AG2005/2019, Transcript of Proceedings [2008] AIRCTrans 88 (13 March 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18231-1

SENIOR DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT ACTON
COMMISSIONER ROBERTS

AG2005/2019

s.170LC - Multiple business agreement
Application by The Director General, Department of Education and Training & Australian Education Union-Western Australia Branch
(AG2005/2019)

SYDNEY

2.01PM, WEDNESDAY, 30 MARCH 2005

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN SYDNEY

PN1

MS K JACK: I'm appearing on behalf of the employer parties to the agreement. I'm employed at the Labour Relations Branch at the Western Australian Department of Education and Training, with me MR P WISHART, the Manager of Labour Relations in the Training Section, also the Department of Education and Training, and he is also a representative of the employer parties. The employer parties are identified in the application received and date stamped by the Australian Industrial Relations Commission Registry on 31 January 2008.

PN2

SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you for that, Ms Jack.

PN3

MR M AMATI: I appear on behalf of the Australian Education Union, with me MS R MITUSSIS to assist, also from the Australian Education Union. We also have submissions .....

PN4

SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Amati. Can I say that we've read the material, supporting material filed and obviously have had an opportunity to look over the agreement. So you can address us bearing that in mind. Ms Jack?

PN5

MS JACK: Thank you, your Honour. This is an application by the employer parties to certify the Western Australian TAFE Lecturers' Certified Agreement 2005 pursuant to division 3 of part 6B of the Workplace Relations Act 1996, an application made on behalf of the … the statutory declarations pursuant to rule 51 have been filed with the Registry on 31 January 2005, which is no later than the 21 days after the agreement was approved by a valid majority. The application is for certification of a multiple business agreement as supplied by section 170LC of the Act.

PN6

Section 170LC(4) of the Act requires that the bench should be satisfied that the certification of this multiple business agreement is in the public interest having regard to whether the matters dealt with by the agreement could be more appropriately dealt with by an agreement other than a multiple business agreement and any other relevant matters. So when addressing section 170LC(4), the Department, as presentative of the employer parties, relies upon the grounds I'm about to outline.

PN7

The employer is currently subject to the Western Australian TAFE Lecturers' Certified Agreement 2003. That agreement is also a multiple business agreement. There's a long history of Western Australian TAFE lecturers, except at Pilbara, being subject to the same pay and conditions of employment since 1998. The pay conditions of lecturers at Pilbara TAFE have been gradually aligned to others in other WA colleges. The certification of the 2003 certified agreement actually put Pilbara lecturers on the same pay and conditions of all other lecturers at colleges in Western Australia.

PN8

There's also currently the West Australia government's policy that public sector employees in like classifications have comparative pay and conditions. There's also currently the Western Australian government's policy that employees in like classifications are covered by the same industrial agreement. In addition, the Department of Education and Training provides the centralised employee relations service to TAFE WA colleges and it's responsible for the management and funding of all TAFE WA colleges. There's therefore an administrative fee and economic benefit from having a single multiple business agreement and .....employment conditions of all TAFE lecturers.

PN9

The agreement will cover approximately 3,701 employees. This multiple business agreement will actually enable the ability to transfer staff to other TAFE WA colleges and will ensure parity of conditions of employment at every TAFE WA college. The Western Australian government, union and employer parties to the agreement all favour the certification of the agreement as that of a multiple business agreement. A valid majority of 95 per cent of the employees, whose pay and conditions will be covered by the new agreement, have approved the new agreement .....

PN10

The employee parties to the proposed agreement aren't carrying on a business project or undertaking as a joint venture or a common enterprise, and therefore cannot be taken to be one employer as envisaged by section 170 of the ..... Accordingly, for the purposes of 170LC(4)(a) of the Act there is not a more appropriate ..... agreement available ..... and it's therefore in the public interest to certify ..... the agreement.

PN11

As already submitted the agreement was agreed by a valid majority. It was certified by section 170LR(1) of the Act. As outlined in the TAFE ..... statutory declarations at paragraph 16, the employer parties, through the Department of Education and Training, ..... Western Australian Electoral Commission that a ballot - the electoral roll provided to the Electoral Commission as part of the data provided by ..... party. The Electoral Commission sent a balloting package to the home address of all eligible employees and the ballot commenced on 20 December 2004 and closed at 10 am on ..... 2005. Given the fact colleges included all TAFE lectures, including casuals, in their electoral rolls, all persons were given a reasonable opportunity to decide whether they wanted ..... or the new agreement.

PN12

The WA Electoral Commission ..... to 18 January 2005 formally provided the Department with the box of the poll and ..... included as an attachment to the statutory declaration of Mr Michael ..... of the Australian Education Union and ..... As required by section 170LR(2) the agreement is actually available to employees 14 days before the vote was taken. The agreement was made available via access to each TAFE college's intranet site, as well in hard copy as outlined in paragraph 13 of each employee statutory declaration. Prior to the ballot being taken, steps were taken to explain the agreement to the employees and the special interest groups outlined in section 170LT(7) of the Act.

PN13

Details of those steps are provided at paragraphs 14 and 15 and in each case they'll be ..... statutory declaration. It's submitted that the steps taken by the parties meet the requirements of section 170LR(2)(b) and section 170LT(7) of the Act. Pursuant to section 170LS(2), the application for certification was filed on 31 January 2005, which is within 21 days after the approval by a valid majority of employees ..... The employer parties also submit that the requirements of section 170LT(2) and 170XA(1) and (2) of the Act have been met. The agreement passes the no disadvantage test given that those conditions have been produced by the TAFE Certified Agreement 2003. On the contrary certain provisions have been enhanced to increase ..... As noted at paragraph 18 of the TAFE employees' statutory declarations the 2003 certified agreement was certified on the basis that it passed the no disadvantage test as were the previous ..... agreements.

PN14

The relevant awards for the purposes of the no disadvantage test are identified at paragraph 17 and in the statutory declarations. The statutory declarations of the TAFE WA employees outlined the specific clauses in the agreement that caused reduction in the terms and conditions of the employment of an employee covered by the agreement under the relevant award. The relevant awards or ..... TAFE Lecturers, Education Services, Community Colleges Western Australia Award 1999 and the relevant award for lecturers are all other TAFE WA colleges is the teachers, public sector ..... and Further Education Western Australian Award 2003.

PN15

As we have already outlined, the reduction ..... that were full time ..... 2003 certified agreement. Despite the clauses that do actually cause reduction, the employees submit that certification of the agreement would not result on balance to the reduction of the overall terms and conditions of the employment of the employees covered by the agreement. Under relevant ..... or laws of the Commonwealth ..... The specific clauses in the agreement specify terms and conditions are two-fold. On balance there is no reduction of ..... in the statutory declarations of the employer.

PN16

In summary, though, the major enhancement contained in the proposed agreement are salary increases of 3.6 per cent per annum, enhanced progression through salary structure, compaction of the salary structure, increased flexibility under the new salary scheme, personal leave provisions, that enhance flexibility because ...... leave and leave for personal matters, increases in ..... leave and entitlements ..... is a holiday with pay on the ..... and various allowance increases.

PN17

The agreement ..... settlement procedure, at clause 14 as required by section 170..... and the agreement has a nominal expiry date of 31 December 2007 as outlined at clause 7, be no more than three years from the date of the certification. In reference to section 170LU matters, the employer parties would like ..... With reference to section 170LU(1), the proposed agreement maintains and further settles matters that are the subject of industrial dispute or prevents an industrial situation between the parties.

PN18

The dispute findings relevant to the parties, the dispute agreement, are C number 31211 of 1993 and C number 50639 of 1994. With reference to the section 170LU(2) the agreement ..... to the Commission so section 170..... of division 3 or part 6A, termination of employment. The reason being that clause 23 of the agreement provides that all employees are entitled to at least four weeks' notice regardless of their continuous service. Otherwise ..... provisions of division 3 of part 6A.

PN19

With reference to sections 170LU(2)(b) and (c), there's been no order injunction made ..... division 3 .....

PN20

In addition to the proposed agreement ..... any objection or provisions within the meaning of section 298(c) and as described at section 170LU(2)(a). Further, none of the employer parties have discriminated to union or all union members. They've negotiated an agreement as outlined in section 170(2)(b) and they will not contravene the provisions of the parties, so in relation to ..... as referenced in section 170LU93) and (4).

PN21

With reference to section 170LU(5) the proposed agreement doesn't discriminate against any employee subject to the agreement ..... Sections ..... of the particular agreement. The employer parties also further submit that the provisions of the proposed agreement pertain to the relationship between employers and employees as applied by section 170LL of the Act.

PN22

In conclusion it's submitted that certification of the agreement is consistent with ..... and the objects of the Act. Other details are included in the statutory declarations that will satisfy the Commission that the agreement should be certified in accordance with division 3, part 6B of the Act. There is actually a further matter to be addressed in the submission, and that's in respect to a variation to the agreement so that ..... be 1 January 2005. Pursuant to section 170MD(6) the employer parties request the Commission to vary the agreement as the submitted schedule G, Salary Increases, reflects reference to clause 38 rather than clause 29. This was a typographical error and the intent of the parties at the time was for the reference to be made to pay and pay increases clause of the agreement. Clause 28, Certificate of Service, is unrelated to salary increases and therefore the employer parties seek to remove any ambiguity that may be caused by ..... typographical error.

PN23

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN24

MS JACK: The agreement is considered a landmark agreement given the provision of a qualifications framework that will promote further professional development of employees and it will not only provide quality teaching throughout the TAFE sector, but we also seek ..... salary structure. In addition, compacted salary structure ..... increases for employees. The employer parties consider this a significant move forward for TAFE in Western Australia and it is hoped that certification of this agreement will assess any attraction and attention of appropriately .....

PN25

Further, it's an important ..... in the context of ..... The development of the ..... has involved a working party ..... consultative committee. ..... and this has arisen from the 2003 certified agreement. Development of the qualifications framework has actually taken place over the duration of the 2003 certified agreement. Therefore I think it's appropriate that in closing it's important to acknowledge the considerable time and effort that's been committed by it, the employer parties and the union, not only in drafting the submitted agreement, but also ensuring procedural consistency for the purposes of the Act.

PN26

I know that this Department has spent a significant amount of time ..... enables it to adhere to the requirement of the Act. It is the Department's submission that the requirements of the Workplace Relations Act 1996 ..... and accordingly we request that the agreement be certified today. If it pleases the Commission.

PN27

SENIOR DEPUTY PRESIDENT WATSON: Yes. Ms Jack, I wonder if you could remind me where the typographical error appeared?

PN28

MS JACK: Sorry, your Honour. It's at schedule G, Salary Increases. Further ..... sorry, your Honour. Page 95, your Honour.

PN29

SENIOR DEPUTY PRESIDENT WATSON: Yes, and the error refers to clause 28.

PN30

MS JACK: Yes, that's correct.

PN31

SENIOR DEPUTY PRESIDENT WATSON: Whereas it should refer to clause 29?

PN32

MS JACK: It's a 9.

PN33

SENIOR DEPUTY PRESIDENT WATSON: And in fact the heading is, "As per clause 29, Pay and Pay Increases"?

PN34

MS JACK: That's correct, your Honour.

PN35

SENIOR DEPUTY PRESIDENT WATSON: Yes. Ms Jack, I think it's patently clear what was intended there and the reference to the clause name is plain. I think it would be appropriate if that were to be regarded as you put it, as a typographical error. Frankly, I don't think it requires a formal variation. If you could perhaps provide a substitute page with clause 29. When one reads it, it's patently obvious that it is a typographical error and I don't think a formal variation is required.

PN36

MS JACK: We will do that, your Honour.

PN37

SENIOR DEPUTY PRESIDENT WATSON: Could I ask you about clause 11, Reserve Matters, and there "The parties reserve to vary the following clauses by agreement." I take it by that the parties mean a variation in accordance with the relevant provisions of the Act, section 170D by reference to the Commission and not some unilateral or purported unilateral variation by the parties?

PN38

MS JACK: Yes, we do, your Honour.

PN39

SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you for that.

PN40

SENIOR DEPUTY PRESIDENT ACTON: Ms Jack, clause 25 on page 19 is to do with Breaches of Discipline. Clause 25.3 of that provides that:

PN41

Other than in the case of termination an employee aggrieved by a decision resulting from the disciplinary process may appeal against that decision by referring the matter to the Commission for determination.

PN42

What power is the Commission exercising under that clause?

PN43

MS JACK: I'm sorry, your Honour, this is ..... My understanding, your Honour, is that is section 111, but there's also reference to private arbitration matters in the Workplace Relations Act. I'm trying to find the relevant section in the Act.

PN44

SENIOR DEPUTY PRESIDENT ACTON: There's a couple of options. There's 170LW, there's 111AA, there may be others. I just think we need to be clear what the parties understand the Commission is exercising.

PN45

MS JACK: My understanding is that it is actually section 170LW, Commissioner, but I would just refer to my fellow representative to confirm the matter. Yes, your Honour, our understanding is that the jurisdiction is to be in accordance ..... by section 170LW of the Act .....

PN46

SENIOR DEPUTY PRESIDENT ACTON: So if I'm an employee who is found to have breached the disciplinary policy and a decision is made that I'm, say - had my level classification reduced as opposed to, say, given a reprimand, I can bring my challenge to that decision in accordance with clause 25.3 and have the Commission invoke the powers it has pursuant to section 170LW?

PN47

MS JACK: Yes, your Honour.

PN48

SENIOR DEPUTY PRESIDENT ACTON: Thank you.

PN49

SENIOR DEPUTY PRESIDENT WATSON: Mr Amati?

PN50

MR AMATI: ..... concurs with the submissions made by the employer parties including ..... We say that in addition ..... and in addition to ..... this agreement and ..... and having said that I close my submissions by asking the bench to .....

PN51

SENIOR DEPUTY PRESIDENT WATSON: Very well, thank you, Mr Amati. Yes, thank you for your submissions. We've had an opportunity to consider all of the material. We will certify the agreement as a multi employer agreement. The agreement will come into force from today's date, 30 March, and will remain in force until 31 December 2007. We will issue reasons for decision and the formal certificate as soon as possible and I note in relation to the typographical error on page 95, the parties will provide a replacement page correcting the clause number to my chambers at the earliest possible time. Thank you, we'll now adjourn.

<ADJOURNED INDEFINITELY [2.28PM]