TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1048892-4

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
VICE PRESIDENT CATANZARITI
SENIOR DEPUTY PRESIDENT HARRISON
COMMISSIONER CARGILL

C2013/5139

s.302 - Application for an equal remuneration order

United Voice; Australian Education Union
and
The Association of Independent Schools of Tasmania Incorporated; Association of Independent Schools of Western Australia (Inc); Association of Quality Child Care Centres of NSW Inc; Child Care Centres Association of Victoria; Childcare Queensland Inc; Australian Federation of Employers and Industries; Childcare South Australia; Child Care Association of Western Australia; Community Connections Solutions Australia; The State School Teachers' Union of W.A. (Incorporated); Association of Independent Schools of South Australia; Department of Education, Employment and Workplace Relations; Australian Chamber of Commerce and Industry; Australian Childcare Centres Association; Australian Community Children's Services; Australian Community Services Employers Association, Union of Employers; The Australian Industry Group; The Australian Industry Group; Chamber of Commerce and Industry; Tasmanian Chambers of Commerce & Industry; Australian Municipal, Administrative, Clerical and Services Union-New South Wales and ACT (Services) Branch
(C2013/5139)



Sydney

1.07PM, TUESDAY, 24 SEPTEMBER 2013

Continued from 6/9/13

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN SYDNEY

PN237

JUSTICE ROSS: Can I take the appearances, firstly in Sydney – and if you just keep your seat so we don’t have a problem with the camera yo-yoing around.

PN238

MS C. HOWELL: May it please the commission, Ms Howell, initial C, instructed by Mr Matthew (indistinct) I seek permission to appear for the applicant unions, United Voice and the Australian Education Union.

PN239

JUSTICE ROSS: Thank you, Ms Howell.

PN240

MS L. ANDELMAN: Please the commission, Andelman, initial L, and I seek leave to appear for the Independent Education Union of Australia.

PN241

JUSTICE ROSS: Anyone else?

PN242

MR N. GOULIADITIS: Gouliaditis, G-o-u-l-i-a-d-i-t-i-s, initial N. I appear for the Commonwealth.

PN243

JUSTICE ROSS: Thank you.

PN244

MR N. WARD: Ward, initial N.

PN245

JUSTICE ROSS: I think we’ve got one more.

PN246

MR M. RIZZO: Your Honour, Rizzo, initial M, on behalf of the ASU.

PN247

JUSTICE ROSS: Thank you.

PN248

MR……….: Sorry, your Honour (indistinct) initial N, from the Australian Chambers of Commerce and Industry, Australian Business Industrial and the Tasmanian Chambers of Commerce and Industry.

PN249

JUSTICE ROSS: Thank you, Mr (indistinct)

PN250

MS G. VACCARRO: Your Honour, Vaccarro, initial G, for the Australian Industry Group.

PN251

JUSTICE ROSS: Thanks, Ms Vaccarro.

PN252

MR J. GUNN: Your Honour, Gunn, initial J, for Community Connections Solutions Australia.

PN253

JUSTICE ROSS: Mr Gunn.

PN254

MR A. DANSIE: Your Honour, Dansie, initial A, from Local Government of New South Wales and the State and Territory Local Government Associations.

PN255

JUSTICE ROSS: Thank you, Mr Dansie.

PN256

MR S. FORSTER: Your Honour, Forster, initial S, for the Australian Federation of Employers and Industries.

PN257

JUSTICE ROSS: Thank you. Anyone else in Sydney? No? In Melbourne?

PN258

MS……….: Brisbane?

PN259

MS A. THRELFALL: My name is Threlfall, initial A, and I appear on behalf of the Australian Education Union, Victoria Branch.

PN260

JUSTICE ROSS: Aren’t you appearing, Ms (indistinct), for them?

PN261

MS……….: I’m appearing for the Australian Education Union.

PN262

JUSTICE ROSS: Yes. I wonder just in future if we can not have an unnecessary link because - - -

PN263

MS……….I apologise for that.

PN264

JUSTICE ROSS: No, not at all, because it’s been delayed because the link to Melbourne dropped out and – all right. Brisbane?

PN265

MR C. HARDY: Yes, if it pleases the commission, Hardy, initial C, appearing on behalf of the Australian Community Services Employers Association, and with me is a colleague, SUSAN (indistinct).

PN266

JUSTICE ROSS: Thank you, Mr Hardy.

PN267

MR L. MALONEY: Your Honour, Maloney, initial L E. I appear as agent on behalf of the Australian Child Care Centres Association, Good Start Early Learning (indistinct) Crèche and Kindergarten Association (indistinct) and also the Australian Child Care Alliance whose members are the Association (indistinct) Child Care Centres of New South Wales, Child Care Association of Western Australia, Childcare Centres Association of Victoria, Childcare Queensland Inc and Child Care South Australia. Thank you.

PN268

JUSTICE ROSS: Thank you, and in Adelaide?

PN269

MR H. WALLGREN: Your Honour, appearing for the South Australian Employers Chamber of Commerce and Industry, Wallgren, initial H.

PN270

JUSTICE ROSS: Thank you, Mr Wallgren, and in Western Australia?

PN271

MS J. MURPHY: If it pleases, Murphy, initial J, on behalf of the Chamber of Commerce and Industry of Western Australia and the ACT Chamber of Commerce and Industry.

PN272

JUSTICE ROSS: Thank you, Ms Murphy. I might just ask you if you can just speak into the microphone when we come back to you because your voice was fading in and out. Can I deal with the applications for permission to be represented by a lawyer or paid agent. Is there any objection to any of those applications? Are they put on the basis that having regard to the complexity of the matter it could be more efficiently dealt with by representation?

PN273

MS HOWELL: Yes, your Honour.

PN274

JUSTICE ROSS: Does anyone contest that proposition? No? We’re happy to grant permission in each instance. Can I deal with some preliminary matters. The first is that a website portal has been set up for the purposes of this case. You were all advised, I think, of how you register onto that site. That will enable – it will facilitate service because once you file material it will be loaded onto that site and it will automatically be served, or you will be notified when something new comes onto the site. We have received an amended application drafted 5 September, and one filed on 23 September. Can I ask those interstate just not to rustle your papers near the microphone. Thanks.

PN275

We have received a range of submissions on this. The ABLA dated 16, 17 September; Livingstones 17 September; Business SA and CCIWA 17; the LGA 17, ACSEA 18 September; AFEI the eighteenth, CCSA the twentieth. We forwarded – oh, and LGA filed a revised submission on the twentieth as well. Is there anything that’s been filed that we’ve lost sight of for whatever reason? No? You can take it we’ve had the opportunity to read all that. So I don’t really want you to read it again. We circulated a covering note, some draft directions and a paper prepared by the Pay Equity Unit, and one of the purposes today is to get any responses to those documents.

PN276

I might begin with you, Ms Howell, and if you want to deal with those – but also, as you will have seen, there are a range of issues raised across the submissions that have been filed and you should feel free to address those as well.

PN277

MS HOWELL: Thank you, your Honour. First of all, with respect to the amended applications. The draft of 5 September was essentially a draft for the purpose of the two scoping conferences which the parties have had the benefit of. The amended application, which was filed and served on the parties yesterday, to some degree reflects some of the comments and contributions made by other parties with respect to the draft of 5 September. So the draft of 5 September can be disregarded, and our position is per the application which was filed and served yesterday. Obviously the other parties haven’t had the opportunity to give us feedback on that application.

PN278

With regard to the proposed timetable, the submissions of the other parties were also made with respect to the proposed application, or the draft application, but also with regard, I think, to the timetable that the applicants at that stage were proposing. That has been superseded, I think, by the - - -

PN279

JUSTICE ROSS: Just bear with me for a minute. I think in one of the other States you keep bumping the microphone. Can you have a look where the microphone is and push it away from you? Okay, thanks. Go on, Ms Howell.

PN280

MS HOWELL: Thank you, your Honour. The proposed timetable, which was circulated by the commission on the nineteenth, really suggests a somewhat different approach to that which the applicant unions had suggested originally but, having considered the timetable, the applicant unions think that that is an appropriate course –that is to focus on aspects of the research to be undertaken by the Pay Equity Unit - and then also on the legal, or the legislatively conceptual framework. If the parties and the commission are taking that approach then really some of the matters which are raised in the various submissions of the parties, in my submission, would properly fall to be determined at a later stage in the proceedings.

PN281

JUSTICE ROSS: Some of them might fall to be determined in that first (indistinct) if you like, as well. Can I give you a couple of examples? The Business SA submission where they put a contrary view to the view expressed in the (indistinct) decision about whether or not there was a need for a male comparator.

PN282

MS HOWELL: Yes.

PN283

JUSTICE ROSS: The LGA, for example, foreshadows a preliminary adequate alternative remedy point and that may be something that could also be dealt with in those earlier proceedings. There’s a submission from Livingstones, which I don’t need to go into. At some point we made need to because I’m just grappling to try and understand the point that’s been put, but this in relation to item 2D of your application and the contention that that might be beyond power or inappropriate. So there may be those issues. There were some others that might benefit from either further elaboration by you now or to continue to endeavour to refine the application and have a further series of scoping conferences.

PN284

Can I put to you ABI’s point, for example, the – and it’s not dissimilar to the LGA’s proposition, though framed differently, and that is whether you’re proposing to run a work value case in the four yearly review next year - - -

PN285

MS HOWELL: Yes.

PN286

JUSTICE ROSS: - - - and that might raise an issue about whether these proceedings should be – I took it the sub-point was these proceedings should be stayed until such time as any such work value was run through, if that was indeed your intention.

PN287

MS HOWELL: I can put on the record, your Honour, that there’s no such (indistinct) there’s no (indistinct) we put it positively, the applicant unions do not (indistinct) - - -

PN288

JUSTICE ROSS: All right.

PN289

MS HOWELL: - - - work value application.

PN290

JUSTICE ROSS: Okay. All right. I’m sorry, Ms Howell, I interrupted you. Please go on.

PN291

MS HOWELL: I think I was only in the course of saying, your Honour, that the (indistinct) proposed (indistinct) the general approach in the document circulated seems appropriate to the applicant unions. There’s only one very minor point with the timetable which I would raise, and there are obviously a range of different legal issues and perhaps different parties might have different perceptions as to what legal and conceptual issues fall to be addressed in that process. The timetable provides that the applicant unions file submissions by 14 February and the respondent parties to file submissions by 28 February.

PN292

It seems to us that there might be some (indistinct) applicant unions having the opportunity to reply in writing to any submissions filed by the respondents, only because it’s conceivable that both parties might raise some issues that we haven’t anticipated and haven’t addressed in our submissions. Other than that, if it please the commission, the timetable seems appropriate to the applicant unions and I can also say that the applicant unions support the proposal for facilitative consultation, which was also circulated on 19 September for the Pay Equity Unit. So I think really it’s a matter of what issues from the employer groups are outstanding and how they would best be accommodated with that framework.

PN293

JUSTICE ROSS: Can I suggest to all the parties that I don’t think it’s necessary at this point to focus particularly on the 14 February and then the 20 April reply, whether that’s an adequate time period. Let’s just deal with it at a broader conceptual level at this stage because what’s apparent from the submissions that have been filed that you said there would be some utility in providing greater clarity around what exactly are the legal issues that are between the parties, and try to address all of those in that first process. Now, that might mean that the proponent of a particular argument files on an earlier date. That may not be the union.

PN294

For example, if the Local Government Association wishes to advance their adequate alternative remedy argument that they’ve foreshadowed then they may do that on the same date as the union’s filing its materials about something else. So I think the detail around what issues might be canvassed and the exact timetable, I think, will be the subject – you will have a further opportunity in relation to that ,given the time we’ve got available today, and there would be some further draft that you be given an opportunity to comment on. So I don’t want you to focus on the (indistinct) of that. Let’s deal with the broad approach. Is it sensible to deal with a range of these preliminary issues first? - and secondly the role of the Pay Equity Unit.

PN295

A number of the submissions that have been filed on the latter point, I think, have probably been overtaken by the paper in as much as the paper makes it clear that the unit won’t be expressing an opinion in any, sort of, qualitative sense. They will be facilitating the gathering together of data sources currently available, in the same way as the research unit does for the annual wage review. To the extent that, as matters emerge, any party has a concern about the direction that process might be going in, there would in any event be liberty to apply back (indistinct) and we could exercise some control and supervision over that process.

PN296

So I hope that will mean I might have persuaded you not to jump at shadows about what it may do, but if you participate in a process and if it turns out that it’s doing something you don’t think is appropriate then you would have an opportunity to raise that. Was there anything else you wanted to say, Ms Howell?

PN297

MS HOWELL: Not at this stage. Thank you, your Honour.

PN298

JUSTICE ROSS: All right. Is there anything else from any of the union parties?

PN299

MS ANDELMAN: Yes, your Honour. The Independent Education Union will be making an application.

PN300

JUSTICE ROSS: Yes.

PN301

MS ANDELMAN: It will be the same, or comparable, to the application made by the union parties – and what we seek, your Honour, is a direction for that application to be made by 24 September.

PN302

JUSTICE ROSS: Why would we need to make that direction?

PN303

MS ANDELMAN: Just the - - -

PN304

JUSTICE ROSS: I mean, you are the applicant. You can file it whenever you like.

PN305

MS ANDELMAN: Yes, your Honour. Can we just raise that - - -

PN306

JUSTICE ROSS: I think you’ve indicated you’re going to file it within 14 days.

PN307

MS ANDELMAN: Yes.

PN308

JUSTICE ROSS: So I think everyone’s heard that, and once you’ve filed it it will be loaded onto the site and circulated.

PN309

MS ANDELMAN: If the court pleases.

PN310

JUSTICE ROSS: Anything else? No?

PN311

MS ANDELMAN: No.

PN312

JUSTICE ROSS: Yes. Mr Rizzo?

PN313

MR RIZZO: Yes, your Honour, just very brief points. (1), the ASU supports the the draft directions as issued by the commission; (2), we also support, as the Commissioner has put, the role (indistinct) the Pay Equity Unit undertaking research; and (3), the ASU (indistinct) on how this case affects a lot of government award and a lot of government industry - and we would take a continuing interest in that regard in particular, your Honour.

PN314

JUSTICE ROSS: Okay. Thank you. Convenient to deal with Mr Ward first, and just go – no need to stand because - - -

PN315

MR WARD: Your Honour, if you wouldn’t mind, I prefer to (indistinct)

PN316

JUSTICE ROSS: Yes. No, sure, and then we might go through the employers in Sydney and then go to the other States.

PN317

MR WARD: Your Honour, can I just say at the outset that in relation to the appearance of the Australian Chamber of Commerce and Industry I have got no specific instructions in relation to the timetable but ACCI continues to appear in these proceedings as a (indistinct) counsel and obviously has a particular interest in relation to the legislative hearing that will occur in March.

PN318

JUSTICE ROSS: Indeed.

PN319

MR WARD: Otherwise could I make some very brief submissions? We were one of the parties who took some issue with the potential role of the Pay Equity Unit. Can I indicate to the commission at this stage, having read the proposal for facilitative consultation (indistinct), as your Honour, the presiding member, has indicated, that largely allays our concerns. The focus now appears to be on the formulation of a draft data report of available statistical data with no commentary or analysis of the data. So that goes along way to allay the concerns we had. We believe that the approach the commission is adopting is an appropriate exercise of discretion under section 590, and we are further comforted by the opportunity to have the matter relisted if there’s any issues in the roundtable process. Can I make two brief submissions on the timetable, bearing in mind that your Honour’s already indicated some degree of fluidity about the dates?

PN320

JUSTICE ROSS: Yes.

PN321

MR WARD: In relation to the submissions we have made and filed on 16 September, one of those major issues we raised about work values has been answered. It seems to us that other matters we raised in those submissions are now appropriately ventilated in March, with one exception, and that is this. The applicant refers at various points in the grounds to their application to what are described as comparisons to other occupations and/or industries, and it seems to us that the proper identification of what those industries or occupations might be should be considered at an earlier stage rather than March or later – but this was –it’s likely, if the commission is looking at the efficient management of this case, that some consideration of what those industries or occupations are should be the subject of discussion at the roundtable process to determine whether or not there is any available statistical data relevant to those industries or occupations that can be brought forward as part of the data report from the Pay Equity Unit.

PN322

That’s a matter which we think the commission should give some consideration to. The applicants today, they’ve indicated they don’t intend to identify those occupations or industries until they file their evidence, and we believe that’s an unreasonable inefficient approach to adopt.

PN323

JUSTICE ROSS: We would certainly have to consider that issue at some point, and I see the force in the argument that the parties might be assisted by a decision from us in relation to the appropriateness of whatever comparators are put forward. Otherwise you might end up putting the whole of an evidentiary case only at the end to discover the bench has a different view to the applicant about what the appropriate comparators were. It might be a question of when though. It might form part of that first iteration or it may then be a process that occurs before we get into the evidence, but I understand the proposition you’re putting. You don’t want to be faced with having to meet a case, only understanding at the eleventh hour what it was.

PN324

MR WARD: Well, we put that but we also put this as well though, your Honour, it may well be that there is statistical data available relevant to those
industries - - -

PN325

JUSTICE ROSS: Indeed.

PN326

MR WARD: - - - that could be gathered as part of the roundtable process and the data report, and if the commission’s attempting to approach this as a matter of efficiency - - -

PN327

JUSTICE ROSS: Yes.

PN328

MR WARD: - - - it seems to us that that data should be gathered at the same time while other data is being gathered rather than at a much later date.

PN329

JUSTICE ROSS: It probably wouldn’t make much difference. There’s no reason why you couldn’t just reconvene the roundtable to deal with, “Is there any data available on these comparators?” I would think, on your argument, there would need to be some sort of decision or guidance from us about what our view is on the comparators before we start looking at data. What would the research unit be gathering?

PN330

MR WARD: Well, we put it slightly differently. Unless the bench form the view that there was no need for a comparator - - -

PN331

JUSTICE ROSS: Oh, yes.

PN332

MR WARD: - - - which obvious is a possibility – one we would find strange but possible.

PN333

JUSTICE ROSS: Yes.

PN334

MR WARD: The applicants identified that they have identified comparisons and they’re going to rely on (indistinct) and that being the case we just simply say that if there is statistical data available on those comparisons it just seems reasonable and efficient that that be captured at an early stage, just from an efficiency perspective.

PN335

SENIOR DEPUTY PRESIDENT HARRISON: Does the availability of data affect the selection of (indistinct) comparator and (indistinct) prefer a comparator that has data available (indistinct) one that doesn’t?

PN336

MR WARD: Well, I don’t know, your Honour, because I don’t know what the comparators are. It’s a difficult exercise in itself but it might well be the case that those comparators can be easily identified. They may well be a wealth of statistical data available on those comparators which could assist all the parties and the commission in the efficient management of the case. It might not be but we don’t know because we’re in the dark.

PN337

JUSTICE ROSS: Yes. Okay.

PN338

MR WARD: If the commission pleases?

PN339

JUSTICE ROSS: Ms Vaccarro?

PN340

MS VACCARRO: Thank you, your Honour. Our (indistinct) that this has been (indistinct) consultations that were conducted a few weeks ago, particularly on the question of research (indistinct) was discussed and we expressed our reservations on the Pay Equity Unit’s role in conducting research in response to a request by an applicant in a case that’s been (indistinct) application basis, I guess.
We reviewed the documentation the commission has provided to us on the nineteenth (indistinct) Thursday and the (indistinct) that the documentation (indistinct) to reconcile all the differences, or come to some form of compromise, with the parties in that respect.

PN341

We still have reservations about the commission (indistinct) Pay Equity Unit to undertake research in response to a request made by an applicant, as distinct from the process that’s undertaken during the annual wage review (indistinct) that’s a review under the Act.

PN342

JUSTICE ROSS: But where does the paper say that’s what the Pay Equity Unit would be doing?

PN343

MS VACCARRO: Well, the view – in respect of the paper (indistinct) - - -

PN344

JUSTICE ROSS: The one that was circulated, yes?

PN345

MS VACCARRO: Well, the - - -

PN346

JUSTICE ROSS: Where does it say that it would be undertaking research at the request of the applicant?

PN347

MS VACCARRO: Well, it doesn’t say that in the paper (indistinct) that comment, your Honour.

PN348

JUSTICE ROSS: No.

PN349

MS VACCARRO: The process of the way that this application has been advanced is that there has been a request by an applicant - - -

PN350

JUSTICE ROSS: No. Sure. Yes, but - - -

PN351

MS VACCARRO: So - - -

PN352

JUSTICE ROSS: Yes.

PN353

MS VACCARRO: - - - what is that proposition?–and the Pay Equity Unit’s research might not even touch on the aspects of what was in that request and (indistinct) completely different. We understand that (indistinct) look at (indistinct) issues of demographics and we are comforted by the fact that (indistinct) proceeding on a statistical and quantitative basis without opinion or analysis being made with any document (indistinct) it is clearly (indistinct) on a factual basis. So that, we are comforted by. There is also the concern – we haven’t been – well, this is the first case we recognise of being the nature where there has been a request, or some research connected to an application – or something of this nature - - -

PN354

JUSTICE ROSS: But you keep referring to the request. It doesn’t really matter what the applicant’s requested. It’s what is the Pay Equity Unit going to be doing?

PN355

MS VACCARRO: I understand that, your Honour.

PN356

JUSTICE ROSS: And that’s set out in the paper.

PN357

MS VACCARRO: I understand that, your Honour, yes. It’s - - -

PN358

JUSTICE ROSS: It’s not the first case where there’s been a research request. Research requests are made every year, including by your organisation, to the annual wage review.

PN359

MS VACCARRO: We (indistinct) that this process is a little bit different to the annual wage review, and we understand what your Honour is putting. So, I guess, we – and we understand that the paper has gone to an effort to be cautious and not to express a view, and we are comfortable with the process that if it proceeds on a neutral basis and there’s an analysis (indistinct) the timetable. We hear what your Honour has mentioned about the matters of detail in terms of dates for submissions and whatnot - but if I might just raise the point about the 28 February date, knowing that it might change, we recognise (indistinct) a two week turnaround (indistinct) applies.

PN360

JUSTICE ROSS: Oh, yes.

PN361

MS VACCARRO: So (indistinct) consideration at a later date if that - - -

PN362

JUSTICE ROSS: You know, I am conscious of that as well. It was one of the reasons I raised it. Yes. No, as I say, there will be a further opportunity to comment on the specifics of when you file and when you respond, and whether indeed there’s a response to what’s filed by others. It depends on a little bit on probably a conference around identifying exactly what issues are going to be addressed, and once we know that I think that will inform the latter part of that timetable – and in relation to the Pay Equity Unit, I reiterate the point I made before that you, like any organisation here, is free to participate in that process and if you are concerned about the (indistinct) of it then there is liberty to bring it back here and we can deal with the matter then.

PN363

MS VACCARRO: If the commission pleases, they are our submissions. Thank you.

PN364

JUSTICE ROSS: Thank you. Yes?

PN365

MR GUNN: Your Honour, CCSA maintains the position placed in its submissions last Friday. We acknowledge that it’s the applicants’ application to the degree in whatever manner they see fit - - -

PN366

JUSTICE ROSS: Yes.

PN367

MR GUNN: - - - but we remain concerned about the fact that an equal remuneration (indistinct) it actually create an (indistinct) situation by virtue of the fact that the applicants are choosing to base their application on the nature of the employer’s business structure rather than on the classifications in the relevant modern awards. That’s a very different approach to what happened in the previous (indistinct) remuneration, and that is where specific classifications were chosen irrespective of the employment (indistinct) the nature of the employer.

PN368

JUSTICE ROSS: Yes.

PN369

MR GUNN: We will be continuing to put those cases. I am presuming, from the directions of that (indistinct) would be the sort of the issue that would be addressed in (indistinct)

PN370

JUSTICE ROSS: Well, we’ll find out in due course about that. I was struck, in reading your submission – I understand the point you’re putting but I’m not sure, other than - I’ve taken the proposition to be that that might be a matter that goes to our discretion in the event that we get to the point where we’re giving consideration about whether or not to make an order - that it might have disruptive effects. I might be wrong about that. I didn’t understand you to be saying we should somehow – assuming we had this power, direct the applicants to broaden their submission. I’m not sure how we – sorry, the application of the submission. The applicants frame it, and the coverage of it, in the manner they determine – and you have foreshadowed that you will be arguing, presumably, we shouldn’t make an order because it would in fact create more problems than it might solve.

PN371

MR GUNN: I find myself in a really difficult position, your Honour, because we are already supporting the applicants’ case regarding genuine valuation of the workforce.

PN372

JUSTICE ROSS: Yes.

PN373

MR GUNN: We just don’t see that a solution that requires (indistinct) and the Commissioner’s consideration of having to provide equitable outcomes, I think, has placed (indistinct) difficult position. We also feel it’s a very inefficient use of resources to address this issue now for (indistinct) given the amount of resources the commission is putting into it, only to come back at some stage in the next two, three, four years, whenever it may be, to revisit the same issue. We think it can be done in a straightforward manner addressing everyone in the important classifications that the applicants are proposing the remuneration order should apply to.

PN374

JUSTICE ROSS: I hesitate to raise this but there’s no barrier on you filing an application, is there?

PN375

MR GUNN: There is – well, I understand there is, your Honour, because I am neither an employee organisation or an employee (indistinct)

PN376

JUSTICE ROSS: Oh, I see.

PN377

MR GUNN: So that’s our difficulty here.

PN378

JUSTICE ROSS: Okay.

PN379

MR GUNN: Our only other opportunity is to approach the Sex Discrimination Commissioner, the only other party who can (indistinct) an application.

PN380

JUSTICE ROSS: Yes, indeed. Yes. No. Okay. All right. Anything else? No?

PN381

MR GUNN: No, your Honour.

PN382

JUSTICE ROSS: Thank you. Yes?

PN383

MR DANSIE: Thank you, your Honours and Commissioner. Now, firstly, can I make the point that the State and Territory Local Government Associations take the view that if gender undervaluation is identified and can be measured then it can obviously be addressed, and we just want to make that clear at the outset. In terms of the conceptual framework of the directions, we support that conceptual framework and we also think that it is appropriate that if we are to put forward an argument on the basis of alternate remedy that that also occur at the same time that the applicants’ put in their submission on the legislative framework. We would also be seeking an opportunity to reply, if necessary. Picking up on the point about the two weeks, there will probably be some tweaking that might need to occur.

PN384

JUSTICE ROSS: Yes.

PN385

MR DANSIE: The issue about a comparator, we wholeheartedly support the comments of Mr Ward in relation to the need for comparators to be identified at an early stage if they are to be part of this case. It is an equal remuneration case. So what we would want to know is what are the applicants asserting the undervaluation is equal to? Equal to what is, I guess, what we want to know, and how do they propose to measure it? That’s why if the Pay Equity Unit is to have a role in terms of finding data in relation to (indistinct) day care similar data should be found in relation to the comparator so that we understand the equal to what and how that can be measured? It just seems, for the efficient exercise of the case, that that occur at about the same time.

PN386

The role of the Pay Equity Unit, I think we fairly articulated our position in the document that we sent forward on 20 September 2013, and assuming the Pay Equity Unit is to have a role in it we would obviously want to participate in the roundtable – and that the issues that we have identified in that document of 20 September, you can anticipate they’re the sort of things that we would be agitating in that process.

PN387

JUSTICE ROSS: Thank you.

PN388

MR FORSTER: Yes, thank you, your Honour. AFEI are also one of the parties that benefited from the (indistinct) efforts during the two days of conference over the last few weeks. We are also one of the parties from the employer’s side that expressed a great deal of concern about the Pay Equity Unit doing research. Mind you, that was in response to an application. I appreciate that the Pay Equity Unit has gone some way towards narrowing the nature of any inquiry that they might conduct, and I think it is wholly appropriate that that is limited to available data that is (indistinct) to obtain – and we also, I think, are most satisfied with your Honour’s suggestion that if it turns out that the Pay Equity Unit is doing something that we were told it wouldn’t be doing, or that we deem appropriate, that we have an opportunity to seek some level of intervention by the commission and that (indistinct) exercise (indistinct) some control in that process. Just in relation to the points that have already been made – I won’t repeat them, save to say that I do endorse what’s been put by both Mr Ward and Mr Dansie in relation to the utility of examining any other available material for any comparators at the time - - -

PN389

JUSTICE ROSS: Yes.

PN390

MR FORSTER: - - - that that roundtable is convened.

PN391

JUSTICE ROSS: Okay.

PN392

MR FORSTER: (indistinct)

PN393

JUSTICE ROSS: Thank you. Anyone else in Sydney?

PN394

MR GOULIADITIS: Your Honour?

PN395

JUSTICE ROSS: Yes.

PN396

MR GOULIADITIS: I appear - - -

PN397

JUSTICE ROSS: Yes.

PN398

MR GOULIADITIS: - - - for the Commonwealth in this matter. The Commonwealth hasn’t had time to consider what role (indistinct) or what its position will ultimately be, but we don’t oppose the timetable that’s been proposed (indistinct) sufficient time for accommodating the necessary decision making processes that will have to occur. I have been instructed to raise with the commission the fact that one of the new Government’s pre-election commitments was to task the Productivity Commission with an inquiry into the childcare sector, and that inquiry is meant to be completed within 12 months of the election. Now, the terms of reference haven’t been issued, your Honour, and I can’t put it any higher than the fact that (indistinct) was a creation commitment – but we do ask the commission to consider in due course the terms of those (indistinct) the scope of the terms of the reference and the timetable of the Productivity
Commission - - -

PN399

JUSTICE ROSS: Sure.

PN400

MR GOULIADITIS: - - - and I think then the best way forward is that I perhaps simply formally write to the commission and the parties (indistinct)

PN401

JUSTICE ROSS: Sure. Okay. Nothing further?

PN402

MR GOULIADITIS: No.

PN403

JUSTICE ROSS: Can I go to Brisbane?

PN404

MR MALONEY: Yes, your Honour, Maloney, L.E. We (indistinct) have no issue with the draft directions as published on the twentieth. We now understand, from reading the paper, about the role of the PEU and we would probably say, at this point in time, we’re comfortable with that. The only issue, I think, that we have still some concerns about, as really has been pointed to by my friend from ACCI, and that is that the lack of knowledge of what is (indistinct) to be used in this matter – and we probably say that we would really need to know that in advance of putting forward an evidentiary case (indistinct) your Honour has (indistinct) to (indistinct) misdirecting our evidence and having to go back and seek further evidence, or to delay the proceedings, in the lack of knowledge of that – and I take onboard your Honour’s suggestion that perhaps (indistinct) the bench may well have to decide on (indistinct) to have the evidence better targeted and focused on those issues. They are the only comments we make, your Honour.

PN405

JUSTICE ROSS: Thank you, Mr Maloney.

PN406

MR HARDY: Your Honour, Hardy, C, on behalf of the ACSEA. Just hearing from some of the comments in Sydney, and from listening to my colleague Mr Maloney, we don’t disagree with, I suppose, the lack of confusion in relation to comparators or, as it would appear, a lack of confusion in relation to comparators. I think, sitting on the sidelines as it were, the Full Bench is going to have its hands full trying to juggle the outcomes of the Productivity Commission hearing along with the EEU, and also trying to set in place a clear and identifiable set of goal posts in relation to those comparators. Other than that we stand by our position we put in our submission of the eighteenth.

PN407

JUSTICE ROSS: All right. Thank you.

PN408

MR HARDY: Thank you.

PN409

JUSTICE ROSS: Can I go to Business SA in Adelaide?

PN410

MR WALLGREN: Yes, your Honour. Your Honour, I will be quite brief. We have made a joint submission with CCIWA - and my colleague Ms Murphy on behalf of CCIWA, and for the ACT Chamber as well as Business SA (indistinct) further add to our written submission, as the commission pleases.

PN411

JUSTICE ROSS: Thank you, and in WA? Ms Murphy, was there anything you wanted to add?

PN412

MS MURPHY: Yes, your Honour. We certainly agree with the submissions made by Mr Ward earlier today, that there is value of obtaining details about comparators sooner rather than later in these proceedings. It’s our view that until we have such information it will be difficult for the respondents to undertake meaningful research in (indistinct) - - -

PN413

JUSTICE ROSS: Yes.

PN414

MS MURPHY: - - - and we certainly take onboard your Honour’s comments that we may raise issues about the Pay Equity Unit’s role and functions as and when appropriate.

PN415

JUSTICE ROSS: All right. Thank you. If there’s nobody else I might go to Ms Howell in reply - and, look, the issue that’s been agitated by a number of parties is the question of comparators, and I think as a matter of logic – well, you may not accept it but I would think you would accept the proposition that before we get into the evidentiary case, at least, there would need to be some understanding about what comparators are going to be relied on. There may be an intermediate step about whether those comparators are appropriate, and there may be a contest about that – and there may be some utility in dealing with that issue prior to the evidentiary cases being filed by the respective parties.

PN416

I think the case is going to be complicated enough. Speaking for myself, I wouldn’t want to get into the position where there’s no real debate and determination about the appropriateness of certain comparators until you get the final decision – and then everyone’s run their evidentiary case on a particular premise and it may turn out that the premise is not correct, and I don’t think that’s in anyone’s interest. It may come down to a question of, well, if that’s broadly right then when would we get to that point?

PN417

MS HOWELL: Your Honour, the approach of the applicant unions is that in terms of (indistinct) comparators, both the number and the nature of the comparators, to some degree that is going to depend on decisions made by the tribunal with respect to the legal issues. An obvious example is whether you actually need a male comparator, as some of the parties - - -

PN418

JUSTICE ROSS: Yes.

PN419

MS HOWELL: - - - have already contended. Having said that, we appreciate the points that are made and of course we have given a fair bit of consideration already to what comparators we consider to be appropriate. It seems that perhaps the most productive course would be to have some provisional comparators available by the time the roundtable process commences, but without locking us in, because obviously subject to the outcome of consideration of legal issues we may want to (indistinct) them. So perhaps that’s the best way to accommodate the process. I think that process - the roundtable process starts early next year – early in January, which is well before the legal issues will be considered and well before the evidentiary case is required to be put on. So in that way the data which has been referred to can be collected with respect to the potential comparators.

PN420

JUSTICE ROSS: Can I frame the difference between what you’re proposing and what Mr Ward and others are proposing this way, that it seems to be common ground that the question of the comparators, and the appropriateness of them, should be determined prior to the evidentiary case. Prior to evidence being filed. That being the case it comes down to your proposition that, well, it doesn’t need to be finalised in the legal issues part of it, and in fact would be informed by the tribunal’s determination of those legal issues.

PN421

MS HOWELL: Yes.

PN422

JUSTICE ROSS: But it would still be an interlocketry step, albeit at a later stage, after the legal issues had been determined – and Mr Ward’s position is, well, he thinks it’s an interlocketry step that should be determined in conjunction with all the legal issues. Is that - - -

PN423

MR WARD: Well, yes, your Honour, with this caveat. We were looking at the practicality of this as well from a research - - -

PN424

JUSTICE ROSS: No. I understand what you say about the roundtable. Yes.

PN425

MR WARD: Yes.

PN426

JUSTICE ROSS: Yes – but, you know, that’s something in the balance of considerations (indistinct)

PN427

MR WARD: (indistinct) yes.

PN428

JUSTICE ROSS: Yes. Is there anything else you wanted to put, Ms Howell?

PN429

MS HOWELL: Only that I’m a little unsure as to what’s involved in determining the appropriateness of comparators? I’m not really sure if that’s been squarely raised and, you know, there’s some determination that our choices are not appropriate and we have to go and choose someone else, or something (indistinct)

PN430

JUSTICE ROSS: Well, if - - -

PN431

MS HOWELL: If the employer’s think we’ve not chosen the right people - - -

PN432

JUSTICE ROSS: Yes.

PN433

MS HOWELL: - - - (indistinct)

PN434

JUSTICE ROSS: Yes.

PN435

MS HOWELL: I’m just not clear how that would - - -

PN436

JUSTICE ROSS: No, nor am I. I understand it’s an important issue and it’s something that we need to come to grips with before everyone launches off and files evidence. How we do it, and the form of it, you know, probably requires some further thought - - -

PN437

MS HOWELL: Yes.

PN438

JUSTICE ROSS: - - - from everyone. All right. Can you just bear with us for a minute. Look, can we make this indication, we would invite all of the interested parties, by 4 pm this Friday, to file the issues which they believe ought to be determined in this, if you like, first (indistinct) of the proceedings. There is broad agreement around the Pay Equity Unit research roundtable. There have been reservations expressed about where that might go, but there will be liberty to apply in relation to those. So there will be a degree of control over it. There is broad agreement around at least the structure of the draft directions. We would like you to identify what you see – how you would frame the issues that would be determined in that first phase, understanding that there is a difference between you about the extent of the comparator issue.

PN439

The comparator question, having regard to the applicants’ offer of identifying perhaps provisional comparators, that might be something that could be usefully discussed between the parties during those consultative research roundtables and it may be that you are able to reach a resolution of it without the need for any involvement by us. I think the first step is if, by the end of 4 pm on Friday, each of you give some thought to what legal issues you want determined. We would then, as a bench, consider those; we would issue a statement shortly thereafter. That will identify with greater clarity what the issues are; how they might be determined.

PN440

We would then, at least provisionally, have a further mention and directions to finalise the issue of timing, and we would circulate a draft prior to that event so you’ve got something in front of you. If you have a view about timing, or any of those issues, you should feel free to put that in anything you file by 4 pm Friday – but that won’t be your last opportunity. You will have a further opportunity when you have identified what the issues are that will be decided in the first (indistinct)

PN441

MR WARD: Sorry, your Honour, can I just clarify?

PN442

JUSTICE ROSS: Yes, Mr Ward.

PN443

MR WARD: What is sought, is this simply the framing of the issue in simpliciter - - -

PN444

JUSTICE ROSS: That’s exactly right.

PN445

MR WARD: It’s not a development of the issue?

PN446

JUSTICE ROSS: No. Just the framing of the issue in simplicter.

PN447

MR WARD: Yes.

PN448

JUSTICE ROSS: We want to then identify, well, what are the issues that need to be determined? – and then we go through the process of settling what the directions might be to enable that to take place.

PN449

MR WARD: The commission pleases.

PN450

JUSTICE ROSS: Yes. All right. Anything further?

PN451

MS HOWELL: No.

PN452

JUSTICE ROSS: No?

PN453

MS HOWELL: Thank you.

PN454

JUSTICE ROSS: Thank you very much for your assistance – and we will adjourn.

<ADJOURNED TO A DATE TO BE FIXED [1.58PM]