TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 50957-1

SENIOR DEPUTY PRESIDENT WATSON

AM2011/13

s.158 - Application to vary or revoke a modern award

Application by Tyco Australia Pty Ltd
(AM2011/13)
Plumbing and Fire Sprinklers Award 2010

(ODN AM2008/15)
[MA000036 Print PR986378]]




Melbourne

10.05AM, FRIDAY, 27 MAY 2011

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA
VIDEO LINK AND RECORDED IN MELBOURNE

Continued from 31/03/2011

PN192

THE SENIOR DEPUTY PRESIDENT: I don’t think I will take appearances again. I’ll simply note at this stage we have in Sydney MR S. MCCARNEY for the CEPU, MR P. NAYLOR for MPA, MS K. YU for MPA, MR S. WILLIAMS for FPAA, MR R. SUTTON for FPAA, MR R. KIRAJEWSKI for Chubb and MR D. CROSS, and in Melbourne we have MR P. MCCRUDDEN of the CEPU, and MS C. COATE of the National Fire Industry Association. Now, the matter has been brought back on for further consultation at the request of the applicant. So perhaps I’ll start with you, Mr Cross. Is that appropriate?

PN193

MR D. CROSS: Thank you, your Honour. It might help if I just briefly paint the background so everyone is on the same page. Your Honour, this application was the subject of a hearing on 31 March as your Honour might recall. During the course of that hearing two issues, or two main issues, emerged in discussions that might, as it were, amount to impediments of the success of the application to vary the award. Those two matters would address the necessity for making the variation now as opposed to reserving it for consideration as part of the normal award review process.

PN194

And then secondly, the appropriateness of the manner in which the qualifying sprinkler systems tester, being one of the new classifications ought to be introduced in the award, the appropriateness of the grading that position because in the application as it originally stood that position as to be greater than the level of plumbing and mechanical services worker/sprinkler fitting worker on level 1D. And just so that everybody is on the same page, clause 20.1 of the award sets out the various classifications that are (inaudible) pay rates (inaudible) and the position is, and the longstanding position is as I understand it, is if one looks at the classification which is referred to as plumbing and mechanical services worker sprinkler fitting worker level 2 and be the one plumbing and mechanical services trades person sprinkler fitter trades person level 1, both of those classifications have the same weekly minimum wage rate and that’s the rate that historically, as I understand on my instructions, has been scrubbed as the 100 percent rate being the rate for the trades person.

PN195

So the issue to move on the last page was that by putting the qualified sprinkler systems tester at level 1D, which is slightly below, that constituted a pay rate of about 90 percent, not the 100 percent rate. Your Honour, in response to those issues having emerged at the hearing on 31 March the applicant has filed supplementary submissions on 8 April. In those supplementary submissions which I don’t intend to repeat or rehearse here, the applicant has put forward some quite detailed information as to why it would be appropriate and why the considered utility would best be served by the variation being filled with now, rather than reserve it with you.

PN196

In summary terms that will in actual fact be the shape of the (inaudible) the system which these changes are intended to allow them to be addressed is well (inaudible) is now proactive in approaching and the long announced proactive approach is preferred rather than one whereby we wait to see what ultimately emerges, then adjust, and then try and get it built with by way of award variation.

PN197

THE SENIOR DEPUTY PRESIDENT: Mr Cross, is there any material presently available which suggests that the national licensing system outcome for sprinkler system testers will require the holding of a certificate 3 qualification, which is reflected in your definitions?

PN198

MR CROSS: Your Honour, I might wish to take some instructions. I have an answer in my mind, but I wouldn’t like to find that those better versed with the background of the system than me have different information. So if your Honour - - -

PN199

THE SENIOR DEPUTY PRESIDENT: You might step outside the room for a moment to do that. I raise that because the application is brought in part on the basis of anticipating and reflecting the national licensing system outcome, and I’m just wondering on what basis it is presumed that there will be a requirement for a certificate 3 qualification in addition to the two particular models. If you need to step outside with whoever is appropriate to obtain those instructions, feel free to do so.

PN200

MR CROSS: Thank you, your Honour. I’ll seek that confirmation shortly. I might just finish by way of setting the scene.

PN201

THE SENIOR DEPUTY PRESIDENT: Yes, certainly.

PN202

MR CROSS: And then when others take the floor I can just quickly withdraw and confirm our instructions. So the supplementary submissions filed on 8 April has addressed that timing issue, and also sought to address a grading issue. And your Honour will recall that those submissions proposed a refinement to the text of the proposed variation. The refinement being intended to make it clear, which was the position of the applicants in any event, that this variation was not intended and would never be used for the purpose of taking someone who was already tradesman qualified in this discipline and by dint of asking them to undertake full time testing duties thereby secure some reduction in their effective grading and their effective rate of pay.

PN203

So refinement to the variations which were introduced was to make it clear that the particular definition that required the sprinkler system tester and the qualifications didn’t fall within any of the classifications otherwise dealt with in the award. And also that the certificate 3, which was the requirement, would not be a certificate 3 qualification in the fire (inaudible) discipline. And through that means the applicants hope to address any other concern that inadvertently this might be used to sort of erosion of skills or classifications. Some submissions were filed by the Master Plumbers on 15 April which opposed the application being dealt with at this time, and those submissions I meant by the issue of the upcoming award reviews, and suggest that the matter be deferred until that time.

PN204

On 21 April some further submissions were filed on behalf of the applicants which addressed that issue and also proposed a further adjustment to the variation to deal with the remaining or lingering concerns about the appropriateness of the classifications. And that change, your Honour, involved as it were moving the two new classifications up one level than where they had been originally proposed. So that the qualified sprinkler systems tester would be sitting on a level that attracts the 100 percent rate, the historical 100 percent trades persons’ rate, and the person who is in the process of qualifying as a sprinkler system tester would be at the level behind the rate of pay there, if your Honour looks at the two numbers, is 95 percent of that rate. So there’s a five percent differential in pay rate.

PN205

And that position is one which the applicants commend to your Honour as striking a proper balance between the need to ensure the applicants’ desire to put themselves on a footing where they can deal with this regulatory changes cannot result in some misalignment or erosion in connection with the classifications secured within the award. So the qualified sprinkler system tester would attract trades persons’ rate, the person who is in the process of qualifying, but behind we would say that that (inaudible) differential justifiable in this case because a grade 3 or certificate 3 holding that that person will have will as a result of adjustments to the variation not be in the fire protection discipline.

PN206

That person will be in the process of acquiring the models of the module (inaudible) enable them to function under the sprinkler system test. So it’s appropriate that that balance be struck and that there be that five percent differential. So that’s the sort of background that that, in summary terms, are the arguments and adjustments which the applicants have taken on board in an effort to ensure that this variation functions appropriately, but also to allow the industry to be able to satisfactorily deal with the regulatory changes that is forthcoming. I might stop there so that I can (inaudible) confirmation to address that point which your Honour raised with me earlier. Unless there’s any other further matters?

PN207

THE SENIOR DEPUTY PRESIDENT: No, that’s fine. Thank you, Mr Cross. Does anyone else wish to be heard this morning in Sydney?

PN208

MR R. KIRAJEWSKI: Your Honour, I might commence for Chubb. We support the application and to what Mr Cross has submitted to the tribunal this morning. One other point to make is that we have included, or it is included in our response, some comments with regards to a question that your Honour had asked of Chubb on the last occasion regarding testing classification in enterprise agreements, and that’s in the original (inaudible) sufficient. And there’s no need at this (inaudible), I don’t think, your Honour can go (inaudible) the tribunal at the moment. But we support the application and the submission that says that the issues that your Honour has raised at the last occasion have been addressed and I recommend the application to the tribunal. If the tribunal pleases.

PN209

THE SENIOR DEPUTY PRESIDENT: Yes, thank you Mr Kirajewski. Anything further?

PN210

MS R. SUTTON: Your Honour, Ms Sutton for the Fire Protection Association of Australia.

PN211

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Sutton.

PN212

MS SUTTON: Just my client’s submission to put on the record that supports the application and the submissions of Mr Cross this morning on behalf of Tyco and the applicants.

PN213

THE SENIOR DEPUTY PRESIDENT: Yes, thank you for that. Anyone else?

PN214

MS YU: Your Honour.

PN215

THE SENIOR DEPUTY PRESIDENT: Ms Yu, yes.

PN216

MS YU: Your Honour in the last hearing has asked last time, as I say, association to assist the court in terms of providing some background information about the national licensing scheme and also about the qualification about the trades person found that fits into the classification scheme of the award. We have made a submission on 15 April as Mr Cross has identified, and we rely on those submissions and emphasise the fact that it is a considered (inaudible) Master Plumbers and possibly for (inaudible) classification as ahead of the outcome of what the national licensing scheme what might be pre-emptive in terms of any qualifications that’s in similar terms.

PN217

Secondly, there is the concern that the recognised basis of a certificate 3 being the base line for a trades person, being now the base line for a classification that’s less than the trades person classification. In response to what Mr Cross has raised this morning, Mr Cross raised that the worker at level 2 has the same scale rate as a trades person level 1. While that is correct, we draw a distinction that this is only in relation to the wage rates. The classifications are still separate. One is a worker level 2 and one is a trades person level 1. Your Honour, it might be engaged in the review of the minimum wages for this financial year and we might expect that there are some changes in the wage rates of the award.

PN218

There’s a high distinction that it is distinguishing the wage rates and the application put forward here is a distinction in the classification category. In response to the second point raised by Mr Cross, the certificate 3 being the qualification requirement for a trade person, we believe that that should stay the case and there shouldn’t be any watering down of the trades person classification. And lastly we are concerned with the timetable of the national licensing scheme and there has been meetings of the various industry advisory committees and there is one for the plumbing and gas fitting occupations industry advisory committee to which Mr Naylor, who is the executive officer of Master Plumbers, is also a member. If your Honour has any questions in that regard Mr Naylor would be happy to assist the court.

PN219

THE SENIOR DEPUTY PRESIDENT: Well, the question I put to Mr Cross is a relevant one. Is there anything to your knowledge or Mr Naylor’s arising out of the review, the national licensing processes in relation to system testers which suggest that a certificate 3 qualification will be part of the requirement for it?

PN220

MS YU: Your Honour, that is a very good question and that is anyone’s guess at this stage because the regulatory impact statement has not been released as yet. And we refer to the annexure to our submissions. The previous (inaudible) takes all and that is the (inaudible) to my knowledge which sets out the timetable at the back of that (inaudible). Mr Naylor will be able to clarify why we raised July being the essential date where the regulatory impact statement will be released. To answer your Honour’s question, we don’t know (inaudible) what’s in the regulatory impact statement and we understand there is going to be a public consultation in place. Fire protection, which is mentioned on page 4 of that communicate, is covered in the regulatory impact statement and it would be (inaudible) classification in relation to any regulation which underpins the classification scheme including the fire sprinkler as well.

PN221

At that point the applicants, Tyco and to them who Mr Cross represents, is in a position like any other interested parties, to put forward a submission to (inaudible) the relevant industry bodies.

PN222

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Yu. Anything further from Sydney? No. Anything from Melbourne? Yes Ms Coate.

PN223

MS C. COATE: Your Honour, while I’m not a member of COAG industry advisory committee they have allowed me to participate as an observer. And my understanding of the licensing framework which they are attempting to apply at the moment, as set out in the submission by the Master Plumbers New South Wales, is that there will be a registered licensed level, a licensed level, and a contractor level and the registered level outcome is a required certificate 3.

PN224

THE SENIOR DEPUTY PRESIDENT: Sorry, registered license level, a licensed level?

PN225

MS COATE: Yes, which for the licensed level requires some certificate 4 training modules, and the contractor license area requires some of the business modules of certificate 4 to be undertaken, whereas the licensed level requires some trade competencies to beg undertaken at the certificate 4 level.

PN226

THE SENIOR DEPUTY PRESIDENT: So you say on your understanding of what’s being discussed a proposal, or the proposal, currently being discussed involves in effect two levels of tester and the contracts?

PN227

MS COATE: I have to say the discussions around the fire protection area have been less than those discussions about the plumbing and the gas fitting area.

PN228

THE SENIOR DEPUTY PRESIDENT: That’s more general.

PN229

MS COATE: But in the fire protection area there has been agreement that apart from the fire protection registration licensing area that have been considered, there will be special consideration in relation to the testing commissioning area. There has been discussion about that. But as Mr Naylor would attest, a lot of those discussions are still being formulated for placement into the regulatory impact statement and I guess that Mr Naylor’s and my understanding of the outcomes of that, that is all we can give you to inform you.

PN230

THE SENIOR DEPUTY PRESIDENT: Thank you for that, Ms Coate.

PN231

MS COATE: The other issue I would like to say is that there was a suggestion that level 1D was 95 percent. My understanding it’s 92.4 in the current award.

PN232

THE SENIOR DEPUTY PRESIDENT: Yes, the difference being between the original 89 relativities and - - -

PN233

MS COATE: Yes. It’s a minor difference, but certainly the level that was being put into the discussions, the National Fire Industry Association fully supports the new submission coming forward which has raised the issue. And while there have been suggestions to yourself that we should defer all this until the outcome of Knowles, I believe that the licensing issues within Knowles will be led by what’s in the training passages. And CPC08 version 6, which was approved by the national skills council on 9 April, I think, now contained the training modules which are referenced in the application from Tyco.

PN234

THE SENIOR DEPUTY PRESIDENT: The specific testing modules?

PN235

MS COATE: That's right, they are now contained within the training package and are available for viewing from the NTIS website in volume 7. I’m sorry, it’s a 500 page document. They no longer let you just bring down things.

PN236

THE SENIOR DEPUTY PRESIDENT: Trading documentation tends to be of that magnitude.

PN237

MS COATE: Yes. But it is now available up on NTIS. I am happy to send you the document if you so wish. I only got it myself last night, because it took them some time to load it.

PN238

THE SENIOR DEPUTY PRESIDENT: No, I don’t think I need bother you.

PN239

MS COATE: But they do now from part of certificate 3 fire protection.

PN240

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you, Ms Coate. Did you want to say anything, Mr Naylor? No. Mr Cross?

PN241

MR CROSS: Thank you, your Honour. In the interlude I was able to confirm our team, my client’s from the information that it had received, that certificate 3 level qualification really from the big stone of the new arrangements going forward. And it might help to illustrate the point, your Honour, if I could ask you to go to the submissions that were made by Master Plumbers and there is an annexure to those submissions which is a communiqué issued by the advisory committee in relation to the process.

PN242

THE SENIOR DEPUTY PRESIDENT: Communiqué 4.

PN243

MR CROSS: That’s the communiqué which the learned advocate for the Master Plumbers was (inaudible). If your Honour turn to the page 5 of that document, page 5 of the annexure, your Honour will see there at the top of the page a description of the types of licenses which will be comprehend by the new system. And then starting from the middle of the page under the heading Eligibility Requirements there is then a table that identifies what are called skill based eligibility requirements pertinent to the three types of licenses that have been described earlier in the document. Your Honour will see there that there’s a license type which is referred to as a license (supervise) and it’s listed there as predominately certificate 3 level qualification but with some work categories having certificate (inaudible) pathways.

PN244

The preamble is important too, your Honour, in view of what Ms Coate said a short while ago, which is the your Honour will see reference there to CPC08 Construction Plumbing and Services Integrated Framework. That’s the kind of overall training package relevant here and the modules, the special modules that are testing which the proposed variation refers to are modules that your Honour has just recently been told had been included within the CPC08 Construction Plumbing and Services Integrated Framework affair. On that basis, your Honour, those that are instructing me had indicated that – and this has been a feature of system 6 communicators addressing the subject of being an issue – those who instruct me state that it’s certainly their perception that it’s highly unlikely that at the last minute as a result of the regulatory impact statement there’s going to be any significant watering down of the level the skill based eligibility requirements for the licenses.

PN245

So I can understand your Honour that if there was any realistic likelihood that, for example, the license would come to pivot entirely on a certificate 2 qualification, then the variation which is being put forward might be regarded as questionable. But your Honour will see a very definite recitation of certificate 3 qualifications there. It’s a very detailed system. There is a very large training package to which your Honour’s attention has earlier been drawn. So it would be our submission that there can be considerable competency going forward on the basis that certificate 3 is the pivot point, the (inaudible) level for the system going forward. Which means that the use of that qualification as a gateway point for the classification of sprinkler systems tester is entirely appropriate.

PN246

I just wanted to make one further comment in relation to timing, and that’s this. If this variation is able to be implemented this year, it gives all the state plumbers an opportunity to operate in accordance with its terms for a useful period of time before the mandated award review later on next year. And that that may very well be a valuable period of time in allowing all of the stakeholders to get settled in with the system and recognise there’s good points and possibly points that might require adjustments, and that that will be then handled effectively and efficiently into review. Whereas if it’s left alone entirely and the matter is then taken, as it were, for tors as part of the 2012 review, it would seem to those instructing me that a less efficient outcome is more than likely.

PN247

THE SENIOR DEPUTY PRESIDENT: The license part Ms Coate and now you have directed me to through the communiqué, one of you said that the license level might reflect the unqualified tester and the certifier licensee, the qualified, the difference being the additional specified competencies in the certifier license?

PN248

MR CROSS: I’m sorry, was that question directed at me or Ms Coate?

PN249

THE SENIOR DEPUTY PRESIDENT: To you sorry, Mr Cross.

PN250

MR CROSS: I heard Ms Coate (inaudible). That, as I understand it, would be the pattern.

PN251

THE SENIOR DEPUTY PRESIDENT: Okay. Do you have the classification definitions with you, Mr Cross?

PN252

MR CROSS: I do, your Honour.

PN253

THE SENIOR DEPUTY PRESIDENT: Putting aside for one moment your observations about the non – I’ll get my terminology right – the not in fire protection nature of certificate 3 qualification, if you put that aside for one moment, wouldn’t the unqualified, if I can put it that way, tester comfortably fall within the trades persons’ special class level 1 which is a certificate, and the qualified tester into trades persons special class level 2 which has a requirement - - -

PN254

MS COATE: Your Honour, I believe that’s what the resubmission says from Mr Cross.

PN255

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN256

MS COATE: I believe Mr Cross’s resubmission has moved the initial application up one level. So the unqualified person comes in at a sprinkler fitting worker level 1D and the qualified person becomes a sprinkler fitting worker level 2 at the 100 percent.

PN257

THE SENIOR DEPUTY PRESIDENT: Yes, that’s the... sorry, I was looking at the wrong classifications. Sorry, if I can just start all that again. The trades person level 1 is a certificate which seems to be what is suggested to the unqualified tester – sorry, a certificate 3 trades certificate. And the trades person level 2 – sorry, I shouldn’t have got into special class – the trades person level 2 requires that certificate plus three appropriate modules, whereas for the qualified tester it’s two additional modules. But wouldn’t that more closely reflect the proposed skill levels?

PN258

MR CROSS: It’s the same level of modules in each case, the distinction being that the qualified person has completed them and the other one is still undertaking the training in the modules. So there’s just the two modules, not two and three.

PN259

THE SENIOR DEPUTY PRESIDENT: No, I understand that. What I’m saying is the trades person level 1 is the trade qualification, the trades person level 2 is the trade qualification plus additional module 3 as specified in the award. And that seems to have some comparability, as I said putting aside the not in fire protection certificate 3. That seems to have some comparability with what you’re proposing as to two levels of tester, the tester with a certificate 3 qualification and undertaking additional modules, i.e. not having the additional modules, as distinct from the qualified tester who would have completed both certificate 3 and the additional modules.

PN260

MR CROSS: Your Honour, could I just repeat back what I understand your Honour is driving at so that I can confirm my understanding. I apologise if that seems a bit dense, but the sound quality coming through here tends to fluctuate.

PN261

THE SENIOR DEPUTY PRESIDENT: Yes.

PN262

MR CROSS: Is your Honour’s point this. That if one looks at the award and the way it defines plumbing and mechanical services worker/sprinkler fitting worker level 2, that that definition refers to someone who’s successfully completed the service certificate consisting of 24 modules, and obtained the equivalent score, obtained equivalent skills, if one looks at that, that that is more closely analogist to our qualified system sprinkler tester?

PN263

THE SENIOR DEPUTY PRESIDENT: No. The unqualified, because that’s all they have. Once they complete the additional modules, what I’m asking is wouldn’t that fit more closely with the trades person level 2 of a trades qualification plus additional modules?

PN264

MR CROSS: Three appropriate from what I was – your Honour is referring to that phrase that says:

PN265

Who has successfully completed three appropriate modules in addition to the training requirements of plumbing and mechanical services trades person sprinkler fitter trades person level 1.

PN266

THE SENIOR DEPUTY PRESIDENT: Yes.

PN267

MR CROSS: And your Honour is suggesting or raising the exploration of the possibility that that’s an analogist situation to the one of qualified testers, where they’ve got a whole certificate 3 and then they have to complete two further modules out of the package that are directly relevant to the testing task.

PN268

THE SENIOR DEPUTY PRESIDENT: That’s the question, yes Mr Cross.

PN269

MR CROSS: Your Honour, the submission that I have to make in relation to that is that depending where the qualifying sprinkler system tester was to be housed, if you like, those who instruct me and are the parties who are in support of the application looked at the matter and arrived at what was regarded as an appropriate place having regard to all of their knowledge of the industry.

PN270

THE SENIOR DEPUTY PRESIDENT: Yes.

PN271

MR CROSS: That manner in which those matters were arranged was conducted primarily from the point of view of looking at the comparability of qualifications and also the particular issue here that sprinkler system testing is a somewhat new animal, certainly a new animal in terms of those things complicated by the award. And that it would be a very easy manner to draw a range of analogies from a range of different positions. But what ultimately at the end they had come back to what the job entailed and what’s recognised that the licensing regime necessitates the holding of certificate 3 regardless had to the nature of the job. Now, in the adjustment that’s been proposed a particular concern that arose about rates of pay, the parties are now putting forward that they’ve already classified it at one level higher.

PN272

But I think those who instruct me would urge caution in relation to now looking at it and saying well look here’s reference to some additional modules in level 2, the sprinkler system tester needs certificate 3 and some specific modules that relate entirely to the testing role, then that should be regarded as the same thing. But certainly one can understand the point your Honour is making and our submission would be that that way of thinking analogously about the matter has a potential to result in an imbalanced outcome. And that regard ought be had to the specific nature of this tester’s role and the fact that the additional modules that are required are specific to enable that person to be an effective tester and that, in our submission, imposes a limit to the extent to which one can look through the other classifications and go well here are some that have additional modules therefore we should arrange this new classification with that one.

PN273

That would be the submission that we make in relation to that. But as was the case with this kind of thing, I’m sort of at the vanguard of coalition of people in the industry who are trying to proactively approach some regulatory change to do so (inaudible) and the endurable arrangement. If there I another view about that around the table, both here and in Melbourne, then it would be worthwhile for us to hear that. Because in every state we’ve been trying to, as it were, seek to get this variation shaped in a way that suits the industry, meets the needs of the industry, and the various stakeholders who are here.

PN274

THE SENIOR DEPUTY PRESIDENT: But it’s also got to properly reflect the skill based classification structure in the modern award.

PN275

MR CROSS: Yes. Absolutely, your Honour. And certainly part of any instructions that I’ve been given to attempt to (inaudible) shoehorn this in a way that causes misalignments or inequities in a skill based system that has for such a long period of time observed.

PN276

MS YU: Your Honour?

PN277

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Yu?

PN278

MS YU: Mr Naylor would like to say a few words to add to the background of this application, and to the background of other classifications.

PN279

THE SENIOR DEPUTY PRESIDENT: Certainly. Mr Naylor.

PN280

MR P. NAYLOR: Yes, your Honour. I specifically want to raise the question of the discussion that has taken place previously in respect of the outcomes and the protected outcomes and the timetable for the national licensing system. If it assists the court, last Friday in Melbourne there was a joint meeting (inaudible) the plumbing and gasfitting occupations industry advisory committee (inaudible) and the plumbing and gasfitting regulators working group, which is the regulators from states (inaudible) industry advisory committee in respect of the outcomes that would be drafted into the draft regulations for the Act. Now, that was somewhat a contentious meeting. There was a very (inaudible) differing of views between what sits over the top of these two committees called the steering committee, which is the representatives of the (inaudible) state treasury departments and the (inaudible) premier and cabinets departments and that they had basically overturned the recommendations of existing communiqué four, which was attached to our original submission.

PN281

Further discussion on the day, the COAG secretariat, which is (inaudible) from the assistant secretary in the department of (inaudible) advised that there was a meeting to be held Wednesday of this week by the steering committee and the recommendation that they would draft the regulations for the OAS on the basis that the industry advisory committee recommendations, which are the ones in the communications broad, they are not the ones that were recommended by the steering committee. Now, this complicates the issue and it complicates somewhat the considerations currently on the table (inaudible). Then the fact that also raised at that time was that within the regulatory impact statement there will also be the drivers licensing model that (inaudible) which is a model by which the system basically stays the same, each state body a regulator which sets its own licensing requirements, but there will be a national license and that will be on level on the basis that we are now (inaudible) drivers licenses.

PN282

Now, what was the discussion and the OAS would go into all of those options, all of those issues, it will deal with the segmentation issues that could occur with any of the classifications that have been considered other than the plumbing and gasfitting licensing area. And in that it is open to the public, or any other organisation, to make submissions in relation to what should the outcome and how the licensing system should work. So we would believe that that’s a further submission we made earlier, that on that basis the current consideration of the change to the award is (inaudible) because there is enormous amount of discussion to take place.

PN283

But the one thing we do know, that the meeting that took place last week in Melbourne is the final meeting of the industry advisory committee and the regulator’s working group and we were given the undertaking, or given the information, that the draft regulations are in place, or are well and truly in place for drafting, and that the timetable is that the plumbing implementation do take place in mid to late July and will continue briefing sessions from the COAG task force in all states. People will attend and answer whatever question they wish to before they make a response to the RAS.

PN284

THE SENIOR DEPUTY PRESIDENT: Thank you for that, Mr Naylor. Anything arising out of that, Ms Coate?

PN285

MS COATE: About Mr Naylor’s proposition. I would suggest that the applicants don’t wish Knowles to make decisions about how their sector of industry should operate. There have been industry discussions about this scope of work having clarity for application within the industry. We are working to ensure that we have an industry that meet the needs of ourselves and the Australian community into the future. We wish to provide Knowles with an appropriate framework for their discussions, but we do not want to wait for Knowles for them to from how our industry should operate into the future. So I would respectfully try to counter Mr Naylor’s submissions to you.

PN286

On the other issue that your Honour put to us that in your view that the tester arrangement, because of the additional training - - -

PN287

THE SENIOR DEPUTY PRESIDENT: It was a question, Ms Coate.

PN288

MS COATE: A question. I would argue or put to you that a sprinkler fitter trades person at level 1 is already carrying out this work that the modules of training that he does in his apprenticeship to come out at certificate 3 fire protection, he does this work at 100 percent. The application before you is to assist industry to deal with those persons who come into the industry without a certificate 3 fire protection. But we would like them to come into the industry holding a certificate 3. For them to carry out this scope of work we have very carefully prepared four modules of training which we believe will allow them to carry out this scope of work only in fire protection at a level of competence that will give again the industry and the Australian community a level of comfort about the operability of fire protection systems.

PN289

We believe that when they come in they may hold a certificate 3, but they are not at certificate level 3 fire protection because they do not have a knowledge of this scope of work, of this type of industry. We are seeking to, within a very short time, give them those skills and then they are certificate 3, then they have undertaken the modules of training which we believe will allow them to do the work of testing competently, and we propose to pay them at 100 percent rate which is the same rate as a sprinkler fitting trades person level 1, but to keep their qualification as the sprinkler fitter worker level 2 because they do not hold certificate 3 in fire protection.

PN290

They can not do other tasks that that certificate 3 fire protection allows our sprinkler fitters to do. They can do a limited mean of that scope of work. And that, I believe, is the background for this application. It’s not about them doing the full scope of work of fire protection, plus it’s doing very small scope of fire protection work as contained in certificate 3 fire protection. It’s a small element.

PN291

THE SENIOR DEPUTY PRESIDENT: Very well.

PN292

MR P. MCCRUDDEN: So your Honour, basically what happens at the moment is that the apprentice sprinkler fitter, when he goes through his training, the two modules that are mentioned in this application to become a sprinkler systems tester, they’re currently electives that the apprentice can do and if he did complete those electives he would still fit in at the 100 percent level.

PN293

MS YU: Your Honour, may I say a few words?

PN294

THE SENIOR DEPUTY PRESIDENT: Yes, go ahead.

PN295

MS YU: Your Honour, we are quite interested in any support of your proposition and where (inaudible) certificate 3 and when you undertake two additional modules they will put themselves in the classification as scheme of the awards to a trades person level 2. Because from my understanding, trades person level 2 is a trades person level 1 who is a holder of the certificate 3, plus they undertake additional trainings. And I think it was three additional modules pursuant to the award. In terms of the various issues that’s been raised earlier, your Honour, your attention is brought to the context of the occupational scheme where certificate 3 is the basis for most occupations whether it be for plumbing, fire sprinkler, electrician, or any other trades qualifications.

PN296

If there is an exception here made for industry of fire protection, there would be consequences flowing onto trades. The other trades could be quite significant. And the national licensing scheme is one way where the regulators are also involved, is one way where all of those issues are looked at as a whole and potentially is covered as well as plumbing. It is very enlightening for the opinions of the various industry members including the Master Plumbers and National Fire Protection to put their views before your Honour, but there could be other parties who are interested in the application who haven’t been able to express their view forward. And the national - - -

PN297

THE SENIOR DEPUTY PRESIDENT: I’m not sure about that, Ms Yu. Any party who expressed an interest in the award would have been notified of the application and advised of the proceedings.

PN298

MS YU: Yes. I raise that point just to state that in the public consultation which will have the regulatory impact statement, all opinions will be consulted, all possible opinions might be consulted in that process. And if a decision is made before that process takes place, then it is possible that it will be pre-emptive and may be contrary to the objectives of the national licensing scheme.

PN299

THE SENIOR DEPUTY PRESIDENT: Anything further from anyone?

PN300

MR CROSS: Your Honour, I just wanted to make a couple of comments very, very briefly.

PN301

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Cross.

PN302

MR CROSS: The first of those comments is that your Honour has briefly observed this application, it has been publicised and all interested parties who might wish to contribute have had an opportunity to do so. The Master Plumbers had that opportunity when the matter was called on for hearing on 31 March and your Honour will recall that it was stated expressly that no particular position was being taken, that the Master Plumbers who were represented on that occasion were in the capacity as an observer. Now, such there was written submissions by the Master Plumbers, which we have had an opportunity to review and to take on board and respond to.

PN303

This morning in addition to that timing, the Master Plumbers are now raising a host of other issues connected with the intent of operation of systems and competency based training and classification. And there has been an opportunity for whatever coherent submission that organisation plan to put in relation to that issue to be made, it makes it rather difficult to, as it were, be asked to deal with some of those very broad issues on the fly in the context of this hearing. But the second group of comments I wanted to make is simply this. That the other data that flows from this from the conversation more or less following where it will is that we can all lose sight of the background to this application and the circumstances which informed the bringing of it.

PN304

Those circumstances have been very briefly, in my respectful submission, (inaudible) by Ms Coate who has reminded us all that this is not a situation where the businesses involved look to take existing people who have had existing qualifications and enable them to do sprinkler testing and shoehorn them into another classification. This change has been sought because the changes to the licensing system will mean that there’s a larger appetite for this kind of work within the industry that will necessitate the need to bring in people who aren’t already part of the industry. And so this variation provides a means by which those not in the industry equip themselves with simple labour to do this important task.

PN305

And it must be recognised that as part of that background that there is a need to strike an appropriate balance in terms of the way in which the position of qualification sounds as a matter of classification. We’re not looking for an exception or a special deal, we’re looking for a balance to resolve the pains with regard to the particularity of this circumstance. As Ms Coate indicated, there are changes to the regulatory system. The industry is pitching in sights at the higher level of the expected outcome of that regulatory arrangement and that way you can’t go wrong. It may well be as a result of what Mr Naylor says that there’ (inaudible) disagreement and the result of which is a driver’s license model where qualifications require a great deal less than what we suppose now.

PN306

But the industry wouldn’t want to embrace that. The industry would want to stay at the level it thinks is appropriate. Certificate 3 not in fire protection augmented by some modules to enable the person to be a functioning tester. So we ask that background which in a sense was (inaudible) not to reverse earlier this morning but which Ms Coate has very effectively outlined not to be forgotten in the assessment of this matter.

PN307

THE SENIOR DEPUTY PRESIDENT: Yes. Can I ask about the observations of Mr McCrudden. The two particular modules are currently available as electives within the certificate 3 for a sprinkler type fitter trades Commissioner. Is that correct?

PN308

MS COATE: Your Honour, may I respond to that because I do sit on the industry skills committee that deals with that issue?

PN309

THE SENIOR DEPUTY PRESIDENT: Yes.

PN310

MS COATE: In the certificate 3 fire protection there are now four modules for testing which are available for the people moving into this industry. But those four modules with the elements of those four modules are already within the training of a certificate 3 fire protection person. While an individual undergoing the apprenticeship may choose to do one of them, or two of them as an elective. Mapping of those skills will show that he’s already doing the majority of that within his apprenticeship. So a sprinkler fitter apprentice today does not have to elect to do one of those electives. We very carefully place them as electives within the training package, rather than as core so that they are available to those who are not undergoing the apprenticeship for delivery externally to the apprenticeship.

PN311

THE SENIOR DEPUTY PRESIDENT: I’m sorry, I’m not quite - - -

PN312

MS COATE: A sprinkler pipe fitting apprentice does not necessarily need to do any of the new maintenance modules that are in the apprenticeship. Within the scope of his training there are broader modules that give him the skills that are in those four maintenance modules. So of the two that are referenced in the award. But someone coming into the industry who wishes to be a sprinkler fitter tester does those modules as they’re the ones they have to undertake to get that competency to be able to carry out that work. But a sprinkler fitter apprentice gains that competency from his apprenticeship without having to choose the electives.

PN313

THE SENIOR DEPUTY PRESIDENT: So a tester could be someone who’s a sprinkler pipe fitter?

PN314

MS COATE: Yes.

PN315

THE SENIOR DEPUTY PRESIDENT: Or the person being proposed under the current variation.

PN316

MS COATE: That's correct. There are in practice out in the field today sprinkler pipe fitters who are testers and that is their scope of work and they have not had to undertake additional training to do that role. It is part of their role as a sprinkler pipe fitter.

PN317

THE SENIOR DEPUTY PRESIDENT: So there are going to be two types of tester in the future.

PN318

MS COATE: That's correct. And there are today some non sprinkler pipe fitters who are testers who have no recognised place, but they are paid under our award conditions. But we have formalised training which we wish them to undertake in carrying out that scope of work. And we are seeking to recognise that with this variation.

PN319

THE SENIOR DEPUTY PRESIDENT: And that’s done by the identification of particular occupations within the skill based classification.

PN320

MS COATE: Well, the person coming into the industry will come from a variety of occupations.

PN321

THE SENIOR DEPUTY PRESIDENT: Yes.

PN322

MS COATE: So it’s someone, it might be a plumber, it might be an electrician refrigeration mechanic, a diesel mechanic, a fitter and we have recognised that to allow them to carry out that work we’ve had to put together the competencies and the training materials to ensure that they get the information and competency they need to carry out the role.

PN323

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Anything arising from that in Sydney?

PN324

MR NAYLOR: Just for clarification, your Honour.

PN325

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Naylor.

PN326

MR NAYLOR: Just on the comment that Ms Coate made about the one submission earlier, the information from the Master Plumbers Association. Ms Coate confirmed this also, that members of the plumbing and gasfitting occupations industry advisory committee, as the commencement of that committee being bound by a confidentiality agreement on matters raised within the committee, that (inaudible) were released of that agreement last Friday, which is following the meeting, and we have made our submission to the attachment of communiqué 4 as the latest of the public released information that was available to be commented on.

PN327

THE SENIOR DEPUTY PRESIDENT: Very well. Anything further?

PN328

MS SUTTON: Your Honour, Ms Sutton for the Fire Protection Association. Basically (inaudible) represents a number of objectors who are in a predicament of assisting their members with new entrants to do fire sprinkler testing and we would accept though what Ms Coates has said in relation to the need to develop competencies for these people to do the testing to ensure that it’s done properly. And that’s the purpose behind this amendment or variation to the award, to find a spot for these people within the classification structure.

PN329

THE SENIOR DEPUTY PRESIDENT: Very well. Nothing further? I think that concludes the consultation. Thank you for your attendance. I will now adjourn.

<ADJOURNED INDEFINITELY [11.06AM]