TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 38357-1

VICE PRESIDENT LAWLER

AM2010/248

s.158 - Application to vary or revoke a modern award

Application by National Tertiary Education Industry Union
(AM2010/248)
Higher Education Industry-General Staff-Award 2010

(ODN AM2008/3)
[MA000007 Print PR985117]




Melbourne

1.05PM, MONDAY, 31 JANUARY 2011

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

Reserved for Decision

PN1

THE VICE PRESIDENT: Appearances, please.

PN2

MS E. FLOYD: If the tribunal pleases, Eleanor Floyd. I appear on behalf of the NTEU. Thank you.

PN3

THE VICE PRESIDENT: Thank you, Ms Floyd.

PN4

MR W. FRIDELL: If the tribunal pleases, Fridell, initial W. I'm appearing on behalf of the ASU.

PN5

THE VICE PRESIDENT: Thank you, Mr Fridell. Mr Makins?

PN6

MR D. MAKINS: Yes, your Honour. If your Honour pleases, Makins, initial D., from the Australian Federation of Employers and Industries.

PN7

THE VICE PRESIDENT: Thank you. Mr Fridell, you're here with a watching brief, I take it. You support the application.

PN8

MR FRIDELL: Yes, that's correct.

PN9

THE VICE PRESIDENT: Yes. Just pardon me one moment, please. Now, there was some correspondence from the NTEU suggesting that on account of the AFEI submissions being late, I shouldn't take account of them. I'm disinclined to accede to that submission and have read the AFEI submissions. Ms Floyd, if you're prejudiced on account of the late service and you need to have a further opportunity to make a written submission, I'm amenable to an application for that if you wish.

PN10

Mr Makins, I might just start with you, if it's okay. As I understand it, it's not in dispute that there was a significant contest between interested parties in the award modernisation - the part 10A award modernisation process - as to where university unions as employers should find themselves in the modern award system. AFEI was contending that they shouldn't be part of any Higher Education - General Staff - Award and the NTU and others were arguing that they should be covered by the Higher Education - General Staff - Award.

PN11

The full bench expressly concluded in one of its decisions that it would resolve that contest by having the Higher Education - General Staff modern award cover university unions and there were amendments to the definition of "general staff" which make it clear that employees of university unions are covered by that definition. It seems that a situation has arisen where inferentially somebody at least has contested whether a university union is actually caught by the coverage clause in the Higher Education - General Staff - Award 2010 and it's that circumstance which has caused the NTEU to make the application that it has.

PN12

I assume it's part and parcel of AFEI's present position that on account of the way the coverage clause is drafted, university unions are not actually covered by this Higher Education - General Staff - Award at the moment. Am I right in that regard?

PN13

MR MAKINS: Yes, your Honour. If I may expand on that point. The coverage term of the current modern award is applicable to the higher education industry as defined. Now, when one considers the definition of "higher education industry" within the award as it currently is drafted, it relates to educational institutions providing undergraduate and postgraduate teaching. It is our submission, your Honour, that the university unions and the various make-ups that form that structure, do not fall within that definition of higher education industry.

PN14

THE VICE PRESIDENT: I understand your technical arguments in relation to power and that's a matter about which no doubt I'll need to hear submissions, but why shouldn't I approach this case on the basis that there has clearly been an accidental oversight on the part of the full bench in not carrying into effect its stated intent of having the Higher Education - General Staff - Award apply to university unions? Why is that an incorrect inference to draw?

PN15

MR MAKINS: Your Honour, I appreciate the force of the submissions of the applicant union here in relation to the full bench determination within their award modernisation process on - I think dated 22 May 2009. It does appear on a reading of that decision that the full bench did have a very clear intention to move university unions and student unions into the current modern award currently before your Honour.

PN16

My present submission here today, your Honour, is simply to inform the current tribunal as constituted as to the difficulties that have been faced by the university unions given their complexity and variation in their operations, and the commercial environment in which they operate. There has been a very real difficulty experienced by these organisations in implementing the modern award that has been drafted in the priority stage really to only relate to the university institutions themselves as opposed to student bodies that do operate independently and commercially of the university implementing and embracing this current modern award.

PN17

THE VICE PRESIDENT: But all those concerns were concerns that were argued indeed at some length before the full bench, weren't they?

PN18

MR MAKINS: Yes, they were, your Honour.

PN19

THE VICE PRESIDENT: So in the face of those arguments being advanced, those concerns being articulated, the full bench nevertheless determined that the Higher Education - General Staff - Award 2010 should cover university unions and student unions. I'm struggling to see on what basis I could come to a different view from the full bench about the appropriateness of the Higher Education - General Staff - Award covering university unions and student unions.

PN20

MR MAKINS: Unfortunately, your Honour, it may well be that you can't. I guess my instructions from my members is to inform the tribunal as to the difficulties that they've experienced.

PN21

THE VICE PRESIDENT: Yes.

PN22

MR MAKINS: As I say, I do appreciate the force of the submission of the applicant union in that respect. I guess the only thing I can say to that in addition, your Honour, is with respect to the good job that the full bench did in the award modernisation process. At that point in time it may have been considering a large number of issues and when one considers that paragraph 64, which is a decision which accompanied the stage 3 modern awards - (2009) AIRCFB 450 - it is a very short consideration of the coverage of university unions. When one considers the weight of the arguments that went before that paragraph from the full bench, it's uncertain as to what their considerations may have been; the extent of their considerations in this particular matter.

PN23

I do say that with respect to the job that was done. Unfortunately, when employers who find themselves now covered by this university award who operate in a very different commercial environment to the university institution themselves - unfortunately that paragraph does provide them with little clarity and I guess that sort of brings me to why I'm here today. It's to try and shed some more light for the tribunal in respect of their status, you know, to assist the present tribunal making their decision today.

PN24

THE VICE PRESIDENT: Well, Mr Makins, to the extent that a university union, for example, is a relatively large entity - - -

PN25

MR MAKINS: Yes.

PN26

THE VICE PRESIDENT: One associated with one of the major universities and, for example, they were engaging in some hospitality enterprise - catering, say - I understand the force of the argument that there are effectively superior conditions in the Higher Education - General Staff - Award which puts the university union in that context at a commercial disadvantage from its competitors - or when compared to its competitors; but there's nothing to stop a university union that has got a substantial hospital enterprise, from structuring its affairs such that that enterprise is conducted by a wholly owned subsidiary.

PN27

MR MAKINS: It may well be, your Honour. I think that is probably a question left to the individual enterprise as to how they structure that.

PN28

THE VICE PRESIDENT: Yes.

PN29

MR MAKINS: Whether they have the necessary resources to structure their operations as such, I guess would be a question for them. Where there is an ambiguity created as a result of the modern award and the variations that have been made upon application by the NTEU, is the operation of clause 4.6 in the award. I think it does go to the height of this question and it is a question that has been asked of our organisation particularly, as to whether the particular university unions covered by the relevant industry award - if they do have significant retail, hospitality functions and operations or whether they are now covered by the - - -

PN30

THE VICE PRESIDENT: Well, this application doesn't do anything to assist in resolving the questions around the proper application of 4.6, because obviously that needs to occur in respect of a particular fact situation.

PN31

MR MAKINS: Yes.

PN32

THE VICE PRESIDENT: But I take it your organisation's advice is that 4.6 is capable of operating in such a way depending upon the circumstances that a university union in, for example, its hospitality functions or its retail functions may not actually be covered by this General Staff Award, but rather covered by the appropriate other modern award for - and those examples, hospitality and retail.

PN33

MR MAKINS: That's correct, your Honour. I think it really does depend on the individual employer who the advice has been given to.

PN34

THE VICE PRESIDENT: Yes.

PN35

MR MAKINS: I think, however, the inclusion of university unions in the definition of "higher education industry" would quite squarely be a hurdle to that advice being given in the future, given that the primary force of modern awards and the intention behind them would be to operating on an industry basis as opposed to an educational basis. If the definition of "higher education industry" is now amended as a consequence of this application, I think notwithstanding 4.6, university unions' employers are going to be covered by this modern award which then gives rise to all the arguments we've put forward to the full bench during the award modernisation process as the Higher Education Award being inappropriate and inadequate for the coverage of fast food employees or retail employees who are employed in numerous numbers by university unions, and in that case it's very different to the operations of an institution themselves.

PN36

THE VICE PRESIDENT: Yes.

PN37

MR MAKINS: May have very different retail functions.

PN38

THE VICE PRESIDENT: Yes. Okay, Mr Makins. Well, now, I think I started off by asking you questions. Are there other submissions you wish to make?

PN39

MR MAKINS: No, your Honour. I wouldn't mind summarising the grounds upon which we oppose, but I think I've touched generally on them today and obviously I take my submissions as being read.

PN40

THE VICE PRESIDENT: Yes.

PN41

MR MAKINS: It is our view, notwithstanding the position given by the full bench in that fairly brief paragraph in the decision I referred to, that the inclusion of university unions in the Higher Education Award is inappropriate. It is inconsistent with the objectives of the modern award and we would encourage the present tribunal to revisit that position to ensure that there is fairness in award coverage for different employers who may operate in different environments, however, who perform ostensibly the same work, if it pleases.

PN42

THE VICE PRESIDENT: Yes. Thank you, Mr Makins. Ms Floyd, I don't need to hear from you, but I will reserve my decision because I need to just reflect on a couple of aspects of how this needs to be addressed. I'll reserve my decision.

<ADJOURNED INDEFINITELY [1.20PM]