PN1

THE VICE PRESIDENT: All right, I'll take the appearances. Mr Smith, you appear for the Australian Industry Group?

PN2

MR S SMITH: Yes. Thank you, Vice President.

PN3

THE VICE PRESIDENT: Mr Buchanan and Ms Baulch, you appear for APESMA?

PN4

MS M BUCHANAN: Yes. Thank you, Vice President.

PN5

MS J BAULCH: Thank you, sir.

PN6

THE VICE PRESIDENT: Yes. And Ms Wallin and Mr Colwill, you appear for Game Worker's Australia?

PN7

MR T COLWILL: That's correct, President. Thank you very much.

PN8

MS M WALLIN: Thank you.

PN9

THE VICE PRESIDENT: This is a preliminary matter. I haven't heard of Game Worker's Australia. Can one of you briefly explain what that is?

PN10

MR COLWILL: Sure, I'd be happy. Game Worker's Australia is actually working with APESMA, or Professionals Australia, but we just recently came into a partnership with them. We're a group that's organising within the video game industry, which falls under the Professional Employees Award to develop standards within that industry and improve that industry, and we've got a partnership with Professionals Australia, which we just finalised late last year. So, we may have future dealings with them in regards to this, but at the moment we're appearing on our own merit.

PN11

THE VICE PRESIDENT: All right. So you appear for employees in the industry?

PN12

MR COLWILL: Correct.

PN13

THE VICE PRESIDENT: Thank you. As the parties will have seen from the notice of listing, this new matter is intended to deal with two issues. The first issue is one arising from a decision in the 4‑yearly review concerning what was then clause 18 of the award and is now I think clause 13.

PN14

In that decision, relevantly at paragraph 60 and 61, the Full Bench found that the clause does not achieve a modern award's objective, and the Full Bench went on to reject an agreed package of amendments that had been proposed by APESMA and AIG.

PN15

Following that, further submissions were filed by parties, which I think it's fair to say represented fairly diametrically opposed positions as to how the outstanding issue should be resolved, although the matter went into some abeyance because the Commission potentially got distracted by COVID‑related issues.

PN16

So that's the first matter which needs to be finalised, and the second matter is an issue raised in the Full Bench decision identified in the notice of listing concerning the way in which coverage of the award is described and the difficulties which at least the Commission has encountered over a number of decisions in determining who is and is not covered by the award.

PN17

The purpose of today's directions is I suppose to have a fairly free discussion with those attending as to how we should go about determining these issues. On one view we could simply require the parties to file documents setting out their positions, their submissions and their evidence, and have a hearing on that basis. Alternatively if the parties wish to embrace some alternative conference‑based process or some other process, the Commission may be to open to that. So I'll throw it open. Shall I start with you, Mr Smith?

PN18

MR SMITH: Yes, thank you, Vice President. Just dealing with those two different issues, on the first one about hours of work, as you've identified, our position is set out in quite a lot of detail in our submission of 30 August, and in that submission we urged the Commission to adopt the primary position that we've set out there, or in the alternative, if that's not acceptable, there's a secondary position.

PN19

We very strongly oppose the position set out in APESMA's very brief submission of 28 August, and the reason I guess for some of the fairly strong views that we've expressed along the way with this matter is that the Professional Employees Award and its predecessors from the 1970s when we reached consent with APESMA on having awards for professional engineers and scientists, the whole way through those awards have been of a particular character, you know, they extended of course to cover professional employees, including quite senior professional employees, but the whole basis for the awards was a flexible approach to issues like remuneration and additional hours, and right up until 28 August 2020 in that brief submission there has always been an understanding between Ai Group and APESMA for, what, 50 years or so now that it would not be appropriate to put overtime penalties in the Professional Employees Award because of the nature of the award and the nature of the employees covered by it.

PN20

With the discussion that took place with APESMA after the Full Bench decision, there were some changes of personnel in APESMA, and you know, those discussions were not particularly fruitful, but there has been further changes of personnel and we remain open to having further discussions with APESMA to see whether there could be some form of agreement reached around that hours of work issue, bearing in mind that, as you've identified, Vice President, we spent a long time negotiating and reaching agreement and then jointly submitting an agreed position that is very, very different to the position that APESMA has put in its submission of 28 August.

PN21

So that's our position on that matter. If APESMA is not prepared to have any further discussions, then our position is as set out on 30 August 2020. On the second issue - - -

PN22

THE VICE PRESIDENT: Before you move on, Mr Smith, do I take from that that there might be some utility in the first instance to convene a conference of the parties, just to find out where they're at and what the current thinking is?

PN23

MR SMITH: We're certainly open to that, Vice President, or open to having further discussions with APESMA. As I've identified, we found those last discussions quite unfruitful, because APESMA had a very, you know, simple position that they wanted to after all these years put overtime penalties in the Professional Employees Award, and they wouldn't move from that position, which is never going to be acceptable to our members.

PN24

If there's any openness to look at those issues again then, you know, we're certainly happy to have either direct discussions with APESMA or participate in a conference chaired by the Commission. We would also like to reach agreement on these matters, and in this particular award and all its predecessors, there's 50 years of an approach where we've on both sides tried to reach consent, with a lot of effort all around. We're keen to continue that approach if at all possible.

PN25

THE VICE PRESIDENT: I think as you see, Mr Smith, in the April 2020 decision, the proposition the Full Bench accepted, made by APESMA, was that the current provisions are so vague and uncertain that they're unenforceable. So obviously there's an issue about the content of the (indistinct), but also as to whether they actually describe anything which could be said to be enforceable.

PN26

MR SMITH: Yes, and Vice President, we took on board that concern, and in that submission of 30 August we put forward amendments that squarely addressed the issues that the Full Bench has raised. So we haven't of course come back and argued that things should stay the same, but we put together detailed amendments that address the concerns of the Full Bench.

PN27

THE VICE PRESIDENT: Thank you. All right, the second issue?

PN28

MR SMITH: Yes. On the second issue, I had a discussion yesterday with Ms Baulch of APESMA and what was agreed is that we both believe, both APESMA and Ai Group, that there would be merit in having some discussions to see whether or not there is an ability to reach agreement on, you know, an approach that would address the concerns that the Commission has raised.

PN29

The classifications and related provisions in the Professional Employees Award are provisions that flow from very longstanding former provisions in predecessor awards and the consent award that the parties put up, which became the Professional Employees Award. So there's a lot of history and background to these issues that the Full Bench has raised, and I know some of that background has been dealt with in some of the matters, but most of the matters before the Commission haven't actually involved Ai Group or APESMA that have, you know, negotiated these provisions over many, many years.

PN30

So we do think there would be some merit in having some discussions to try to resolve the concerns that the Commission has raised, but in a way that continues to reflect the agreed understandings around those classifications that, as I've mentioned, go back to the 1970s really. They have an approach that flows out of APESMA's eligibility rules from years ago, because they very much centre around qualifications as much as a description of the duties, and you know, the link in with the professional recognition bodies.

PN31

So there is a bit of complexity to all of that, but we think there's a reasonable chance that we could work our way through that and ideally come up with a consent position to put to the Commission.

PN32

THE VICE PRESIDENT: Yes. I mean, I think the qualifications provisions of the award are clear enough. It's the requirement that someone has to fall within the classification, in circumstances where the classifications don't really describe what the duties of any particular position are. They simply are designed to distinguish between lower and higher graded positions rather than saying what these positions actually do.

PN33

MR SMITH: Yes, and I can understand the concerns that the Commission has raised, but it does sort of go back to that issue that I raised before about the nature of this award, from the time when these awards were originally created and the way they've been preserved over the past 50 years. So there is a bit of complexity to the issue that we'd just like an opportunity to work through, because certainly from Ai Group's perspective, we haven't given this a great deal of thought today.

PN34

THE VICE PRESIDENT: All right. Okay, Ms Buchanan and Ms Baulch?

PN35

MS BUCHANAN: Thank you, Vice President. I'll be speaking � just to be clear, I'll be speaking around the salary overtime issue, and Ms Baulch will speak around the classification issue. So yes, I agree with Mr Smith's summary of where things had reached previously.

PN36

I think the annualised salary decision has somewhat changed the context in which the salary and overtime of any award potentially need to be viewed, and to that extent I'm not sure that we would come as far as saying that there would be no payment for overtime in the award itself, and I'm not sure that Mr Smith was actually suggesting that.

PN37

THE VICE PRESIDENT: If I recall, the AIG's secondary position was for ordinary time to be paid for overtime. Is that right, Mr Smith?

PN38

MR SMITH: Yes, and that was consistent with the agreed position that both Mr Butler and I put to the Commission, but within a completely different framework. So it wasn't overtime as such, but there was compensation if there were additional hours that, you know, it was agreed would be at the ordinary time rate.

PN39

THE VICE PRESIDENT: Thank you. Sorry, Ms Buchanan.

PN40

MS BUCHANAN: No, thank you, both. That's very helpful, that clarification. I think there would be value in us meeting with AIG and seeing what we can discuss fruitfully with each other around what that clause might look like in order that it addresses the concerns that we have raised previously about the lack of enforceability.

PN41

So on that question, we would certainly support that approach to have at least an initial discussion, and then if � it sounds like I think there is some scope for us to at least come together to some degree, and then it may benefit us after that to involve the Commission in a structured way around how we work through any outstanding issues.

PN42

THE VICE PRESIDENT: All right.

PN43

MS BUCHANAN: And so I might just hand over to Ms Baulch on the Zheng(?) decision.

PN44

THE VICE PRESIDENT: All right. Thank you. Ms Baulch?

PN45

MS BAULCH: Yes. Thank you, Mr Vice President. Yes, I did speak to Mr Smith yesterday about both of these matters. I can confirm that the classification structures and definitions in this award go back through a lot of history, right the way back in fact to Full Court of the High Court decisions about particularly what is engineering work, et cetera, et cetera. So we have absolutely no appetite to change the concepts behind these structures.

PN46

We do recognise, however, that there have been a number of jurisdictional objections raised, particularly to unfair dismissals, particularly in relation to unrepresented applicants in the last few years, and we note that most of those objections have been at the level 3 and level 4 level within the classification definitions. We assume that the Commission doesn't have any real particular concerns, and I'd like to clarify that with you today, sir, about level 1 and level 2 of those definitions.

PN47

THE VICE PRESIDENT: Well, I wouldn't assume that. I mean it's not that the classification structure is itself a problem. What the problem is is that it's used as a way to define who's covered by the award. So it seems to me, speaking for myself, and having obviously been involved in the Zheng decision � it seems to me that the classification structure is designed to work out who is to fall at various levels. What it's not designed to do, it appears to me, speaking for myself, is to operate as a clear test as to who's covered by the award at all. That's where the problem arises.

PN48

MS BAULCH: Sir, okay, I think Mr Smith and I were assuming something completely different to that.

PN49

THE VICE PRESIDENT: I mean there might be a number of ways to solve the problem, but it doesn't necessarily involve any change to the classification structure. It originates to the fact that the coverage clause requires, one, people to fall within the coverage as described, and two, they also must fall within the classification structure, and as you can see in the Zheng decision, as well as (indistinct) decision, it's that second step which causes problems.

PN50

MS BAULCH: The way the award has historically been structured goes right back to that Full Bench of the High Court decision in the late 1950s, where it says that if somebody requires as one of their duties to have a professional engineering qualification, then they're covered by the award.

PN51

THE VICE PRESIDENT: Yes, that's what I call the first step.

PN52

MS BAULCH: Yes.

PN53

THE VICE PRESIDENT: And that part is not too hard, but it's the second step, saying they must also fall within one of the classifications, and as you'll see, the cases say that a principal purpose test is applied to that. But the problem is the classifications are not designed to describe people's duties, so once you get past the first step, it's very difficult to work out by reference to those classifications if a person falls within any of them or not, because they're not designed to describe people's duties, they're designed to describe skill levels, et cetera, et cetera.

PN54

MS BAULCH: I agree with AIG. We can attempt to sort that out to provide more direction in that area, and I now fully understand what you're saying, sir, and I think it's going to be a very difficult task, but I'm sure AIG and ourselves can try and come up with something. What we discussed was perhaps we could have a few, like, say, four weeks to see if we can sort it out and then report back.

PN55

THE VICE PRESIDENT: All right. Anything further, Ms Baulch?

PN56

MS BAULCH: No, sir.

PN57

THE VICE PRESIDENT: Ms Wallin or Mr Colwill?

PN58

MR COLWILL: Thank you, Vice President. The scope of I suppose our concerns here are fairly narrow and they probably won't have been brought up before. For some context, we've only been really active since 2018 as a more of an activist and volunteer group, and it's only now in 2022 that we're formalising into a proper partnership with APESMA and, you know, moving into a more traditional trade union kind of role.

PN59

So we haven't had really the chance to engage with these mechanisms before, so we're really here just kind of putting forward what we would like to see as a fairly narrow and I hope uncontentious change to the coverage section of the award, which hopefully won't meet with any resistance, which is that we would like to see the development of video games and computer games explicitly named in the award.

PN60

We are having a lot of issues since 2018 with talking to employers in that sector and getting them to appreciate that the award applies to their work, because it is software development. Historically, video games companies have seen themselves as apart from information technology and not part of that sector, but the award clearly covers them, and so our main intention here in this process is really to have that very clearly defined in the award.

PN61

We also have some secondary concerns about qualifications and the role of the Australian Computer Society, but that's not really relevant to the coverage section, which you've named as the main item here. The main item that we would be really looking to push forward through here, and hopefully this is not contentious, is a very simple change to wording, for the Commission to be open to putting in something to note that the development of software and information technology also includes the development of video games and computer games.

PN62

You'd be surprised how much that has proven to be a discussion that is very frustrating with employers, who simply don't believe they're the same thing. So that's basically all we're here for. I'm happy to take questions on that.

PN63

THE VICE PRESIDENT: Are you happy to participate in the discussions that have been contemplated by Mr Smith in respect of coverage with Ms Baulch?

PN64

MR COLWILL: Absolutely. That's not a problem. Margaret Buchanan and I have already spoken about this previously. We'd be happy to make ourselves available. I don't believe anything that we'd be putting through, like I said, would be super‑contentious, so hopefully Mr Smith and AIG would not be opposed to it. But yes, absolutely.

PN65

THE VICE PRESIDENT: If it does prove to be contentious, it may be that what you've raised is an issue which is outside the scope of the current proceedings and might require a separate application to be made by the Commission, but I think we can deal with that down the track.

PN66

MR COLWILL: Sure. I mean, look, Vice President, we were not expecting to solve all this in one fell swoop. We were notified of this, the Commission referring its own matter, and we thought we'd just jump onboard and see what we could achieve. If we can't achieve it all this time, then we'll keep trying. That's fine.

PN67

THE VICE PRESIDENT: Thank you. So returning to Mr Smith, it seems to me that the consensus is that the parties wish to have an opportunity to have direct discussions about the two issues in the next four weeks or so. Is that realistic?

PN68

MS BAULCH: Yes, sir. I don't know about Mr Smith's availability though.

PN69

MR SMITH: Vice President, if there was a bit longer than that I think it might be useful, because it would be hard to resolve this issue in one meeting, so perhaps a six‑week period might be more suitable.

PN70

THE VICE PRESIDENT: All right. Six weeks is fine.

PN71

MS BAULCH: That's fine.

PN72

MR SMITH: On the issue of gaming, just one brief comment. Again there's a lot of history to the provisions in this award about IT, and you know, both APESMA and ourselves are involved in a three‑year case that was fought out with QCs and so on on that matter. It will come back to, again, the qualifications of the people. If we're talking about software engineers, for example, then there may not be that much contention, but if it's sort of a push to include people in this space that don't have qualifications equivalent to, you know, the others covered by this award, then that will be a very contentious and opposed issue.

PN73

But yes, I don't know the answer to that, but we're happy to have discussions. But it, you know, may be fruitful to have a discussion about that issue separate from what are already going to be quite complex discussions about those other issues, but I guess the parties can sort that out amongst themselves.

PN74

THE VICE PRESIDENT: Thank you. I understand all that. So let's have a look. Six weeks would be 27 April. Is that a convenient date to report back?

PN75

MS BAULCH: It's fine by APESMA, sir.

PN76

MR SMITH: Vice President, we have another major commitment on that day. Could it be the following week, if possible?

PN77

THE VICE PRESIDENT: All right. 2 May?

PN78

MR SMITH: That would be great. Thanks.

PN79

THE VICE PRESIDENT: Is everyone else available on 2 May?

PN80

MS BAULCH: We can make ourselves available, sir.

PN81

THE VICE PRESIDENT: Thank you. I thank the parties for their participation. I direct the parties to confer in line with the discussion we've just had, and a notice of listing will be issued for report back of the matter at 9.30 on 2 May 2022. If there's nothing further, we'll now adjourn.

PN82

MS BAULCH: Thank you, sir.

PN83

MR SMITH: Thank you.

ADJOURNED UNTIL MONDAY, 02 MAY 2022 �� [10.08 AM]