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Fair Work Act 2009                                                    






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


Review of certain C14 rates in modern awards





10.30 AM, TUESDAY, 23 AUGUST 2022


Continued from 29/11/2019



THE COMMISSIONER:  Good morning, all.  This is Commissioner Hampton.  I'll take the appearances as we go, I think, given the number involved.


This is a conference to deal with a review of certain C14 rates in modern awards.  I must say, it feels a bit like getting the old band back together for many of us that have been involved in this process for some time.


The background for the conference is provided by two statements of the President, the first or most recent one issued on 27 July of this year and an earlier statement on 28 August 2019.  Both of those statements should be seen in the context of the decision of the annual wage review expert panel in 2018, 2019, which raised the issue as to whether or not the C14 rates in modern awards are being applied as an introductory level.


As you would be aware from the most recent statement of the President, I've been requested to hear from parties and make a report to a Full Bench on two aspects, namely the programming of the review, presumably when, how, who, et cetera.


Secondly, the provisional views that the President expressed at paragraphs 8 and 9 of the last statement, and they go to the scope of the review.  You will recall that paragraph 8 expressed a preliminary view that grade 1 in the Broadcast, Recorded Entertainment and Cinemas Award was not required because there is no equivalent classification.  I'll need to come back to that preliminary view in a moment.


Secondly, paragraph 9 was a preliminary view not to review the Port Authorities or Stevedoring Awards.


A number of organisations have helpfully provided outlines of submissions in advance and you can take those as read.  They are all available on the website.


But before perhaps hearing further submissions, I might make some comments about the context.  Firstly, the Commission has commenced this review of its own initiative, so as a result, it's unlikely that we'll focus upon or require claimed variations, although proposals from parties advocating for change are generally useful.


Secondly, although the awards have been categorised into two groups, and you will recall that they are group 4, no stated transition period, and group 5, not a transitional classification, at least on face value, I would accept that the awards are all stated separately and each would need some individual attention.  I think that's a point that's made in AiG's submissions.


However, I should indicate that I think it's unlikely that the Commission would conduct award by award hearings, that is, separate hearings, as a matter of efficiency and noting common parties and perhaps common matters of principle.  Ultimately that's a matter for the Full Bench, but they are the views that I would express at this point.


In some awards, although they may not be expressly stated as being introductory, the question might be whether they have that effect in any event because of the way the classification structure operates in the context of the industry.


In that context, perhaps, the contrast between the Cement, Lime and Quarrying Award and the Concrete Products Award, which are both category 4 awards but on face value appear to have a different result, a different impact, may be an example of that, and I think that's a point made in the AWU's submissions.


To the extent that the review of any award might suggest a change is to be made, then the Commission would need to understand the impact on the rest of the classification structure and, of course, ensure that a coherent structure without gaps remains.


The Commission would also need to take account of the impact of any change more broadly on the parties to the award and, of course, the implications of section 157 of the Act; this is the exercise of modern award powers outside of the annual wage review, would need to be considered.


So before I hear from the parties, I just want to come back to the broadcast award, if I can use the shorthand title that I mentioned in my introduction.  The preliminary view was that the grade 1 classification was not required because there wasn't an employee classification that used it, however it has more recently been drawn to my attention that grade 1 is in fact used as a reference point for first and second year adult cadets in journalism, therefore, if grade 1 was just removed, that would have unintended consequences.


There are a series of options that might flow from that.  Perhaps the light touch option would be to retain it for that purpose, with a note that its relevance is only for the cadet rates, but, look, there may be a range of other alternatives as well.


I don't know whether anyone in the conference has a specific interest in that award, but in any event - and if you do, obviously feel free to make your views known today, but given that the matter's only recently been raised with me, I will raise it in my report and the parties will have an opportunity to make comments about that in due course.


I should also indicate that I think two parties are seeking to appear by way of lawyers today.  Given the nature of the matter and the scope of the review, it's my preliminary view that permission should be granted on the grounds of efficiency, so if there are no contrary views, unless someone wants to be heard against that proposition, I'll adopt that approach.  No.  Very well, then permission is granted, to the extent to which it's necessary.


So in terms of hearing from parties generally, obviously I would be interested to hear from you on the two matters that the statement has asked me to deal with, and in particular the program, the review and the preliminary positions advanced by the President.  There will also be an opportunity to respond to any written submissions that have already been received.


So what I'm proposing to do, in the absence of any suggestions to the contrary, is hear from parties in the order that they advised the Commission they wanted to be heard today.  In that context, Ms Bhatt, I think you're up for the AiG.


MS BHATT:  Thank you, Commissioner.  In relation to the provisional views that were expressed at paragraph 9 of the statement, we've got no opposition to those provisional views, and we don't have a specific interest in the broadcasting award, so not got anything to say about the issue that's just been outlined by the Commissioner earlier today.


I think, as has been apparent from the written outline that we filed, our primary concern has really been about how these proceedings might be conducted.  I of course heard what the Commissioner has said today about the proposition that claims are not likely to be required to be filed by parties because these are proceedings that have effectively been initiated at the Commission's own motion.


I think what we would say about that, Commissioner, and if I can put this somewhat colloquially, respondent parties will need something to aim at - perhaps all parties will need something to aim at, and so part of the reason why we propose that any parties seeking a variation should be directed to articulate that is so that there are clear parameters to the proceedings and parties understand what the potential outcomes of these proceedings might be.


Of course, we appreciate that the Commission is never bound by the terms of the remedies sought in proceedings of this nature and so it might still be the case that the Commission forms the view that some other variation is more appropriate, and we would say, as we always says, that if that situation were to arise, the Commission should give us an opportunity to comment on that.


If the Commission sees these proceedings unfolding in some other way, then we're of course keen to understand what that might be.  It might be, for example, that the Commission itself first expresses some provisional or preliminary views and then they become the focus of the proceedings.


One of the practical concerns from our perspective will be wanting to consult with our members about the practical application and operation of the C14 classification level in relation to the awards in which we have an interest, and it would be far more efficient, if nothing else, to do that if we have a clear understanding of what the potential outcome of these proceedings might be.


I think anything else that I would put at this stage, Commissioner, I would just be repeating what we've put in writing.  It might be that once my colleagues have articulated their position, that there's something more to add.  Thank you.


THE COMMISSIONER:  I understand.  Thank you, Ms Bhatt.  Mr Clarke, I think you were one of the early organisations to let us know that you wanted to be heard today, so, Mr Clarke, for the ACTU?


MR CLARKE:  Yes, thank you, Commissioner.  There's a couple of things I'd say in relation to process, and I don't think we need to be too kind of strict about it at this point.  I understand the concerns expressed by the AiG that whatever we do in the Commission, we need to make sure that there's procedural fairness, but I also accept that can be accommodated within a review of the Commission's own initiative.


If you sort of identify what the issues are that you are reviewing, it might be essentially an inquiry into what are the usual arrangements for transition out of these classifications and should these be formalised or altered, and if so, how?  They might be issues in the broad that there's some kind of inquiry about which then focuses people's attention on particular questions and they express views about those, and then the thing sort of narrows itself down to the point where parties can take positions on it.


But that's a pretty drawn-out process.  My intuition, which is notoriously unreliable, is that there may be some matters where that level of investigation and inquiry in the broad isn't in fact warranted.  There may in fact be, once we're seized of some additional information, a less formal way through, at least in relation to some of these matters, if the will is there among the parties and the Commission to accommodate it.


With that in mind, and sort of going back to the future in relation to all of this, one of the views I put forward last time was that there's probably a little bit of efficiency in the Commission's research division, should it have the time available, to do some of the data work in relation to this to remove the need for parties to retain their own experts to look at data sets and then fight with each other about whether they've interrogated them properly.


I developed this query last time that could be run on what was then the 2008 EEH data set to try and identify people so we'd at least know how many people we're actually talking about here.


Having had a look at the ABS's sort of new data manual for the 2021 EEH survey which a statement indicates now it does in fact ask employers who claim that they pay people exactly according to an award to name what is that modern award.


Now that we have that data, and I've had a look at the data manual, I've proposed maybe some queries that could go to answer that question, just how many people are we talking about or, more to the point, using all of the resources of the Australian government's Australian Bureau of Statistics, how many people could they find are paid at exactly these pay rates, because it could be, in relation to some of these awards, that the number of people affected might focus people's attention on just how much effort is worth devoting to taking a particular position in relation to some of these matters.  Just a suggestion.


So I'd propose, if the Commission and the other parties were happy with this, to put forward, well, look, this is how I think you could run the data query if the Commission was prepared to do it, and perhaps the Commission's research division or the ABS could express a view whether that's the right way to do it or would provide reliable data.


The other thing that might be useful, as was proposed I think by the President during the last conference, which admittedly was about three years ago, was that there be a background paper relating to the histories of these particular awards to assist people to find their way through this to see where these particular classifications come from, and once again, that might be a way of focusing people's attention around the issues.


You might find, hypothetically, that the classification we're all concerned about in the sugar award was one that was pulled out of the only sugar milling award in the country, which was in Queensland, which paid $100 a week more than the national minimum wage and was called a grade 2 and a chapeau to the classification structure that said, 'If you can do any of these three tasks, you're on this rate and it's paid more.  It's a grade 2, not a grade 1 rate.'


I don't know.  Who knows what they'll find, but that type of process, again, might be a way of focusing people's attentions around disputes in the hypothetical versus disputes in the practical.  So those are two things, if I might be so bold as to suggest, the Commission might do to assist us.


Once we're seized of that, we could perhaps be allowed some time to confer with the employers who are taking an interest in these proceedings about whether in relation to some of these matters there is a less formal path through, and then we could perhaps have two processes, effectively.


There'd be one that, well, okay, these are actually going to be difficulty and we're going to need some quite detailed inquiry, we're going to need to go into maybe some evidence about these issues we're investigating about usual arrangements and transitions, and there could be these other ones where there was perhaps some understanding about the range of outcomes that people were willing to accept were appropriate without too much more effort.


So if we could have the information, if we could have those discussions, that might help refine the scope of what we still need to do or how difficult it's going to be or how long it's likely to take.


THE COMMISSIONER:  So, Mr Clarke, in terms of your suggestion to make a proposal for some data work, how quickly do you think you could supply that to the Commission?


MR CLARKE:  I can provide that to you tomorrow, if you like, Commissioner.




MR CLARKE:  Sorry, and to, you know ‑ ‑ ‑


THE COMMISSIONER:  Yes, of course.


MR CLARKE:  To everyone, yes.


THE COMMISSIONER:  All right.  Thank you, Mr Clarke.  So I think next in terms of those that advised the Commission - wishing to be heard, Mr Keats, appearing on behalf of the CFMMEU MUA division.


MR KEATS:  Thank you, Commissioner.  My interest is in relation to the provisional views of the President expressed in paragraph 9.  That's in relation to the Port Authorities Award and the Stevedoring Award.  In relation to both those awards, the union supports that provisional view and ask that it be confirmed by a Full Bench.


THE COMMISSIONER:  Thank you very much.  Mr Buckley for the AMIEU?  Are you with us, Mr Buckley?


MR BUCKLEY:  Yes, thank you, Commissioner.  I apologise for my voice.  Unfortunately it's (indistinct) my voice is such that it probably doesn't make much difference whether I'm on mute or not.


But, yes, I would like to say that the Meat Industry Employees' Union agrees with the provisional view that the level 1 classification in the meat industry award should be the subject of review.  The AMIEU has put in a paper as to its position.


I would also like to support the views expressed by Mr Clarke in terms of the proposed data or statistical inquiry, but having said that, I would like to point out that the level 1 classification definitely is used within the meat industry, certainly within the meat processing industry.


In the meat industry award the level 1 classification is expressed in a way that's rather open‑ended.  It has a minimum period of application but no apparent maximum period of application, and so it needs to be reviewed, we say, for that reason alone.


But we also expect that the prospect of getting industry level - getting agreement as to what should happen with it, the prospects of that are probably not good.  It's likely to be a matter of controversy within the industry.


THE COMMISSIONER:  No, I understand.  Mr Buckley, is the union in a position to advance any proposals?


MR BUCKLEY:  The union probably needs to do some more consultation with its constituent branches before it does that, but it might be in a position to do so within a relatively short period of time, Commissioner.


THE COMMISSIONER:  Thanks, Mr Buckley.


MR BUCKLEY:  Thank you.


THE COMMISSIONER:  Ms Wiles for the CFMMEU manufacturing division?


MS WILES:  Thank you, Commissioner.  The CFMMEU manufacturing division, we filed an outline of our position which I understand that you've read.  Our interest is fairly narrow.  We have an interest in the Dry Cleaning and Laundry Industry Award.  As we outlined in our outline of position, we do think it is appropriate to review the level 1 dry cleaning employee classification, for the reasons we outlined in our position paper.


As you'd be aware, there are a number of other unions with an interest in this award, including the United Workers Union and the Australian Workers' Union, so I would anticipate that we would be having discussions in terms of any potential proposal to fix that issue.


More broadly, we do support the submissions made by Mr Clarke for the ACTU this morning in terms of a potential way forward in terms of the research, data sets and also the programming after that.  I think it is useful and efficient if we can see how much disagreement there is around a particular proposal before getting into a full‑blown proceeding in relation to a particular award.


So they'd be my submissions at this point, unless you've got any further questions, Commissioner.


THE COMMISSIONER:  Thank you, Ms Wiles.


MS WILES:  Thank you.


THE COMMISSIONER:  Ms Gray-Starcevic for the UWU?


MS GRAY-STARCEVIC:  Thank you, Commissioner.  So as Ms Wiles said, we've also filed a written submission in relation to the three awards in which we have an interest, and I have nothing further to add to those submissions for the purpose of this conference today.


In relation to the provisional review in paragraph 9 of the statement, United Workers Union doesn't have an interest in those awards and so nothing further to add to that view, and otherwise we agree with the position put by Mr Clarke in relation to the programming of the review moving forward.


THE COMMISSIONER:  Thank you very much.  Ms Davis for the RTBIU?


MS DAVIS:  Thank you, Commissioner.  I filed a position from the Rail, Tram and Bus Union.  We have an interest in the rail industry award.  We don't have an interest at the provisional views in 8 and 9 so I won't comment on those this morning.


First I would like to say I agree with Mr Clarke's position on receiving some data sets, as it might narrow the questions that that might need to be asked for all awards.  Not all of them will need such a deep‑dive investigation as perhaps some of the other ones.


It's the RTBU's position that with the rail industry award and the view that pertains to the C14 classification is relatively simple, perhaps not as much as some of the other ones.  We believe that while it presents that it is a transitional classification but merely lacks an outer limit, this classification is used in our industry quite regularly.


Therefore, we would be happy to put a proposed variation to assist the Commission, if that would assist, and present to the rail employers to see whether there can be maybe agreement on an outer limit, because I think the main issue for the rail industry award simply concerns that our members are being kept on this initial level, and in recent times there's a very small amount of courses that can be done to kind of tick off this competency base.


So for the rail industry award, we think it's a relatively simple matter and therefore we are in a position to put forward a variation if that would assist the Commission.


THE COMMISSIONER:  Thank you, Ms Davis.  Mr Crawford for the AWU?


MR CRAWFORD:  Thank you, Commissioner.  We, as you've already alluded to, filed an outline of our position as well.  It's a bit of a mixed bag, because we've got an interest in quite a few awards and the provisions differ quite a lot.


I'm happy to go through that in detail if you'd like, but in terms of procedure, we completely support the ACTU's submissions.  We think the additional research would help a lot, not only about the ABS data but also the award history, particularly since the old AIRC website I don't think is as accessible as it used to be.  Doing that research for the parties is not as easy as it used to be, so any assistance from the Commission in that regard would be greatly appreciated - obviously the ABS element too.


Then we also are supportive, maybe in the spirit of the upcoming job summit of some more informal process of conferences, perhaps, from our perspective, probably ideally in person, to try and see if we can reach agreement on some of these issues without requiring sort of a massive exercise.  We'd be certainly willing to take a pragmatic approach for our awards to try and sort these issues out.


I think they're the sort of main procedural points.  We don't wish to say anything about the provisional views, so unless you've got any questions, that would be what I would put, Commissioner.


THE COMMISSIONER:  Thank you.  Mr Scott, appearing for ABI and New South Wales Business Chamber?




MR SCOTT:  Yes, thank you, Commissioner.  I don't have a lot to say, other than to indicate that our clients have an interest in some but not all of the awards set out in the statement.


In terms of the provisional views at paragraph 9 of the July statement, our clients have no opposition to that provisional view relating to the Port Authorities Award and the Stevedoring Industry Award.


In respect of the provisional view relating to the broadcasting award, given what you've indicated this morning, Commissioner, it might be worth having an opportunity to have a closer look at that.


I have some sympathy with the submissions that were put by Ms Bhatt of Ai Group this morning in terms of endeavouring to have some form of framework for which this process can proceed.  I don't have any violent opposition with Mr Clarke's suggestion around obtaining relevant research.  I think that would, of course, assist the parties, and the Commission is free to inform itself in any manner it sees fit.


Perhaps an obvious observation, but in previous industry based matters during the four‑yearly review, it kind of became a common practice for the Commission to release background papers prior to any formal hearings and the like, and that would seem, at least from our perspective, to be perhaps a sensible way forward, for there to be a background paper developed looking into some of the issues and perhaps even identifying some questions that can be posed to the parties.


The degree to which my clients wish to be heard at this stage is unclear, just because it's not quite clear what the proposals are, and of course to the extent that there's provisional views, we'd seek an opportunity to consider those and potentially be heard, but I would have thought a background paper of some description would give us a little bit of a framework in which to operate.  So those are my submissions, Commissioner.


THE COMMISSIONER:  Thank you.  Mr Mattner for the AFAP?


MR MATTNER:  Thank you, Commissioner.  We made no further submissions in the past week and rely on our submissions made in 2019.  Obviously the Federation of Air Pilots is only interested in the Air Pilots Award 2020 so we've got no commentary on the provisional views.


In terms of the classifications, I appreciate that some of the awards and some of the commentary is about the application, or ongoing application, of those particular classifications.


To that matter, in regards to the Air Pilots Award, the classification of aerial application pilot with less than 1000 flying hours' experience is still a classification that would be in constant use.


In regards to the other two classifications that have been raised, that is of first officer or second pilot in a single engine aircraft up to but not including 1360 kilograms and single engine aircraft between 1360 kilograms and 3359 kilograms, the fact is that in most circumstances those aircraft would be flown by a single pilot, a captain, and therefore the use of the classification of first officer or second pilot would seldomly need to be paid, but we can't rule it out as being an ongoing operational classification.


The other thing that we'd just make reference to is that in our submissions in 2019 we noted that in regards to the classification of our aerial pilots it was specified or classified in terms of (v) in the classifications used by the Commission, and we suggest that it's more appropriately in the category of either (iii) or that of (iv).


The other thing is that we would also say - and I do apologise, this will be my last point, is that in terms of each of those classifications remuneration under the Air Pilots Award 2020 it's referred to in terms of salary, not wages.  The definition of salary is not only salary but additions to salary, and in all three classifications that's mentioned there is reference to additions to salary that in most circumstances would be paid to the pilots.


At the minimum, I worked out that that's an additional $31 per week or thereabouts for at least two of the classifications, so that may resolve some of the concerns about the rates falling below the minimum wage.


THE COMMISSIONER:  So, Mr Mattner, is it AFAP's view that the Commission doesn't need to review the Air Pilots Award in this context?


MR MATTNER:  On that basis, Commissioner, that is correct.


THE COMMISSIONER:  Thank you.  So, look, I'm happy to hear any other submissions.  Ms Bhatt, bearing in mind that Mr Clarke made his contribution after yours, do you want to comment on his submissions or anything else?


MS BHATT:  If I can, just very briefly.  We have no difficulty with Mr Clarke's proposal regarding the collation of some data.  Can I request that to the extent that Mr Clarke files what is essentially a written request to the Commission for certain data to be collated, that other parties have a short window to comment on that?  It might be that there's some other data, for example, that we think might be useful.  We anticipate that we can provide that feedback within a short window.


We think similarly that background papers would be useful, and as Mr Crawford has suggested, we too would be hopeful that there would be at least some common ground, or potential common ground, in respect to some of these awards that can be explored through a conferencing process.


I think that Mr Clarke made some reference to other awards being dealt with by way of what might look like a general inquiry and issues being explored, such as the way in which employees at the C14 level usually transition out of that level.  I'm paraphrasing, and I hope I'm not mischaracterising.  I don't mean to.


I think all we would say about that, as we've said in our written outline, is that each of these classification descriptors appear to be drafted in a way that is quite particular to the way that classification structure operates more generally and that industry or the relevant occupation.


So there may be some practical difficulties - or we anticipate there would be practical difficulties in the proceedings being dealt with in that way, but perhaps that's a bridge that can be crossed if and when we reach it.


THE COMMISSIONER:  Thank you.  Ms Bhatt, in terms of the opportunity to make comment on Mr Clarke's data proposal, what do you have in mind?


MS BHATT:  The end of this week.  So if Mr Clarke files tomorrow, then we're given until the end of this week.


THE COMMISSIONER:  From my point of view, I think seven days might be reasonable.  Okay.


MS BHATT:  We'd never say no to additional time, Commissioner.


THE COMMISSIONER:  No.  I'm just bearing in mind my own time frames to settle the report.  It's also the case, as you would expect, and this is a comment I make more generally, that in the normal course I would publish a report and the Full Bench that will ultimately deal with these matters and make these decisions about process and other issues would normally invite comment from parties either as part of or prior to any preliminary proceedings in response to the report.


So that's the normal course, and in that context I'm also thinking of my time frames to prepare a report.  So I think, Mr Clarke, if you're able to provide the data proposal to the Commission as soon as you're able to do that and then I'll grant seven days for parties to make any commentary on that and I'll have regard to all of that and the submissions that have been made today in settling and publishing my report.


Are there any other submissions the parties want to make?


MR CRAWFORD:  Yes ‑ ‑ ‑


MR CLARKE:  Yes, Commissioner.


MR CRAWFORD:  Sorry, go on.


THE COMMISSIONER:  Yes, Mr Clarke, is that you?


MR CLARKE:  Sorry, you can hear from Mr Crawford first.  That's okay, sorry.


THE COMMISSIONER:  All right.  Mr Crawford?


MR CRAWFORD:  Thanks, Trevor.  I was just going to reiterate one point.  It is in our written submission, but the Oil Refining and Manufacturing Award seems to be a bit  unique, in that the full‑time rate I think equates to the national minimum wage, but it's a 35‑hour week award so the hourly rate is actually above the national minimum wage hourly rate.  So we thought that may take that award potentially out of this process, and I just wanted to highlight that.


THE COMMISSIONER:  Yes.  No, I understand.  Obviously that ultimately a matter for the Full Bench, but I understand the position is that on that approach the AWU, at least, is not agitating for a review of that award.


MR CRAWFORD:  Correct.  Thank you.


THE COMMISSIONER:  Yes, all right.  Yes, thank you, Mr Crawford.  Mr Clarke?


MR CLARKE:  Yes, just a sort of housekeeping matter, Commissioner.  To the extent that it wasn't already obvious from each of the unions, they did indicate in their submissions which awards they actually did have an interest in.




MR CLARKE:  I might ask that the employer associations or others involved also make the same indication at some point in the very near future.


THE COMMISSIONER:  I understand.  That would be helpful.  Thank you.  Any other submissions to be made?  No.  Thank you all for your attendance at the conference and for your submissions.  I've outlined the process from here and will obviously keep you informed.  This might be your last opportunity to comment on this matter, but hopefully it moves the matter forward in the near future.  So thank you all.  The Commission will be adjourned, and good morning.

ADJOURNED INDEFINITELY                                                          [11.09 AM]