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Fair Work Act 2009                                                    






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


Application by Donnellan


Professional Employees Award 2020




2.01 PM, MONDAY, 20 SEPTEMBER 2021


THE COMMISSIONER:  Good afternoon everybody.  I will just start with confirming who we have on the line.  You're there, Mr Donnellan?


MR DONNELLAN:  Yes.  Correct.


THE COMMISSIONER:  We also have for the Australian Industry Group Ms Bhatt.


MS BHATT:  Yes, Commissioner.  Thank you.




MR CHANG:  Yes, Commissioner.  Thank you.


THE COMMISSIONER:  Have I missed anyone?  All right.  I've listed this matter for a conference this afternoon.  There were a few matters that I wanted to raise and to provide each of you with an opportunity to say whatever you wished to say.  Mr Donnellan's application to vary the Professional Employees Award 2020 has been published on the Commission's web site and I reference this because Mr Donnellan also made an application for the issuing of directions in relation to service of the application and all of those steps, as I understand it, in practice occurred.


Mr Donnellan is there any update or anything you wish to say at this point?


MR DONNELLAN:  Not at this stage, no.


THE COMMISSIONER:  All right.  Ms Bhatt, is there anything you wish to say at this point?  Otherwise, I will identify a couple of queries or questions in my mind, and you will obviously have a chance to respond and say anything else that you wish to there.


MS BHATT:  Nothing to put at this stage, Commissioner.  Thank you.


THE COMMISSIONER:  This is clearly a very dynamic situation that we are all experiencing and that is relevant to the application.  There are two matters that it just seems to me I wanted to raise, because it raises questions in my mind at least that I would want to hear from the parties about as to the utility of determining the application in the circumstances we find ourselves in.  In particular.  There are two things that I am referring to.  The first is that the application seeks to insert a new subclause in schedule X and schedule X, as you know, expires on 31 December 2021 unless an application is made and granted that would extend its operation.


As far as I'm aware, no such application has been made to date and so that raises a question in my mind about the utility in hearing and determining the application at this time or whether a better course would be to adjourn the application with the right to have it brought back on in the event that the operation of schedule X is extended.  So that's the first consideration or question.


The second is around the factual context and that, as you know, is highly dynamic.  So for example, as I understand the data, even since the application was lodged, vaccination levels have doubled and as at, I believe, 18 September, it's something in the order of 72 per cent of people over the age of 16 have received at least one dose and almost 47 per cent are fully vaccinated.


So that dynamism is a question and it raises, perhaps, at least a prospect that the 80 per cent vaccination rate will be achieved before the application could be heard and determined.


So they were the two things that I wanted to raise and what I was inclined to do, but I obviously want to hear from each of you about that, is to deal with this question of the utility of determining the application and in that approach, I would issue some directions to file submissions on that question about the utility in all of the circumstances and, depending on the nature of those submissions and any submissions in reply, a further conference or determination of that issue or the issuing of further directions for the hearing of the substantive application.


So that's what is in my mind, if you like.  So Mr Donnellan, what's your view, if you like, on that proposed course of action?


MR DONNELLAN:  Thank you, Commissioner.  With regards to the first matter you raised, the first question about the expiry of schedule X, I have no particular insights.  I realise that the decision on the previous application to extend the application of schedule X had been a matter between the union's and Ai Group and the other relevant employer associations, and I have no particular insight into what their intentions are regarding whether they wish for the application of schedule X to be extended further.  However, it was also - putting aside whether or not schedule X will be extended, I think it has been made fairly clear that the intention of the government is for the vast bulk of the vaccination program to complete by the time that schedule X is currently scheduled to expire.  So I think this application is relevant whether or not schedule X is extended, in my mind.


THE COMMISSIONER:  Just explain that a bit more.  I'm not quite following that.  So I understand that you don't have any insight as to whether the unions and/or Ai Group or anyone intends to apply for an extension to schedule X, and you've said that you understand the vaccination program to - from the government, their objective is to complete it by the time schedule X is due to expire.


The missing piece, perhaps, in what I was trying to convey is that with the - if we were to proceed today and if I was to issue directions to file evidence in submissions in support and any material in opposition to the application and then hear it and then decide it, there's a real prospect that that would take at least very close to, if not beyond, 30 first of December and at which point there may be no schedule X or, as you've just described it, the intended completion of the vaccination program.


MR DONNELLAN:  Right.  So your question is in regard to whether - it is really in regard as to whether the Commission will be able to go through the full process of hearing and determining the application in the - what is it?  A bit over eight, nine weeks?


THE COMMISSIONER:  That's right.  And the utility of going down that path and putting all the parties to the trouble of pursuing something that may well have no utility.  So that was what was behind my kind of question.


MR DONNELLAN:  Right.  Again, I suppose I have to make clear, as a self-represented litigant, I don't have particular insight into how long - I'm not familiar, you know and I apologise for this, but I am not overly familiar with the time frame that the Commission would expect to take to hear and determine the application.


THE COMMISSIONER:  There is absolutely no criticism and no apology is required, Mr Donnellan.  But just by way of indicative example, you know, depending on the size of the matter it would routinely provide at least three weeks for the applicant to file material and at least a similar time and then material in reply, and then the conduct of the hearing itself, and then the reserving of the decision having heard all of the evidence and submissions.  So it's certainly not a very short process in main.


MR DONNELLAN:  Right.  Yes. I appreciate that.  It's possible that my impression of the time frame that this application was going to be determined in was somewhat misled by the - well, I did have an earlier conversation with Masson DP who had initial carriage of the application when it was first being processed and the impression he gave me about the indicative timeline was somewhat faster.  But, yes, ultimately I don't have - I don't really have much I can say on that if that's the - if that's the time frame that you think that you will be able to arrange for the making of submissions and setting down of the hearing.  Then, yes, there's not a huge amount I can say to that.


THE COMMISSIONER:  What's your view in relation to the second point in relation to rapidly changing situation in the ground in terms of vaccination levels?  Because that's the other aspect of the utility.  If we were to go through this process and determine something by which time 80 per cent or something close to that may have already been reached?


MR DONNELLAN:  Yes.  So this was another matter which I brought up in my initial discussions with Masson DP.  Obviously it's, as you say, a highly dynamic situation.  Things are changing by the day and we can't necessarily predict with any degree of precision what the state of the world will be in a week from now or four weeks from now or eight weeks from now, because it's all dependent on a whole variety of circumstances and it's also been, at least as we've seen from the official statistics also varying geographically between different state and territorial jurisdictions as to the rates of vaccination and how that has varied over time.


So again, yes, I can't make any concrete predictions, but as you say it's all dependent on the timeframe in which the application can be heard and decided and it is quite likely that if that timeframe is pushing us more towards November/December rather than sooner than that, then yes it is quite possible that the currently specified targets may well be achieved and that the application will be overtaken by events.


THE COMMISSIONER:  All right.  Ms Bhatt, what would you like to say?


MS BHATT:  Yes.  Thank you, Commissioner.  We agree that it appears that given the way the application is being framed, the proposed clause will cease to operate as at the end of this calendar year and we are not aware as to whether there is a need (indistinct) to make an application for schedule X to be extended at this stage.  And as a result coupled with the vaccination rates and (indistinct) vaccination rates, that potentially by the time the application is heard and determined the proposed clause will have very little, if any, work to do.  And we agree that as a result there is a very real question as to whether there is any utility in the application being heard and determined.  We are broadly supportive of the process, Commissioner, that you have outlined today, which is that the parties first be heard as to whether or not there is utility in the application being heard and that that be done initially, at least, by way of written submissions with the possibility of a hearing (indistinct) and I can indicate that the two matters that you have raised today, Commissioner, will be matters that we would seek to further address on our written submissions.  There might also be other reasons why we say that there's limited utility in the application being dealt with and we'd seek to also outline those in our written submissions.


THE COMMISSIONER:  Let me share with you the directions that I would be minded to make.  The first is that submissions addressing and I will obviously frame this in more precise language.  But submissions addressing the utility of proceedings of the application at that this point to be filed by 4 pm on 4 October and any submissions in reply by anyone by 18 October.  Then after receipt of all submissions a further conference will be convened so we can schedule the hearing completely, but otherwise it may be that the position in clear at that point.


Do you have any objection to those directions, Mr Donnellan?


MR DONNELLAN:  I think what I would have to say about (indistinct) I think that given that these are submissions to address whether the utility of further - of attempting to further determine whether the application should be determined at all and whether a further hearing is necessary, the time frame proposed, which is - so if I heard you correctly, submissions in reply by 18 October - - -


THE COMMISSIONER:  Yes.  So submissions in the first instance by 4 October, which is two weeks from today.  If you are saying to me you don't need that much time and if subject to hearing from Ms Bhatt, I can make that a shorter time frame to, for example, the 27th, will give you a week.


MR DONNELLAN:  Right.  My obvious concern, given that the central issue as to whether determining this application is useful is the time frame in which the application can be determined that it would be best for that - for this preliminary issue of utility to be determined as quickly as possible.  I would seek a more expeditious schedule.


THE COMMISSIONER:  All right.  Ms Bhatt, what do you say in terms of the time frame?  Just on this preliminary point.


MS BHATT:  Yes.  I understand.  Commissioner, our primary concern is that organisations like our group in particular are simultaneously involved in a number of other award proceedings and in the coming week in particular, we have materials due in relation to (indistinct) proceedings that are on foot in the context of the 4-yearly review on 24 September, which is this Friday and a potential hearing that's been listed provisionally before the Full Bench on 30 September which is placing quite a significant strain on our resources.


I can understand the issue that's been raised by the applicant and I've also just been advised that 4 October is a public holiday, at least in New South Wales, which is where we are located.  Can I suggest taking all of that into account, perhaps that time frame can be brought forward slightly to 1 October, which is the preceding Friday and then a similar period of time be allowed for reply submissions.


THE COMMISSIONER:  So that would be any submissions by 1 October or on 1 October and any in reply by 8 October?


MS BHATT:  Yes, Commissioner.


THE COMMISSIONER:  All right.  Mr Donnellan, I absolutely appreciate what you are saying but there's also potentially at least a broader audience and I need to ensure that there's a fair opportunity to hear from any interested parties, which may extend beyond those that are participating in this call this afternoon as well.  So I would propose 1 October and 8 October as the relevant dates and would issue directions to that effect shortly, following this conference.


I will do what I can, Mr Donnellan, subject of course to where we get to with this preliminary question to hear and determine the application as quickly as practicable, but this is a moving feast, as you appreciate.


MR DONNELLAN:  Yes.  I appreciate that, Commissioner.


THE COMMISSIONER:  All right.  Is there anything else anyone wishes to raise?  Otherwise I will adjourn.


MS BHATT:  No.  Thank you, Commissioner.


MR DONNELLAN:  Nothing further from me, Commissioner.


THE COMMISSIONER:  Thank you all for your time.  The Commission is now adjourned.

ADJOURNED INDEFINITELY                                                            [2.23 PM]