AW783516 PR911627

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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996

Review pursuant to Item 51 of Part 2 of Schedule 5 of the

Workplace Relations and Other Legislation Amendment Act 1996

(C No. 00346 of 1998)

HIGHER EDUCATION GENERAL AND SALARIED STAFF (INTERIM) AWARD 1989

(ODN C No. 21807 of 1988)

[Print J0369 [AW783516]]

Award simplification.

DECISION

[1] This decision is concerned with several aspects of a review pursuant to item 51 of Part 2 of Schedule 5 of the Workplace Relations and Other Legislation Amendment Act 1996 (the WROLA Act) of the Higher Education General and Salaried Staff (Interim) Award 1989 (the HEGSS award). The aspects considered include the adoption of descriptors and the fixing of minimum rates of pay pursuant to item 51(4) of the WROLA Act. Contained within those two general aspects are the fixing of relativities and the retention of a system of pay points. There is a question of respondency and whether or not the award should be split.

[2] Item 51(4) provides:

"If, immediately before the end of the interim period, the award provided for rates of pay that, in the opinion of the Commission:

(a) were not operating as minimum rates of pay; or

(b) were made on the basis that they were not intended to operate as minimum rates;

the Commission may vary the award so that it provides for minimum rates of pay consistent with sections 88A and 88B of the Principal Act and the limitation on the Commission's power in subsection 89A(3) of that Act."

[3] Sections 88A and 88B of the Workplace Relations Act 1996 (the Act) are of general import in the present exercise while s.89A(3) provides:

"The Commission's power to make an award dealing with matters covered by subsection (2) is limited to making a minimum rates award."

[4] All these provisions were considered by Full Benches of the Commission in the Paid Rates Review Decision [Print Q7661] and the Supplementary Paid Rates Review Decision [Print S0105]. In the first, the Bench developed a set of principles pursuant to item 53 of the WROLA Act and s.106 of the Act which follow:

"1. Awards requiring review under item 51(4) will be:

(a) awards containing rates which have not been adjusted in accordance with the minimum rates adjustment principle in the August 1989 National Wage Case decision; and

(b) awards containing rates which have been adjusted in accordance with the minimum rates adjustment principle in the August 1989 National Wage Case decision but which have been varied since the adjustment other than for safety net increases or pursuant to the work value change principle.

2. The rates in the award under review should be examined to ascertain whether they equate to rates in other awards which have been adjusted in accordance with the August 1989 approach with particular reference to the current rates for the relevant classifications in the Metal, Engineering and Associated Industries Award, 1998 - Part 1 [Print Q2527]; where the rates do not equate they will require conversion in accordance with these principles.

3. Fixation of appropriate minimum rates should be achieved by making a comparison between the rate for the key classification within the award with rates for appropriate key classifications in awards which have been adjusted in accordance with the 1989 approach.

4. In the fixation of rates the relationship between the key classification in the award and the metal industry fitter should be the starting point; internal award relativities established, agreed or determined should be maintained: see, for example, the approach adopted in Kenworth Trucks Vehicle Industry Award 1981 [Print K0003] and Commonwealth Serum Laboratories Commission Sales Representative Award 1987 [Print K4939].

5. Any residual component above the identified minimum rate, including where relevant incremental payments, should be separately identified and not subject to future increases.

6. If the rates are too low it is consistent with the purpose and intent of item 51(4) that the rates be increased so that they are properly fixed minima.

7. Any future increases in rates in the award will only be applied to the minimum rates component and will be absorbed against any residual component; that is, the residual component will be reduced by the amount of the increase in the minimum rates component.

8. Increments will only be retained where they have been included in the award pursuant to the relevant work value principle or where it can be established that the increments were inserted by the Commission on grounds of structural efficiency and work value.

9. Where parties cannot agree on rates, or they agree on rates which the Commission is not satisfied are properly fixed minima, the Commission will determine the matter, subject to the right of any party to seek a reference pursuant to s.107.

10. Any party seeking to depart from these principles should make application to the President for the matter to be dealt with as a special case. The President may call a conference of the parties to the award and the parties to these proceedings prior to deciding any such application.

11. Award rates which have been dealt with pursuant to these principles cannot be used to found claims in other awards based on the restoration of relativities.

12. The conversion of awards, in accordance with these principles, to minimum rates awards is not a ground for reducing the conditions of employment in the converted awards or for increasing conditions of employment in other awards."

[5] The position which confronted the parties and the Commission in this matter is well described by Lewin C in a decision issued at an earlier stage of proceedings:

"The HEGSS award is of broad and complex application to non academic employment in the tertiary sector. It is, as may have been observed, an interim award made in 1989. The award was made by Commissioner Baird. It was made in a way which presents major difficulties in the process of review. The award operates to incorporate, as its terms, the wages, salaries, classifications and conditions of employment prescribed by 127 separate state and federal regulatory instruments. Many of these instruments are extensive state awards, some applying to more than one university, others apply to only one university. There are 37 respondent institutions in the states and territories.

The situation facing the review therefore has three significant facets, among others. The first is that there are numerous variables in the terms and application of the award as between respondent institutions, the second is that there is no core of conditions applicable throughout the Commonwealth, the third is that the voluminous terms and conditions of employment prescribed by the award are so complex as to be virtually inaccessible by the persons bound by it.

Clearly, having regard to the objects of the Act and the requirements of Item 51, this situation will have to change dramatically."

[6] That decision was issued on 25 February 1999. It has taken much time and many hearing days before Lewin C, Smith C and the Commission as presently constituted, to arrive at the present position.

[7] That position is, with the exception of the University of New South Wales (UNSW) that the parties are generally agreed on what should happen. The situation is summarised in a statement of an agreed position handed to the Commission and marked exhibit ANU 23 on 2 October 2001. The text is as follows:

"C NO 00346/98

Agreed position supported by all parties other than UNSW

Agreed matters

1. Ten broad classification levels in the simplified Award(s).

2. Salary rates reflecting those inserted in the section 134 agreements with all available safety net adjustments added.

3. Salary relativities as per the section 134 agreements, as adjusted in light of subsequent safety net adjustments.

4. The original DWM descriptors to be inserted in the Award(s) on an interim basis and remain in the Award(s) unless varied by agreement or as a result of arbitration.

Wording in the simplified Award(s) which `links' the descriptors to the classifications of positions along the lines of the following:

`Positions will be classified at the level which most accurately reflects the work performed by the employee as required by the employer, taking into account the skills and responsibilities required to perform that work.'

5. The descriptors inserted in the Award(s) to be reviewed by the parties in accordance with the following parameters.

`1. General Aim - The parties agree that the descriptors recommended by the DWM consultants will be the substantive basis of the descriptors to appear in the Award(s). The Aim of the review will be to maintain the integrity of the present descriptors and make changes only where there are demonstrable deficiencies in the descriptors.

2. Specific Aims - Within the scope of the general aim, the review will examine and be limited to:

(a) removal of obsolete provisions;

(b) removal of inconsistencies;

(c) clarification of descriptors where there is ambiguity.

3. Conditions - The parties agree that any review will be subject to the following conditions:

(a) the review must not result in any change in work value to which each level relates;

(b) the review will be consistent with the general and specific aim and will not extend beyond 1 and 2;

(c) the cognitive focus of the descriptors will be maintained and there will be no attempt to identify exhaustive or extensive lists of the tasks or functions undertaken by general staff at any particular level;

(d) the review will not break the descriptors up into streams of descriptors in the manner of the NTEU draft order.

(e) the review will not involve an extensive documentary review of position descriptions, reclassification decisions or similar documentation;

(f) the review should not involve extensive resources, and will occur over a period of up to six months, with a report back to the Commission after three months.

4. Arbitration if agreement cannot be reached - If agreement cannot be reached after six months, the Commission will arbitrate on the appropriate final descriptors to be inserted into the Award(s). The arbitration will be subject to the following:

(a) the arbitration will be limited in accordance with the conditions and aims attaching to the review;

(b) the arbitration will be on a `submissions only' basis, such that the parties will not call further evidence, although they may refer to evidence already given in this proceeding;

(c) the arbitration will be on a `final-offer' basis, meaning that each party may put up their preferred final descriptors and the Commission `arbitrating' will choose between the proposals.'

6. Consistent with Commission decisions, including Re Universities and Affiliated Institutions Academic Research Salaries (Victoria and Western Australia) Award 1989 (Print R7997) and Re Community Employment, Training and Support Services (Consolidated) Award 1996 (Print Q9324), work value related pay points will be included within the ten broad classification levels in accordance with the section 134 agreements, with progress between the pay points on the basis of appropriate work value criteria; or the retention of work value based pay points on some other basis acceptable to the Commission.

7. Exclusions from the Award(s) for academic staff as per the coverage of the academic salaries awards, with exclusions for `ELICOS' staff as per the coverage of the Teachers (English Language Centres of Australian Universities) Conditions of Employment Award 1998.

Matters not agreed

8. The issue of whether the rate should be contained in one HEGSS Award or an institutional specific awards will be the discrete subject of arbitration by the Commission."

[8] A draft order based on this agreement was also handed up and marked exhibit ANU 24.

[9] The relevant events from the making of the award to the commencement of the review appear in an agreed statement of facts handed up to the Commission but not marked. That statement is:

"C00346/98 - ITEM 51 REVIEW OF HIGHER EDUCATION GENERAL & SALARIED STAFF (INTERIM) AWARD 1989

CHRONOLOGY OF EVENTS IN THE HISTORY OF THE HEGSS AWARD

19 December 1989:

The Higher Education General and Salaried Staff (Interim) Award 1989 (`the HEGSS Award') was made by Baird C [Print H0084], further to Decision made 10 November 1989, in which he approved the first SEP increase arising from the August 1989 National Wage Case [Print J0030].

4 May 1990:

Frawley C found that `the interim award should be expressed in a form which provides for paid rates' [Print J2512]. Consequential order made [Print J2521].

28 May 1990:

An award restructuring agreement, reached between AHEIA and ACTU in late May 1990, was presented to the Commission (Frawley C).

6 June 1990:

The second SEP increase arising from the August 1989 National Wage Case was approved by Frawley C [Print J2877], on the basis of progress reflected in the award restructuring agreement and in expectation of fulfilment of a timetable for further work. A Joint Negotiating Group (`JNG') was established as part of this process, consisting of AHEIA and 6 unions, including predecessors of ASU, AMWU, CPSU, LHMU, NTEU, as well as HSUA.

26-28 March 1991:

The Daylesford Conference', facilitated by Labour Research Centre Inc and attended by representatives of AHEIA and its affiliates and the ACTU and union members of the JNG, was held to discuss the further progress of award restructuring. Inter alia, the parties agreed to engage a firm of consultants to assist with the establishment of a new, common salary and classification structure.

September 1991:

The 2.5% April 1991 National Wage Case increase was granted by Oldmeadow C to all rates of pay in the instruments within the Award [Print K2560].

20 September 1991:

DWM Consulting Pty Ltd (`DWM') was engaged by the JNG to review classification descriptors contained in the 1990 award restructuring agreement and test them against benchmark positions in a sample of universities.

14 November 1991:

The DWM Final Report was released, recommending a 10 level Higher Education Worker (`HEW') classification structure, with recommended internal relativities and redrafted classification descriptors.

11 March 1992:

AHEIA applied to the Commission for a minimum rates award entitled the `Higher Education Workers' (Salaries) Award 1992', based on the 10 level HEW structure and with relativities and descriptors as recommended by DWM. Level 3.1 was proposed as the `100% rate' and the proposed salary was an annualisation of the rate for a fitter under the Metal Industry Award at that time. The minimum rates proposal was rejected by the unions. At about this time, industrial action took place.

25 March 1992:

Oldmeadow C recommended that the AHEIA application for a minimum rates award, as well as any union industrial action, be suspended while negotiations took place at a number of selected universities between management and a union single bargaining unit about the implementation of the new classification structure, the translation of existing positions to the structure, the salary rates to apply and the appropriate instrument in which to incorporate those rates. Oldmeadow C noted that all parties had reserved their rights in relation to what award coverage they `may ultimately seek in this matter' [Print K2271].

26 May 1992:

Oldmeadow C recommended that the negotiations be extended to all universities, that agreement be reached within 5 weeks of commencement on implementation, translation and salary rates, and that points on which agreement could not be reached be referred back to AHEIA and the ACTU and, if agreement could still not be reached, to the Commission [Print K3050].

1993-94:

Commencing in early 1993 and extending into 1994, the DWM structure was implemented by way of certified agreements under s134 of former Act at all universities bound by HEGSS Award, with rates negotiated at each institution and some variations in the structure, including with respect to broadbanding and the number of incremental points.

21 July 1993:

Following application by the LHMU to vary the HEGSS Award to incorporate Victorian universities and instruments, Leary C made the Higher Education Workers' Victoria (Interim) Award 1993 [Print K7016] by consent, as a minimum rates award containing the 10 level structure as recommended by DWM. Leary C noted the reservations of the NTEU predecessor unions as to rates, relativities and descriptors [Print K8516].

Early 1996:

AHEIA made application for a minimum rates award to apply at Queensland University of Technology but ultimately withdrew it following industrial disputation and also the knowledge that Smith C would soon initiate a Review of the HEGSS Award under s150A of the 1988 Act.

June 1996:

Smith C commenced the s150A Review of the Award but adjourned it sine die on 19 December 1996 in anticipation of the commencement of the present Act on 1 January 1997.

February 1998:

Item 51 Review of HEGSS Award commenced, initially before Lewin C, then before Smith C and now before the Commission as presently constituted."

[10] I turn now to consider the issues raised in paragraph [1] of this decision.

Are the rates suggested properly fixed minimum rates?

[11] First, I record that I am satisfied that the existing rates in the HEGSS award are not properly fixed minimum rates. The evidence is that those rates have never been subject to the Structural Efficiency Process or the Minimum Rates Adjustment process. There is also the observation of Frawley C in his decision in The Australian Journalist's Association and ors and Bond University and ors issued on 4 May 1990. In "Background" Frawley C said:

"This matter has arisen since the decision of 10 November 1989 by Mr Commissioner Baird and the related order issued in his name on 19 December 1989 giving effect to that decision. Mr Ross from the Australian Council of Trade Unions (ACTU), intervening on behalf of the respondent unions, and Mr Andrews from the Australian Higher Education Industrial Association (AHEIA), for employers respondent to the interim award, appeared in the proceedings before me on 18 and 27 April and 2 May 1990.

It is contended by the ACTU that the relevant order which was subsequently issued misrepresented the intention of the Commission in that it provided for minimum salary rates in Clause 7 rather than paid rates as was intended. The AHEIA argued that the earlier order should stand.

and in his conclusion the Commissioner said:

"I have taken the view that as there is a misunderstanding between the parties, this needs to be cleared up. In essence the task before me is to decide whether the interim award contained an error.

It is clear to me that the issue of paid rates or minimum rates was not previously canvassed by the parties before the Commission and this hearing is the first time that that has happened

In addition, it is important to remember that the present debate is about what form an interim award should take. That award has embodied very many State awards and it can have only a very limited life. It will be replaced quite shortly be a further federal award.

It is more likely in my view that the many State awards picked up in the interim award are in fact paid rates awards. Neither party was able to say to me that the State awards are predominantly minimum rates awards. The ACTU, however, did present extracts of thirteen of these awards which are now part of the interim award and all of them are paid rates awards.

I have concluded therefore that the interim award should be expressed in a form which provides for paid rates, and, as such, I propose to issue an order along the lines of the draft which was provided to this Commission during these proceedings."

[12] The "form" of the award has not changed.

[13] However, the parties were active in the period 1990-1994 as evidenced in the agreed statement of facts set out above. I do not repeat the course of events but am now confronted by a submission, in which all the parties are unanimous that the DWM process was a work value process which:

(1) applied the work value principles espoused in the Metal Trades Work Value Case by Gallagher J [(1967) 121 CAR 587]; and

(2) had as aims or requirements (set out in the report):

"# review the classification descriptions and training specifications in the Agreement, to test their completeness and validity, taking into account relevant industry and National Training Board data together with input from the parties;

# the need to build on the work of the parties over the last two years. Our brief was to test, validate and compare the proposed HEGSS

classifications with other significant developments in award restructuring and suggest changes which may be required as a result of these tests. It was not to simply add our view to the widely varying approaches to classification description and definition already available;

# the need to focus on the proposed award classification structure and descriptions in a context where the parties had already agreed that once the structure and award classification descriptions were settled, secondary job evaluation processes would have to be developed.

# that award classification descriptions for a restructured award need to be based on appropriate relativities: we have spent some time reviewing the relativities implicit in the current HEGSS structure, examining the relativities indicated by the revised Benchmark survey and developing suggested changes to the classification structure and descriptions as a result."

[14] Reliance was placed on evidence, a typical example of which is that of Ian Gair, a witness called by the Australian Liquor, Hospitality and Miscellaneous Workers Union (LHMU) to establish that a structural efficiency review was carried out at the time:

"PN15995

Now, can I take you back to paragraph 11 and you introduced a change; there have been incremented systems introduced through the enterprise agreement, and I'm not disputing that. Do you consider that that's the same - I'll withdraw that. In preparing this statement, did you insert the words "when the award was reviewed under the structural efficiency principle in the early 1990s"?---I did.

PN15996

And so is your understanding, putting aside the question of when increments were introduced, that the award was reviewed under the structural efficiency principle in the 1990s?---The process was mentioned in the structural efficiency principles, but it wasn't actually negotiated until the enterprise - first enterprise agreement. It got - it had its, if you like, genesis in the structural efficiency round but it wasn't until ---

PN15997

And when you were negotiating that agreement, which is the 1993 agreement. Is that right?---Yes, about - - -

PN15998

'93/94 you were implementing the structural efficiency principle?---Yes, I guess we were. We were implementing issues that were raised by that process.

PN15999

Now, were you involved with consultants from DWM Consulting in 1991 when they came to the University seeking information about what general staff do?---I was.

PN16000

And what was your involvement?---Assisted in the writing up of the descriptors for the classifications that miscellaneous workers of the then Miscellaneous Workers Union covered.

PN16001

And were you involved in providing information to the DWM Consultants?---That correct.

PN16002

And that was information about types of jobs?---Yes.

PN16003

And about the duties which comprised those jobs?---That's correct.

PN16004

And about the skills which were exercised in performing those duties?---Yes.

PN16005

Completing those jobs. And it was about the conditions under which they worked?---That's true."

This and other references enabled the parties to submit that the DWM review was conducted at the request of the parties to the award to meet the structural efficiency principles in the August 1989 National Wage Case. The evidence enables me to accept that submission.

[15] There is no doubt in my mind that the process adopted was in accord with the structural efficiency principle and, for that matter, the minimum rates adjustment process. It is significant in this connection that on 6 June 1990 the second SEP increase arising from the August 1989 National Wage Case was approved by Frawley C in Print J2877 on the basis of progress reflected in the award restructuring agreement reached between AHEIA and the ACTU in expectation of fulfilment of further work. It was in implementing that that DWM was engaged.

[16] Exhibit NTEU 41 illustrates how the rates are brought from their fixation following the DWM process to the present. The rates suggested are the result of nothing more than safety net adjustments to the rates originally fixed. That conclusion extends to the relativities set at the time as part of the process.

[17] The apparent difficulty is that the rates as set were originally included in agreements under s.134 of the Industrial Relations Act 1988. This prima facie offends such rulings as No. 15 in the Paid Rates Review Decision [Print Q7661]:

"15. CAN AWARDS BE VARIED TO REFLECT THE TERMS OF AN EXPIRED AGREEMENT?

No cogent reasons have been advanced to change the decision the Commission made on an interim basis in the April 1998 Safety Net Review decision [at 52]. Variation of awards to reflect the terms of an expired agreement is inconsistent with the safety net character of the award system."

[18] That ruling is expressed in a fashion which is significant in the present situation. The Bench says reflecting the terms of an expired agreement "is inconsistent with the safety net character of the award system". In the present case it is the very nature of the proposed rates that they are of a safety net character. The rates determined are not sourced in the agreements but were used by them. I have accepted Mr Pill's argument on this matter. He submitted that the rates were sourced in the review. I consider it coincidental that they were used for an agreement. It is significant that the rates so developed were used for the agreements when it is remembered that the only reason why they were not placed in the award was disagreement over whether the rates should be expressed as paid or minimum. What is happening now is finishing business commenced over ten years ago. This is not in conflict with any principle or provision of the Act.

[19] The key classification rate - level 3.1 is virtually the same as the C10 rate in the Metal Industry Award. The slight differences are variously attributable to the inclusion of allowances, specifically a leading hand allowance and the requirement in the descriptor for level 3 that persons on that level may have to supervise others. The DWM report examined a wide range of rates and relativities and identified level 3.1 - fitters and electricians - as the pay point in the structure which corresponded with the C10 classification. It went on to develop on a work value basis the internal relativities. It did not set the rates. That occurred at each institution where a relativity of between 105 and 100 per cent of the C10 rate was struck for level 3.1. I have already noted the factors that played a part in that. I find this process unobjectionable.

Pay Points

[20] The parties wish to have in the simplified award a system of pay points within each of the levels. The proposal is in terms as follows:

7. Salary movement within a classification

(a) At the conclusion of each 12 month period, following the date of effect of the Award or entry into a classification, and/or the subsequent anniversary date, full time and part time general staff members shall be eligible for movement to the next highest salary point within their level, following a staff development/performance review carried out in accordance with clause 7(f).

(b) Movement to the next salary point within the classification will only occur when a general staff member has, over the proceeding twelve months:

(i) acquired and used additional skills, experience and competencies within the ambit of the classification and in accordance with the priorities of the organisational unit and/or institution. For this purpose the general staff member will be assessed against relevant criteria used in a staff development/performance review; and

(ii) demonstrated satisfactory performance against the position classification standards within this Award.

(c) If the requirements in paragraph (b) are not met at the conclusion of the period referred to in (a), then the staff member will not progress to a higher pay point until such time as requirements in paragraph (b) are met.

(d) Movement to the next highest salary point will be effective from the anniversary date. In cases where a staff development/performance review is delayed, the anniversary date shall not be changed and any increase in salary will be paid retrospectively to the anniversary date, unless the delay is related to the acquisition of new skills and greater responsibilities and/or competencies, in which case the date of acquisition will be the effective date.

(e) An employee who has been absent in excess of three months, in aggregate, shall have the review delayed by the period of absence. Any resultant increase shall also be delayed by the period of absence.

(f) An annual staff development/performance review shall be conducted for all full time and part time general staff members, except those on the highest salary point within their classification. Such review will be confidential.

(g) The aims of this review will at least include:

(i) assessment of performance and use of skills against the position classification standards;

(ii) identification of the development and training needs of the general staff member in order:

A. to enable the acquisition and use of new skills, experience and knowledge in accordance with the short and long term priorities of the organisational unit and/or the Institution;

B. to identify performance objectives; and

C. to ensure continued satisfactory performance within the ambit of the classification."

[21] The system must be regarded as incremental. The Full Bench in the Paid Rates Review Decision [Print Q7661] said:

"(b) Incremental Payments

We now turn to consider whether incremental payments should have any role in the award system. The legislative scheme requires that the great majority of awards, being made under Part VI, will be of a minimum rates character. This fact, together with a consideration of the history of service increments in awards generally, leads us to the conclusion that increments which are not based on work value should not appear in minimum rates awards. In our view the abolition of advancement between pay points based primarily on service is also consistent with increased flexibility and the encouragement of agreement making. Performance management, for example, may be made more difficult where the award contains an incremental structure which is unrelated to change in the nature of the work. When the Commission is fixing appropriate minimum rates in awards which contain increments it will be necessary, subject to exceptions, to make arrangements for increments to be phased out.

Additional payments which are geared primarily to length of employment are not consistent with properly fixed minimum rates because they are not based on work value. For example, incremental payments in APS awards accrue after 12 months' service subject only to "the employee demonstrating satisfactory diligence, efficiency and attendance for duty". Those conditions can be contrasted with the requirements for advancement for an enrolled nurse under the Australian Public Service, General Service Officers (Salaries and Specific Conditions) Award 1995 [Print M8995]. Pursuant to the provision of Schedule B to the award progression from one pay point to the next is subject to an enrolled nurse meeting the following criteria:

· competency at the existing level;

· 12 months' experience at that level and in-service training;

· demonstrated ability to acquire the skills which are necessary for advancement to the next pay point.

An enrolled nurse's progress may be deferred or refused by the employer where the nurse has not fulfilled the criteria for advancement to the next pay point.

Where the relevant award does not make progression through the incremental scale dependent on changed work value, the incremental payments cannot be treated as part of the minimum rate. Where it can be demonstrated, however, that incremental payments were included in the award pursuant to the relevant work value principle or on grounds of structural efficiency and work value, the retention of such payments is permissible."

[22] In re Nurses (ANF-WA Private Hospitals and Nursing Homes) Consolidated Award 1991 [Print R9289] another Full Bench said:

"[4] In addition clauses 22.41 and 22.5 have been reformatted to make explicit the intent of the Full Bench Paid Rates Review Decision [Print Q7661] namely that increments are only permitted in awards where progression through the classification structure is based on work value considerations."

[23] Clauses 22.4.1 and 22.5 of the award just referred to are as follows:

"22.4.1 Provided that a degree qualified nurse entering the workforce without clinical experience shall start at increment 1 Level 1. At the completion of twelve months service that nurse shall accelerate one increment having regard to the acquisition and utilisation of skills and knowledge through experience in his or her practice setting(s) over such period.

. . .

22.5 Progression for all classifications for which there is more than one wage point, shall be by annual increments, having regard to the acquisition and utilisation of skills and knowledge through experience in his or her practice setting(s) over such period."

[24] Finally I note the remarks of Smith C in re Universities and Affiliated Institutions Academic Research Salaries (Victoria and Western Australia) Award 1989 [Print R7997]:

"A conference was held between the parties to see if agreement could be reached as to the form of an appropriate clause. In this connection a decision of Commissioner Hingley in Community Employment, Training and Support Services (Consolidated) Award 1996 [C0301] was drawn to the attention of the parties. That conference also included matters C No. 35136, 35137 and 35147 of 1999.

The parties were unable to reach agreement and subsequently different proposals were forwarded in writing.

It now falls to me to determine the appropriate clause. I have relied upon the decision of Hingley C, as I believe that his decision captures the necessary ingredients for pay point movements within a work value based broad classification structure.

Those essential features include:

· The elimination of any notion of automatic advancement between salary points,

· The focus on the acquisition and use of new skills, experience and knowledge,

· The importance of performance objectives, assistance and review,

· The interaction of performance with concepts of efficiency and productivity, and

· The certification by the employer, in writing, that it is satisfied with the work and enhanced skills of the employee during the relevant period."

[25] Applying these various requirements to what is proposed and which is set out above and bearing in mind the evidence before me I am satisfied that the proposed pay point element of the salary structure is properly founded in work value considerations. From the wealth of evidence on the matter I select two examples.

[26] The first is evidence of how the proposed system works. It was given by Ms Elizabeth Baré, Deputy Principal Human Resources at the University of Melbourne and appears at PN835-7 of transcript:

"PN835

And at the University of Melbourne there are in the Enterprise Agreements at present in force incremental ranges, is that correct?---That is correct.

PN836

Is progression up the incremental range automatic according to just the occupant being in the position for the required period of time, or is there a requirement that they have acquired skills before an increment is granted?---In the 1993 agreement we came to agreement with the CPSU, the LMHWU and the NTEU in relation to incremental progression and broadly speaking that the staff member either had to acquire a new skill or undertake some development role that further qualified him or her to perform the duties. That was one criteria and the second criteria for incremental advancement is that the performance is satisfactory.

PN837

So incremental progression in practice at the University of Melbourne is not automatic, would that be correct?---It is, it is not - definitely not automatic."

[27] The second example arose in cross-examination of Ms Elaine Mortimer, Lending Services Supervisor, Australian Catholic University, McAuley Campus, by Mr Mendelssohn which appears at PN17532-17535:

"PN17532

Do you make recommendations in relation to these staff as to whether they should receive incremental progression? Is that one of your duties as the supervisor?---Well, each year on - we get a statement or we get a form from the personnel section saying that this person is due for an incremental review, and so it's part of my duties to perform that incremental review.

PN17533

And you make a recommendation?---I make a recommendation.

PN17534

For you to recommend that a person obtain an increment, you would have expected them to have increased their level of skills and knowledge over the preceding 12 months, wouldn't you?---Yes, I would.

PN17535

Much in the way that you yourself have acquired skills in the time you've been employed, and is it your observation that in general the staff you supervise do in fact increase in their level of skills over a period of time in the job?---Yes, experience is a good leveller."

[28] Ms Baré's evidence supports the submission by Mr Britt [at PN23072]:

"PN23072

Furthermore, Deputy President, the issue of increments and work value in our submission arose out of the DWM process and in that sense we say that a part of a structural efficiency exercise and Mr Pill and Mr Moorhouse have already taken the Commission to the evidence and the history to demonstrate that DWM classification and the DWM rates arose out of a defacto structural efficiency exercise. Furthermore, Deputy President, we say that in fact if you go back and look at the underlying awards in the HEGSS Award the issue of increments is not a new issue in this particular industry and we have set out at tab 9 of our folder a number of the awards which are the underlying awards that are included in the HEGSS Award which in fact included incremental advancement."

[29] I also place reliance on proposed sub-clause 7(c) set out in paragraph [20] of this decision as supporting the conclusion that the proposal for pay points is work value based.

10 Level Structure

[30] This is an integral part of the simplification. It was proposed by the DWM report and is the structure currently in operation. Its insertion in the award is sought by all parties. It is allowable being a classification structure. That is sufficient in itself but the parties were encouraged to develop this structure by the recommendation of Oldmeadow C in matters concerning this award in 1992 - Prints K2771 and K3050.

Descriptors

[31] The descriptors the parties propose were developed by the employers and unions in the 1990 agreement and parties generally - other than UNSW - have agreed to participate in a review of the descriptors. The scope of the review is set out in paragraph 5 of exhibit ANU 23 [see paragraph [7] of this decision]. That review is for the parties in the first instance and it does not reflect any view of the Commission that it is inappropriate to insert the descriptors as they stand into the simplified award.

[32] The DWM report commented on the role of the descriptors [p.36 of the DWM Final Report of 14 November 1991]:

"Role of the Descriptors

The classification level descriptors are intended to provide primary guidance to institutions, unions and staff in ;the classification of positions, in a form which could be inserted in the HEGSS Award. They are not intended to provide the sole guidance as the parties have agreed (see Section 1 of this report) that secondary job evaluation processes will need to operate in conjunction with the `award classification' criteria. These secondary criteria may take the form of points factor systems, which are already in use in many higher education institutions, or the development of a detailed manual including descriptions of typical positions collected as part of this project.

In this context it should not be expected that the level descriptors will refer specifically to the full range of occupations and work in the sector. The test for the descriptors is that:

1. they are amenable to consistent interpretation between institutions and parties;

2. they provide adequate `signposts' for the major categories of work undertaken - to assist staff in accepting the descriptors, to provide an adequate basis for inferences to be drawn about the placement of work not directly mentioned and to make clear the assumptions and expectations of those responsible for designing and implementing the new classification structure;

3. they provide consistent and appropriate scaling of factors through the levels; and

4. they do not, in their expression, systematically and unjustifiably discriminate against any group.

Issues about relativities between significant occupational groupings are discussed in Section 5 of this report: we have deliberately sought to separate decisions about where categories of work should be placed from issues about how placement decisions should be described. Issues about the specification of training and qualifications have also been discussed separately."

[33] These descriptors are in use. They have been adapted in some institutions and there was evidence brought forward by the NTEU which threw doubt on their quality. However the parties are now agreed that they may be inserted in the award - with a review to be undertaken. The evidence was not of a kind which would lead the Commission to withhold approval of them in the circumstances now obtaining. It is also compelling that there has been so few disputes about their application which have come before the Commission.

[34] The descriptors are allowable. They are at least incidental to the allowable matter s.89A(2)(a) "classification of employees and skill based career paths" and are necessary for the effective operation of the award [s.89A(6)]. In fact, in this case at least I also consider that they are allowable directly under s.89A(2)(a). The situation is similar to that found in the decision of 15 February 2001 on position classification standards in academic awards [PR901141 at para. [26]].

Breaking up award

[35] This was probably the most vigorously fought of all issues.

[36] AHEIA wants the Commission to decide that simplification permits the issue of institutional specific awards and that this should be done. The UNSW has the same view and seeks its own award although it has also, in the alternative, made an application under section 111(1)(b) of the Act for a separate award.

[37] The universities represented by Messrs Pill and Moorehouse do not press for institutional specific awards at this time. The NTEU submits that item 51 permits only a variation of an award not the issue of a new award and, it says, the AHEIA position wants the latter. The NTEU places reliance on obiter in re Pacific Coal Pty Ltd; ex p. CFMEU [172 ALR 257] at para. 191, 196, 197, 206 and 209. The impact of this reference is explained by Mr McAlpine as:

"the contention of the Commissions' powers under Part II of the WROLA Act do not extend to the making of a new award is further buttressed by the observations of Gummow and Haine JJ in their joint judgement that during the interim period there was nothing to prevent a party to an award which contained matters that were not allowable from creating a new industrial dispute, and, to quote part of paragraph 197:

`If that happened the Commission could make an award that dealt only with allowable matters and was a minimum rates award.' "

[38] Reference was also made to the Award Simplification Decision (ASD) where at page 29 the Full Bench said:

"The only relevant limitation in item 53 is that the principle must be about varying awards `under this part."

[39] Mr McAlpine submitted that if the Commission found it had power to issue institutional specific awards it should not do so on the following grounds:

· there is at the moment a single award the onus lies on those who want change;

· it was by agreement of the parties that a single award was created in 1989 and in 1990 the May agreement of that year contemplated a national integrated industry and one award;

· the DWM report was a national source of rates and relativities for the 1993 and 1994 s.134 agreements; there was a explicit or at least implicit agreement to a national approach;

· breaking up the award would not assist the objects of the Act: it would not support organisation development;

· the employers were not clear on the need, did they wish to make national campaigns more difficult for the NTEU;

· common pattern of awards is that awards operate across industries and nationally for example superannuation and the HECE award; reference was made to a remark by Williams SDP in a decision on a s.204 application by the NTEU [S0688] para. 353 to the higher educational industry being a national industry;

· the employers position itself is supportive of one award - a common set of descriptors/classification structure which means work can be assessed in all institutions as a common industry.

[40] AHEIA strongly supported the ability of the Commission to make institute specific awards in these award simplification proceedings. The CPSU and ASU were of the same mind.

[41] As to the power of the Commission to issue institute specific awards in simplification proceedings AHEIA submitted that to uphold the NTEU submission on the issue would, in the history of the matter, be like trying to put the genie back in the bottle. AHEIA relied in part on the fact that this step had been taken before. Reference was made to re Transport Workers' (Australian Government Wages Staff) Award 1987 where Larkin C stated she was issuing a new award [Print Q9067 p.7], to Journalists (ACP) Award 1996 [Print R4679]where Marsh SDP referred to varying the Journalists (ACP) Award 1996 to make a new award to be known as the Journalists (ACP) Award 1999, and to another decision of her Honour's in re Australia's Wonderland (Security) Award 1988 [Print S0399] where her Honour referred to:

"(An) objective of the parties arising out of the review is to reflect `the item 51 variations to each of the three awards in one `consolidated' award with three schedules, with the consolidated award superseding the three current awards.

I have formed the view that the spirit and intent of the award simplification process is met by adopting the parties preferred procedural outcome. To give effect to this course, the Australia's Wonderland (Operational Staff) Consent Award 1991 will be varied to reflect the variations to the three existing awards pursuant to item 51. The two superseded award will be set aside following the issuing of the consolidated award."

This was relied on for the submission that setting aside was being done as variations under item 51. Why not a new award? A further decision of Marsh SDP was referred to in Print R7509 re Saddlery, Leather, Canvas and Plastic Material Workers Awards 1985. It was pointed out that from the heading this award like some of the others just referred to appears to rely only on the review pursuant to item 51. Her Honour notes:

"The parties have reached a consent position on the terms of a new award. The parties have relied on written submissions dated 18 June 1999 and written consent dated 30 June 1999 from ABI and 9 July 1999 from AIG in support of the terms of the proposed award."

[42] In paragraph 11 of the decision her Honour says:

"For reasons given an order will issue in the terms of the draft award furnished by the LHMWU as amended for this decision. It will operate from the date the order is issued and remain in force for twelve months."

[43] Reference was also made to earlier individual or group awards made in these proceedings: The Queensland Universities General Staff Interim Award [Print S3535], The University of New England General Staff (Interim) Award [Print S7362] and The University of Western Sydney General Staff (Interim) Award .

[44] As to the High Court's decision in Pacific Coal Mr Britt submitted that what the NTEU relied on was obiter. The issue in that case was validity not meaning. In particular no consideration was given to what is meant by vary, varying or variation. A similar point was made about ASD. As for the Paid Rates Review decision it was considered that the decision supports the view that an individual award could issue as part of the simplification process. When dealing with relativities the Full Bench said:

"We emphasise that this approach is directed to enterprise based awards including those in the public service. Should there be awards which are not enterprise based but which apply to a number of employers consideration might have to be given to setting aside such an award and creating enterprise specific awards in order to implement the MRA principle without disrupting relativities in the establishment concerned. If necessary an application may be made to the President for a special case."

Mr Britt submitted it was implicit in that passage that the Full Bench was envisaging the Commission making awards arising from a review under item 51(4).

[45] It was said that a broad approach should be taken to the meaning of vary in item 51(4). Reliance was place on a judgment of the High Court delivered by Dixon CJ in Reg v. Tonkin and anor ex. parte Federated Ship Painters' and Dockers' Union of Australia [1954] 92 CLR 526 (Tonkin). At page 528 Dixon CJ says:

"The word `vary' is one which no doubt in different contexts may have different meanings. In s.49 there is a distinction drawn between setting aside an award or any of the terms of an award and varying any of the terms of an award. But the distinction made, at all events in words, between setting aside and variation, can carry no restriction upon the meaning of `variation' beyond showing that it refers to a change in some part of the award. Probably it is enough to say that to vary the terms of the award is to change them in part whether by addition, by excision, by modification or by substitution or by qualification or otherwise."

[46] In the alternative it was submitted that the Commission could exercise power under s.111(1)(b) on its own motion under s.33.

[47] On the merits AHEIA argued that the HEGSS award is not itself really a national award: it merely incorporates a range, an incomplete range of States and pre-existing federal awards and instruments. Some of these are specific to institutions, some are or are of the nature of common rule awards while other still are general. There is then, a variety of conditions. HEGSS is virtually institutionally based. Further Victoria is completely absent from HEGSS. The evidence of Mr McCulloch and Mr McAlpine that there is a national industry (for general staff) is not compelling. Reliance was placed on the statements of Smith C in his decision of 20 August 1999 in this matter [Print R8312]:

"[6] In essence it is appropriate to concentrate on one issue, that is; should an award be made which exclusively regulates the field of employment of general staff of Australian universities without parties having the opportunity to create enterprise awards?

[7] The answer to that question is no.

[8] I have reached this conclusion for the following reasons:

· The Workplace Relations Act 1996 (the Act) has as a principal object the need to ensure that the primary responsibility for determining matters affecting the relationship between employers and employees rests with the employer and employees at the workplace or enterprise level.

· The focus on the workplace is not limited to agreement making but can also include the provision of safety net award regulation. Indeed this would facilitate work value assessment of the work and/or system of work undertaken at the enterprise, thus providing more relevant safety net provisions. Whilst it is true that industry awards might produce generic definitions and work value levels, the focus of regulating the relationship at the workplace will also permit the parties to deal with appropriate safety net regulation having regard to the work performed and the enterprise bargaining regimes.

· There exists an argument in relation to the representative rights of employee organisations which, in my view, is better addressed in particular cases.

· The fact that an enterprise award may be made does not detract from the national focus of the sector. In this connection the fixation of the safety net minima will not be inconsistent with historical work value developments of wage rates and other conditions of employment in the sector. The principles adopted by the Commission in its August 1989 National Wage Decision [Print H9100] and the Paid Rates Decision [Print Q7661] will be central to any submissions on this point.

· Commissioner Lewin has already expressed the view that `...serious consideration should be given by the parties to the formulation of codes of conditions relevant to each institution...'

· The approach does not mean that there must be enterprise awards, only that enterprise awards are not, in the public interest, proscribed."

[48] It was also put that the respondency issue, dealt with separately, was also more clearly settled if institution specific awards were issued. They would nominate existing union respondents. The NTEU is respondent to few, the CPSU and ASU together respondent to virtually all and the LHMU to many. The dominant parties (other than the LHMU) seek institutional awards.

[49] The point that there was an agreement for a national award was countered by the lapse of time since it was brokered and by a claim that federal regulation was itself the point of the agreement. Further, rates and pay points were not in the agreements identical across the board. Institutional award would not impede the unions and institutional awards were in accord with the object of the Acts and ss.88A and 88B.

[50] Mr Mendelssohn indicated the CPSU and ASU supported AHEIA's position on this issue.

[51] On the question of power I accept that the submission that the references in Pacific Coal are obiter and, indeed, are not concerned with the concept of variation. Similarly the references to ASD relied on by the NTEU.

[52] The WROLA Act states simply that the power granted the Commission for simplification purposes is to vary an award or awards. In accord with the observations of the Dixon CJ on behalf of the Court in Tonkin I take a broad view of varying in item 51. The reference to "new award" in some of the decision referred to earlier is possibly too wide. As the ASD decision makes clear the simplification process is not to change award provisions simply for the sake of change but for reasons associated with item 51. What occurs normally is a variation which removes all of the awards terms and a substitution of a rewritten set of terms. I fail to see how this differs from variation by removal of all the terms as they affect say the University of New England and the substitution for that university of a set of new or rewritten terms with the consequent variation of the remainder of the award by the deletion of that university as a respondent.

[53] The procedure outlined by the Full Bench in the Paid Rates Review Decision and noted above is a procedure contemplated as part of the simplification process and not reliant on, for instance, s.111(1)(b) of the Act or at least not requiring a formal application. The Full Bench's observation leaves open both the procedure which has been adopted in the present proceedings to date and also the procedure of the Commission acting on its own motion pursuant to s.33 of the Act to exercise the power conferred by s.111(1)(b).

[54] For these reasons I hold that the Commission can issue institute specific awards as part of the simplification process.

[55] On the merits I am convinced by the arguments put forward by AHEIA and I have not itemised them all but the opportunity for institutions specific awards should exist. I respectfully adopt the reasoning of Smith C on the issue.

[56] I am convinced by the evidence brought by AHEIA and the separately represented universities that there is not a national labour market in general staff except possibly at the highest award level. I do not consider that last sufficient to refuse the possibility of institutional awards. I also accept that in the broad sense there are difference in style and culture between the various universities but do not attach inordinate significance to that in relation to general staff. I attach more significance to Mr Britt's submission that even though an industry be described as a national industry that is not an automatic generator of an industry wide award. I also note Lewin C's comment that there is no core of conditions applicable across the Commonwealth (quoted in paragraph [5] of this decision).

[57] However, I find it inappropriate at this stage to immediately ordain the issue of institution specific awards as sought by AHEIA and UNSW. My principal reason is that the matter has been conducted on a general basis and to issue only specific awards at this stage would not permit the individual positions to be considered. Application for individual awards should be made individually. The first to be entertained should be that of the UNSW which is current and which has been argued independently.

Respondency

[58] This issue is presented by the alternative prescriptions offered for clause 4 Application of Award. AHEIA, the universities represented by Messrs Pill and Moorhouse, the CPSU and ASU offer the following text for clause 4(a):

(a) This Award shall be binding according to its terms upon:

(i) the organisations listed in Schedule B of this Award:

(ii) the Institutions listed in Schedule C of this Award in relation to all employees who are eligible to be members of an organisation listed opposite to those institutions, whether members or not;

(iii) the Australian Higher Education Industrial Association in respect of its members listed in Schedule C of this award.

The NTEU and LHMU seek the substitution of the phrase eligible to be a member of an organisation shown in Schedule B for the phrase in italics in (a)(ii) above.

[59] The difference between the two is that the first restricts respondency at individual institutions to those employee organisations who were respondents, either directly or through predecessor organisations, at the time the HEGSS award was made in 1989 or subsequently while the second extends respondency at all institutions to any employee organisation who was, either directly or through predecessor organisations, named in Schedule B. The practical result of adoption of the second version, for the NTEU, is that its respondency goes from a handful of institutions to all that are named in Schedule C.

[60] This re-raises the issue I have recently had to rule on in two decisions involving an institute specific award at the Australia Maritime College, a respondent to the HEGSS Award [Prints PR906833 and PR908699].

[61] In the former I said:

"[13] For the NTEU it was argued that in item 51 proceedings the NTEU, as a party to the HEGSS award was entitled to be respondent to any award that is made arising out of the item 51 review where the union has eligibility for membership and where it has members.

[14] It was further argued that clause 4(a)(ii) of the HEGSS award described what employees are covered by the award with respect to institutions. Arguably then, there may have been employees who were award free and they would be award free because not covered by the underlying State awards, those which are picked up in the HEGSS award. The NTEU pointed to awards which have been made as part of the simplification process where, in short, unions whose predecessors were not identified with particular institutions in Schedule B were, nevertheless, made party to the specific award which issued. Two such have already been identified in para [1] above.

[15] Reference was made to a decision of Eames C in Northern Territory University (Salaried Staff) Award 1989. It dealt with a s.113 application to vary the relevant award by including the NTEU in the list of respondents. The decision is relevant to the application of s.113 but not to that of item 51. Further, the Commissioner was able to accept that the NTEU had members at the institution.

[16] In the alternative - in the event of a decision that the Commission could not add a union respondent pursuant to item 51 proceedings in the circumstances of this matter - the NTEU submitted that the Commission could join an existing dispute between the NTEU and AMC to the simplification process and make the NTEU a party to any award that issued.

[17] I accept the principal position put on behalf of AMC. That is that in 1989 and in subsequent years the HEGSS award applied to particular institutions in respect of particular categories of employees, the categories being defined by reference to the eligibility rules of the employee organisations named in Schedule B at the identified institutes. That remains the position today i.e. a union respondent must be named (or its predecessor named) to be a party in regard to a specific institution. Any alteration to that would, if it were opposed, require action to vary apart from the simplification process itself. The addition of a respondent to an award in those proceedings, at least when there is opposition to it is not contemplated by the item. It would be inimical to the simplification process which is to reduce complexity not to add to it. The fact that there is an alternative mechanism to seek respondency by way of partial settlement of a dispute is a more appropriate vehicle because it enables the merits to be examined. That is not available under item 51.

[18] I also accept the submission that the alteration to the rules of the NTEU in 1999 did not automatically establish any right in the NTEU to be a party to the AMC simplified award. The alteration may well be relevant to any other action the NTEU may take for, as it says, this is 2001 not 1990, but it does not in itself make the NTEU a respondent nor open a path to respondency during simplification.

[19] The concept of joining an existing dispute to the simplification process and then making the NTEU a respondent to the simplified award was raised but as the issue at this stage of the matter is whether or not the item 51 proceedings are themselves sufficient to make the NTEU a respondent that concept should be separately argued."

[62] In the later decision I was invited to revoke my previous decision and I said:

"[22] It is clear that the power it is sought that the Commission exercise is a discretionary one. As Mr Mendelssohn submitted the key point in Mr McAlpine's submissions in support of the use of the power conferred by s.111(1)(f) turns on the interpretation of subclause 4(a)(ii) of the HEGSS award. That issue was the subject of earlier argument and the proceedings now in consideration are a re-agitation of the point which was ruled on earlier.

[23] The arguments put in support of the interpretation contended for are a development of what was put before. However I respond to them as follows. The scope of an industrial dispute is as claimed by Mr McAlpine but I do not see the relevance of that to the interpretation of the subclause. Notwithstanding the scope of a dispute it is an act of the Commission which determines whether a union is a party to a dispute. That did not occur in the instant case. Otherwise I rely on the earlier decision.

[24] Further there are no new or changed circumstances which would lead me to hold that I should re-open the issue by revoking the earlier decision. The arguments noted in paragraph [18] are, with the exception of that identified by the third bullet point not sufficient to move me to act. The statement that the ALHMWU was a party is incorrect. It does not affect the principal part of the decision.

[25] For these reasons I decline to revoke my earlier decision."

[63] With one exception nothing was put on this occasion to induce me to change the views expressed above. In addition to the arguments there put forward the NTEU, supported by the LHMU, submits that the existing provision is obsolete. As to this argument the NTEU version would result in 12 employee organisations being respondent to the award at each institution: there are more such organisations named in Schedule B than those which have been actively represented in these proceedings. To adopt the NTEU proposal would in fact be to create obsolescence by introducing a change not warranted by the position on the ground at each institution.

[64] I will adopt the version of clause 4(a) put forward by the employers, the CPSU and the ASU.

CONCLUSION

[65] In light of this the draft order handed up as exhibit ANU 24 on 2 October 2001 will be the basis of the Commission's order subject to the excision of the position with regard to clause 4(a) contended for by the NTEU and the LHMU. AHEIA is directed to file and serve a draft order in accordance with this decision within 14 days.

BY THE COMMISSION:

SENIOR DEPUTY PRESIDENT

Appearances:

K. McAlpine and E. Floyd for the National Tertiary Education Industry Union.

M. Warburton for the Australian Liquor, Hospitality and Miscellaneous Workers Union.

D. Mendelssohn for the CPSU, the Community and Public Sector Union.

A. Britt of counsel with G. Meredith for the Australian Higher Education Industrial Association.

S. Pill (solicitor) for the Australian National University, the Universities of Adelaide and Western Australia and for the University of Melbourne and Monash University as interveners.

P. Moorhouse (solicitor) for the Universities of Sydney and Queensland.

J. Sandler (solicitor) for the University of New South Wales.

Hearing details:

Before Commissioner Lewin:

1998.

Melbourne:

September 23;

October 29;

December 10.

1999.

Melbourne:

February 3, 4, 5;

March 30.

Before Commissioner Smith:

1999.

Sydney:

June 3;

August 20, 24;

Melbourne:

October 19;

November 8, 9, 17, 26.

Melbourne:

December 3.

Sydney:

December 9, 10, 15.

2000.

February 8, 16;

March 7;

April 10;

May 11;

June 21, 23

July 19.

Melbourne:

August 30;

November 10.

Before Senior Deputy President Duncan:

2001.

Melbourne:

February 9;

April, 23, 24, 30;

May 1, 2, 3, 14, 15, 16, 17.

Sydney:

May 28, 29, 30, 31;

June 18, 19, 20, 21.

Brisbane:

June 24, 26, 27.

Sydney:

July 5.

Melbourne:

August 20, 21, 22.

Sydney:

September 4.

Melbourne:

October 2, 3, 4.

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