72

Ms Keppert.

PN73

MS KEPPERT: Thank you, Commissioner. The CPSU supports the presentation by the department’s spokesperson. If the Commission pleases.

PN74

THE COMMISSIONER: Thank you.

PN75

Mr Colley.

PN76

MR COLLEY: If the Commission pleases, the AEU submit to ..... adopts the submissions made by Mr Avallone for the applicant in this matter, and we rely upon the statutory declaration of Ms Blewitt to testify the relevant requirements in the Act. ..... and commend the document for you for certification.

PN77

THE COMMISSIONER: Thank you. Thanks Mr Colley.

PN78

Thank you, I obviously prior to hearing today did take the opportunity to read the documentation that was lodged in relation to this application. I’ve noted the written statements signed on behalf of the department and on behalf of the CPSU, the Miscellaneous Workers Union and also the Australian Education Union, and the statutory declarations by Mr Bugden on behalf of the department, by Ms Batt on behalf of the CPSU by Ms Farrell on behalf of the LHMU, and by Ms Blewitt on behalf of the AEU. I accept those statutory declaration as being a true and correct representation of what has occurred. I’m also satisfied, having red the draft order, that the variations as sought would pass the no disadvantage test, in so far as the employees covered by this agreement are concerned.

PN79

On that basis and on the basis of the submissions made this afternoon I’m satisfied that this application should be granted. The order will be in the terms as provided by the department. The effect of that order will be to extend the nominal expiry date of this agreement to 1 December 2011, and to implement the various other changes as set out in the order. The date of effect of the order will be today’s date, and you might need to wait a little while until you actually get the order, but you will get it in due course. Thank you.

<ADJOURNED INDEFINITELY [2.57PM]