PN1

THE DEPUTY PRESIDENT: Good morning, it's Deputy President Clancy. This is an application under section 158 of the Act, an application to vary the Victorian Local Government Award. Could I confirm appearances, please? Firstly, for the ASU?

PN2

MR M ROBSON: May it please, Deputy President, Robson, initial M, and with me are Ms Preditch and Mr Shepherd.

PN3

THE DEPUTY PRESIDENT: Thank you, Mr Robson. Yes?

PN4

MR G KATZ: Good morning, Deputy President, Katz, initials G N, seeking leave to appear for the 79 local government entities referred to in the schedule to the Form F53, of which I've subsequently sent an updated schedule to your chambers, Deputy President.

PN5

THE DEPUTY PRESIDENT: Thank you, Mr Katz. The application was made on 16 June. It sought, amongst other things, a minimum engagement period of two hours for casual employees engaged under the Victorian Local Government Award.

PN6

There was a mention held on 7 July before the President of the Commission. No employer parties appeared there. A statement followed that mention expressing the provisional view that the Victorian Local Government Award be varied in the terms set out in the draft determination that had been submitted by the ASU. The Full Bench invited submissions opposing that provisional view, invited them by 4 pm on 13 August.

PN7

In response to that, there were submissions received on behalf of then 77 councils opposing the minimum engagement period for councils. None of the other variations that had been sought by the ASU were opposed. There was also, on 20 August, a submission made by the City of Greater Geelong also opposing the minimum engagement for casuals variation that is sought.

PN8

On 23 August, the Full Bench issued a decision and determination varying the Victorian Local Government Award in the terms set out in the draft determination of the ASU, save for the proposed clause 10.5(d) relating to the minimum engagement period for casuals. That decision flagged that a mention would be held for the further conduct of the proceedings and that's what brings us here today.

PN9

At this stage, it seems to me it's a fairly discrete issue and there doesn't seem to be any scope for middle ground, save for some sort of variation to the draft determination. Mr Robson, you will have seen the examples cited where the Victorian local government authorities say that the minimum engagement period that you seek would not work for school crossing supervisors, for swimming and fitness coaches. It was put also in relation to home carers, but as you would know, Mr Robson, on 25 August, a Full Bench in the SCHADS Award has made a determination that there be minimum engagement periods in that sector of at least two hours for all but social and community services employees.

PN10

So, in a sense, if one goes from the submissions that have been put in to date, this may be a case about school crossing supervisors and swimming and fitness instructors engaged in the local government sector in Victoria. Aside of the parties coming up with some sort of a negotiated position around those classifications, and maybe some others, for a one-hour minimum engagement, it seems to me that what would be required now are some directions for the preparation of material - submissions, witness statements, documentary evidence - and then, if the parties seek to be heard on that, a listing for the hearing. A Full Bench has been determining the balance of this application, so that can be put in train.

PN11

The only other observation I would make at this stage is that when this issue was considered in 2018 by the Full Bench in the part-time and casual employment common issue proceeding, the opposition that was put at that time by the Local Government Association dissolved into nothing. There was no evidence put on for the opposing view to the minimum engagement period that was sought as part of that proceeding and, in the absence of evidence opposing, the Full Bench found no compelling reason not to grant the application in the terms sought for the Local Government Award.

PN12

They are just my opening comments. Mr Robson, I am happy to hear from you in relation to anything that I have raised or any other matters that occur to you at this point about the further conduct of the proceedings and then I'll throw to Mr Katz. Thank you.

PN13

MR ROBSON: Thank you, Deputy President. I think you have summed up the issues before you very well, your Honour. Certainly our position in relation to home and community care would be to pursue a two-hour minimum engagement for those workers. We think patterns in the local government sector reflect those in the broader home care area and we would certainly be running a case if it was opposed and if there was a carve-out sought for those employees.

PN14

In relation to schools crossing supervisors and fitness instructors, we think there's scope for discussions between the parties about some carve-out or other arrangement for those workers. We have worked very hard over the years to keep those workers employed by local government, workers in Victoria. We understand some of the concerns raised by the employers in this industry and we would like to explore those discussions further and hopefully avoid having to take this case to arbitration.

PN15

THE DEPUTY PRESIDENT: All right, thank you. Mr Katz, any observations from you at this point?

PN16

MR KATZ: Yes, Deputy President. I agree with Mr Robson that you have summarised the situation very well. Obviously, I am hamstrung to the extent that I've got a large sector to consult and it's obviously not a one shoe fits all situation. There would be lots of councils with their own special requirements and peculiarities and so on.

PN17

I am not opposed in principle to having discussions with the ASU and then getting feedback from the sector to see whether, for example, if there was, as Mr Robson has indicated, a carve-out for home carers, you know, to what extent that would impact any particular councils. I would have to take instructions. As I say, I would need to consult the sector as a whole to see what impact that would have on any particular council or library corporation, although it won't be a library corporation, it will be a council in that instance.

PN18

I would otherwise agree with you, Deputy President, that serving of materials - and we certainly intend to file up to six witness statements plus submissions. So, that's from our perspective, that if the matter goes to arbitration, we will be calling evidence from approximately six local government entities.

PN19

I can't take it any further at this stage, Deputy President.

PN20

THE DEPUTY PRESIDENT: All right. It would probably behove you to have a look at the decision of the Full Bench on the 25th and draw those local government authorities' attention to that because that will perhaps focus the approach that you might want to take to home carers that are employed in local government. That was a claim pursued in that case, it was contested and it's been determined.

PN21

MR KATZ: Yes.

PN22

THE DEPUTY PRESIDENT: As for the other matters, there may be more prospect for fruitful discussions. The issue is going to be sort of the timeline that you want to adopt. That's really the question.

PN23

MR KATZ: Yes, Deputy President, I mean, obviously with local government, every local government entity is covered by an enterprise agreement and there isn't one enterprise agreement that we are aware of that has a minimum two-hour engagement period. So, from our perspective, it's all about the BOOT test. There is no indication given to me by any of my clients that they would ever agree in an enterprise agreement to a minimum two-hour engagement issue, which then leaves the issue, if this is going to be - if the award is varied to include that, it's obviously going to be a BOOT issue - or it may be a BOOT issue, one assumes it will be - for each enterprise agreement.

PN24

Then, of course, if the enterprise agreement isn't going to be approved because it doesn't pass that one aspect of the BOOT test, it is going to cause, you know, a difficult situation, whereas, in fact, the SCHADS would be - I don't know how many organisations would be covered by an enterprise agreement, but it's not a BOOT test situation if they are covered by the award, whereas - - -

PN25

THE DEPUTY PRESIDENT: It's going to be one and the same.

PN26

MR KATZ: Yes.

PN27

THE DEPUTY PRESIDENT: Your enterprise agreements tend to incorporate the award, so it's not really going to be a quantum leap in that respect, I wouldn't have thought.

PN28

MR KATZ: Yes, but that's the practical difficulty that we've got, that it could be potentially - I can't speak to whether councils are going to agree. Each council has got their own special circumstances. Whether they've agreed an enterprise agreement - - -

PN29

THE DEPUTY PRESIDENT: They may or may not, but the issue is that, at some stage or another, if the 2018 case is any guide and if the recent Full Bench proceeding is any guide, it will come down to the evidence.

PN30

MR KATZ: Yes, of course.

PN31

THE DEPUTY PRESIDENT: So, stated preference, you know, won't really come into it, it will boil down to what sort of engagements are in effect or adopted in practice in the sector and in what roles, how big a proportion of that and what's the impact. Now, balanced against that will be the considerations that came into play, which I apprehend will be raised by the ASU, the considerations that came into play in the casual and part-time common issues proceeding and, similarly, the sort of submissions that they made and have made in respect of other awards, including the SCHADS Award.

PN32

I guess what I'm really interested in this morning, because in the absence of any sort of consent positions that the parties want to put before the Full Bench for its consideration, that in itself will require time, but if you are going to have to embark upon consultation with the sector before you have a position that you can take to any discussion with the ASU, I need to know an indicative timetable.

PN33

MR KATZ: Yes, I appreciate that, Deputy President. I would say a period of a maximum of two weeks should be more than sufficient.

PN34

THE DEPUTY PRESIDENT: For your consultations?

PN35

MR KATZ: Yes, for the consultation, yes.

PN36

THE DEPUTY PRESIDENT: I see, yes, and then there might be - I'm not going to tell you how to run your consultation, but you will need to then have, I suppose, some people with you to engage with Mr Robson and his colleagues if you are having any discussions. You might have a working party from - - -

PN37

MR KATZ: Yes, that we have actually had in previous, you know, sector - the legislation, for example, the local government long service leave regulations, we put together a working party. We haven't got a task force as yet on this one, but I think we would probably adopt the same approach, Deputy President, yes.

PN38

THE DEPUTY PRESIDENT: There's two ways we can go about it. We can reconvene for a conference before the Commission in a period of four to six weeks from now to see what progress, but, equally, I could adopt the path whereby we do that concurrently with some directions for the filing and service of material.

PN39

Mr Robson, in your case, Mr Katz has given an indication of the sort of evidentiary case that the councils he represents would be bringing. Without holding you or Mr Katz to those numbers, what's the sort of anticipated scale of the case you would be bringing?

PN40

MR ROBSON: Thank you, Deputy President. We would anticipate something similar, depending on the scope of what's in contest. Certainly if the minimum engagements are contested, we need to bring evidence of what working patterns actually look like in the local government industry in Victoria, and naturally that's quite a diverse range of workers.

PN41

THE DEPUTY PRESIDENT: Yes.

PN42

MR ROBSON: There would be possibly one or two officials, some workers from the sector. You know, given the narrow scope of the proceedings, we don't want to do a whole sort of, you know, chorus line of witnesses to demonstrate the same point.

PN43

THE DEPUTY PRESIDENT: All right. Mr Robson, what are your thoughts? Should I be considering the making of submissions for preparation of material whilst these discussions and consultations are going on so that we don't sort of get four or five or six weeks down the track and then, you know, start over again with preparation? What's your thoughts?

PN44

MR ROBSON: From our perspective, Deputy President, there's no need to hurry in these proceedings. As Mr Katz has said, everybody in the industry is covered by an agreement in an case. We are really dealing with an award that's only used for the purposes of the BOOT. We think that there's scope for agreement, and I probably should have said earlier that we are also willing to consider discussions about a timeline for the operative date. Certainly we wouldn't be making a submission, if it went to contest, that, you know, it should apply immediately after the date of the decision.

PN45

We think there's value in holding discussions and certainly, independently of Mr Katz, some local government authorities have approached us and made suggestions about things they would like us to consider. We are genuinely hopeful agreement would be reached, so we think it would be premature to put on directions for submissions and evidence.

PN46

THE DEPUTY PRESIDENT: All right. In those circumstances, if I was to - it can either be a mention or a conference, but even if we're in a mention, we can go into conference - but if I was to set one, we are now, what, 27 August, so if I was to list something for perhaps on or around 8 October?

PN47

MR KATZ: That suits me, Deputy President.

PN48

MR ROBSON: Yes, that would suit me as well, sir.

PN49

THE DEPUTY PRESIDENT: All right. If we list this matter for mention at 10 am on Friday 8 October, the expectation will be that, by then, Mr Katz will have consulted with the local governments that he represents and then there would also have been some discussions between Mr Katz and his working party and the ASU and, at that stage, I would be expecting a report back on the issues in contest as they may have developed and thoughts then around progressing the matter further.

PN50

Is there anything else that either party wish to raise this morning? Mr Robson?

PN51

MR ROBSON: No, your Honour.

PN52

THE DEPUTY PRESIDENT: Thank you. Mr Katz?

PN53

MR KATZ: No, thank you, Deputy President.

PN54

THE DEPUTY PRESIDENT: All right. Thank you both and thank you all for attending this morning. We will proceed in that respect. I might put out a short statement recording the essence of our discussions today, which will be published on the AMOD website, and that's essentially so if there are any other interested parties, they are kept appraised of the progress of this claim.

PN55

There being nothing further, thank you, everybody, we will now adjourn.

PN56

MR ROBSON: Thank you, Deputy President.

ADJOURNED UNTIL FRIDAY, 08 OCTOBER 2021 [10.32 AM]