AM2012/35, Transcript of Proceedings [2012] FWATrans 996 (18 September 2012)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1034601-1

DEPUTY PRESIDENT HAMILTON

AM2012/35

Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years

Application by National Employment Services Association
(AM2012/35)
Labour Market Assistance Industry Award 2010

(ODN AM2008/79)
[MA000099 Print PR991065]]




Melbourne

MONDAY, 10.29AM, 10 SEPTEMBER 2012

Continued from 27/06/2012

PN95

THE DEPUTY PRESIDENT: Any changes to appearances?

PN96

MR P. MAGUIRE: Yes your Honour, I appear today with MS S. SINCLAIR, chief executive officer of the National Employment Services Association.

PN97

THE DEPUTY PRESIDENT: Yes, thank you very much.

PN98

MR K.GODFREY: Your Honour, Godfrey, initial K from Jobs Australia. I appear in place of Ms Ford.

PN99

MR W. FRIDELL: Your Honour, Fridell, initial W. I appear for the ASU along with MR J. NUCIFORA.

PN100

THE DEPUTY PRESIDENT: Thanks very much. So I suppose it’s over to you, Mr Maguire.

PN101

MR MAGUIRE: Yes thank you, your Honour. Your Honour, today and tomorrow we set aside for the hearing of this particular matter and at our last hearing, your Honour emphasised the desirability of the parties getting together to consider the application of National Employment Services Association and if possible, seeking to reach agreement on that matter. What I can report to you this morning, your Honour, is that the parties have conferred and there has been discussion as recently as this morning and we are in agreement on some elements of the application and your Honour, what I’d like to do this morning is to address you on the agreed matters and also address you on the matters that the application still outstanding and offer a process for dealing with those.

PN102

Your Honour, firstly if I could table a draft determination.

PN103

THE DEPUTY PRESIDENT: That will be exhibit N1.

PN104

EXHIBIT #N1 DRAFT DETERMINATION

PN105

THE DEPUTY PRESIDENT: I won’t bother – should I mark all the various submissions received. I suppose I should. I’ll mark your submission exhibit N2.

PN106

EXHIBIT #N2 SUBMISSIONS OF NATIONAL EMPLOYMENT SERVICES ASSOCIATION

PN107

THE DEPUTY PRESIDENT: Thanks go ahead.

PN108

MR MAGUIRE: Thank you, your Honour. Exhibit N2, your Honour, is a draft determination which seeks - - -

PN109

THE DEPUTY PRESIDENT: Sorry it’s N1.

PN110

MR MAGUIRE: Sorry, N1.

PN111

THE DEPUTY PRESIDENT: N1 is a draft determination sorry, and N2 is your submission.

PN112

MR MAGUIRE: Okay, thank you. Your Honour, yes exhibit N1 is a draft determination and it is seeking a variation to the award in respect of several particular matters of the award and I’ll address your Honour on each of those particular matters if he wishes. What I could say at the outset is that the variation sought within this draft determination are agreed between the parties, the National Employment Services Association, Jobs Australia, the Australian Services Union and the Australian Education Unit.

PN113

The variations sought, go to in particular the variations which are consistent with the purpose and intent and scope of this particular review of modern awards and I’ll address your Honour on that shortly, but if I could take you to the particulars of the draft award, the draft variation to draft determination to vary the award. In particular your Honour, (1), by deleting the sentence, the ordinary hours of work will be worked between 6 am and 8 pm Monday to Friday appearing at subclause 21.2. In clause 21, ordinary hours of work, and inserting the following:

PN114

Except in relation to an employee engaged and paid to work their ordinary hours in accordance with subclause 23.6, penalty rates for ordinary hours of work, the ordinary hours of work will be performed between 6 am and 8 pm, Monday to Friday.

PN115

And if I could talk to the second of variations sought and I’ll go to the grounds because they are relevant to both of them. The second variation is by deleting the cross reference to clause 21.1 appearing in the second line of clause 23.6, subparagraph (a), penalty rates for ordinary hours of work and inserting clause 21.2. Now your Honour, if I go to the grounds to those changes we say that the award as it stands is unclear and ambiguous in that, contradictory payments were performed outside the spread of hours, is provided in subclause 23.1 entitlement to payment for overtime and secondly subclause 23.6 penalty rates for ordinary hours of work.

PN116

The award is unclear and ambiguous in that it incorrectly cross references the normal spread of hours with subclause 21.1, thus rendering the clause nonsensical. The particulars of fact or reasons leading to that situation go back to the modernisation of the award in 2009 and in particular the translation of pre modern award provisions, equivalent to pre modern award provisions being translated within the modern award. At that time, additional phrases and sentences which clarified the difference between overtime, application of overtime and penalty rates outside of the ordinary hours was included in the pre modern award but was not carried over into the modern award.

PN117

Your Honour, if you like, I could take you to the pre modern and the modern award to illustrate that point if you like. No it’s not necessary? Thank you your Honour.

PN118

THE DEPUTY PRESIDENT: I mean if you have a document which has it all there’s no point in reading it out because it gets lost in translation.

PN119

MR MAGUIRE: Yes sure.

PN120

THE DEPUTY PRESIDENT: If you have a document which sets it out in a useful form then that would be useful but you may not have. I’m not being critical I’m just - - -

PN121

MR MAGUIRE: No your Honour, I can speak to the pre modern award provision and I can speak to the - - -

PN122

THE DEPUTY PRESIDENT: Why not just give me the title of the two awards and the clauses.

PN123

MR MAGUIRE: Okay.

PN124

THE DEPUTY PRESIDENT: And then that’s probably the easiest way to do it, then I can - - -

PN125

MR MAGUIRE: Yes.

PN126

THE DEPUTY PRESIDENT: Then we have that information on transcript and I can check it.

PN127

MR MAGUIRE: Thank you your Honour. The pre modern award is the Community Employment Training and Support Services Award 1999 and the particular clauses are clause 17.22 and clause 17.24. In fact all of clause 17 could be relevant for full context.

PN128

THE DEPUTY PRESIDENT: And is the problem arising from amalgamation of clauses from two pre modern awards?

PN129

MR MAGUIRE: No it’s simply the failure to translate the full context for clause 17 to the modern award. The pre modern award, the Community Employment Training and Support Services Award, in fact – if I could read it.

PN130

THE DEPUTY PRESIDENT: Well I’ve got the modern award in front of me – 23, clause 23. Now the problem is what? Are you saying that clause 21 - - -

PN131

MR MAGUIRE: Clause 21 at the moment in the modern award - - -

PN132

THE DEPUTY PRESIDENT: Yes.

PN133

MR MAGUIRE: - - -gives the ordinary hours of work be no more than 38 hours per week to be worked over 152 hours within a work cycle not exceeding 28 days and not exceeding 10 hours in any one day.

PN134

THE DEPUTY PRESIDENT: Right.

PN135

MR MAGUIRE: It seems straight forward.

PN136

THE DEPUTY PRESIDENT: It does.

PN137

MR MAGUIRE: The problem arises, your Honour, when you go to the modern award and in particular the clause – there are two conflicting provisions if anyone worked outside of those ordinary hours and those conflicting provisions go to clause 23 where it refers to entitlement to payment for overtime, in particular a full time - quote 23.1 subparagraph A:

PN138

A full time employee would be entitled to overtime where the employee works more than 152 hours in any 28 day cycle or where the employee works outside the spread of ordinary hours provided clause 21 ordinary hours worked.

PN139

So far, so good. Looks as though they’re entitled to overtime but if you then go to the penalties which are prescribed under - - -

PN140

THE DEPUTY PRESIDENT: 23.6.

PN141

MR MAGUIRE: - - -23.6 it says under (a):

PN142

An employee will receive the following payment for working any of their ordinary hours outside the normal spread of hours provided in clause 21.1.

PN143

And then provides penalty loadings under those subparagraphs.

PN144

THE DEPUTY PRESIDENT: Is this the introductory words to 23.6(a) where there’s a problem, is it?

PN145

MR MAGUIRE: Well you could approach it in that particular way. What the approach - - -

PN146

THE DEPUTY PRESIDENT: I mean it doesn’t – 22.6(a), does it refer back to 23.1(a)?

PN147

MR MAGUIRE: It does. It refers back to clause 21.1.

PN148

THE DEPUTY PRESIDENT: So you don’t need those words in 23.6(a) do you?

PN149

MR MAGUIRE: You could take that out. The approach that I’ve taken your Honour, to this is to amend clause 21.1 so that it is the – I suppose the primary indicator of what the ordinary hours are.

PN150

THE DEPUTY PRESIDENT: You see the words in 23.1 are quite – in 21.1 are quite common throughout the award system.

PN151

MR MAGUIRE: Yes.

PN152

THE DEPUTY PRESIDENT: For example, the Clerks Award.

PN153

MR MAGUIRE: Yes.

PN154

THE DEPUTY PRESIDENT: And if you look at it, 23 is the overtime penalty rates clause isn’t it and 23.1 provides the entitlement - in other words the circumstances.

PN155

MR MAGUIRE: Yes.

PN156

THE DEPUTY PRESIDENT: And then 23.6 provides the amounts, doesn’t it?

PN157

MR MAGUIRE: No, your Honour it doesn’t. The 23.2 prescribes the overtime rates that are paid where a person works overtime in accordance with 23.1.

PN158

THE DEPUTY PRESIDENT: Yes.

PN159

MR MAGUIRE: And 23.6 deals with penalty rates worked within ordinary hours outside the normal spread of hours provided clause 21.1. The difficulty is that 21.1 says you can’t work ordinary hours outside of the framework or the way you could read 21.1. So the amendment if I could go to that, is that we are seeking to amend clause 21.1 in that we’ve - - -

PN160

THE DEPUTY PRESIDENT: To provide for the possibility of ordinary hours outside the span.

PN161

MR MAGUIRE: No what we’re providing is that the ordinary hours – the possibility of working ordinary hours - - -

PN162

THE DEPUTY PRESIDENT: (indistinct)

PN163

MR MAGUIRE: - - - are within - outside of that Monday to Friday span in a penalty type (indistinct) a shift type arrangement.

PN164

THE DEPUTY PRESIDENT: Yes well that’s what I just said isn’t it? I said you’re amending it to provide for ordinary hours outside the span.

PN165

MR MAGUIRE: We’re amending it to - - -

PN166

THE DEPUTY PRESIDENT: You see, 23.6 provides for ordinary hours of work outside the normal spread of hours.

PN167

MR MAGUIRE: Yes.

PN168

THE DEPUTY PRESIDENT: So you’re amending 21.2 to provide for ordinary hours outside the span or spread.

PN169

MR MAGUIRE: We’re proposing to amend clause 21.1 to provide an exception to when ordinary hours could be worked outside that span. The key is ordinary hours distinguishing the ordinary hours, firstly the exception and secondly that its ordinary hours as of - - -

PN170

THE DEPUTY PRESIDENT: Sorry you say, look you’re amending 21.2 not 21.1.

PN171

MR MAGUIRE: No we’re amending clause 21 - - -

PN172

THE DEPUTY PRESIDENT: Two. By deleting the sentence, the ordinary hours of work will be worked between 6 am and 8 am appearing in subclauses 21.2.

PN173

MR MAGUIRE: Sorry your Honour.

PN174

THE DEPUTY PRESIDENT: You’re amending 21.2 aren’t you?

PN175

MR MAGUIRE: Sorry your Honour.

PN176

THE DEPUTY PRESIDENT: You’re confusing me. I’m sorry, my apologies I’m becoming confused.

PN177

MR MAGUIRE: No sorry, that’s my fault your Honour. You’re quite correct. 21.2 provides an exception to the span of hours to incorporate ordinary hours being worked within a penalty type of arrangement.

PN178

THE DEPUTY PRESIDENT: I see and this 23.6 is kind of unique to this area is it? So there will explain the making – disparity with the Clerks Award.

PN179

MR MAGUIRE: I’m not sure what the relationship (indistinct) disparity of the Clerks Award is.

PN180

THE DEPUTY PRESIDENT: Okay all right. All right, I think I follow that and it’s necessary because 21.2 currently refers – defines the ordinary hours of work as 6 am to 8 pm and 23.6 defines ordinary hours in a different form does it?

PN181

MR MAGUIRE: 23.6 prescribes a payment to work outside of the spread of hours provided.

PN182

THE DEPUTY PRESIDENT: Yes you see there’s a definition of ordinary hours between six and eight and then 23.6 operates on the basis you work ordinary hours outside that definition.

PN183

MR MAGUIRE: That’s right.

PN184

THE DEPUTY PRESIDENT: Is that the problem you’re talking about?

PN185

MR MAGUIRE: Yes your Honour.

PN186

THE DEPUTY PRESIDENT: I mean I guess the specific would override the general in any way wouldn’t it? Why they’re both specific aren’t they.

PN187

MR MAGUIRE: Yes.

PN188

THE DEPUTY PRESIDENT: Thanks I follow that. Thank you for that. Next.

PN189

MR MAGUIRE: The second variation sought is by deleting the cross reference to clause 21.1 appearing on the second line of clause 23.6 subparagraph (a) penalty rates for ordinary hours of work and inserting clause 21.2.

PN190

THE DEPUTY PRESIDENT: Yes.

PN191

MR MAGUIRE: Again that goes to simply an error in translation of the amendment. We’d correct that. If I could then move on, your Honour, to the variation number three. By deleting the word – quote – span, appearing in the title of clause 21.2.

PN192

THE DEPUTY PRESIDENT: You like the word spread.

PN193

MR MAGUIRE: I’m ambivalent your Honour. What I aim to achieve here is consistency.

PN194

THE DEPUTY PRESIDENT: So instead of both span and spread we’re using – just use one, is that right?

PN195

MR MAGUIRE: Correct.

PN196

THE DEPUTY PRESIDENT: And you’re choosing spread.

PN197

MR MAGUIRE: Yes.

PN198

THE DEPUTY PRESIDENT: Fair enough.

PN199

MR MAGUIRE: Tossed a coin. Spread won.

PN200

THE DEPUTY PRESIDENT: Okay I follow. So that’s three and four is it?

PN201

MR MAGUIRE: That’s three and four, correct. Now if I go to variations sought under 5.5 quote - by deleting the title flexible hours appear in clause 21.3 and inserting flexible hours accrued days off option and also variation 6 deleting the sentence:

PN202

The following arrangements will apply in respect to fulltime employees working in accordance with the working hours options specified in clause 21.1

PN203

And inserting:

PN204

An employer may offer and an employee may agree to accept to work their ordinary hours in accordance with the following arrangement

PN205

THE DEPUTY PRESIDENT: Out of interest does that make it clear that the two flexible hours options and 21.3 and 21.4 are not mandatory but are simply ways of working - - -

PN206

MR MAGUIRE: Yes absolutely your Honour.

PN207

THE DEPUTY PRESIDENT: - - -21.1 hours.

PN208

MR MAGUIRE: Yes you might recall the original grounds - - -

PN209

THE DEPUTY PRESIDENT: Is that right?

PN210

MR MAGUIRE: Yes that’s correct.

PN211

THE DEPUTY PRESIDENT: So instead of those two flexibilities being mandatory, they’re illustrations, I guess, of the general flexibility in 21.1.

PN212

MR MAGUIRE: Indeed.

PN213

THE DEPUTY PRESIDENT: And that’s generally accepted I thought when reading the submissions.

PN214

MR MAGUIRE: Yes.

PN215

THE DEPUTY PRESIDENT: That 21.3 and 21.4 were not mandatory.

PN216

MR MAGUIRE: That’s correct yes and in fact our proposed variation under point 7 insert new clause 21.5 – quote - nothing in this clause prevents other mutually agreed methods of working flexible hours.

PN217

THE DEPUTY PRESIDENT: Which makes it (indistinct).

PN218

MR MAGUIRE: It reinforces that point.

PN219

THE DEPUTY PRESIDENT: I see. So there’s a variety of ways. I mean it’s only a four week cycle isn’t it – 152 hours.

PN220

MR MAGUIRE: Yes.

PN221

THE DEPUTY PRESIDENT: Not unlimited flexibility.

PN222

MR MAGUIRE: No not at all but it certainly overcomes what was our original concern that these were mandatory flexible arrangements.

PN223

THE DEPUTY PRESIDENT: No I read that.

PN224

MR MAGUIRE: Yes.

PN225

THE DEPUTY PRESIDENT: So that’s the extent of your agreement?

PN226

MR MAGUIRE: Yes it is your Honour.

PN227

THE DEPUTY PRESIDENT: Thanks for that. So that leaves, I guess two things does it?

PN228

MR MAGUIRE: Yes it does.

PN229

THE DEPUTY PRESIDENT: Classifications and higher duties and - - -

PN230

MR MAGUIRE: Annual leave.

PN231

THE DEPUTY PRESIDENT: Yes cashing out of annual leave but I mean the question is are you pursuing those things or which are you pursuing and which are you not.

PN232

MR MAGUIRE: Okay what we are not pursuing is the amendments to the higher duties clause. We’re not pursuing those. They would remain - - -

PN233

THE DEPUTY PRESIDENT: As they are.

PN234

MR MAGUIRE: - - -as they are and in fact if I could just put context around that. The proposed variation to the higher duties clause were as in consequence of changes we were proposing to the classification definitions.

PN235

THE DEPUTY PRESIDENT: I see.

PN236

MR MAGUIRE: And as such - - -

PN237

THE DEPUTY PRESIDENT: And since you’re not pursuing it this stage the classification definition is you don’t need the higher duties.

PN238

MR MAGUIRE: Not today your Honour.

PN239

THE DEPUTY PRESIDENT: I see. At this stage.

PN240

MR MAGUIRE: At this stage. Can I just quickly deal with for the purposes of the transcript. Your Honour will note that in my letter to his Honour on 9 August we indicated that we noted that the full bench for Fair Work Australia had decided to deal with any applications which go to annual leave by a full bench and that’s being dealt with in accordance with a timetable determined by the full bench but the full bench did leave it open to parties to make separate application if they wanted to adopt a different approach. We did have some discussion on that particular issue and we agreed that we would leave that element of the application for the full bench to deal with in due course your Honour. So it is still alive to that extent.

PN241

THE DEPUTY PRESIDENT: Sorry so what do I do with it? Nothing.

PN242

MR MAGUIRE: Your Honour you would do nothing with that element of the application.

PN243

THE DEPUTY PRESIDENT: Yes well I’m not allowed to just leave it alive. I have to – am I? Just sort of leave it sitting there open to be reactivated at any time.

PN244

MR MAGUIRE: Look I’ll be led by you on this your Honour but I wait for suggestion.

PN245

THE DEPUTY PRESIDENT: I’m just am not sure that I am. I’m just reading – if you remember we have item 6 that guides us in this.

PN246

MR MAGUIRE: Yes.

PN247

THE DEPUTY PRESIDENT: And I’m just reading that clause again. Just hang on. I’ve got nothing to say anything about it so that leaves the issue of the full bench decisions and what do they say about the issue. The statement in 2012 FWA 5721 - yes well I can’t see anything which prevents me as a matter of principle from allowing you to leave it and then reactivate it at a later time in the light of full bench decisions on the matter which may provide some pelt to the parties in how they pursue the issue.

PN248

MR MAGUIRE: Your Honour, my understanding and I stand to be corrected, was that the full bench will hear that element of our application in – I think it’s early next year.

PN249

THE DEPUTY PRESIDENT: Well the full benches are hearing some of these applications but not all. I mean you can write and ask it to be heard as part of the full bench and I have no difficulty with that if that’s your preferred course of action.

PN250

MR MAGUIRE: Okay if we do have both of those options we might consider our position.

PN251

THE DEPUTY PRESIDENT: Or you can I think wait until the full bench rules and then reactivate it or not.

PN252

MR MAGUIRE: Yes.

PN253

THE DEPUTY PRESIDENT: I don’t know. There’s probably a variety of - you know.

PN254

MR MAGUIRE: Yes. Your Honour it probably largely depends upon whether there are other matters which go to our issue which is a cashing out of annual leave.

PN255

THE DEPUTY PRESIDENT: I’m sure others are seeking cashing out of annual leave. I mean it’s not very difficult is it. You know, there’s a restriction in the Act.

PN256

MR MAGUIRE: There’s a restriction in the Act

PN257

THE DEPUTY PRESIDENT: The award may provide up to the restriction in the Act, isn’t that right?

PN258

MR MAGUIRE: That’s correct.

PN259

MR FRIDELL: Your Honour if I may, we believe that it has been referred to the full bench and that’s where it will be.

PN260

THE DEPUTY PRESIDENT: It has been referred.

PN261

MR FRIDELL: Yes automatically referred to the full bench.

PN262

THE DEPUTY PRESIDENT: Thanks for that. Thank you for that clarification. That certainly helps matters.

PN263

MR MAGUIRE: Well there you go. Thank you your Honour.

PN264

THE DEPUTY PRESIDENT: We’ll leave it on that basis subject to anything else you have to say. Thank you for that assistance.

PN265

MR MAGUIRE: Now the final matter I wanted to address your Honour is - - -

PN266

THE DEPUTY PRESIDENT: Classifications.

PN267

MR MAGUIRE: - - -classifications. Now your Honour we were prepared to proceed to run our particular case and have that matter determined by you. However, in light of the discussions that we had with the other parties, what we’re proposing is a different course of action by your leave and that different course of action is to have further consultation and research on the particular matter with the view to returning to your Honour, preferably with an agreed position but certainly with a more robust and/or detailed and well researched submissions for your Honour’s consideration. For what it’s worth your Honour, I’d like to table a proposed timetable, to undertake that. The document entitled further consultation and research timetable.

PN268

THE DEPUTY PRESIDENT: Okay that will be exhibit N3.

PN269

EXHIBIT #N3 FURTHER CONSULTATION AND RESEARCH TIMETABLE

PN270

THE DEPUTY PRESIDENT: Is this your proposal or is it an agreed proposal?

PN271

MR MAGUIRE: This is our proposal your Honour and we’ve shared this with the other parties and they will – and we are of the understandings that the parties at the bar table are in agreement in principle to that further consultation and research ought to occur on the application and that the matter should remain on foot for those particular purposes. The other parties will have a view about the timelines. What we’re proposing is a number of indicative tasks to be undertaken to illustrate or demonstrate to your Honour that the further consultation and research is real, that there’s some genuine work that is being undertaken through that and that we’re proposing for those tasks to be undertaken over the first two stages of this modern award review and therefore we would envisage that the task that we’re seeking to undertake could be conducted by the end of December 2012 and then seeking within January. I think 31 January is the due date or the end of stage 2 is that if Fair Work Australia is able to schedule a hearing of the matter within January.

PN272

Now I know the other parties have a different view depending upon their reason for justification.

PN273

THE DEPUTY PRESIDENT: I won’t be able to schedule any hearings until May or June.

PN274

MR MAGUIRE: May or June.

PN275

THE DEPUTY PRESIDENT: My apologies.

PN276

MR MAGUIRE: I think you might have answered the question that we were discussing.

PN277

THE DEPUTY PRESIDENT: I’m happy to schedule them then but I can’t schedule them beforehand.

PN278

MR MAGUIRE: Your Honour if you are able to do so, we’re in agreement for that. What we are concerned is whether you were under some – wanting to have them dealt more swiftly.

PN279

THE DEPUTY PRESIDENT: Well if I was around in January I might do so but I’m not.

PN280

MR MAGUIRE: Yes okay and if that’s the case then we’re happy for that - - -

PN281

THE DEPUTY PRESIDENT: In May or June.

PN282

MR MAGUIRE: Yes your Honour. Did you Honour want to ask any questions about this particular process at all?

PN283

THE DEPUITY PRESIDNET: Well you’ve got a set of proposed content. I won’t ask questions about it but I take it – is the content agreed, the task and resources, the timeline is it you say.

PN284

MR MAGUIRE: Yes look in principle, yes the other parties have looked at the broader headings and tasks and that we are in agreement that they are the tasks that need to be undertaken in order to progress this issue.

PN285

THE DEPUTY PRESIDENT: I’m sure you can either add or delete or amend the task and resources as you come to it. As we all do of these sorts of things.

PN286

MR MAGUIRE: Yes indeed.

PN287

THE DEPUTY PRESIDENT: No one’s got a monopoly of wisdom in my experience. Right so that concludes your application does it?

PN288

MR MAGUIRE: Yes it does your Honour.

PN289

THE DEPUTY PRESIDENT: Thank you very much and thank you for that. Who’s next?

PN290

MR GODFREY: Thank you your Honour.

PN291

THE DEPUTY PRESIDENT: Jobs what?

PN292

MR GODFREY: Jobs Australia. First of all I’d like to have entered into the record our submissions made by Jobs Australia Ltd and posted on the Fair Work Australia website.

PN293

THE DEPUTY PRESIDENT: Just bear with me. I’ll mark the submission of Jobs Australia exhibit J1.

PN294

EXHIBIT #J1 SUBMISSIONS OF JOBS AUSTRALIA

PN295

MR GODFREY: Thank you your Honour. Jobs Australia first of all in regard to Mr Maguire’s draft determination and matters relating to - - -

PN296

THE DEPUTY PRESIDENT: Exhibit N1 is the draft determination and exhibit N3 is the timetable.

PN297

MR GODFREY: Yes well in regard to exhibit N1, Jobs Australia are in agreement with all of those variations from points 1 through to point 7, noting of course that the matter relating to higher duties as being deleted. I’d only just say that we would have preferred the coin to come down on span rather spread but we won’t make an argument with that one.

PN298

THE DEPUTY PRESIDENT: I’m sorry I can’t whip up much enthusiasm about that debate.

PN299

MR GODFREY: I know.

PN300

THE DEPUTY PRESIDENT: I’ll leave that to the parties to get enthusiastic one way or another.

PN301

MR GODFREY: In regard to the matter in regard to annual leave, we note what’s happening and obviously will - - -

PN302

THE DEPUTY COMMISSIONER: It’s been referred to a full bench I’m told.

PN303

MR GODFRETY: Yes and we’ll consider our position at that time. In regard to exhibit N3.

PN304

THE DEPUTY PRESIDENT: Timetable in May or June.

PN305

MR GODFREY: We’re very pleased to hear in a way that we would have to May and June because of that. Our view was that the timetable put forward was too tight for us to properly consider the matters. We had been looking at the classifications in both the old Community Employment Training and Support Services Award and the new modern award.

PN306

THE DEPUTY PRESIDENT: I have to say though that these matters can drag on simply because of people don’t want to make a decision to be perfectly frank. I’m not accusing you of anything at all. It has been known in other awards for these matters to drag on for up to ten years because people are unable to make a decision.

PN307

MR GODFREY: We definitely want these dealt with well before that time your Honour.

PN308

THE DEPUTY PRESIDENT: You’re a unique case but there was a case of ten years.

PN309

MR GODFREY: On the assumption that we can get agreement between all of the parties, but we just thought that a timeline getting to 21 December would be a bit too rushed.

PN310

THE DEPUTY PRESIDENT: Fair enough.

PN311

MR GODFREY: In rushing these things - - -

PN312

THE DEPUTY PRESIDENT: Fair enough but you’re happy with May or June are you?

PN313

MR GODFREY: Yes. So what I would be saying is that hopefully the parties will get together and put forward a amended timetable to reflect that May and June hearing date.

PN314

THE DEPUTY PRESIDENT: Yes but I just repeat I don’t want any time wasting because it is a difficult area, definitions and the parties sometimes have been known in history of the world to use timetables to drag matters out because they can’t make a decision on difficult issues.

PN315

MR GODFREY: Thank you your Honour.

PN316

THE DEPUTY PRESIDENT: I expect the time to be used profitably rather than wastefully if my respectful observation to not you, but to everybody.

PN317

MR GODFREY: Thank you your Honour.

PN318

THE DEPUTY PRESIDENT: I’m not pointing the finger at anybody I’m just saying that if you’re going to have extra time you might as well be useful with it.

PN319

MR GODFREY: I would expect Jobs Australia to appoint a specific person to deal with this task over the next period of time and that would be one of their principal tasks during that time to make sure that we do meet those timelines.

PN320

THE DEPUTY PRESIDENT: Thank you.

PN321

MR GODFREY: So other than that, your Honour.

PN322

THE DEPUTY PRESIDENT: Thank you very much.

PN323

MR FRIDELL: Your Honour (indistinct) ASU. If we could also have our submission put to the record as well.

PN324

THE DEPUTY PRESIDENT: I mark the ASU submission exhibit ASU1

PN325

EXHIBIT #ASU1 SUBMISSIONS OF THE ASU

PN326

MR FRIDELL: Thank you your Honour. As to the draft determination and as has been already noted we do (indistinct) a draft determination.

PN327

THE DEPUTY PRESIDENT: That’s exhibit N1.

PN328

MR FRIDELL: Exhibit N1, sorry. As to the timetable we haven’t really had a chance to look at it but we do agree with it in principle and the concept of it, however we also believe that the timetable is too short and we would prefer to see something in the vicinity of May and June for another hearing. We also would perhaps seek your advice, your Honour on whether this would still remain as part of the award review or whether this would need to be something that was done as a separate application outside the award review process (indistinct) if it went out to that time.

PN329

THE DEPUTY PRESIDENT: Well on that point, I’ve checked the Act and I’ve checked the statements. I can’t see anything or any reason why it can’t remain on foot, subject to correction by yourselves. If you find something I’d respectfully ask anybody to let me know and but at this stage I propose to leave it open unless I find something to the contrary or am persuaded to the contrary by someone. So can we add to that basis then, subject to any further submissions?

PN330

MR FRIDELL: Certainly.

PN331

THE DEPUTY PRESIDENT: If anybody wants to put a contrary view I respectfully ask them to put in a letter by Friday, close of business this Friday.

PN332

MR FRIDELL: Certainly.

PN333

THE DEPUTY PRESIDENT: I’d respectfully ask the parties to look at the Act and decisions as I have done and if they disagree with my preliminary view, please let me know.

PN334

MR FRIDELL: Thank you your Honour.

PN335

THE DEPUTY PRESIDENT: Don’t bother if you don’t find anything.

PN336

MR FRIDELL: Okay.

PN337

THE DEPUTY PRESIDENT: You know it’s just open for you to do that.

PN338

MR FRIDELL: Certainly. Going to the annual leave as noted we – that has been referred to the full bench and I think that was all from ASU. Sorry, and as to the draft determination we have assumed that might be operative from today if that’s - - -

PN339

THE DEPUTY PRESIDENT: I haven’t made a decision about it. Prima facie the operative from the date of decision wouldn’t it?

PN340

MR FRIDELL: Certainly, yes.

PN341

THE DEPUTY PRESIDENT: That’s what the Act still says doesn’t it?

PN342

MR FRIDELL: I believe so.

PN343

THE DEPUTY PRESIDENT: Correct me if I’m wrong. When I last checked the Act it was date of decision subject to the sub limited ability to make retrospective orders. Though I might add I’m going through the application.

PN344

MR FRIDELL: Your Honour if we could make some changes to the dates on the timetable that’s been submitted. Sorry, exhibit N3, if were able to make some changes to these dates and resubmit it.

PN345

THE DEPUTY PRESIDENT: I don’t have a difficulty with the parties having the discussion and perhaps following today and any time else about dates and resubmitting a timetable with different dates and/or different tasks and references.

PN346

MR MAGUIRE: Your Honour, we’re not (indistinct) so much with the specific dates it’s the fact that we’ve got an end date when this matter could be - - -

PN347

THE DEPUTY PRESIDENT: Well you will have an end date. It will be May or June.

PN348

MR MAGUIRE: And in that regard I don’t believe it’s necessary for us to resubmit a timetable unless you wanted us to do so.

PN349

THE DEPUTY PRESIDENT: No not at all.

PN350

MR MAGUIRE: Simply if it’s a schedule for hearing we’ll work within that timeframe.

PN351

THE DEPUTY PRESIDENT: All right. Perhaps we’ll leave N3 on the basis of a document between the parties which can evolve according to their views but I respectfully – I’ve already noted one issue which is the tendency of these matters to simply be a way of putting off difficult decisions.

PN352

MR FRIDELL: That’s noted your Honour. We are committed to the idea of updating the specification structure as well and we will be working towards - - -

PN353

THE DEPUTY PRESIDENT: I don’t think it helps anybody to have something put off for ten years for example. I think it would be quite the reverse. I think that was not helpful to the parties – either party – either side of industry, if you could put it that way.

PN354

MR FRIDELL: Certainly we would agree with that.

PN355

THE DEPUTY PRESIDENT: Terrific, thanks for that. Thank you very much.

PN356

MR D. BUNN: Your Honour I appear for the Australian Education Union. If our submissions could also be noted and brought into the record.

PN357

THE DEPUTY PRESIDENT: Yes that will be exhibit AU1.

PN358

EXHIBIT #AU1 SUBMISSIONS OF THE AEU

PN359

MR BUNN: Your Honour, briefly, Australian Education Union supports the draft determination as proposed to you in exhibit N1. We are committed to working with the other parties to review the classification structure as our submission is noted, the members who we represent have come from a quite different environment to most of those who’ve been represented by the ASU today. Haven’t been covered by a Disability Services Award rather than a Sects Award with a different classification structure. So in some ways they’re used to being shoe horned into something that doesn’t belong to them and we’re very happy to work towards getting something that will reflect more precisely with the particular work that they do in the disability sector.

PN360

So we would not feel any attraction to waiting ten years but your Honour, it may well be you who’d be most attracted to the idea of not having to arbitrate this and it may well be you who’d benefit from ten years delay.

PN361

THE DEPUTY PRESIDENT: You can assume that.

PN362

MR BUNN: In our own small way, Australian Education will seek to come back to you with a consent position.

PN363

THE DEPUTY PRESIDENT: I can assure you if the parties haven’t reached a consent by May or June, I may well arbitrate it.

PN364

MR BUNN: If your Honour pleases that’s - - -

PN365

THE DEPUTY PRESIDENT: Thanks for that. There’s also a submission for the CPSU who haven’t appeared today. I’ll mark that exhibit CPSU1.

PN366

EXHIBIT #CPSU1 SUBMISSIONS OF THE CPSU

PN367

THE DEPUTY PRESIDENT: They seem to be on all fours with the ASU and AEU. I don’t know what their position is on exhibit N1. Perhaps we’ll leave it on the basis that they can – will the parties have discussions with them?

PN368

MR FRIDELL: Yes your Honour, we’ll have discussions with them and we will – my understanding is that they were (indistinct) with us.

PN369

THE DEPUTY PRESIDENT: That seems to be the case. If they want to put a different view, I’ll allow them by close of business, Friday to radically descent from the agreed position, should they wish to do so and obviously I’ll take their views into account but it looks like they’re on all fours for the parties there on what they’ve put. So thanks for that.

PN370

MR FRIDELL: Thank you your Honour.

PN371

THE DEPUTY PRESIDENT: We’ll go off the record to discuss dates.

PN372

OFF THE RECORD [11.09AM]
ON THE RECORD [11.13AM]

PN373

THE DEPUTY PRESIDENT: We’ve had a discussion about procedure and first of all a procedure based on exhibit N3 will be worked on regarding classifications by the parties. Secondly, the parties have advised me that the first task will be completed by 21 September 2012, that is, identify issues to be addressed to modernise the award classification descriptions. Following that the parties will deal with remaining tasks in a expeditious and conscientious fashion. Finally, we’ll adjourn until 13 and 14 May. I suppose that raises a further issue which is submissions. We’ll go off the record to discuss submissions.

PN374

OFF THE RECORD [11.13AM]
ON THE RECORD [11.15AM]

PN375

THE DEPUTY PRESIDENT: We’ve had a discussion about timetable for submissions. It’s agreed that the applicant will put in submissions four weeks for 13 May. Roughly 13 April, the respondents will put in submissions two weeks later and then the applicant will put in reply submissions a week before 13 May which is 6 May and of course, attached to those submissions will be witness statements and other evidentiary material of the usual formulation but the issues may not be insurmountable, particularly if commonsense prevails as opposed to other things. So thank you very much for your contribution to date and I’ll hand down my decision in relation to the exhibit N1 as soon as possible. I can’t give a date as yet and good luck to the parties on the remaining issues.

PN376

I am available for conciliation if it would assist but I certainly don’t press myself on the parties. I have more than enough to occupy myself. So thank you very much.

<ADJOURNED UNTIL MONDAY, 13 MAY 2013 [11.17AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #N1 DRAFT DETERMINATION PN105
EXHIBIT #N2 SUBMISSIONS OF NATIONAL EMPLOYMENT SERVICES ASSOCIATION PN107
EXHIBIT #N3 FURTHER CONSULTATION AND RESEARCH TIMETABLE PN270
EXHIBIT #J1 SUBMISSIONS OF JOBS AUSTRALIA PN295
EXHIBIT #ASU1 SUBMISSIONS OF THE ASU PN326
EXHIBIT #AU1 SUBMISSIONS OF THE AUSTRALIAN EDUCATION UNION PN359
EXHIBIT #CPSU1 SUBMISSIONS OF THE CPSU PN367