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Australian Industrial Relations Commission Transcripts |
352 
, Transcript of Proceedings [2002] AIRCTrans 312 (5 February 2002)
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:(08)8205 4390 Fax:(08)8231 6194
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT O'CALLAGHAN
C2002/ 352
UNIVERSITY OF ADELAIDE AUSTRALIA
and
NATIONAL TERTIARY EDUCATION INDUSTRY UNION
Notification pursuant to section 99 of the Act
of a dispute re offer of voluntary redundancies
ADELAIDE
2.05 PM, TUESDAY, 22 JANUARY 2002
PN1
MR D. KILDARE: I appear on behalf of the University of Adelaide.
PN2
MS C. BALDWIN: I appear on behalf of the National Tertiary Education Industry Union and appearing with me is K. LEVERETT, branch secretary.
PN3
THE SENIOR DEPUTY PRESIDENT: Thank you. At the outset, can I indicate that I have listed this matter for initial hearing. I am certainly not opposed in any way to possibly adjourning into a conference at a later stage. It is listed for hearing because of the slightly unusual wording in clauses 12(3) and 12(4) of the agreement and in the context of the application I wasn't quite sure as to what was expected of the Commission. Ms Baldwin, this is your opportunity to tell me what is expected of the Commission and I will make a decision depending on that.
PN4
MS BALDWIN: Commissioner, the university has listed this matter.
PN5
THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Kildare, it is your opportunity to tell me what your expectations are.
PN6
MR KILDARE: Yes. Very plainly, your Honour, what we seek is the assistance of the Commission in solving, I guess an impasse that the parties have reached in some restructuring that is going on in our Faculty of Science and we just seek, as I said, to possibly go into conference, I would like to think earlier than later, after I have had a few introductory words and Ms Baldwin has put her position. It does say - I have given you a copy of my enterprise bargaining agreement and I did not keep myself one but it does say - the basics of the application - - -
PN7
THE SENIOR DEPUTY PRESIDENT: Something about universities, Mr Kildare, which means they write enormously long enterprise agreements so I look forward to you working through this one.
PN8
MR KILDARE: I am not sure if the university was the only party concerned with that, your Honour. If we go to 12.3, I guess that is what we saying, your Honour, that the dispute remains unresolved and may be referred to the Commission for settlement. I guess, as I said, on that basis we will seek your assistance in solving the dispute that we have at the moment.
PN9
THE SENIOR DEPUTY PRESIDENT: So can I be clear on that. The second sentence in clause 12.3 of the enterprise agreement reads:
PN10
The decision of the Commission will be implemented by the parties.
PN11
As the notifier, what you are asking me then is for assistance in the conciliation process rather than any arbitral role to be adopted by the Commission, at this point.
PN12
MR KILDARE: At this point and that would be the university's preferred position, I can't talk for Ms Baldwin. I read that as the decision made here today coming out of the conciliation conference, which I will be seeking, decision based on where the parties go in relation to the dispute from today. In other words, I will be seeking a couple of things from you before I sit down - I guess I can tell you now, actually because - - -
PN13
THE SENIOR DEPUTY PRESIDENT: I am sitting on the edge of my seat.
PN14
MR KILDARE: I thought you might be. What I will be seeking is the lifting of the dispute, that is one point and there is another point I make but allied to that point, your Honour, would be the fact that the parties can go back into negotiating this under the managing chance clause, which my friend will mention later on. So effectively, that is what I am asking, a decision from the Commission here today based on what we talked to you about that the dispute be lifted to enable the parties to progress this matter.
PN15
THE SENIOR DEPUTY PRESIDENT: Perhaps before I take the matter further, Mr Kildare, if you could give me some brief outline of the background to the matter but more particularly what constitutes the dispute at the present time.
PN16
MR KILDARE: Perhaps I could go forward from here with what I was going to put to you and that, I think, might help, if you are happy with that, your Honour? Your Honour, it has been notified to the Commission, as I have just said, under clause 12, because we are seeking the assistance of the Commission in settling this dispute and we have that dispute with the NTEU in relation to the voluntary redundancy round which has been called in our Faculty of Sciences.
PN17
As I said earlier, briefly, it is not my intention to go into chapter and verse for the rest of the day because I am sure Ms Baldwin will have a fair bit to say but there are some important points that I think I need to make in setting the scene. As you would probably be aware, your Honour, the University of Adelaide has had, in recent times and continues to have, some reasonably severe financial problems now for various reasons, and we have probably all seen that in the press and some of the press has probably not let the facts stand in the way of a good story but as in all businesses, we are now different, we are a business, we are taking stock of out situation and we have taken steps to bring our annual expenditure within the total funds that are available to us. I might add, those funds, your Honour, are not increasing.
PN18
So we could build a balanced budget for 2002 and beyond, to start to rejuvenate our reserves, which have gone down considerably over the last 5 years. Having regard to clause 37 in the EBA, which is at page 12, that is under the managing change and it is job security clause.
PN19
THE SENIOR DEPUTY PRESIDENT: Yes.
PN20
MR KILDARE: You will see in reading that that there are a number of things that we can do to mitigate against redundancies. It would be fair to say that that has been going on for some time, since the certification of this enterprise bargaining agreement back in March this year, in this very same Commission. One of the things we did was to introduce an early retirement scheme for employees aged, and this was across the university, we did that late last year, people aged between 55 and 64.
PN21
We had 52 staff take up that offer. There were 31 of what we call general staff, administrative/professional/support staff and 21 academics. It was one of the most generous that had been offered recently by any Australian university and provided staff with 4 weeks pay for each year of service and in addition, of course, to any long service leave or recreation leave entitlements. In June this year the fourth instalment, that is June 2002, the fourth instalment of the salary increases provided for under the enterprise bargaining agreement will take effect. The cost of that increase for the full year is estimated at approximately $2.3 million.
PN22
The increase has not been the subject of additional funding from the Commonwealth and it must be met from productivity gains, reductions in expenditure, increased revenue or a combination of all of the above. Your Honour, the university is no different, as I said earlier, to any other business in any other industry and to use that awful fashionable term, it must be aware of the bottom line. It must continue to monitor both the number of staff and how these staff are distributed across the university, in specialised areas of the university.
PN23
In the science faculty, there have been some significant shifts in student demand, for different reasons, and for different courses offered and in order to get a better alignment between the distribution of staff and distribution - distribution of students as a result of the restructure, the university has now made a voluntary separation offer to staff in the Faculty of Sciences. This will enable some staff who were ineligible for early retirement scheme to take options under that redundancy package.
PN24
As a result of that offer, 52 staff have requested an estimate of their final moneys and of that 52, 36 staff and I believe that was around about 1.30, 36 staff have indicated most definitely they would like to take up that offer and the break up of that 36 staff is 9 academics and 27 general staff. Now, we know, at this point, there is not necessarily going to be 36 approvals of those indications - expressions of interest.
PN25
Initially the NTEU notified the university of an industrial dispute under clause 12 of the enterprise agreement by letter to the Executive Director of Student and Staff Services on 17 December. That was in response to a letter that was sent out by the General Manager, Human Resources to the NTEU on 13 December and I have a copy, which I would like to tender.
PN26
THE SENIOR DEPUTY PRESIDENT: Ms Baldwin, have you got any objection to this document being admitted?
PN27
MS BALDWIN: No.
PN28
PN29
MR KILDARE: Your Honour, that is fairly self explanatory, that letter. It talks to the - it tells Ms Leverett that we will be calling for expressions of interest for:
PN30
General staff to participate in a voluntary redundancy round in the faculty of science and agriculture and natural resource sciences.
PN31
I refer to those as the Faculty of Sciences because in fact that has been renamed. Now, the reason - sorry, can I just go to the next letter now that I would like to table, if I may. It is a letter from the NTEU to Susan McIntosh who is the Executive Director, Student and Staff Services at the University of Adelaide confirming verbal advice that it had earlier given that day that it was now notifying a dispute under clause 12 of the enterprise agreement.
PN32
THE SENIOR DEPUTY PRESIDENT: There are two issues that I need to raise here. Firstly, can I take it, Ms Baldwin, again you have no objection to this document being admitted?
PN33
MS BALDWIN: No, no objection.
PN34
PN35
THE SENIOR DEPUTY PRESIDENT: At this point I do need to advise both of the parties to this matter that in a previous life, some years ago, I had occasion to work with Ms McIntosh. I do not believe that impacts on my ability to participate in this matter at all but I thought it only fair that I advise the parties and give you the opportunity to make up a concern, should there be one. I recall it was some 8 or 9 years ago.
PN36
MR KILDARE: I have no problem with that, your Honour.
PN37
MS BALDWIN: We have no concerns.
PN38
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN39
MR KILDARE: That letter quite clearly states, as I said, that there - would be asking for us to advise that they would be taking no further action that would - they would not be taking any further action and they also asked, as the clause states, that management not change work staffing or the organisational work under the terms of that clause, ie, redundancies will not be progressed. As a result of that the NTEU and university met on 21 December in an attempt to reach agreement and I have to say that meeting took place and I also have to say agreement was not reached.
PN40
Ms Baldwin might need to just confirm this for me, your Honour, but I believe it was 6 January. My advice is it was 6 January, Monday 6 January the disputes meeting was held which wasn't - - -
PN41
MS BALDWIN: Dennis, it was 8 January.
PN42
MR KILDARE: I'm sorry, thank you. It was 8 January - disputes meeting was held in accordance with clause 12.1, II and as I've said in my notes there, I have no doubt I was not present at that meeting and I have no doubt that Ms Baldwin will outline for you the outcome of that meeting in more detail. As I understand it, my instructions were that there were a number of further discussions with offers that were - I believe there was an offer made from the university - I prefer, your Honour, at this stage not to necessarily go into the details of that because I think we could if, with my colleague together at the table consent I'd like to think we could probably cut off those sorts of details in conference, if you are happy with that.
PN43
THE SENIOR DEPUTY PRESIDENT: Yes. Go on, Mr Kildare.
PN44
MR KILDARE: Thank you. I guess I'd like to come to the crux of the matter.
PN45
THE SENIOR DEPUTY PRESIDENT: I still don't understand what the dispute that you are referring to the Commission is, so you will need to - - -
PN46
MR KILDARE: I think I've come to the crux of the matter and I've just said that actually. It is true that universities have to act on restruction with some expediency and there is part of the problem we have in terms of the fact that we do not, in the opinion of NTEU, we have not applied the letter of the law in terms of process that is outlined in clause 38.1 which is a managing change clause. From memory, your Honour, that is on page 13 of our Enterprise Bargaining Agreement where it talks about the university providing information on the need for change, and also - and this is from memory, but the process.
PN47
THE SENIOR DEPUTY PRESIDENT: Mr Kildare, I'm happy to hand back your copy of the agreement if you need it to answer my question - - -
PN48
MR KILDARE: No, I - - -
PN49
THE SENIOR DEPUTY PRESIDENT: - - - but if you are referring me to clause 38 in any way, and I understand that clause 37 references clause 38 - - -
PN50
MR KILDARE: Yes.
PN51
THE SENIOR DEPUTY PRESIDENT: - - - then clause 38.5 reads that: this clause will be superseded by procedures which the parties will negotiate by 31 December 2001 - - -
PN52
MR KILDARE: Yes, your Honour.
PN53
THE SENIOR DEPUTY PRESIDENT: - - - which makes my wonder whether a reference to clause 38 might need to be explained in a little more detail for me.
PN54
MR KILDARE: Well, yes your Honour. Can I just say in relation to 38(5), those negotiations started - I wouldn't say they have broken down, they have been put on hold. Nothing was agreed by 31 December 2001. The parties still do intend to sit down and develop some new procedures but that has not happened and my understanding is, and I can be corrected on this, my understanding is that is one of the main problems NTEU has with this particular restructure. That the university has not adhered to the managing change.
PN55
THE SENIOR DEPUTY PRESIDENT: That is agreed from the university's point of view.
PN56
MR KILDARE: Pardon.
PN57
THE SENIOR DEPUTY PRESIDENT: Is that agreed from the university's point of view.
PN58
MR KILDARE: Yes. I think that is where we will come to why I am here. We don't necessarily agree with the NTEU that we haven't. I think - that goes to the time limits of our advice to them to the union at the same time our advice to employees in the university but I think we can nut that out for you, your Honour, later on. I'm confident of that - in conference. I think it is pertinent to point out at this stage that the university needs to proceed with this restructuring and in the original time frame that we will discuss at a later date because the new academic year is upon us within the next 3 or 4 weeks.
PN59
Under the dispute of course, whilst that is on we can't make any move as we now planned earlier, no industrial action can occur but also we cannot make any moves to change any of these processes in the university. That will have counter productive effect down the track the longer we delay this. We need to get new lecturers. We need to get final programs in place by the start of the new academic year so the students know exactly where they will be going, what they will be doing and who in fact will be teaching them and we can't do some of those things at the moment.
PN60
The executive Dean of Science is new at the start of the 2001 budget year this year was going to require some very tough decisions in order to manage, as I said earlier, within the approved budget allocations and I just don't know that the NTEU can have their cake and eat it too. That enterprise bargaining agreement delivered a 13.1 per cent pay increase over two and a half years, up to June 2003. That will have cost by June 2003, will have cost in the region of 20 million dollars - that is in salary costs alone. It is interesting that the NTEU during the negotiations fought long and hard to have the no involuntary redundancies moratorium go until 31 December 2001 and I would suggest that Jack and Jill, the blind miners, could see at that stage that less than 12 months later the parties would probably be back in this forum arguing about the need to restructure or not and in fact whether we could save some jobs. Your Honour, there are two main points I wish to make. Firstly, we seek to have this dispute left at, in as much as what is on, because it will enable us to progress this matter.
PN61
THE SENIOR DEPUTY PRESIDENT: Mr Kildare, at some point, you are going to need to tell me what the dispute is about. What is happening at the present time? Is there is industrial action?
PN62
MR KILDARE: That is - - -
PN63
THE SENIOR DEPUTY PRESIDENT: Is there a picket line barricading North Terrace? What is going on?
PN64
MR KILDARE: Your Honour - - -
PN65
THE SENIOR DEPUTY PRESIDENT: I'm sorry. I'm somewhat at a loss as to - - -
PN66
MR KILDARE: I'm obviously not making myself clear.
PN67
THE SENIOR DEPUTY PRESIDENT: What do you mean by dispute? There are numerous people that are in dispute - they keep working.
PN68
MR KILDARE: Well, that is right.
PN69
THE SENIOR DEPUTY PRESIDENT: Is it one of those disputes? What is going on?
PN70
MR KILDARE: Your Honour, I thought I did say earlier on that under the dispute clause it does state that: no industrial action will take place on behalf of the union but at the same time, no moves will be made by management to progress any of the matters whilst the dispute is on. The dispute has been notified.
PN71
THE SENIOR DEPUTY PRESIDENT: So the dispute is, simply put, the inability on the part of the university management to proceed with the voluntary redundancy programme and call that you have initiated?
PN72
MR KILDARE: Yes, I thought I said that at some stage.
PN73
THE SENIOR DEPUTY PRESIDENT: Thank you. I just want to make sure that that is my understanding of it.
PN74
MR KILDARE: Sure, you are right. That in a nutshell is it and as I said, when we go into conference which I am going to request in a minute, I think some of that will come out in more detail, but yes, that is the dispute and that is what I want lifted. You are bringing me to it a little bit quicker than I wanted, but on behalf of the university I'm seeking some direction from the Commission this afternoon that will direct the parties back into negotiation, the dispute lifted because the second point I wanted to make to you in finalising that was that we have a number of staff and I have to say some of those staff their age profile is quite high and they have made a decision that they want to take a voluntary package.
PN75
Now, there are quite a number of those staff. As I said earlier, there are some 36 - probably they won't all have approval - but there are 36 that have actually said: I want to go. Now, the people of the higher age profile, I don't think I would be guessing in la-la land if I said they would have taken financial advice. It would have been quite a huge decision. I believe, and it is the university's position that we are disadvantaging those people who want out, they want out before the start of the new academic year, under the auspices of that dispute clause we cannot do anything to those people and I think that is a very important point that we need to consider. Really, as I said, you brought me to that point earlier, but I probably don't have a lot more to say than I don't think we should stand in the way of those people and I guess the only other thing I would say is that I would seek the consent of the Commission to go into a conciliation conference this afternoon and I also just wanted to add, you have a Mr Fechner, initial: B, who is assisting me today. If we go into that conference I would like him to probably add something to the afternoon.
PN76
THE SENIOR DEPUTY PRESIDENT: A couple of questions before I ask Ms Baldwin to respond very briefly, Mr Kildare. Most voluntary redundancy offers contain a number of components. There is the initial offer. The employee's voice some level of interest. They are normally then provided with financial information pertaining to their specific circumstance and they are then normally given a reasonably limited period of time in which to indicate formal acceptance of that offer or otherwise.
PN77
MR KILDARE: I didn't quite hear. Did you ask that question?
PN78
THE SENIOR DEPUTY PRESIDENT: I'm saying most voluntary redundancy arrangements provide those various steps that I've referred to. That is, the initial offer or call for expressions of interest. They then envisage that employees would respond with an expression of interest. Advice is then normally given to employee relating to the amount of money that they would receive as an individual and the employee is then normally asked to respond within a defined period of time as to whether or not they propose to accept the offer.
PN79
MR KILDARE: That is correct.
PN80
THE SENIOR DEPUTY PRESIDENT: Now, as I understand what you have said to me, some 52 staff registered an interest. Some 36 have now formally or have now indicated that they would like to take up the offer. Can you tell me what the timing is on the university's next step?
PN81
MR KILDARE: The offer closes on Tuesday 15 January 2002. Now, I stand to be corrected on that. I have just come back from leave - - -
PN82
MS BALDWIN: That is expressions of interest closing date.
PN83
MR KILDARE: Okay.
PN84
MS BALDWIN: 52 staff members requested a quotation on a without prejudice basis.
PN85
MR KILDARE: Sure.
PN86
MS BALDWIN: So 36 have, I believe - sorry, I believe have put in an expression of interest only at this stage. Charles .....
PN87
MR KILDARE: Yes, yes. But I'm being asked the date and my understanding was - - -
PN88
MS BALDWIN: 15 January was the closing date for that expressions of interest.
PN89
MR KILDARE: But the date of effect, to answer your question, your Honour, is Friday 22 February 2002.
PN90
THE SENIOR DEPUTY PRESIDENT: And what happens on that date?
PN91
MR KILDARE: That will be the date of effect of people leaving the university.
PN92
THE SENIOR DEPUTY PRESIDENT: Well, there must be a step - shouldn't say: there must be. There is normally a step in a normal organisation, wherein the employer advises the employees who sought to act that voluntary redundancy scheme of the employer's preparedness to grant it.
PN93
MR KILDARE: Yes. There is a letter.
PN94
THE SENIOR DEPUTY PRESIDENT: It may be Mr Kildare, for example, you were one of these people, that the university might say: no. We are not prepared to offer you this voluntary redundancy option. Now, what I want to know is what are the dates, what are the critical dates upon which the university's decision making process is founded and the reason that I'm asking this question is, you have indicated that the university is under a great deal of time pressure and wants to expedite the whole proceeding. What I'm trying to come to grips with is, what are the various critical dates in this process? Before you answer my question, can I suggest that you might want to confer with your compatriots in that regard. I notice the gentleman behind you is anxious to talk with you.
PN95
MR KILDARE: That is fine, thank you. Your Honour, I think I can answer it for you. I have already mentioned - and my colleague at the other end of the table confirmed the expression of interest of 15 January which will be the closing date. The executive deans will meet with heads of department and they will formulate their view on the expressions of interest they have received. That was going to happen - and I believe has happened - on 18 January. We were hoping that today, Tuesday, 22 January, a decision would be made by the Vice-Chancellor on which positions could be, or can be, declared redundant.
PN96
Letters to staff advising if redundancy had been accepted or not on Friday, 25 January. The final letter would then be sent to staff on 13 February which would essentially wrap up whether those people that had been accepted and that would just be details of their final moneys and the sorts of services that they might have negotiated in terms of financial assistance or advice or outplacement assistance, those sorts of things, and the final - that one. Then on the schedule was to consult with the unions about the implementation of the decisions and that was to happen on 13 February. So that in reply to your question, your Honour, talks about the milestones, I guess, and the timeframe.
PN97
THE SENIOR DEPUTY PRESIDENT: One last question, Mr Kildare, you have indicated that the University agrees that it has not met the consultation requirements outlined in clause 38 of the agreement.
PN98
MR KILDARE: I wouldn't go as far as to say I agree that we haven't met them. I would suggest that we were rather expedient in sending letters out and at the same time notifying the union.
PN99
THE SENIOR DEPUTY PRESIDENT: Thank you. I think you have answered my question, thank you. Now, Ms Baldwin, can I invite you to - without presenting a major case to me - outline the union's position on this matter?
PN100
MS BALDWIN: Thank you, Senior Deputy President. I will be brief and I will just highlight the various points that I think are crucial in this matter. As you can see, the NTU and the University have been arguing about who is in dispute with whom. We believe we were in dispute with the University for a failure to comply with the enterprise bargaining agreement in relation to consultation on major organisational change which would lead to terminations of employment and redundancies. Failure to comply with clause 37, which is the job security clause in that one of the provisions in the clause says the University will not seek to reduce the overall size of the University's workforce, and there is a date in that, and the other breach, we believe, that has occurred is in clause 39, which is actually the redundancy clause, which we believe, sets out requirements of the University to give the union various pieces of information about what are the reasons for having redundancies, what are the number of staff, is it a financial exigency, how much.
PN101
Essentially those sorts of very basic provisions we don't believe were followed in any way. What actually happened was - and I won't go back through the early retirement provisions - but when we received the letter from Mr Daish, which was faxed to us on the 13th, and we were asked to come to that meeting which Mr Kildare has tendered as document number A1, we had no inkling of any provisions or any discussions to have any voluntary separations whatsoever. What actually happened, the reason we went into dispute immediately was because the University was failing to comply with the enterprise bargaining agreement.
PN102
We are totally supportive of a voluntary separation scheme in the University. However, we think we are an integral part of those procedures which enable the University to proceed with a round of voluntary offers. Basically what happened was after that - and also the timing of this voluntary scheme, Senior Deputy President, I should also point out is it happened in the very final week of the University time which was, I think, staff got the letters on the 17th. That was actually the last week that the University was in operation.
PN103
Staff were given these letters. There were typos in the letters which led us to be concerned about the actual scheme itself which inundated us with queries about: did you know about this scheme, etcetera, did you know there's a typo in the letter, etcetera, etcetera. Then what happened was you need to know that with the academic staff, they're traditionally on annual leave in January. They don't have annual leave provisions like the rest of the community. They are expected to be on annual leave in January and if they don't take it they don't get it.
PN104
So essentially the University had set out a voluntary scheme to this whole faculty in a time when most of the academic staff were actually on leave. So we had a concern about that. We had also a concern that this is a new faculty. It has been amalgamated from two existing faculties in the University. The person who is the acting executive dean is acting. The faculty itself, prior to December when these decisions were made about voluntary separations, we had a formal meeting with the senior managers of the University, the executive deans of the two faculties, and my colleague, Ms Harrington, and I asked the direct question: will there be redundancies as a result of this merger; and we were clearly told no.
PN105
That was a meeting on 22 November. So our concern was that would have been a perfect opportunity to actually inform us of the financial exigency within the faculty. We are quite happy to discuss with the University a voluntary separation scheme but we're not happy to be in a situation where we're actually having to call a dispute to stop them from having a scheme which is full of errors and badly timed. Our concern is that we would like to sit down with the University and talk about these things but what happens is the University just basically ignores their requirements to consult with us on these important matters.
PN106
Our other concern, which is also relevant to this, is we have had many staff members in these two faculties contact us and advise us of the fact they are actually on a targeted list. Now, that concerns us because the University has put out a voluntary early retirement scheme and got several academics and general staff to go on that scheme. They are now setting out a voluntary separation scheme and I would argue that their timing is very cynically applied because what they are actually attempting to do is move straight to their targeted list but it looks like they're going through the motions of having an open-ended scheme where they have sought volunteers and failed to get them.
PN107
So the bottom line is if we were - we would have called this dispute if the University hadn't and we would have argued on the basis of failure to apply the appropriate provisions in the enterprise agreement. To answer some of the University's concerns they have put - I mean, I'd rather - if you wanted to ask me questions at this stage, or whether you wanted me to continue.
PN108
THE SENIOR DEPUTY PRESIDENT: Ms Baldwin, it seems to me that there are at least four areas of dispute, or potential dispute here.
PN109
MS BALDWIN: Yes.
PN110
THE SENIOR DEPUTY PRESIDENT: You have a somewhat ludicrous dispute over who is in dispute first.
PN111
MS BALDWIN: Yes.
PN112
THE SENIOR DEPUTY PRESIDENT: Let's leave that one aside.
PN113
MS BALDWIN: Okay.
PN114
THE SENIOR DEPUTY PRESIDENT: Let's just take it that the parties are in dispute.
PN115
MS BALDWIN: We clearly are.
PN116
THE SENIOR DEPUTY PRESIDENT: So we will call that one a draw. Can I take you to clause 37.1?
PN117
MS BALDWIN: Yes.
PN118
THE SENIOR DEPUTY PRESIDENT: Perhaps I should preface my questions by saying that they are designed to try to elicit what this dispute is on about and how any discussions that are aimed at its resolution might possibly proceed. Clause 37.1 commences with the sentence:
PN119
The University will not seek to reduce the overall size of its workforce before 30 June 2003.
PN120
Now, can I ask whether that sentence is one of the sentences that underpins the union's concerns in this respect?
PN121
MS BALDWIN: Yes, it is.
PN122
THE SENIOR DEPUTY PRESIDENT: Then can I ask how you reconcile the existence of that sentence with the date of 30 June 2003 which happens to be the date upon which the agreement concludes with the provisions of clauses 38 and 39? That is if you have got a dispute here over a potential reduction in the overall size of the University's workforce, then it goes to the question of whether or not there should be redundancies at all which is quite a different issue to have a dispute about to the question of whether the methodology by which the redundancies, or the voluntary redundancies, would be offered is an appropriate methodology.
PN123
MS BALDWIN: Yes.
PN124
THE SENIOR DEPUTY PRESIDENT: I'm trying to get a feel for whether or not the dispute is one over whether there should be redundancies at all or whether it relates more to the methodology.
PN125
MS BALDWIN: Well, to be frank, our concern is with the methodology of how the University has proceeded with this and we have used essentially that job security clause for us. It allows the University to restructure, to reinvigorate various areas. You know, some people may wish to take redundancies or voluntary separations in this area if it is a dying part, if the courses aren't attracting enough staff. They might want to invigorate and have new staff in other areas. So we don't see that that clause is inconsistent with building or restructuring the University. What our concern is is essentially the managing change clause, which is clause 38 and clause 39 of the enterprise agreement.
PN126
THE SENIOR DEPUTY PRESIDENT: Then can I take you to clause 38?
PN127
MS BALDWIN: Yes.
PN128
THE SENIOR DEPUTY PRESIDENT: I have noted that you, like Mr Kildare, have indicated a preparedness to sit down and talk further. Can you give me some idea of the timeframes within which the union would envisage those discussions occurring? What underpins that question is the timeframe that Mr Kildare provided me with where, assuming the Vice-Chancellor has made, or is about to make, some critical decisions thee appears to me to be a timeslot, a window of opportunity, between now and the next couple of days before the University proposed to advise its staff of their selection or otherwise for this voluntary redundancy scheme. Would you agree with that?
PN129
MS BALDWIN: Well, that's the University's time. I agree there is a timeframe in which we could have negotiations, yes.
PN130
THE SENIOR DEPUTY PRESIDENT: There is a window of time.
PN131
MS BALDWIN: Yes.
PN132
THE SENIOR DEPUTY PRESIDENT: I'm not asking you to endorse that timeframe.
PN133
MS BALDWIN: All right, yes, but I - - -
PN134
THE SENIOR DEPUTY PRESIDENT: But I am trying to get a feel for the timeframe within which you would envisage these discussions occurring.
PN135
MS BALDWIN: They can happen within the next couple of days. We're happy to have discussions.
PN136
THE SENIOR DEPUTY PRESIDENT: Very well.
PN137
MS BALDWIN: I have concerns about the timing of the scheme, the actual scheme, any precedent - - -
PN138
THE SENIOR DEPUTY PRESIDENT: I understand that. I am not asking you to endorse the scheme contrary to any principles you might have and I'm not giving any implicit recognition to the scheme. I'm simply saying within what sort of timeframe would the union envisage talking so as to leave both parties the maximum possible degree of flexibility?
PN139
MS BALDWIN: Can I just have a word here?
PN140
THE SENIOR DEPUTY PRESIDENT: You certainly can.
PN141
MS BALDWIN: We don't have a problem with talking to the University about the scheme.
PN142
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN143
MS BALDWIN: Within two days if necessary.
PN144
THE SENIOR DEPUTY PRESIDENT: A last question then, if there were to be discussions with the University, then is it the union's view those discussions should be under the auspices of this Commission?
PN145
MS BALDWIN: Absolutely.
PN146
THE SENIOR DEPUTY PRESIDENT: Or alternatively, is there a chance, given my very clear views, that this Commission is a place of last resort? Is there a chance that the parties might even want to sit down around the table themselves again and explore it? If you have reached that last resort then so be it, but I am just trying to clarify that position.
PN147
MS BALDWIN: I don't think we have reached the last resort. Our view is the reason the University took the dispute with us was to get it down here, to get a third party to arbitrate.
PN148
THE SENIOR DEPUTY PRESIDENT: Well, you're here now. You've scored the major prize of the place and the room.
PN149
MS BALDWIN: Yes.
PN150
THE SENIOR DEPUTY PRESIDENT: Now, the question is one of whether you require me to be in the room with you or whether there might be some merit in the parties sitting down again within the next two days to see how far they could get.
PN151
MS BALDWIN: My preference would be to sit down with the University and see how we can manage it and then if the negotiations break down to come back to you. That would be my preference.
PN152
THE SENIOR DEPUTY PRESIDENT: Thank you. Now, Mr Kildare, you have heard my last question to the union. Have you reached that point of last resort, or do you, having heard Ms Baldwin, consider there might be a chance for some productive discussions to occur as a matter of absolute urgency, but the opportunity to come back to the Commission in the event that those discussions fail?
PN153
MR KILDARE: You must have been reading my mind.
PN154
THE SENIOR DEPUTY PRESIDENT: I hope I wasn't - - -
PN155
MR KILDARE: Well, can I just say, yes, I think there is room to move. I think there is room to move for the parties getting back together and both parties looking at it in a reasonable way. With some fairly tight time frames in terms of reporting back to the Commission as to the progress of those meetings. I would just like, if I could your Honour, just make a couple of comments in relation to Ms Baldwin's submission, because it needs to be a matter of public record and that is, on behalf of the University I can categorically deny that there is any targeted list as I speak.
PN156
In these times there is a lot of innuendo and a lot of rumours and some are close to the mark and some aren't, but we do not have a targeted list as it was put by my colleague. The only other point I would like to make, is in relation to clause 37 where the opening sentence talks about the University will not seek to reduce the overall size of its workforce. That is the very word we use, "seek", we would not seek to do that. We have not sought to do that but, I guess, what it gets to is whilst we don't seek it it can be forced upon us, that is the point I want to make about clause 37.
PN157
THE SENIOR DEPUTY PRESIDENT: Thank you. I just wonder if I can ask the parties to bear with me for one moment? I'm going to make a number of recommendations in this matter. Having heard the parties, my first recommendation is that discussions between the University and the Union occur on either or both Wednesday, 23rd and Thursday, 24 January and if necessary those discussions should continue on Friday, 25th.
PN158
The discussions, secondly, should commence from the basis that if agreement is not possible by Friday, 25 January the matter will be referred back to the Commission on the afternoon of 29 January. The discussions should not commence on the premise that the current voluntary separation proposal is immutable and cannot be changed, because it may be necessary that it is changed. The discussions should be premised on the recognition that redundancies will occur and should be expedited and as such the discussions should focus on how staff are most fairly advised of and selected for participation in any redundancy scheme.
PN159
Finally, recommend that in the event that the discussions that are envisaged in this recommendation are clearly not going to be productive then I'm going to give leave to both parties to refer the matter back to the Commission at any stage later this week. I cannot guarantee you a hearing date or indeed a conference date, but I am giving leave to both parties to refer the matter. That is, I don't want you to be going through the motions of discussions if there is no serious intent to reach agreement on the part of both parties. Now, do you think, Mr Kildare, as the notifier, that there might be a chance of making that recommendation bear some fruit?
PN160
MR KILDARE: I think there is every chance.
PN161
THE SENIOR DEPUTY PRESIDENT: Okay, thank you. Ms Baldwin, is there anything that I have missed that is obvious to you in that recommendation?
PN162
MS BALDWIN: No.
PN163
THE SENIOR DEPUTY PRESIDENT: Thank you. I will adjourn the matter on that basis.
ADJOURNED ACCORDINGLY [3.00pm]
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