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]