PN1

THE VICE PRESIDENT: Good morning, I'll take the appearances. Ms Anthony? Ms Anthony, you're on mute at the moment. Thank you, Ms Anthony.

PN2

MS M. ANTHONY: Good morning, Mr Vice President. It's Michelle Anthony from APESMA, appearing on behalf to the applicant.

PN3

THE VICE PRESIDENT: Thank you. Ms Thompson?

PN4

MS K. THOMPSON: Yes, thank you, your Honour, for ABI and the New South Wales Business Chamber.

PN5

THE VICE PRESIDENT: And Mr Harrington?

PN6

MR H. HARRINGTON: Yes, thank you, your Honour, Harrington, (indistinct) for Ai Group.

PN7

THE VICE PRESIDENT: Thank you. This matter has been listed for report back and programming. On the last occasion the Commission was concerned to ensure that people were made aware of this application. It's dated and we thank Ms Anthony for writing to a large number of persons inviting them to participate in these proceedings.

PN8

Regrettably it is limited to two groups but the matter has to proceed at some point. Ms Anthony, should we program the matter today in terms of directions?

PN9

MS ANTHONY: Look, yes, your Honour, we'd be very happy for it to be programmed for directions. And we'd be happy to organise witnesses to give evidence such that - I think last time when we did do an application, a similar one and I spoke about this on the last occasion just before Christmas, and when we had done a previous application we actually did have an employer who provided a witness statement for us, as well as translators and interpreters. So I would envisage actually providing witnesses so that there's sufficient evidence that your Honour would have satisfaction, that there's some input there from both employers and employees.

PN10

THE VICE PRESIDENT: But we do have ABL and the Ai Group here. Ms Thompson, have you given some thought as to how you would see the matter run?

PN11

MS THOMPSON: We're in the Commission's hands, your Honour, and I just want to note, as well, I'm still in the process of obtaining final instructions from my clients, so I anticipate based on the last instance where the union ran a similar application, that we would be opposing but I just need to know for the record that I'm, as I said, in the process of obtaining firm instructions in that regard. Having said that, yes, happy to assist in the terms of programming for availability and those sorts of things, as well.

PN12

THE VICE PRESIDENT: Yes, I kind of envisaged that there would be opposition because this is application that if the application is successful, will apply beyond the Health Professional & Support Services Award. It will be a general application. Mr Harrington?

PN13

MR HARRINGTON: Thank you. Look, just a point that we desire to make. It does have a bearing on how the timetabling will be organised for submissions relating to this matter. As we indicated earlier the application that has been brought by APESMA does bear a striking similarity to earlier variation proposals that were raised in the Commission on the context of the formula review regarding coverage of translators and interpreters under this award.

PN14

We understand in the earlier December 2018 decision the Commission didn't consider APESMA's arguments to justify the Health Professionals Award covering those employees when they're not working in the health industry. We don't consider it appropriate from a policy perspective that APESMA should be given the opportunity to reformulate their claims and run the case, yet again. So it's our view that perhaps as a preliminary issue, we might raise the subject of abuse of process and that this may be the subject of a separate round of submissions to simply avoid the Commission's time being spent on an issue which, at least in our view shouldn't be brought up for a second time.

PN15

We propose that if the Commission is minded to support this way forward, a position could be made on this threshold point and then perhaps another mention being listed to determine how submissions are to be made on those more substantive issues, if the Commission ultimately does determine that that's appropriate.

PN16

THE VICE PRESIDENT: I can only speak for myself, not for the other members of the Bench, but I think there's nothing stopping - once we got rid of the four yearly reviews, parties are entitled to bring applications to vary the awards, right, and this is viewed as a fresh application so they have to make good the merits of the case. We're not going to close the door because something may have happened previously.

PN17

MR HARRINGTON: We understand that, your Honour, but there are a number of matters which we would wish to raise, for example, Estoppel principles that have been developed by the court to prevent the party relitigating the same issue in subsequent proceedings, and we do appreciate that there's the same questions as to the degree to which they would apply here, but I think - - -

PN18

THE VICE PRESIDENT: It's a bit - for the Commission, I mean, you know, a party my be unsuccessful in the four yearly review, as it was, getting a variation. Things change. They want to put an argument down the track to say, well, it wasn't considered then but we now want to have the variation. And it still has to be an evidence based case and they have to persuade the Commission under the new principles, in fact, that it is appropriate to vary an award as the application is seeking to do.

PN19

I am concerned, and as I say, I'm only speaking for myself, that the prospects of the abuse of process argument, et cetera, will just delay this matter and I'm not sure that the Commission would actually ultimately find in your favour, Mr Harrington. I can't prejudge it but it does seme to me that we may just have these further delays occurring.

PN20

MS ANTHONY: Your Honour, may I just respond to that, as well. I would disagree that we were unsuccessful in the four yearly review. And I think I would urge going back to that decision that Mr Harrington referred to, there was reference, I think in a paragraph to APESMA's application and I believe there was a referral to the president. I don't recall there being in statement that a decision was made that you would (indistinct) unsuccessful.

PN21

THE VICE PRESIDENT: Well, (indistinct) unsuccessful, is putting it too highly. It wasn't at that time appropriate to deal with it then.

PN22

MR HARRINGTON: As we understand it, the argument which APESMA put in the context of the four yearly review were not considered significant enough to make that decision then and I understand the way forward which was proposed by the Full Bench back then was that this would be referred to the president, and subsequently APESMA has - - -

PN23

THE VICE PRESIDENT: And the President has put together a Full Bench to deal with this matter.

PN24

MR HARRINGTON: Yes and matters have been slightly overtaken by these proceedings since APESMA has made the application that we're dealing with now. But we don't seek to unnecessarily delay these proceedings and we are obviously in the Commission's hands in relation to this matter. But we are of the view that it would potentially be putting the Commission to the unnecessary task of considering the substantive issues if we are successful on this threshold issue.

PN25

THE VICE PRESIDENT: Well, Mr Anthony, I can't singularly prevent the application being made to stop these proceedings, which is really what Ms Anthony is doing, so I suppose we'll have to go through that process.

PN26

MS ANTHONY: I'm happy to leave it in your hands, your Honour.

PN27

THE VICE PRESIDENT: Yes. Well, Ms Anthony, if you're going to run this legal argument and if you're (indistinct) it, I'm not sure whether Ms Thompson is going to be supportive of it when she gets instructions. She will have to consider her own position because other employer groups may have a different view to you.

PN28

Perhaps what I might do is this. Rather than program it I might direct that the employer groups have a discussion, advise the Commission within the next 14 days whether they wish to pursue such an application. They should then frame what is the application that they are proposing if they are going to proceed. And then propose then jointly with APESMA as to what directions should flow from that. I think that would be the best way, it seems to me, of dealing with it, Mr Harrington.

PN29

MR HARRINGTON: We'd be content with that approach. We would envisage that we would not be running this as a separate application but merely as a threshold issue in the context of this application.

PN30

THE VICE PRESIDENT: It's a threshold issue which, if you're right, the matter won't proceed to directions on the evidence, et cetera, in the main matter. So therefore it needs to be determined first.

PN31

MR HARRINGTON: That's our view.

PN32

THE VICE PRESIDENT: All right. So, Ms Thompson, do you have a view as to what I've just said?

PN33

MS THOMPSON: No, thank you, your Honour. That's fine. But as you foreshadowed, I will have to seek instructions and it may not be the case that we're aligned on that position but I'll confirm that in due course.

PN34

THE VICE PRESIDENT: Yes, and I understand that you may be not aligned and that the Commission needs to be aware that there is a split in, what I call the - - -

PN35

MS THOMPSON: Thank you, your Honour. Yes.

PN36

THE VICE PRESIDENT: It may well be that in the course of your discussions with Mr Harrington, Mr Harrington changes his position, as well when it's brought to the table. All right, but in the event that Mr Harrington does not propose to pursue that application then the Commission will then relist the matter for further directions on the main matter for programming. Otherwise we'll await the advice from Mr Harrington in the next 14 days as to what is going to happen, and a proposal following discussions amongst the three of you as to the proposed directions in relation to that threshold issue(?). Thank you. Anything else from you, Ms Anthony?

PN37

MS ANTHONY: No, your Honour, thank you.

PN38

THE VICE PRESIDENT: All right, the Commission is adjourned.

ADJOURNED INDEFINITELY [9.11 AM]