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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                                    

 

VICE PRESIDENT HATCHER

 

AM2022/7

 

s.157 - FWC may vary etc. modern awards if necessary to achieve modern awards objective

 

Variation of Professional Employees Award 2020 on Commission's own motion

(AM2022/7)

 

Professional Employees Award 2020

 

Sydney

 

9.00 AM, FRIDAY, 27 MAY 2022

 

Continued from 16/03/2022

 


PN84        

THE VICE PRESIDENT:  I will take the appearances.  Ms Buchanan, you appear for Professionals Australia?

PN85        

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

PN86        

THE VICE PRESIDENT:  Sorry, can you hear me clearly?

PN87        

MS BUCHANAN:  Yes, I can.  I have noticed my colleague has just joined us, Jackie Baulch.

PN88        

THE VICE PRESIDENT:  All right.  You are with Ms Baulch.  Mr Smith, from the Ai Group?

PN89        

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

PN90        

THE VICE PRESIDENT:  And Ms Thompson from ABI and the New

PN91        

South Wales Business Chamber?

PN92        

MS K THOMPSON:  Yes, thank you, Vice President.  With me I have my colleague, Ms Virgili.

PN93        

THE VICE PRESIDENT:  All right.  Thank you.  I had a communication from the parties that they wanted more time to continue discussions, but I have to say that there is some internal pressure to finish the four yearly review of awards which is why I have insisted to maintain this report back.  I would be gratified if – and I don't mind who goes first – the parties can tell me where their discussions are up to and the direction they are heading in.

PN94        

MS BUCHANAN:  Perhaps it would be helpful if I explained our part in the delay, Vice President, to some extent.  As you appreciate, the matters in this review process on your own motion are fairly complex.  It has taken us some time to get across the background and so on, and we have sought counsel advice for what we will be seeking for direction through our internal decision‑making processes.  I am able to advise that we were able to obtain counsel opinion on certain matters yesterday.

PN95        

The AiG has put forward some without prejudice proposals for discussion and we have indicated in very broad terms that we are obviously seeking not to have any reduction in coverage as a result of these proceedings, and we were still very much considering what our position should be with respect to the hours.  I was asked by counsel to ascertain, Vice President, whether the Commission might be minded to put forward a provisional view on the hours question today.

PN96        

THE VICE PRESIDENT:  Well, neither the Full Bench nor even myself have yet formed any provisional view about this.  There is a finding that the current provisions – this is with respect to the hours and overtime issue.  As you know, there is a finding that the current provisions don't meet the modern awards objective, so something has to be done.

PN97        

MS BUCHANAN:  Yes.

PN98        

THE VICE PRESIDENT:  But beyond that point there is no provisional view been formed yet, I can tell you that.

PN99        

MS BUCHANAN:  Yes.

PN100      

THE VICE PRESIDENT:  As to the coverage we have identified a problem, but there is no provisional view, I must say, about a solution.

PN101      

MS BUCHANAN:  So we would be in a position to meet fairly shortly with both the employer groups represented here today to discuss how we're approaching those questions.

PN102      

THE VICE PRESIDENT:  All right.  Thank you.  Mr Smith?

PN103      

MR SMITH:  Yes, Vice President, we can confirm that all of that is correct in terms of where things are up to.  We did meet with APESMA and with ABI on 7 April, and it was a good discussion covering both of those issues.  We sensed a shared commitment to try to resolve this by agreement if at all possible.

PN104      

Subsequent to that discussion, as Ms Buchanan has indicated, we put forward proposals on both of the issues and we're now just waiting for a response.  So we do see that there would be a lot of merit in having another meeting, as Ms Buchanan has suggested, after they have had time to consider counsel's opinion and then to come back with another report back on where to from here, but we are hopeful that agreement can be reached.

PN105      

The first issue about coverage, you know, without obviously going into the detail of a without prejudice proposal, our position was really just to draft amendments that would reflect the views and the outcomes that have been identified in the relevant decision of the Commission, so it's a fairly minimal change, but, yes, at this stage we're not aware of the union's position on that.

PN106      

THE VICE PRESIDENT:  All right.

PN107      

MR SMITH:  Thank you.

PN108      

THE VICE PRESIDENT:  Ms Thompson?

PN109      

MS THOMPSON:  Nothing further to add from us, your Honour.  I agree with everyone my colleagues have advised.  I think our discussions today have been quite productive, so, you know, we are committed to continuing those if the Commission is agreeable to that.

PN110      

THE VICE PRESIDENT:  All right.  I just want to say this:  obviously I would encourage the parties to have discussions and see if they can reach an agreement to resolve these issues.  I am bearing in mind, however, that there was an agreement the last time to deal with the overtime issue in a certain way which did not find favour in the Full Bench and I don't want the parties to go down a track – and I have no idea what that track might be – that ultimately again might not find favour with the Commission.

PN111      

What I think I might do – but I'll hear from the parties about this – is give the parties another four weeks, but then to convene a conference, and perhaps even an in‑person conference, where at that stage I would hope the parties might be able to enlighten me as to the track that they're going down so that I can give some feedback as to whether that's likely to be a productive track or not.  Does anyone want to express a view about that?

PN112      

MR SMITH:  Vice President, that sounds like a very sensible approach to us.

PN113      

THE VICE PRESIDENT:  All right.  Does any party oppose that course?

PN114      

MS BUCHANAN:  No.

PN115      

MS THOMPSON:  No, your Honour.

PN116      

THE VICE PRESIDENT:  All right.  I will arrange for a listing of that conference.  I think the easiest way to do this is to get my chambers to contact the parties about a mutually available day.  Do the parties have any objection to dealing with the conference in person?  I think everyone is in Sydney, aren't they – or, Ms Thompson, are you in Newcastle?

PN117      

MS THOMPSON:  It's no problem to come to Sydney, your Honour.

PN118      

THE VICE PRESIDENT:  All right.  Well, my chambers will liaise with the parties to identify a mutually convenient date, but I think we would be looking at perhaps some date in the week beginning 27 June.  Do any parties have any dates they can't do in that week?

PN119      

MS THOMPSON:  The 28th, your Honour, doesn't work for us.

PN120      

THE VICE PRESIDENT:  Yes.

PN121      

MS THOMPSON:  But any day other than that should be fine.

PN122      

THE VICE PRESIDENT:  Okay.  Mr Smith?

PN123      

MR SMITH:  No, there is nothing that week that is a major problem, Vice President, so we can fit in with whatever suits the Commission and the other parties.

PN124      

THE VICE PRESIDENT:  Ms Thompson(sic), you have a preference for that week?

PN125      

MS BUCHANAN:  The Thursday or Friday would be difficult for me and I'll be coming from Melbourne for that conference, Vice President.

PN126      

THE VICE PRESIDENT:  Okay.  So the consensus is the 27th or 29th?

PN127      

MR SMITH:  Vice President, I'm just thinking - Nicola Street from Ai Group is heavily involved in this matter and she doesn't work on Mondays and every second Friday, so if it could be either Tuesday or Wednesday.  Thursday doesn't suit - - -

PN128      

THE VICE PRESIDENT:  All right.  Can I ask the parties to confirm then availability for 29 June.  That seems to be the commonly available date.  If you can just contact my chambers - you can check with whoever you like.  You can contact my chambers and we'll list it for that date for an in‑person conference.

PN129      

MR SMITH:  Thank you, Vice President.  That date is fine for Ai Group.

PN130      

THE VICE PRESIDENT:  All right.  Thank you for your attendance.  I wish you well for your discussions and I will see you on the 29th.

PN131      

MR SMITH:  Thank you.

PN132      

MS THOMPSON:  Thank you, your Honour.

PN133      

MS BUCHANAN:  Thank you, Vice President.

PN134      

THE VICE PRESIDENT:  We are now adjourned.

ADJOURNED UNTIL WEDNESDAY, 29 JUNE 2022                       [9.21 AM]