AG2010/17391, Transcript of Proceedings [2010] FWATrans 1532 (12 October 2010)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 28145-1

DEPUTY PRESIDENT SAMS

AG2010/17391

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

Application by University of Technology Sydney
(AG2010/17391)





Sydney

12.01PM, WEDNESDAY, 29 SEPTEMBER 2010

PN1

THE DEPUTY PRESIDENT: Could I have the appearances?

PN2

MS L. ANGRISANO: Ms Angrisano from AHUAA representing University of Technology Sydney, and with me is MR F. YOUNG.

PN3

THE DEPUTY PRESIDENT: Thank you.

PN4

MR J. GARVA: Mr Garva from the NTEU.

PN5

THE DEPUTY PRESIDENT: Thank you. This is the university's application. Ms Angrisano, please proceed.

PN6

MS ANGRISANO: Your Honour, this is an application for the approval of the UTS Academic Staff Agreement 2010. We submit that the approval of this agreement should be granted by Fair Work Australia as the university has met the requirements set out in section 186, 187 and 188 of the Fair Work Act 2009. The agreement has been approved by the employees which provides them with a new agreement which has been updated to reflect the Fair Work Act and the principles set out in the new fair work system. Employees have also been provided with an enhanced set of conditions in this new agreement which provide for a number of more beneficial terms than the previous expired agreement, the modern award and the National Employment Standards.

PN7

Your Honour, the agreement does not include any unlawful terms. Clause 8 of the agreement specifies a nominal date of 30 June 2013. The agreement includes all mandatory terms; namely at clause 10, an individual flexibility arrangement clause; at clause 12, a procedure for settling disputes; and at clauses 14 and 16, clauses regarding staff consultation. The pre-approval steps required by section 180 of the act have been completed by the university, and in accordance with sections 181 and 182, staff who will be covered by the agreement genuinely agreed by voting in favour of the agreement.

PN8

An application to approve the agreement was made to Fair Work Australia pursuant to section 185 of the Fair Work Act. We believe that all approval requirements of the act have been met by the university. Your Honour, for these reasons, we submit that Fair Work Australia should approve this agreement.

PN9

THE DEPUTY PRESIDENT: There is one thing that I found a little disconcerting, and that is of the 3000-odd employees of whom apparently only 2000 are casuals, only 25 people voted. That's 25 out of a thousand permanents.

PN10

MS ANGRISANO: Your Honour, I take your point. I'm not sure if I can sort of answer exactly why that is the case, but I could raise a few points for your consideration. I think one is that the bargaining representatives for this agreement reached agreement with the general secretary of the NTEU, and once that point was reached after 12 months of negotiations, perhaps staff felt that, you know, the matter was sort of done and dusted and sort of had been dealt with. These are figures that we looked at, and if you have a look at the protected action ballot figures, which I've got a copy for you that might assist, the figures are particularly low also, and perhaps it's something that is just - there's something in the sector that we see particularly low participation rates in the protected action ballots and in some of the - - -

PN11

THE DEPUTY PRESIDENT: So there were earlier approved protected action ballots, were there?

PN12

MS ANGRISANO: Yes, there have been in the sector for all institutions. Those figures are also very low.

PN13

THE DEPUTY PRESIDENT: Those ballot orders were all approved, were they?

PN14

MR YOUNG: Yes.

PN15

MS ANGRISANO: Yes, they were. If you have a look at those figures at UTS, that ballot took place in September 2009. Some 12 months later, the ballot for approval, the numbers have sort of dropped off, and again there wasn't a great deal of opposition or there were no issues of contention I suppose once agreement had been reached. So that might be one reason why academics didn't feel, you know, a great necessity to vote.

PN16

THE DEPUTY PRESIDENT: Might have exhausted them.

PN17

MS ANGRISANO: Perhaps, yes.

PN18

THE DEPUTY PRESIDENT: How actually was the vote to be taken?

PN19

MR YOUNG: If I may, your Honour, the vote was held by way of show of hands at a meeting of staff, and that was a practice that the university had adopted on a previous occasion for the approval of its agreement. So it's something that the staff are very familiar with at UTS, and I might also add that for the 2006 agreement, which this agreement replaces, we had a similar turnout of staff or academic staff who voted for that agreement as well. They don't seem to engage in the process to the extent that support staff do, and I think as Ms Angrisano observed - - -

PN20

THE DEPUTY PRESIDENT: That's not much higher either.

PN21

MR YOUNG: No, it's not, but it's certainly a better representation I suppose of the staff. But I think the staff did feel comforted by the fact that the negotiations were in fact led from the union's side by the general secretary of the union, and I think that they felt that that was indicative of the support the union had of the agreement and didn't feel the need to turn up.

PN22

THE DEPUTY PRESIDENT: My experience with academics is that they are usually more vocal than anybody else about their own disciplines rather than - - -

PN23

MR YOUNG: Vocal about their own disciplines, that's right, yes.

PN24

THE DEPUTY PRESIDENT: I've just been in a conference in Bali where it was loaded with hundreds of academics, and all I ever heard was how good they all were. All right. Perhaps Mr Garva can tell me a little bit more about that. So there was a notice given about this meeting, and that was - - -

PN25

MR YOUNG: Yes, your Honour. There was a notice issued to all staff in the usual form through an email to all staff. The ballot meetings were held back to back. So we've got two campuses, one at Kuring-gai and one in the city, and staff were informed of the times of the meetings. I think it was more than 10 days ahead of time. So there was plenty of time for them to make arrangements if they wanted to come. We held them around lunchtime, 12 o'clock to 1 o'clock, so that staff would be available to attend those meetings. As I say, I have no control over how many people turn up. In fact at Kuring-gai, we ended up getting I think it was 15 academic staff turn up at that meeting, which on the previous occasion we got none. So that was a very good turn-out from their point of view.

PN26

THE DEPUTY PRESIDENT: I see. Thank you. I take it that the only term which is less than official than the relevant reference instrument is the annual leave loading which is incorporated into the wage rates.

PN27

MS ANGRISANO: That's correct, your Honour.

PN28

THE DEPUTY PRESIDENT: I note that there are to be 2 per cent increases every six months - - -

PN29

MS ANGRISANO: Correct.

PN30

THE DEPUTY PRESIDENT: - - - for the life of the agreement, and a $1000 up-front payment.

PN31

MS ANGRISANO: Sign-on bonus, very generous.

PN32

MR YOUNG: We're all very anxious for it to be approved today.

PN33

THE DEPUTY PRESIDENT: That was my next question. I take it that although it does say "on the date of approval", the other increases that were available in 2009 and more recently in May have already been paid.

PN34

MR YOUNG: Correct.

PN35

THE DEPUTY PRESIDENT: I don't want to disappoint them. Thank you. Mr Garva.

PN36

MR GARVA: Your Honour, the NTEU has also endorsed the agreement as Mr Young has indicated. We're satisfied that it meets the requirements of the act and test. We're satisfied also that it meets the NES requirements. As for the issue regarding the vote turnout, why it should be so low I'm not sure. It is not an historical anomaly as far as UTS is concerned. But you were right in indicating that normally academics are not backward in coming forth on issues of importance. It may be that people disengage after both the union and the university circulates their joint endorsement, and that may be the reason for it. Other than that, I can't assist you much further. As I say, we've endorsed the agreement, and are satisfied. I really can't add much more than that, your Honour.

PN37

THE DEPUTY PRESIDENT: Are you involved in the voting meeting?

PN38

MR GARVA: I wasn't, your Honour, no.

PN39

THE DEPUTY PRESIDENT: Was the union?

PN40

MR GARVA: The union had its branch organiser at UTS attend each of those meetings and, as I say, we're satisfied that the votes are as reported by the university.

PN41

THE DEPUTY PRESIDENT: Yes. How many members do you have at the university? Do you know?

PN42

MR GARVA: I don't know offhand, your Honour.

PN43

THE DEPUTY PRESIDENT: I note also that the union has filed a form 22 wishing to be covered by the agreement, and pursuant to section 201(2) of the act, I shall record in a decision that I will issue in due course that the National Tertiary Education Industry Union is to be covered by the agreement. I accept the submissions of the parties about the low voter turnout, although had it been a agreement without union involvement, I might have taken a different view. Nevertheless, I am satisfied that all of the requirements of the act, and in particular sections 180, 186, 187 and 188 insofar as relevant to the application have been met. I note that the agreement provides for six-monthly increases of 2 per cent during the life of the agreement, and a $1000 one-off payment upon approval of the agreement.

PN44

I note that there is only one identified term which is less beneficial than the relevant reference instrument, that being the annual leave loading, but I am well satisfied that in terms of the other very many identified terms which are in excess of the relevant reference instruments, that the better off overall test has been satisfied. Accordingly pursuant to section 54 of the act, I shall approve a single enterprise agreement being the UTS Academic Staff Agreement 2010, which will have an operative date effective seven days hence, being 6 October 2010, and with a nominal expiry date of 30 June 2013. I shall issue a short decision in due course reflecting the tribunal's decision, but the parties can be confident that the matter has been concluded by the approval of the agreement as indicated.

<ADJOURNED INDEFINITELY [12.14PM]