TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 44537-1
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
10.02AM, THURSDAY, 31 MARCH 2011
THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA
VIDEO CONFERENCE AND RECORDED IN MELBOURNE
PN1
THE SENIOR DEPUTY PRESIDENT: Good morning, everybody. I wonder if we could take appearances in Sydney. Who's appearing in Sydney?
PN2
MS C. COATE: Carmel Coate, for the National Fire Industry Association.
PN3
MR D. CROSS: David Cross, solicitor. I seek leave to appear for the applicant, Tyco Australia Pty Ltd.
PN4
MR R. KRAJEWSKI: Krajewski, initial R., with Chubb Fire and Security, your Honour.
PN5
MS R. SUTTON: Rachel Sutton, solicitor. I seek leave to appear on behalf of the Fire Protection Association of Australia.
PN6
MR E. SETCHES: Earl Setches, national secretary of the CEPU Pluming Division.
PN7
MS K. YU: Karen Yu, Master Plumbers Association. I won't be making any submissions at this stage.
PN8
THE SENIOR DEPUTY PRESIDENT: Yes. Very well. Thank you for that. There's no issue, I take it, about leave in respect to Mr Cross and Ms Sutton? Permission is granted as required in each case. Perhaps we can start with you, Mr Cross.
PN9
MR CROSS: Thank you, your Honour. The applicant relies on an application to vary the modern award. In support of that application, the applicant has also filed an outline of submissions and also a signed statement of Phillip Darby. That's a signed statement of 16 March. Mr Darby is the national industrial relations manager of the applicant and in fact he's the gentleman who's here sitting to my right.
PN10
THE SENIOR DEPUTY PRESIDENT: Yes.
PN11
MR CROSS: He's accompanying me here today. Your Honour, the application is brought under section 157 of the Fair Work Act, which is that the applicant is making its application on the footing that the variation to the award is necessary to achieve the modern award objective. Just so that we're all precise, the modern award of which we're speaking here is the Plumbing and Fire Sprinklers Award 2010.
PN12
The variations that are sought in connection with that award are attached to the application and your Honour will see that the variations extend only to introducing the concept of sprinkler systems tester into the classifications comprehended by the award; so that is the full extent of the variation which is sought, simply to make it clear that the classifications contained in the award encompass the employment of persons who are engaged primarily to carry out sprinkler system testing. Your Honour, as I indicated earlier, relatively detailed written submissions have been filed and evidentiary material put forward through Mr Darby's statement.
PN13
THE SENIOR DEPUTY PRESIDENT: Yes.
PN14
MR CROSS: In a nutshell, your Honour, if I can put the applicant's position, it really boils down to this: there are and will be substantial changes to the safety regulatory regime that impacts upon the industry code by this award. Those changes have largely had their impact on the day after the modern award was created. The industry, in response to those changes, has come to the view that it will be an impressive feature of operations in this industry for persons to be engaged and deployed as systems testers; that that will be the exclusive domain of their employment rather than a situation where persons are engaged to install and maintain and also from time to time test the systems. That is the industry response to the regulation.
PN15
That being so, it is necessary in our submission that the modern award plainly and unambiguously contemplate the activities of employees who are solely engaged to perform testing work and that that's necessary that the modern award objective is secured, the objective being of course that this instrument can operate properly within the industry as a safety net for employees. The application was put on the footing that it had the support of the parties identified in the eighth paragraph, the final paragraph, of the application. Your Honour is aware that directions were made in this matter that called for parties who opposed the application to lodge material in opposition to it.
PN16
THE SENIOR DEPUTY PRESIDENT: Yes.
PN17
MR CROSS: No such material has come to light and we say that that's an indication of the extent to which the position comprehended by the application is reflective of an industry response to regulatory arrangements, the impact of which has now been felt and that that supports the position that the variation as proposed is necessary in answer to the statutory test.
PN18
THE SENIOR DEPUTY PRESIDENT: Yes. Very well. Sorry, I've got an additional appearance in Melbourne and in fairness to those in Sydney, perhaps I should identify that at this point.
PN19
MR P. McCRUDDEN: Yes, Commissioner. McCrudden, P., from the CEPU.
PN20
THE SENIOR DEPUTY PRESIDENT: Thank you. We've got Mr McCrudden from the CEPU, okay. Can I ask the parties generally - the applicant has relied on a statement of Phillip Darby. Does anyone have any issue about that or wish to have it called formally as evidence and subject to cross-examination? That can be accepted as evidence without formal swearing or without any cross-examination? Okay, I'll take that course. Could I ask you, Mr Cross, whether in terms of the objective of the application there is any benefit or need to amend the definition of "fire sprinkler fitting" in clause 3 of the award, 4.7(b), to add the word "testing"?
PN21
MR CROSS: Could your Honour repeat that provision. I apologise.
PN22
THE SENIOR DEPUTY PRESIDENT: It's in clause 3 - sorry, no, it's in Coverage, clause 4. 4.7(b), Fire Sprinkler Fitting. Is there any need or benefit from adding the word "testing" to the definition of "fire sprinkler fitting"?
PN23
MR CROSS: Your Honour, I think that would be a suitable amendment and we would certainly support that.
PN24
THE SENIOR DEPUTY PRESIDENT: Very well. Look, I can understand the intention of the applicant and those supporting it, which I understand is Chubb, Tyco, the National Fire Association, the Fire Protection Association, but can I ask you some questions about how you seek to achieve that. Can I ask, firstly, by asking a very general question: was the sprinkler systems tester classification included in any pre-modern award, either federal or a state NAPSA?
PN25
MR CROSS: Your Honour, it was not. I have conducted some researches in relation to that and not been able to locate a provision to that effect in any prior instrument. By extension to that, the matter was not adverted to, so far as I can make out, at any stage of the process by which the current modern award was created.
PN26
THE SENIOR DEPUTY PRESIDENT: Okay. Can I ask you then, going to the terms of the variation sought which was attached, as you said, to your application, what you've done there is to define a qualified sprinkler systems tester - let's say SST - and then the SST, the non-qualified SST. Each requires a recognised certificate III, completion of two specific modules, the same in each case. The only difference, am I right in saying, is that the qualified SST is unsupervised, the SST is supervised by a qualified SST? Is that the effect of the definitions?
PN27
MR CROSS: There is a further difference, your Honour, which is that the qualified SST must have completed the additional modules that are set out in that subparagraph (c), whereas the other is a person who's undertaking training in those modules, not necessarily completed - - -
PN28
THE SENIOR DEPUTY PRESIDENT: I see. Okay. Undertaking versus completed.
PN29
MR CROSS: So that is a subordinate position not only in terms of the existence of supervision, but also in terms of the acquisition of skills.
PN30
THE SENIOR DEPUTY PRESIDENT: Yes, okay, but each requires a certificate III; but, in addition, the completion of two specified modules. Okay. Moving on, you then have included on page 5 of your proposed variation - in the plumbing and mechanical services work, a sprinkler fitting worker level 1(d) - an additional item (b), a qualified sprinkler system tester. Is there any incorporation of the SST, the unqualified person, in your variation at all?
PN31
MR CROSS: Your Honour will see from the top of page 4, the preceding page, that the grades which are in effect junior to level 1(d) operate on the basis that the first one, 1(a), is for a new entrant and then one moves to level 1(b) and 1(c) after the effluxion of a stated period of time. It was felt by the parties who collaborated in the formulation of the text for this variation that if we put in a definition for the, in effect, subordinate sprinkler system tester - that's the person who works under supervision and is undertaking training - - -
PN32
THE SENIOR DEPUTY PRESIDENT: Yes.
PN33
MR CROSS: - - - to complete the final modules, that by including the definition then that was sufficient because that person would then slot in level 1(a), 1(b), 1(c). Your Honour is correct in that there is not a specific naming of that position, so sprinkler system tester, in those top three paragraphs of page 4, but that was done because it was felt to be otiose and there was a concern that there was little sort of textual violence to the existing award as could be managed.
PN34
THE SENIOR DEPUTY PRESIDENT: Yes, okay. Well, this structure within the award was intended to be the introduction of a qualification based classification system. Can I ask, given that both of the grades of employees are required to hold a certificate III, how that distinction is consistent within a qualifications based system?
PN35
MR CROSS: Your Honour, we say it's consistent because the cert III qualification provides the platform or a foundation for the portfolio of skills that are necessary for a person to be a full-time systems tester and someone who then would be capable of achieving licensing under the national regime. The additional modules that are referred to in subparagraph (c) are, if you like, a kind of super structure that builds on the base that really then enables the person to engage with that position, particularly as it's going to be contemplated by the licensing regime. It's those two additional modules that make the final grade, as it were, and we say that's clearly laid out and that pays due respect for notions of skills based qualification.
PN36
THE SENIOR DEPUTY PRESIDENT: Okay. All right. Well, can I ask you then whether the level 1(d) currently in the award is appropriate to comprehend the qualified sprinkler system tester, in that the substantive qualification base at that level is a services stream certificate level 1 consisting of 16 appropriate modules of structured training. How does that equate with your qualified SST definition and indeed the SST of holding a certificate III?
PN37
MR CROSS: Is your Honour directing my attention to the bullet points that appear under level 1 before the systems sprinkler tester is referred to? Are they the 16 points that - - -
PN38
THE SENIOR DEPUTY PRESIDENT: No. It's the level 1(d) as you've renumbered it, A1, halfway down your page 4.
PN39
MR CROSS: Yes.
PN40
THE SENIOR DEPUTY PRESIDENT: And that, as do all the qualifications, contains an appropriate qualification level. That in this case is completion of services stream certificate level 1 consisting of 16 appropriate modules of structured training.
PN41
MR CROSS: I see. Just so that everybody's clear, that's the text which has always appeared in the award. The renumbering has gone on by the introduction of the capital A letter at the front. It was just to provide for that inconsistency, so that when we put at the bottom the qualified sprinkler system tester, it was apparent that that was to be looked at on its own.
PN42
THE SENIOR DEPUTY PRESIDENT: Yes. My question is really directed to the comparability of, at the same level, a certificate level 1, 16 modules, as compared to a certificate III within the same classification level.
PN43
MR CROSS: Yes. I understand the import of your Honour's question. The response to that really is this - it falls into two parts. The first part is that these variations that are brought to the tribunal today are the result of a considerable period of discussion, reflection and consultation amongst the parties who are identified as supporting the application. It was considered suitable at the end of all that process that the qualified sprinkler system tester ranked at level 1(d) and that there wasn't an inconsistency or anomaly with respect to the skills to be held by that position as opposed to the skills in the other stream. I can perhaps assure your Honour at that level that the matter has received care and attention by the parties concerned.
PN44
At an objective level - and this is the second part of the answer - the level of qualifications required for the sprinkler system tester are calibrated by reference to what the national licensing scheme is going to require. The position has been defined with an eye to that to make sure that this arrangement is sufficiently durable, and it's not necessary for the parties to have to keep coming back to seek variations to the award as the safety net regulatory system alters. The qualifications that are going to be required to meet the regulatory system are high. If one looks at the nature of the work and how it's going to be carried out, and the circumstances under which it's going to be carried out, those instructing me are of the view that that is appropriately comparable with the position of employees who fall within, if I can call it, the capital A part of that definition of level 1(d).
PN45
THE SENIOR DEPUTY PRESIDENT: Can I just explore that a bit further. When there is reference in the definition to certificate III, is that a particular certificate? Is it, for example, a CPC32808 certificate in fire protection or is it some other certificate?
PN46
MR CROSS: I'm instructed, your Honour, that the reference to certificate III - it's in the nature of a trade certificate. That's what I'm instructed.
PN47
MS COATE: Your Honour, it doesn't apply to any particular certificate or trade. It is just a certificate III requirement at that level to undertake the additional modules.
PN48
THE SENIOR DEPUTY PRESIDENT: And what would be involved in the certificate III qualification, in terms of the number of modules or units to be undertaken?
PN49
MS COATE: Your Honour, it would be whatever modules were required for achievement of any particular certificate III qualification. We don't specify those. They may belong to other awards, other training packages.
PN50
THE SENIOR DEPUTY PRESIDENT: But if someone were in possession, for example, of a certificate III in fire protection, that would have involved 33 units of competency? I understand that modules and units sometimes is interchangeably - incorrectly - modules going to the packaging of training by trainers, but you can see what I'm getting at. I'm just trying to establish whether the level at which you've pitched the classification is the appropriate one in the award.
PN51
MR CROSS: Your Honour, I'm instructed that if a person was to undertake the qualification to which you just referred, which was the certificate III in fire protection, the outcome of that would really be that they were a fully qualified tradesperson in the area of fire protection and that sort of a person would be the person who would be involved in actual sprinkler fitting, and the work associated with that at that fully qualified tradesman level. The particular classification that we're concerned with here is going to involve a bounded form of work. It's not going to involve sprinkler fitting or the exercise of tradesperson skills at that level. This is going to be a person whose job is testing. There are certain credentials that are going to be required for that, or that are required for that, under the national system.
PN52
It has been felt appropriate in putting forward this variation that the holding of a certificate III qualification of any description, the load for which or modules for which will vary according to the domain of study that that certificate III relates to in the institution that's involved in issuing it - it was felt appropriate that that would be a suitable kind of gatekeeper concept, if you like, and then adding onto that the undertaking and completion of the additional two modules. I understand your Honour's concern that this classification - - -
PN53
THE SENIOR DEPUTY PRESIDENT: Well, it's a fairly large gate, is my concern. It seems to be a fairly large gate.
PN54
MR CROSS: Yes. All I can say to your Honour in relation to that is, firstly, that the process of consultation which has brought this about has been extensive and is reflected on these matters so as to ensure that there's no inequity. Secondly, the overriding consideration to make sure that the classification is described and bounded in a way that allows people to operate successfully in the context of the safety regime, and that it not be then a requirement on the parties to keep bothering the tribunal with incremental variations to move the qualifications forward because it turns out that we've (indistinct) requirements of the national scheme are higher.
PN55
THE SENIOR DEPUTY PRESIDENT: The structure of the definitions, the two additional modules, am I right in thinking you need a certificate III in order to undertake those additional modules or not, or could one simply undertake the modules?
PN56
MS COATE: Your Honour, they are classed at the certificate III level.
PN57
THE SENIOR DEPUTY PRESIDENT: But they could be done independently?
PN58
MS COATE: They can be done independently, yes.
PN59
THE SENIOR DEPUTY PRESIDENT: You see, what puzzles me a bit is that what you're seeking to do is to place into what was deliberately intended to be a qualifications based system, a fairly narrow task based classification, and that may have raised some issue as to whether it's a flexible modern work practice to have very narrowly based task based classifications within a skill based award structure. It is an issue I would like some further comment on. That's your intent, as I understand it, to create the facility for a person who is a tester and only a tester even though they may have skills that might be otherwise able to be utilised in the industry.
PN60
MR CROSS: That is so, your Honour, and that is a feature of the system which the parties thought long and hard about, because each of them are thoroughly cognisant of the ideology underpinning the skills technician in this award and its predecessors. But, to be completely frank, your Honour, about how the parties landed on this position, it really is as a result of having to deal with, say, the national system that the parties are confronted with and that the parties are obliged to make provision for the testing of these apparatuses by people who hold specific credentials that enables them to be licensed, and that that system is going to be uniform throughout Australia and there is going to be a need for levels of testing and accountability in relation to testing that exceed what might have been the routine experience of the past.
PN61
The parties have really come to the position where they have to contemplate some slight adjustment to the kind of skills approach in the classifications, the trade-off for that being to ensure satisfactory conformity with the new national safety regime.
PN62
THE SENIOR DEPUTY PRESIDENT: Okay. Just taking the comparable qualifications point further, doesn't the certificate III equate with a certificate level 3 rather than a certificate level 1 where it has been lined up in your proposal?
PN63
MR CROSS: I'm not sure that I personally know the answer to that, your Honour.
PN64
THE SENIOR DEPUTY PRESIDENT: Yes.
PN65
MR CROSS: I'd seek some assistance.
PN66
THE SENIOR DEPUTY PRESIDENT: Certainly.
PN67
MS COATE: So he was asking - - -
PN68
MR CROSS: Whether certificate III is equivalent to a certificate level 3 using the kind of nomenclature that is earlier - that's in the earlier parts of this. A successfully completed service stream certificate level 1, is there a service stream certificate level 3 and, if so, is it comparable to a cert III?
PN69
MS COATE: In the fire protection area there is no certificate level 1 or in the training package, or certificate level 2. The outcome is purely a certificate level 3.
PN70
THE SENIOR DEPUTY PRESIDENT: Yes, but shouldn't that be then equated with the certificate level 3 in the structure?
PN71
MS COATE: We would argue that the person undertaking this scope of work is coming from a certificate III level of another trade, but they are not at the certificate III level of a fire protection certificate III person.
PN72
THE SENIOR DEPUTY PRESIDENT: Why is there the requirement for the certificate III in your proposal? What you seem to be saying is it's not needed or useful and really all you want people to be able to do is be qualified and licensed in the testing functions involving those two particular modules that you've identified.
PN73
MS COATE: Your Honour, we are not saying that. We are saying that the certificate III level is the gatekeeper that we require a person to hold - mature skills, if I could place it that way. Before they move into the live safety area of fire protection work, we want to ensure they're able to take on the concepts and to carry out work in an appropriate manner.
PN74
THE SENIOR DEPUTY PRESIDENT: But you're equating them, are you not, to, for example, a plumber's labourer or a sprinkler fitter's assistant? You're talking about someone with a certificate III.
PN75
MS COATE: Yes, we are, your Honour. We're saying a certificate III person external to the fire protection industry needs to come in at that level and to undertake the additional training. We are making that submission.
PN76
THE SENIOR DEPUTY PRESIDENT: Yes. Well, the Plumbing Award has a level 2, which is certificate II, level 2, and then moves to trade. The Manufacturing modern award actually has a certificate III at C10, the trades level. If we're talking about comparability of qualifications within a qualification based structure, doesn't that raise a question about whether your proposal pitches the classification at too low a level?
PN77
MR CROSS: Your Honour, we would say not. If I can attempt to encapsulate the reasons for that and attempt to put them together in three points.
PN78
THE SENIOR DEPUTY PRESIDENT: Yes.
PN79
MR CROSS: Because obviously this concept has been discussed now for the past several minutes, but I think it really boils down to this. Proposition 1, there is a need for a distinct, exclusive sprinkler testing vocation in the industry because of the issues that we've spoken about before. Proposition 2, the person who performs that role needs to have certain qualifications on the basis of which they can be licensed. Proposition 3, in order that those people can successfully operate in this industry, they should have a platform of mature skills in the trades area. We are not saying and it's not part of this, as I understand it, that we are saying, okay, well, they've got to have certificate III in fire protection, because they're the kind of people who then finish up higher up the food chain, if I can put it that way, and they're not going to be the people who are put to these responsibilities in any event.
PN80
If we're looking at people who are going to be the correct fit for sprinkler system testing, they need to have a basis of mature skills in trades from outside fire protection - we're happy to contemplate that - augmented by the specific modules that are identified. A combination of all those three factors means that it's appropriate to range that position at level 1(d) and that the perceived anomaly because of the reference to certificate III, is really not a disabling feature because we are not deploying this as a means of taking people who have certificate III qualification in fire protection. That isn't the prerequisite.
PN81
This has been put in there in contemplation of taking people who have got a trades background and then equipping them with the super structural skills on top of the foundational skills to specifically do the testing and therefore specifically be able to obtain the licences that the system will require.
PN82
THE SENIOR DEPUTY PRESIDENT: Can I ask why it's thought necessary to have an exclusive test of vocation? Isn't what is required to meet the licensing requirement persons who are qualified on the basis that they are able to obtain the tester licence rather than exclusively?
PN83
MR CROSS: Your Honour, the position is that the industry sees that going forward in order to deal with these regulations, it is going to be appropriate both in terms of fulfilling the legislative mandate and also to perform matters effectively and efficiently in terms of time and resources, that there be individuals engaged on the basis that exclusively their duties will comprise the testing of the system. Having contemplated the demands of the regulation, it's the industry's view that it will not be possible to effectively deal with these requirements in a robust way over the long term by giving people the sort of bobs and cogs that do the fitting and do the installation, and then also to attend to the testing.
PN84
THE SENIOR DEPUTY PRESIDENT: Okay. So a certificate III is required, you say, to have an appropriate skill base, but not recompensed in the same way as another certificate III under the award. Look, I'll move on to a related issue as to the appropriate placement of this. I know it's dangerous to mention safety net awards in the same breaths as agreements, but are there any agreements in the industry which reflect the sprinkler system tester classification?
PN85
MR CROSS: There isn't such an agreement to which my client, the applicant, is a party to. I'm just casting my eye around the assembled people who know much more about the industry than I do. If I can permitted to speak on behalf of the head-shaking that I've just seen, there isn't an agreement in existence that would contain a provision reflecting that, no.
PN86
THE SENIOR DEPUTY PRESIDENT: Okay.
PN87
MR McCRUDDEN: Your Honour?
PN88
THE SENIOR DEPUTY PRESIDENT: Sorry, I'll just finish for the moment and then if you're able to elaborate upon that, I'll certainly hear from you in relation to that, Mr McCrudden. Everyone obviously will get their opportunity during the course of the morning. I've had a look at the extant Tyco Wormald agreements and in fact found one, but only one, dealing with testers; that being the Wormald Sydney Fire Systems Testing Union Collective Agreement 2008-2011. There are many other agreements which seem to be fire sprinkler fitters agreements containing only that classification, labourers and apprentices.
PN89
The Wormald Sydney Fire Systems Testing Collective Agreement seems to have four classifications, inspectors, experienced inspectors, qualified inspectors and advanced inspectors, which I take to be sprinkler system testers. In terms of the appropriate relativity in terms of skills, although obviously the market is equally a factor in agreement-making, I've noticed when one compares that agreement with the Wormald Sprinkler Pipefitting Collective Agreement, the rates for the testers are in fact in excess of the rates for the fire sprinkler fitters. We don't have anyone from Wormald or Tyco - now, I'm a bit puzzled as the relationship there. Tyco runs some part of Wormald at least. Is that correct?
PN90
MR CROSS: Yes, Tyco Australia Pty Ltd operates the business that trades under the name of - - -
PN91
THE SENIOR DEPUTY PRESIDENT: So it totally runs the business. Do you have any knowledge of those agreements? I raise them only because again they seem to suggest the placement of the classification you're proposing may be a bit light on.
PN92
MR CROSS: Your Honour, I don't have knowledge of those matters and the audio quality at this end prevented me from fully understanding the names of the instruments to which your Honour was referring.
PN93
THE SENIOR DEPUTY PRESIDENT: I'll just repeat those and you may need to come back on it: the Wormald Sydney Fire Systems Testing Union Collective Agreement 2008-2011 and the Wormald Sprinkler Pipefitting Collective Agreement Sydney 2009-2012. I had a look at rates applicable at 1 April and 1 March 2011 respectively, and they seem to suggest the possibility of a problem with the level at which you pitch the award classification. Now, I readily go back to my reservation about talking about agreements and awards in the same breath. Obviously there are market considerations in agreement-making, but it just struck me that that arose out of my examination of that material at least. Before I come back to you, Mr Cross; Mr McCrudden, was there anything you wanted to add on the issue of agreements covering these proposed classifications?
PN94
MR McCRUDDEN: Your Honour, some of the agreements that we have with companies in Victoria, it doesn't mention fire sprinkler testers as such, but there is testing allowances and minimum allowances that testers receive in our certified agreements. It's in the wage scales for - - -
PN95
THE SENIOR DEPUTY PRESIDENT: Allowances?
PN96
MR McCRUDDEN: They get a minimum site allowance when they are testing.
PN97
THE SENIOR DEPUTY PRESIDENT: So it's persons within another substantive classification who are paid an allowance when they're testing?
PN98
MR McCRUDDEN: Well, generally what happens is these guys are already sprinkler fitters. They go out and they don't go onto construction sites, so it was negotiated that they get a minimum site allowance across the board because they don't go on construction sites to perform the testing.
PN99
THE SENIOR DEPUTY PRESIDENT: Yes. I think there is an element of the market in those arrangements, yes. Mr Cross, is that something you need to come back to or something you are able to address?
PN100
MR CROSS: Yes. Look, your Honour, we'd like an opportunity to be able to address your concerns in relation to the collective agreements that your Honour has just referred to. I mean, your Honour has plainly undertaken some research and that has given rise to issues that are, if I could put it, under the broad heading of comparability of skills and appropriate positioning of the classifications, but one to the other.
PN101
THE SENIOR DEPUTY PRESIDENT: Yes.
PN102
MR CROSS: I would just need to confer with my client that I could be equipped to provide you with observations about the operation of those agreements. I'm just thinking about the most efficient way, the most effective way, of handling all of that. It may well be that there are other issues that your Honour has in mind also as this discussion goes on; whether we can put things on the basis that there is, as it were, a kind of list of matters - - -
PN103
THE SENIOR DEPUTY PRESIDENT: Yes.
PN104
MR CROSS: - - - in respect of which clarification or further comfort is needed. We can simply then address that perhaps in a written form as something sent to your Honour's chambers.
PN105
THE SENIOR DEPUTY PRESIDENT: And that would be posted on the web site. Others could respond.
PN106
MR CROSS: Yes.
PN107
THE SENIOR DEPUTY PRESIDENT: I must say, I went to the agreements because of the concern in my mind as to the placement in the classification which otherwise required certificate level 1 with 16 modules of certificate III - a requirement for a certificate III qualification which, when the Manufacturing Associated Industries Award is equated at the trades level of certificate III. There's no certificate III at all in the Plumbing Award, as I understand it, unless I've missed that. Someone might like to address my misapprehension if there is some reference to certificate III in that award. That did raise in my mind the appropriateness of the level and that then led me to look at the agreements to see if there was any recognition in agreement of the position - - -
PN108
MS YU: Your Honour, if I could comment, with respect.
PN109
THE SENIOR DEPUTY PRESIDENT: Yes.
PN110
MS YU: Karen Yu, Master Plumbers, New South Wales. Your Honour is correct, there is no certificate III reference in the plumbing modern award, but there is certificate III in the industry. To my knowledge the certificate totally is not something that is widely used by the industry. Recognition is really given to the certificate III when the apprentices finish their trade over the four-year period and they complete the off-the-job training at TAFE for that certificate III. That allows a transition to a qualified tradesperson.
PN111
THE SENIOR DEPUTY PRESIDENT: Yes. Thank you for that. Okay. Mr Cross, is there anything further from you?
PN112
MR CROSS: There isn't, your Honour, unless there are some areas that your Honour considers I could assist you with.
PN113
THE SENIOR DEPUTY PRESIDENT: No. I mean, I wasn't troubled by the concept underlining the application - ensuring it was clear where a tester would fit into the scheme of things. My concern is where it's pitched in your proposal.
PN114
MR CROSS: That certainly came through loud and clear, your Honour, and I think from my own perspective and I think that of my client also, it's absolutely vital that issue be dealt with in the most precise fashion possible.
PN115
THE SENIOR DEPUTY PRESIDENT: Yes.
PN116
MR CROSS: And as the minutes have ticked by, it's more and more apparent to me that the interest to which this proceeding is intended to serve would best be assisted if we put forward a concise written document that provided the explanation and provided the data by reference to the actual provisions of the various agreements to which your Honour has referred. I think that's the most effective way of dealing with it. I don't think much further could be done in this setting here this morning.
PN117
THE SENIOR DEPUTY PRESIDENT: Yes. I wonder, in doing that, if you could address your mind to some examples of certificate III that would be contemplated by your definition and what that involves in terms of the level of modules undertaken and completed.
PN118
MR CROSS: That will be done, your Honour.
PN119
THE SENIOR DEPUTY PRESIDENT: Yes. Thank you for that. Okay, now, who would like to go next in Sydney?
PN120
MS COATE: Your Honour, Carmel Coate from National Fire.
PN121
THE SENIOR DEPUTY PRESIDENT: Yes, Ms Coate.
PN122
MS COATE: Our attendance here today is to say we were named in the application and are supporting the application, and we are here as evidence of our support. I have nothing further to say apart from commending the application to you.
PN123
THE SENIOR DEPUTY PRESIDENT: Yes. Very well. Thanks for that.
PN124
MR KRAJEWSKI: Your Honour, Richard Krajewski from Chubb. We support the application and the submission that Mr Cross has put forward, we support that, as well.
PN125
THE SENIOR DEPUTY PRESIDENT: Mr Krajewski, do you, Chubb, have any agreements which contemplate a tester?
PN126
MR KRAJEWSKI: Your Honour, I can't honestly answer that at this point in time, but in line with what Mr Cross submitted, I certainly will go back and read through our agreements and come back in conjunction with Mr Cross, or whichever way your Honour wishes, to provide the evidence for the tribunal.
PN127
THE SENIOR DEPUTY PRESIDENT: Yes.
PN128
MR KRAJEWSKI: We'll do that as quickly as we possibly can.
PN129
THE SENIOR DEPUTY PRESIDENT: Yes, okay. Anyone else? Mr Setches, did you want to - - -
PN130
MR SETCHES: Yes, your Honour, if I may. There has been a lot of consultation with the union, with the employer bodies and Tyco to come to this stage. We certainly back the application in its form, your Honour. If there's anything else that the union can do to assist, we are certainly happy to do so.
PN131
THE SENIOR DEPUTY PRESIDENT: Well, certainly, Mr Setches, if the union has any further views on that issue of the equivalence of qualifications within the classification structure and the appropriateness of the level 1(d), that would be appreciated either now or in writing.
PN132
MR SETCHES: Okay.
PN133
THE SENIOR DEPUTY PRESIDENT: Yes.
PN134
MR SETCHES: Well, your Honour, where the union agree with the level 3 status is, for instance, in plumbing there are four or five streams of licences in plumbing, but there are two years of trades school which is virtually the same where you go down a stream. We would say to get to that level 3, that you've done your standard of knowledge in the building industry and that environment where the testing takes part is - that there is a sufficient level of knowledge. If you've been working on the tools in the building industry for two or three years in one shape or form, there is certainly a pick-up of knowledge rather than someone who walks off the street to come and do these specific courses as they're put together to become a fire tester.
PN135
We certainly see that the fire safety management to the public is paramount. If somebody is not properly trained and they leave a button or a valve shut and there is a fire in a shopping centre or a cinema, and where were they - through cottages and shelters, and we know what can happen when things are done wrong, and so we certainly think there has got to be a base level of understanding of the build environment before you take up these particular courses. Now, the sprinkler fitter apprenticeship already has that, but the areas of like a plumber in different streams or somebody who has been in the building industry for a number of years, he should have sufficient knowledge to be able to take these courses up and pass them and be applicably licensed. At the moment ...
PN136
RECORDING INTERRUPTED DUE TO VIDEO FEEDBACK
PN137
THE SENIOR DEPUTY PRESIDENT: Sorry, I'll just interrupt. Okay, we'll try again. We just had some feedback at this end.
PN138
MR SETCHES: And also the union is sitting here because we are also in the COAG process of national licensing. For our industry at the moment, your Honour, all the stars are sort of lining up because we've got - it's happening with our licences for the fire protection industry and the plumbing industry across the board. Some of the little areas like what we're doing now in the award variation, they probably should have been done five, 10, 15 years ago, but while there's the national licensing taking precedent, the whole area of plumbing and fire has really been cleaned up and brought into the 21st century. Again, we support the application and we think that it's a step in a positive direction for fire protection.
PN139
THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Yu, did you have anything you wanted to put?
PN140
MS YU: Your Honour, if I might assist the court in terms of the plumbing and mechanical services worker level 1(d) and its context in the plumbing industry at this stage. Usually that is for a plumber's labourer. It's someone who maybe not has had any formal training at TAFE in terms of their trade, but it's someone who has worked in the industry maybe for - I think over 12 months - by the award - but in the industry it's usually used by an apprentice who has not finished his certificate III or failed the subjects and they're usually put on as a plumber's labourer, or even new - the industry. They might be put on as a plumber's labourer.
PN141
THE SENIOR DEPUTY PRESIDENT: Is it proper to equate someone with a certificate III plus two additional modules to that type of employee?
PN142
MS YU: A plumber's labourer will not have finished the qualification of a certificate III.
PN143
THE SENIOR DEPUTY PRESIDENT: No, I'm talking now about the qualified sprinkler tester, to equate them to a labourer or indeed a sprinkler pipe fitter's labourer or assistant.
PN144
MS YU: My chief executive officer is probably in a better position to answer that question, because he's on the National Licensing Board?
PN145
THE SENIOR DEPUTY PRESIDENT: Well, if you want to think about that and put something further in writing, that would help me, I would hope.
PN146
MS YU: Okay. Thank you, your Honour.
PN147
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN148
MS YU: I will do that.
PN149
THE SENIOR DEPUTY PRESIDENT: Did I miss you, Ms Sutton?
PN150
MS SUTTON: No, your Honour. The association's position is that they support the application. However, they would like to obviously see the submissions put forward by Tyco and may have some comments in relation to the cert III issue.
PN151
THE SENIOR DEPUTY PRESIDENT: Very well. Anyone else in Sydney? It's not the normal bench I'm looking at, so I might have missed someone. That has covered everyone in Sydney?
PN152
MR SETCHES: To help you clarify why - - -
PN153
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PN154
THE SENIOR DEPUTY PRESIDENT: Sorry, we're just getting the feedback again. It has gone now.
PN155
MR SETCHES: Okay. To help to clarify why the union is supporting this application, in reality of what's happening out there, we can give you an example - it could be somewhere like Weipa, where it has got a shopping centre, it has got a port facility and a number of sprinkler systems. Now, there may not be, living in Weipa, a fully qualified sprinkler fitter with the set of skills to go out and test and maintain these systems, but the reality is under the national licensing that's going to come through now where you have to have a licence, there could be, as I just stipulated, a sanitary plumber who has a great knowledge in the building industry who could be upskilled to pick up that licence - to pick up the skillset in that area.
PN156
We don't see at all, and no-one I think around the table thinks that there will be a short little course put together at TAFE, for people to be running out testing sprinkler systems throughout without the proper knowledge throughout Australia until, as I said, a catastrophe happens and governments start to point the finger at who made these decisions. So, the union is sitting here with the reality of - with national licensing coming through, but there are some regional areas and some parts of Australia where there does have to be some people upskilled with a basic knowledge to uphold the public safety and the standard that we're expected to deliver throughout the building industry and, you know, from what governments expect us to do.
PN157
So that's one example, and the main example is where we're saying that the level 3 tradesman should be at - is that they can be upskilled to do a licence, but, your Honour, we would be totally against the - and would be arguing against any award variation that didn't show the level 3 trades, because they are a tradesman and they have worked years - three, four and five years - to become a tradesman. We think they should be able to partake - be a typical trade to do that fire test, because the sprinkler fitter himself has already done that at school. It's the trade by profession, but, you know, like a plumber or someone who can upskill who has a base knowledge.
PN158
THE SENIOR DEPUTY PRESIDENT: So you're talking about someone with a trades level qualification then undertaking additional training to be a tester.
PN159
MR SETCHES: That's exactly what's put together - how I read the application, it is that you have to be a level 3 tradesman in the building industry and then we believe that you have the ability to go on to do these courses which are put together by the national training packages and proper order to train these people to go out and test these fire safety systems.
PN160
THE SENIOR DEPUTY PRESIDENT: Why would such a person be classified at the labourer level?
PN161
MR SETCHES: No. Well, because I think that's just the way the award was written; the modern award and change.
PN162
THE SENIOR DEPUTY PRESIDENT: Yes, okay.
PN163
MS COATE: The pay scale.
PN164
THE SENIOR DEPUTY PRESIDENT: Yes, okay.
PN165
MR SETCHES: That's the pay scale, your Honour. There are different percentages and pay rates.
PN166
THE SENIOR DEPUTY PRESIDENT: Yes.
PN167
MR SETCHES: But a labourer shouldn't - - -
PN168
THE SENIOR DEPUTY PRESIDENT: Shouldn't be doing the testing, no.
PN169
MR SETCHES: No.
PN170
THE SENIOR DEPUTY PRESIDENT: I've got the attachment which you provided with a lot of frequently asked questions about the national licensing system, but it didn't seem to pose any questions of much immediate relevance. Is there any idea as to the nature of the national licence which will be required for a tester, what level of skills they will be required to hold in order to be licensed, or is that something still under development?
PN171
MR CROSS: To a large extent under development, your Honour, but there are also comments that have been made, activities going on, that allow the shape of it to be predicted with a certain degree of confidence. Can I suggest that I have the responsibility of furnishing your Honour, together with the other material that I've already referred to, with some written material that takes that point forward, as well?
PN172
THE SENIOR DEPUTY PRESIDENT: Okay. That would be fine. Could I add to that another question which you might want to deal with in the same way. Given the application is brought in part at least to accommodate pending changes in national licensing arrangements which will affect the fire tester, might it be argued that it's premature to bring an application to include a classification for a tester until there is some clarity or certainty as to the qualifications which will be required for such licensing, particularly given that there are opportunities coming in terms of the two-year review within the transitional legislation and the four-year review within the Act proper to deal with the issue at some future time when there might be greater clarity as to exactly what requirements there are for a tester to obtain licensing. Again you can deal with that by written answer if that's your preference, Mr Cross.
PN173
MR CROSS: Your Honour, we will do that, although I had come equipped today to deal with that particular question.
PN174
THE SENIOR DEPUTY PRESIDENT: Yes.
PN175
MR CROSS: It's better if I wrap it up with all the other written material that's going to be provided, but in short the response to that is going to be that there is already enough known about the system to make it incumbent upon the participants in the industry to get their houses in order in relation to this issue and that that has led to the consultation. In terms of bringing the variation application now, the parties consider that it's a more responsible thing to do in order that everybody can properly deal with the safety issue that has already been directed to your Honour's attention. The parties, having reached a consent position, it was thought to be proper to bring it now rather than to sit on it until the middle of next year when this award might find its term for the 2012 review process.
PN176
THE SENIOR DEPUTY PRESIDENT: Yes.
PN177
MR CROSS: I'll put something in written form together that will address that concisely.
PN178
THE SENIOR DEPUTY PRESIDENT: And the additional dimension again goes to the question of the appropriate point at which to put a classification and whether that would be assisted by knowing exactly what qualifications are required for licensing purposes.
PN179
MR CROSS: Yes.
PN180
THE SENIOR DEPUTY PRESIDENT: Okay. Thank you for that, Mr Cross. Mr McCrudden, I think you're the only one left. Did you want to say anything at this point?
PN181
MR McCRUDDEN: No, Commissioner.
PN182
THE SENIOR DEPUTY PRESIDENT: Nothing? Thank you. Very well. Look, what I'll do is to adjourn the matter now. I'll cause to have put on the variation web site and also circulate it to all persons with an interest in the award, advice that I have sought additional information from the applicant, its supporters and other interested parties. Do you want a time frame for that additional material, Mr Cross?
PN183
MR CROSS: I think so, your Honour.
PN184
THE SENIOR DEPUTY PRESIDENT: Yes.
PN185
MR CROSS: What I would propose to do would be to pull all of that together and, in order to make it as efficient as possible, I'm going to consult with the other supporters of the application so as to incorporate their contributions and their information within the one overall document.
PN186
THE SENIOR DEPUTY PRESIDENT: Yes.
PN187
MR CROSS: I think that we would look to have that lodged by close of business on Friday, 8 April.
PN188
THE SENIOR DEPUTY PRESIDENT: 8 April. Yes.
PN189
MR CROSS: Yes. It might, your Honour, be appropriate to build into that timetable - because it's possible that material in opposition to the variation may emerge from the party for whom Ms Yu represents. Maybe I'm over-reading what she said, but if that does emerge, then we would like an opportunity to respond. If we can have until then, the following Friday - I think it's the 15th - to lodge anything in response to opposing material that comes up on the 8th. If Ms Yu's interest wants to put something forward, they would put it forward by the 8th, as well.
PN190
THE SENIOR DEPUTY PRESIDENT: They may wish to respond to what you're putting, as well. Is it best to do the 8th for yourself and the supporters, 15th for others and then we could either have a further - sorry, I'm just looking at dates - 22nd in reply, or we could list a further conference. Sorry, the 22nd is Good Friday, so it would be the 21st. Why don't I do that; I'll make it the 8th, 15th, 21st. It may be that there's some benefit in having the matter relisted for further consultation at some point. Very well. I'll have that placed on the web site and advice to any parties with an interest in the award, and I'll await the further information. Thank you all for your assistance today.
PN191
MR CROSS: As your Honour pleases.
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