TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 27619-3
VICE PRESIDENT LAWLER
AM2010/129
s.158 - Application to vary or revoke a modern award
Application by Australian Higher Education Industrial Association
(AM2010/129)
Higher Education Industry-General Staff-Award 2010
(ODN AM2008/3)
[MA000007 Print PR985117]]
Melbourne
10.04 AM, FRIDAY, 29 OCTOBER 2010
THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO LINK UP AND RECORDED IN MELBOURNE
Reserved for Decision
PN1
THE VICE PRESIDENT: Good morning. Appearances, please?
PN2
MS C PUGSLEY: If your Honour pleases, my name is Pugsley, initial C, I appear for the Australian Higher Education Industrial Association.
PN3
THE VICE PRESIDENT: Thanks very much, indeed, Ms Pugsley.
PN4
MR D HANISCH: Yes, if the Commission pleases, Hanisch, D, I appear on behalf of the Australian Manufacturing Workers Union.
PN5
THE VICE PRESIDENT: Thanks very much, Mr Hanisch.
PN6
MS C ESTOESTA: If your Honour pleases, Estoesta, initial C, also appearing on behalf the Australian Manufacturing Workers Union.
PN7
THE VICE PRESIDENT: Thanks, Ms Estoesta. Are you both having a speaking role or - - -
PN8
MR HANISCH: No.
PN9
THE VICE PRESIDENT: - - - just one of you speaking?
PN10
MR HANISCH: Well, that is support, is that right?
PN11
MS ESTOESTA: That's correct.
PN12
THE VICE PRESIDENT: Thank you, very much, indeed. And do you speak for the other unions as well who are affected by this?
PN13
MS ESTOESTA: No, your Honour, I haven't received any instructions from them regarding this so I'll just be speaking on behalf of the AMWU.
PN14
THE VICE PRESIDENT: Have you had discussions with them at all?
PN15
MS ESTOESTA: Yes. I've had discussions with them in relation to the causes that we've put forward.
PN16
THE VICE PRESIDENT: And do you understand them to have a similar view to you?
PN17
MS ESTOESTA: Yes, that's correct, yes.
PN18
THE VICE PRESIDENT: Okay.
PN19
MS ESTOESTA: We have the same view.
PN20
THE VICE PRESIDENT: Thank you. Well, it seems that this is a pretty straightforward matter today in the sense that the - the AMWUs submission is the only submission received in opposition to the application or one small part of it and, indeed, it's the only submission received apart from the AHEIAs submission, and it seems to me that the matters that are consented to are manifestly matters that ought to be allowed and so the only issue to - and that the requirements of the Act are met in relation to those aspects of the application. So the only issue is the apprentices. I understand you - sorry - is that correct?
PN21
MS ESTOESTA: That's correct, your Honour.
PN22
THE VICE PRESIDENT: Yes. So I think I understand what each side puts and the only issue is whether or not you wish to supplement what you put in writing might have - the way the submissions have unfolded. Is there anything you wanted to say further, Ms Pugsley?
PN23
MS PUGSLEY: Thank you, your Honour, and thank you for being so succinct, we think our application is straightforward and it's really in the nature of a tidying up exercise to give effect - - -
PN24
THE VICE PRESIDENT: It's a bit curious that some of those things didn't happen already.
PN25
MS PUGSLEY: It is, your Honour.
PN26
THE VICE PRESIDENT: I think that - I haven't spoken to Mr Howard, who's truly magnificent and has general control of the award (indistinct) in a practical sense, but I think this is something that must have slipped between the cracks in terms of those standard schedules.
PN27
MS PUGSLEY: And I suspect that the reason that it wasn't picked up earlier by anybody - that's not us nor the other employers who are not our members nor the MTU, which is the major union, or any of the other unions, is because we do have, what we call, wall to wall enterprise bargaining in the sector. And so the - we almost never look at what's in the awards because the enterprise agreements set the actual terms and conditions. And enterprise bargaining tends to proceed from looking at previous enterprise agreement rather than going back to the award.
PN28
THE VICE PRESIDENT: Yes.
PN29
MS PUGSLEY: So it's surprising in the sense that there was no desire to hard wall the parties.
PN30
THE VICE PRESIDENT: And I think in relation to the one contested issue that the positions of the parties are very clear. You say, consistent with the approach taken by the Full Bench, the apprentice provisions complete the critical mass of what appears in the underlying awards and that there's no warrant to increase the complexity that would face employers to the extent that they having resort to modern awards by having to have resort to three additional modern awards rather than just the one. And the union position is that the - the provisions of those three awards that have been identified, particularly, in the modern Manufacturing Award, are provisions that have the very broad application and it would promote consistency if the union's approach to apprentices was adopted. And that's the set piece of the argument. Is there anything further you want to say, Ms Pugsley?
PN31
MS PUGSLEY: There's not very much further that I would want to say and I very much appreciate your succinctness. As I understand the AMWU have retreated from their original position which we replied to last week, which was to cross reference the General Staff Award with the Occupational Awards. That goes someway to resolving the differences between us.
PN32
THE VICE PRESIDENT: Well, that's not something I'm aware of.
PN33
MS PUGSLEY: Well, I'll leave it for the union to make those submissions and then we might make submissions in reply. Just on the point - there are two points that we think they're revised provisions - subject to what we hear today doesn't resolve the issue - - -
PN34
THE VICE PRESIDENT: Well, why don't you leave that to reply, Ms Pugsley?
PN35
MS PUGSLEY: I will.
PN36
THE VICE PRESIDENT: Because at the moment, you're partially guessing as to what's going to be said.
PN37
MS PUGSLEY: Yes. And I do thank the AMWU for having contacted us in the last couple of weeks and we have had a couple of fairly brief discussions and they have, as I understand, moved from their original position. So we're closer to agreement than we were. But, perhaps, with your Honour's assistance we might eventually resolve the matter.
PN38
THE VICE PRESIDENT: I accept that. Yes, Ms Estoesta?
PN39
MS ESTOESTA: Your Honour, would you like me to stand up while I address the Bench?
PN40
THE VICE PRESIDENT: No, please stay seated. That's fine.
PN41
MS ESTOESTA: Thank you. Okay, thank you.
PN42
THE VICE PRESIDENT: I apologise that you're looking at me side on but the camera is at the back of the hearing room and the - - -
PN43
MS ESTOESTA: Okay.
PN44
THE VICE PRESIDENT: - - - is on the side. Okay.
PN45
MS ESTOESTA: Okay. That's all right. I just wanted to, I guess, just go through why we believe that the supported wage and the traineeship conditions - well, we don't object to that - as well as to go through our views about apprentice provisions.
PN46
THE VICE PRESIDENT: I think you only need to worry - you only need to trouble yourself with the apprentice provisions because - - -
PN47
MS ESTOESTA: Okay.
PN48
THE VICE PRESIDENT: - - - you're -
PN49
MS ESTOESTA: (indistinct)
PN50
THE VICE PRESIDENT: - - - I'm content to just act on the indication already in the submissions of the consent being manifestly reasonable and sensible. So just in relation to the apprentice provisions?
PN51
MS ESTOESTA: Not a problem. Before I begin with our submissions in relation to apprentices, I just wanted to get my colleague, Mr Hanisch, to hand up a compilation of decisions that I would like to be referring to today. I believe we have a few copies to provide.
PN52
THE VICE PRESIDENT: Okay. Perhaps, you might give a copy to Ms Pugsley. Thank you. Thank you, yes.
PN53
MS ESTOESTA: So these are just non controversial decisions award modernisation proceedings in the 2008 proceedings.
PN54
THE VICE PRESIDENT: Yes.
PN55
MS ESTOESTA: And it's just intended to assist you and Ms Pugsley - well, to look at the documents that I'll be referring to today.
PN56
THE VICE PRESIDENT: Thank you.
PN57
MS ESTOESTA: So I would just take your Honour and Ms Pugsley through the relevant parts of the award modernisations proceedings relating to the Higher Education Industry before I get into the details of the discussions that we've had with AHEIA.
PN58
THE VICE PRESIDENT: Yes.
PN59
MS ESTOESTA: Just as a background, 12 September 2008 exposure draft of the Higher Education General Staff Award didn't include apprenticeship provisions.
PN60
THE VICE PRESIDENT: Yes.
PN61
MS ESTOESTA: And I didn't include the exposure draft, but it didn't have apprenticeship conditions.
PN62
THE VICE PRESIDENT: Yes.
PN63
MS ESTOESTA: A number of the parties then recognised the absence of such provisions and made submissions on what they believe to be the most appropriate apprentice conditions to be included in the general staff award. And some of the parties that made submissions specific to apprentice conditions in the Higher Education Industry put in written submissions on 10 October 2008. They are the Construction Electrical and Plumbing Union, so the CEPU; the AWU in Queensland; and a submissions was also made on behalf of the Group 8 of Universities.
PN64
So if I could just take your Honour and Ms Pugsley through pages - well, start at pages 161 to 213 of our compilation.
PN65
THE VICE PRESIDENT: Yes.
PN66
MS ESTOESTA: Yes. So if you look at page 173 of our compilation, you will see at paragraph 33 of the CEPU submission that they address the fact that the Higher Education General Staff Award doesn't deal with apprentices. If you turn to the next page, page 174, they then go through what the most appropriate rates they believe should be included in relation to electrical trades employees. Moving on to page 175 of the submission, they then provide more conditions, not just related to wages - - -
PN67
THE VICE PRESIDENT: Yes.
PN68
MS ESTOESTA: - - - for apprentices. Then we can have a look at the Australian Workers Union Queensland submission, which is on page 181 - - -
PN69
THE VICE PRESIDENT: Yes.
PN70
MS ESTOESTA: - - - of the compilation. They go through what they believe should be included for apprentices and trainees in the Higher Education Award.
PN71
THE VICE PRESIDENT: Yes.
PN72
MS ESTOESTA: And I'd like to now jump on page 207 of our compilations.
PN73
THE VICE PRESIDENT: Yes.
PN74
MS ESTOESTA: And this is the submissions made on behalf of the Group 8 of Universities where they state that, perhaps, school based apprentices might need to be included in the award. So the issue of the lack of apprentice provisions and what would be the most suitable apprentice provisions to be included in the Higher Education General Staff Award was, again, addressed by the CEPU and the AWU Queensland during the hearing on the Higher Education Industry Awards on 29 October 2008. And if you would like to have a look at it, that's on pages 214 and 218 of our compilation. The relevant paragraphs of the transcript have been included in our compilation. The CEPU submissions are in paragraphs 1301 to 1305, and the AWU submissions are in paragraphs 1663 and 1666.
PN75
So despite the issue of the lack of apprentice provisions being raised during the award modernisation proceedings, it seems that the Full Bench of the Australian Industrial Relations Commission didn't intend to include apprentice provisions in the modern Higher Education General Staff Award, which was the final award being published on 19 December 2008. Looking at the decision that the Full Bench released in conjunction with the release of the Higher Education Staff Award, that decision is dated 19 December 2008. It's 2008 AIRC FB1000. The relevant paragraph is paragraph 169 which is, in our compilation, page 261.
PN76
THE VICE PRESIDENT: Yes.
PN77
MS ESTOESTA: Yes. So if you look at paragraph 1069 it says:
PN78
PN79
So our interpretation of the Full Bench decision is that they're indicating that apprentices provisions are in - were intended to be left out of the Higher Education General Award and be subject to enterprise bargaining. As such, perhaps - - -
PN80
THE VICE PRESIDENT: I'll just stop you there for a moment.
PN81
MS ESTOESTA: Yes.
PN82
THE VICE PRESIDENT:
PN83
Except for the matters we shall come to we have decided that at the safety net level there should be no relevant difference.
PN84
That's a statement - - -
PN85
MS ESTOESTA: (indistinct)
PN86
THE VICE PRESIDENT: - - - between public - private and public universities. Doesn't that relate back to the statements in 168?
PN87
MS ESTOESTA: 168? Just bear with me, your Honour.
PN88
THE VICE PRESIDENT: And the making of the two awards as foreshadowed, and the idea that there should be commonality of conditions largely between those two awards.
PN89
MS ESTOESTA: Okay. Our understanding was that it was - - -
PN90
THE VICE PRESIDENT: I just - I'm just struggling to see how this is actually directed at apprentices specifically.
PN91
MS ESTOESTA: Okay. We're just trying to say that they didn't - the Commission, despite the CEPU and the AWU and the Group of 8 universities putting forward submissions specific to apprentices, they didn't include provisions for apprentices in the end so we thought that, perhaps, this is was intended.
PN92
THE VICE PRESIDENT: I'm just wondering out loud - you'll note that - if my memory serves me correctly, I was not part of this Bench. My name does appear on the top of it, but I think there's a significant possibility that this was an oversight.
PN93
MS ESTOESTA: Okay.
PN94
THE VICE PRESIDENT: The amount of pressure on that Bench at that time was, not to put too finer point on it, extreme. And it is a distinct possibility that this was overlooked. If the decision had specifically referred to the apprentice submissions or submissions in relation to apprentices and said in terms, "We don't propose to include them" then that would be one thing, but when it's silent on it that does raise the possibility that it's just something that's slipped through the cracks. In any event, you're not opposed to some provision going in there, that's not your primary submission - - -
PN95
MS ESTOESTA: Yes.
PN96
THE VICE PRESIDENT: - - - you want a different provision for that which - you want to see a provision in there but you want a different provision from that proposed by the association?
PN97
MS ESTOESTA: That's correct, your Honour, and at the moment we are aware that there's an expert panel that has been established to advise the government of reform options to the Australian Apprenticeship system and that panel is intending to examine competency based progression through award classifications as well as the rates of adult apprentices. We're also aware that the minimum wages and research branch of Fair Work Australia is currently conducting research focusing on reviewing apprenticeship conditions.
PN98
So, perhaps, this might not be a good time to have a look through these provisions - perhaps, we might have jumped the gun too early. I guess our position today is that this might - the apprentice conditions might best be left to be considered after the review of apprentice conditions by the various research bodies or during the 2012 review which ever one comes earlier.
PN99
THE VICE PRESIDENT: So do I take that - do I interpret that as an application that this interlocutory that this application be adjourned insofar as it relates to apprentices?
PN100
MS ESTOESTA: That's correct, your Honour, but in terms of trainees and supported wage employees - the AMWU has no objections regarding those.
PN101
THE VICE PRESIDENT: Okay. And if I'm against on you that your further submissions in support of your - or any other - is there anything that you wanted to say in support of your contention about what should be included?
PN102
MS ESTOESTA: Yes, your Honour. I guess, I can only speak for the AMWU but one of the main - - -
PN103
THE VICE PRESIDENT: Could I just say the reason why - I wonder whether this isn't an omission through oversight, is because generally speaking the approach of the Full Bench was to include apprentice provisions if they appeared in the underlying awards, and they do appear in the underlying awards, and that's what makes me think that there's probably an oversight. In any event - sorry, you were going to say?
PN104
MS ESTOESTA: Your Honour, I guess the AMWU position is that it might have been intended for apprentice conditions to be left out and should the applicant believe that apprentice conditions be included in the Higher Education Award, I still believe that they should go through addressing the section 160 or section 157 requirements in the Act should they wish for those apprenticeship conditions to be included.
PN105
THE VICE PRESIDENT: I'm sorry, I just missed that. What was your submission about 157?
PN106
MS ESTOESTA: That's - they should demonstrate - be able to demonstrate that their application to include apprenticeship provisions - - -
PN107
THE VICE PRESIDENT: Is necessary, yes.
PN108
MS ESTOESTA: - - - is necessary to achieve the modern award objectives.
PN109
THE VICE PRESIDENT: Yes.
PN110
MS ESTOESTA: And so we do - we do - - -
PN111
THE VICE PRESIDENT: But that's an argument - that's an argument against inclusion of any provision, I take it?
PN112
MS ESTOESTA: That's correct. And so - and that is something that, in fairness, we should also address in our submissions because we are also seeking to get apprentice provisions included but, your Honour, I guess our position is we should delay the inclusion of the apprenticeship provisions.
PN113
THE VICE PRESIDENT: You say it's a part of the review?
PN114
MS ESTOESTA: As part of the review or after the - after the completion of the research into apprentice conditions.
PN115
THE VICE PRESIDENT: Okay. Yes.
PN116
MS ESTOESTA: Your Honour, if I could just add another thing also?
PN117
THE VICE PRESIDENT: Yes.
PN118
MS ESTOESTA: We didn't - Ms - my colleague from AHEIA indicated that our - the provision that we put forward - the alternative clause that we provided them on 22 October wasn't comprehensive enough to cover all apprentices. That wasn't our intention - certainly - - -
PN119
THE VICE PRESIDENT: Well, I haven't seen - sorry, 22 October, is that in your submission? Just one moment?
PN120
MS ESTOESTA: That's correct.
PN121
THE VICE PRESIDENT: Yes, I see, yes.
PN122
MS ESTOESTA: Yes. We sent that over yesterday, your Honour. Sorry for the delay. Yes, I do have that, yes.
PN123
THE VICE PRESIDENT: This is - let me just understand this: the draft clause you sent over - - -
PN124
MS ESTOESTA: Yes.
PN125
THE VICE PRESIDENT: - - - is the clause that you would like to see included in the event that I don't accede to your submission that it ought be done by reference to the other three awards - - -
PN126
MS ESTOESTA: That's correct, your Honour.
PN127
THE VICE PRESIDENT: - - - or the Manufacturing Award in your case?
PN128
MS ESTOESTA: That's correct, your Honour.
PN129
THE VICE PRESIDENT: Yes. Okay. And - - -
PN130
MS ESTOESTA: Did you want me to go through the clause at all?
PN131
THE VICE PRESIDENT: Yes. Well, I think Ms Pugsley indicated that there'd been constructive discussions between the parties and to the extent that you're able to shed some light on that, that would be good as well.
PN132
MS ESTOESTA: That's okay. So our first - the first draft that we provided the applicant referred to three different modern awards.
PN133
THE VICE PRESIDENT: Yes.
PN134
MS ESTOESTA: And the applicant recognised that there is some complexities involved in, perhaps, performing the boot test should they be introduced into the Higher Education Industry General Staff Award. So we tried to be reasonable and meet them halfway and try to remove the references to other awards. So what - what - the principle that we went through in drafting this award - drafting this clause is that just to include the relevant wages provisions from each of the modern awards that we referred to in our earlier clause. So if you look at the clause X.1, that's just the definitions from some of the modern awards that we've seen so far.
PN135
We tried to define the building trade, electrical trades, and metal and engineering trades apprentices award. We didn't include hospitality apprentices. That wasn't our intention but we didn't have discussions with LHMU, so we haven't included that. But there is leeway for that included should submissions to support that are made.
PN136
Moving onto clause X.2 building trades apprentices. This is just based on the MA20, Building and Construction Modern Award. That's the wage provisions for four year and three year apprenticeships. We note that in the applicant's proposed submission it doesn't - proposed clause, it doesn't address the fact that, perhaps, in the building trades there is a four year and three year apprenticeship provisions. The applicant's clause only deals with four year sort of apprenticeships.
PN137
THE VICE PRESIDENT: Yes.
PN138
MS ESTOESTA: Clause X.2, Electrical Trades apprentices. That was taken from the Electrical Power Award, and the CEPU advised that that's the clause that they want to get included. Moving on to Metal and Engineering Trades Apprentices, it's just the, I guess, competency based provisions of the Manufacturing Award, copied and pasted there. Clause X.4 CEPU wants to provide us with further advice on this. And then clause X.5, we just raised that apprentices will be entitled to the full amount of the relevant allowances in schedule C of the Higher Education General Staff Award.
PN139
THE VICE PRESIDENT: Yes. Is there anything else you wanted to say?
PN140
MS ESTOESTA: That's all, your Honour.
PN141
THE VICE PRESIDENT: Thank you, very much, Ms Estoesta.
PN142
MS ESTOESTA: Thank you.
PN143
THE VICE PRESIDENT: Ms Pugsley?
PN144
MS PUGSLEY: Thank you, your Honour. I can respond to the issues raised by the AMWU. We were taken to submissions made by CEPU and AWU during the award modernisation proceedings and reference has also been made to the LHMU. All of those unions are aware of today's proceedings. They were served with our application. We haven't heard anything from the CEPU, AWU, or LHEU, and we presumed, therefore, that they consent or don't get to their application.
PN145
The question was asked as to why we believe that our application meets the modern awards objective. That's set out at paragraph 13 of the grounds of our application, that we say that the application is consistent with the modern awards objective, in particular, the requirement to provide a relevant minimum safety net in terms of - - -
PN146
THE VICE PRESIDENT: I think you're pushing against an open door there in the sense - - -
PN147
MS PUGSLEY: Okay.
PN148
THE VICE PRESIDENT: - - - that although Ms Estoesta did make the submission that I should be satisfied that there - it wasn't necessary, given 157, the ultimate position is that the union thinks that there should be apprenticeship clauses in there and my present view is that this almost certainly was an oversight and that it ought be corrected. And really the argument is about which clause should go in.
PN149
MS PUGSLEY: Thanks, your Honour. I wasn't going to say anything further than that. I understood that the union had asked me to make that point.
PN150
THE VICE PRESIDENT: Okay.
PN151
MS PUGSLEY: Our application we say is straightforward. I don't really want to reiterate what's in there. We put our reasons for why we say and as the provisions ought to be in there - they were in the pre reform awards. It appears to be an oversight why they didn't go into the exposure draft. Again, as we've set out, I think it's paragraph 6 of our application is because the Full Bench decided that Higher Education ought to be dealt with as one of the priority industries - - -
PN152
THE VICE PRESIDENT: Yes.
PN153
MS PUGSLEY: - - - if those three matters haven't been dealt with. Our application is consistent with the way in which apprentices have been dealt with in the pre reform awards. Why we have struck those particular rates that - the single rate, was again by reference to the most common provisions applying in the pre reform awards and in the Herculean task of trying to find a single set of general staff provisions. And, in fact, that was the reason that we were put on the priority list was because the Full Bench decided that there was a desperate need to simplify the conditions for general staff around Australia.
PN154
In coming to that single set of conditions some average was necessary and so rather than put - you see attachment 1 to our reply that we put in on 22 October, we've reproduced - - -
PN155
THE VICE PRESIDENT: You've extracted the relevant provisions. Thank you.
PN156
MS PUGSLEY: We have.
PN157
THE VICE PRESIDENT: Yes.
PN158
MS PUGSLEY: And there are a range of percentages applying but the most commonly appearing - or the one which would have applied to the most - - -
PN159
THE VICE PRESIDENT: Ms Pugsley, can I just put this proposition to you which sort of cuts across in a Socratic fashion just to get a response, which cuts across what you're submitting at the moment. There's nothing magical about the underlying awards in the sense that there's a presumption that the contents of them are considered and consistent. When the Full Bench was looking at underlying awards for the purposes of trying to set the modern awards, it was doing so really because that was the most obvious and practical way of meeting the requirements of the request in the sense of trying to minimise the amount of adverse impact on either employers or employees.
PN160
But I just wonder in relation to this area whether it isn't possible to take the really quite pragmatic approach and say that apprenticeship provisions in the underlying awards in this industry would not have received a lot of attention from the industrial parties, precisely because it was relatively small (indistinct) looking at the interests of unions as a whole and that whilst we - you readily accepted that there should be provisions, it's hard to see how the circumstances of higher education in relation to these sort of general staff are different, such that there ought to be rates that differ from the mainstream apprenticeship awards.
PN161
In other words, why would one have a different rate for apprentices and higher education in the mechanical engineering area from the rates in the Manufacturing Award? I ask that sort of question rhetorically. What's the justification for it? I understand you say, "Well, there's underlying awards there," but then I wonder whether - well, is it attaching too much significance to the underlying awards?
PN162
MS PUGSLEY: I guess that's very much a question of the approach that the Bench wishes to adopt and how simple the Bench wishes the modern awards to be. For instance, I think if you look at the allowances for tradespeople in the - in schedule C, I think it is, of the General Staff Award, those allowances in relation to things such as hot and cold work, for instance, are probably calculated differently from the way those allowances are calculated in the (indistinct) award, and that doesn't really - - -
PN163
THE VICE PRESIDENT: Yes.
PN164
MS PUGSLEY: If - we, I guess, have no particular objection or problem if the Bench were to take the view that there should be a table with different percentages for apprentices in different industries. If you were simply to take the percentage that I've set out in attachment 1, that wouldn't necessarily complicate factors significantly.
PN165
THE VICE PRESIDENT: Yes.
PN166
MS PUGSLEY: If that was the approach that the Bench preferred to take in relation to this. The rates that we've set out - the 42, 55, 75, and 88, as well as applying to the greatest number of staff under the pre reform awards happen to coincide with those in the Metal Industry Award.
PN167
THE VICE PRESIDENT: Yes. Okay.
PN168
MS PUGSLEY: There are only two other points that I wanted to make your Honour. One is in relation to adult apprentices. We haven't include, as we've said in our reply submission, we didn't include adult apprentices in our application because they haven't been included in the pre reform awards but, of course, we have no objection to appropriate provisions to adult apprentices if the Bench considers that appropriate.
PN169
And, finally, in relation to the AMWUs request to the - for this matter to be put on hold and dealt with at a later stage following the review of apprentice conditions. We don't really see what that would achieve. Why this award would be singled out, as it were, as having to be put on hold pending the outcome of those proceedings. Nothing would be prejudiced, as I understand, by the granting of our application - - -
PN170
THE VICE PRESIDENT: Have you got any idea how many apprentices there are in the Higher Education area? I take it's very small?
PN171
MS PUGSLEY: I would consider that it's very small and it really would vary from university to university. What we do know is that universities do have provisions, I think, almost universally in their enterprise agreements to provide for employment of apprentices. And so theoretically they intend to do so rather than employ - - -
PN172
THE VICE PRESIDENT: Well, that actually - that's a - will be compelling reason why the award should have an apprentice provision. Otherwise there's a real boot problem.
PN173
MS PUGSLEY: Yes.
PN174
THE VICE PRESIDENT: A real boot problem. Okay. In terms of any comments you'd like to make about the - anyway you're seeking - I understand your submission on the adjournment, I'm inclined to agree with you. Do you have any comments that - about the draft proposed by the AMWU?
PN175
MS PUGSLEY: We thank the AMWU for their flexibility in improving or following our discussions in principle about making amendments. As Ms Estoesta has said her draft doesn't deal with all of the type of apprentices that were dealt with in the pre reform awards and which may be employed by universities, in particular, catering staff and catering staff at universities do fall within the category of general staff and are covered by the general staff award. All I can say further to that is that the LHMU were served with our application and have made no submissions. But we do say that the AMWU proposed clause is deficient in that it deals with conditions for some kids of apprentices but not others.
PN176
THE VICE PRESIDENT: Okay. Well, thank you, very much, Ms Pugsley. Is there anything you need to say in reply, Ms Estoesta?
PN177
MS ESTOESTA: I have nothing further, your Honour, unless Mr Hanisch has anything to add?
PN178
THE VICE PRESIDENT: Mr Hanisch?
PN179
MR HANISCH: If the Commission pleases, I guess - without throwing any complexities into this from the AMWUs part, being a tradesperson myself, I guess we look at it from the position that apprentices who work in common industries or in common roles - this is about jobs and what type of competencies are required to do a certain job. My understanding of this award, it's to deal - and this application is to deal with apprentices, primarily maintenance type work, around those types of higher education - - -
PN180
THE VICE PRESIDENT: Yes. And some catering as well.
PN181
MR HANISCH: Yes. But, unfortunately, we're not here to talk for that particular industry. But from our part we - I would suggest that it would be inappropriate for an apprentice who works - let's say around the corner in one of these buildings doing maintenance, to be covered by provisions that are based on manufacturing the - and above the award outcomes for apprentices in comparison to working in a higher education facility. The skills are very similar - - -
PN182
THE VICE PRESIDENT: The RMT building on the other side of the city.
PN183
MR HANISCH: Yes.
PN184
THE VICE PRESIDENT: Yes.
PN185
MR HANISCH: So we would say that that apprentice should be treated the same for the types of skills in which they are learning to acquire as would be for any other type of maintenance type work. So we're looking for consistency in this. We think the modern award has gone a long away to deal with the number of those issues. I think it's hard for me to understand why we'd be referring back to old awards prior to modernisation - - -
PN186
THE VICE PRESIDENT: I can explain to you why that happens, Mr Hanisch. Ms Pugley's approach is impeccable in terms of the approach that the Full Bench had adopted during the award modernisation process. The reason why one looks back at the underlying awards is because the modern award content has got to come from somewhere and if you look at the requirements that were requested in legislation it becomes obvious that trying discern what the common standards are in the underlying awards was the most reliable way of achieving the request requirements and the modern award objectives. And that's the reason why Ms Pugsley has done it and she's been impeccable in that regard.
PN187
But what you're saying is - what I well and truly understand that it's an argument that says, "Well, you don't need to have a slavish and mindless focus on the underlying awards, these people are doing exactly the same work for practical purposes, there's no reason why they should be treated any differently." And that's the counter argument I've already articulated. You've just put it again.
PN188
MR HANISCH: Yes. I apologise for doing that. I just wanted to clarify that position from the AMWUs part. And like I've said I think initially when modernising was at its infancy I think it was important to rely on those previous awards. I'm certainly not saying otherwise and I think - - -
PN189
THE VICE PRESIDENT: No.
PN190
MR HANISCH: - - - and I think the applicant has done a great job in addressing this issue. It's, I guess, I'm the type of person that likes to learn from examples and evolution. The evolution is that there are good provisions with modern manufacturing to cover the types of work in which our apprentices that fall under our award structures will be working in, and so I once again just say that we'd be seeking that type of consistency.
PN191
THE VICE PRESIDENT: Thank you.
PN192
MR HANISCH: If the Commission pleases.
PN193
THE VICE PRESIDENT: Thank you. I take it there's no reply to that, Ms Pugsley required?
PN194
MS PUGSLEY: No, your Honour, except to say that the Full Bench could have taken a narrow definition of general staff in making the General Staff Award and determined that trade staff including apprentices would fall under Occupation Awards rather than the Industry Award and those chose - the Full Bench chose not to take that approach.
PN195
THE VICE PRESIDENT: Thank you, very much. The Tribunal will reserve its decision. Hopefully, you'll get something promptly. Thank you.
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