AG2009/19146, Transcript of Proceedings [2009] FWATrans 996 (31 December 2009)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 21840-1

COMMISSIONER WHELAN

AG2009/19146 AG2009/21158

Sch. 3, Item 10 - Application to vary transitional instrument to remove ambiguity

Application by La Trobe University
(AG2009/19146)
La Trobe University International College Union Collective Agreement 2007

[AC311227 Print ]]


s.185 - Application for approval of a single-enterprise agreement

Application by La Trobe University
(AG2009/21158)



Melbourne

10.09AM,FRIDAY, 11 DECEMBER 2009

PN1

DR G SMITH: I seek leave to appear on behalf of La Trobe University, together with MISS F BLACKMORE.

PN2

THE COMMISSIONER: Thanks Dr Smith.

PN3

MS L GALE: I appear on behalf of the NTEU, and we have no objection to Dr Smith's application.

PN4

THE COMMISSIONER: All right then. Leave is granted to appear Dr Smith.

PN5

DR SMITH: Thank you, Commissioner. This application really arises out of what occurred during the negotiations for the agreement that has just been approved. What has traditionally occurred is that a number of distinct organisational groupings within the university have had their own enterprise agreements. The union's position through the negotiations was that they wanted all employees covered by the same agreement.

PN6

THE COMMISSIONER: A single agreement.

PN7

DR SMITH: However the International College of the university embarked on a process which could lead to its sale, and in fact at some point during the negotiations – I forget precisely the dates – a formal tender process was commenced. Certain assurances were given – I'm not sure if assurances is the right word, but certainly information was given to the tenderers about what the industrial instruments were. So the university's position was, "No, the International College agreement and the employees covered by it should be kept separate" and the university was not prepared to, in the context of the sale process, negotiate a separate new agreement for the International College staff. An agreement was reached between the NTEU and the university, however, that two things would occur in relation to the International College staff terms and conditions of employment.

PN8

First, the university was prepared to give a written undertaking that the staff of the college would get the same wage increases that was being granted to the rest of the university staff, up to the middle of next year, up to effectively around 1 July 2010. Secondly, it was agreed between the parties that an application would be made to Fair Work Australia to vary the International College agreement to give effect to those assurances; if only to ensure that any purchaser would be bound by the higher wage increases because the agreement would then transfer, under the transfer of business provisions, to the purchaser. I think that agreement was made under the mistaken belief that you could simply vary, by the traditional process of having a vote of the International College staff, the agreement. However it only quite recently became clear to the parties that if you look at item 10 of schedule 3, and if you look at the framework of the new provisions, there is only a very limited basis upon which Fair Work Australia can vary the agreement, and that you can't do it by a process of having a vote.
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THE COMMISSIONER: Yes.

PN9

DR SMITH: So we're left with the position where there is considerable uncertainty for the staff in the International College created by, if you like, the assurances that were given by both their union and the university. So we've made an application to vary the agreement to remove uncertainty. The grounds are broadly set out in the application.

PN10

THE COMMISSIONER: I've read the grounds, Dr Smith, but you're not talking about uncertainty in the instrument.

PN11

DR SMITH: Well, we're going to make a submission about that. We say that – I've had a look at the cases on ambiguity and uncertainty, if you go back. I know the Commission as presently constituted has been involved in quite a few of them.

PN12

THE COMMISSIONER: I'm pretty familiar with them, yes.

PN13

DR SMITH: They all turn on ambiguity. There is no decision on uncertainty, and the words are ambiguity or uncertainty. Now, actually I found one; it's one page and I'm going to hand it up. It's of considerable authority, I would submit, tongue in cheek.

PN14

THE COMMISSIONER: Thank you.

DR SMITH: I think it was a circumstance where there was not actually any uncertainty about what was in the award – it related to an award – but there was a district allowance, and there was uncertainty about whether people who were working in the town of Goldsworthy would get the district allowance that the agreement was silent on; whether the town attracted the allowance. So the award was varied to remove, but there was an anomaly which created an uncertainty, and so the Commissioner was prepared to vary the award. I'll hand up also the Oxford English definition of uncertainty. The Tribunal can see that in fact quite a number of different alternate definitions of uncertainty – if I go to 1B, "Something of which the occurrence, result" et cetera "is uncertain". Over the page "An uncertain gain or emolument";, and then 2A "A state of not being definitely known or perfectly clear"; and then 2C "Something not definitely known or knowable"; and then perhaps 3A is the most important "A state of character of being uncertain in mind, want of assurance".

PN15

Our submission is that the agreement passed its nominal expiry date some time ago. There is nothing in the agreement about what wage increases would occur after the nominal expiry date. There is uncertainty about that in terms of the definitions in the dictionary. The Tribunal is entitled on the basis of the cases – which I didn't bring because the bench would be fully aware of them, Beltana and some of those other cases. But the Tribunal is entitled to look to some extent at the extrinsic evidence to determine (a) whether as a matter of discretion it should vary the agreement, (b) whether there is indeed uncertainty. So we would submit that the material we've put to you, which I understand is not in dispute in terms of the factual background, is that there is uncertainty and the Tribunal is entitled to vary the agreement to remove that uncertainty. The variations sought are solely to increase the wage rates and are highly beneficial to the employees concerned. So we would submit that the discretionary element should be overwhelming.

PN16

THE COMMISSIONER: Dr Smith, the Act refers to uncertainty in the instrument.

PN17

DR SMITH: I understand that, yes.

PN18

THE COMMISSIONER: Not to uncertainty about what might happen after the instrument passed its nominal expiry date. Ms Gale, do you have anything that you want to put further?

PN19

MS GALE: The NTEU supports the application. We confirm the factual background as set out by Dr Smith. We can add that the proposed changes have been overwhelmingly supported by the staff of the International College at general meetings convened by the union, but attended by both members and non members, and attended by an overwhelming majority of the employees of the International College. We have nothing to add to Dr Smith's submissions.

PN20

THE COMMISSIONER: I understand the difficulty that you are in, but I also have a difficulty, and that is that I think the wording of the legislation is quite clear and it refers to removing an ambiguity or uncertainty in the instrument. This is an instrument that had a nominal expiry date in 2008. If there was uncertainty as to what was to occur after the nominal expiry date, that is not a factor of the wording of the instrument. That's a factor of the parties not taking action after the expiry date to do something about it. I don't believe that I have the jurisdiction to do what you want me to do. I understand the difficulty. I understand the position that this puts the employees and the university in, but I do not believe I can act outside my jurisdiction, and outside the powers that the Act gives me. I don't believe it gives me the power to do what you're asking me to do. For those reasons I cannot grant this application.

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