TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1057685
VICE PRESIDENT HATCHER
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards
Supported Employment Services Award 2010
10.06 AM, MONDAY, 2 MARCH 2020
THE VICE PRESIDENT: Yes, all right. In Sydney, Ms Langford, you appear for NDS?
MS K LANGFORD: Yes, I do.
THE VICE PRESIDENT: Mr Christodoulou, for Greenacres?
MR C CHRISTODOULOU: Yes.
THE VICE PRESIDENT: Mr Ward, for ABI and the New South Wales Business Chamber?
MR N WARD: Yes, your Honour.
THE VICE PRESIDENT: All right. In Melbourne, Mr Clarke, you appear for the ACTU?
MR T CLARKE: Yes, your Honour.
THE VICE PRESIDENT: And Ms Wilson, you appear for the AED Legal Centre?
MS K WILSON: Yes, your Honour.
THE VICE PRESIDENT: And in Brisbane, Ms Boulton, you appear for Endeavour, is that right?
MS BOULTON: Yes, your Honour.
THE VICE PRESIDENT: Yes, all right, thank you. So I think the first thing we need to start off with is the response. And Ms Hodge and Ms Kelly appear for the Department on telephone, is that right?
MS HODGE: Yes, your Honour.
MS KELLY: Yes.
THE VICE PRESIDENT: All right. So I think we'll start with you, Mr Ward. The first thing we need to deal with is the response to Mr Clarke's proposal.
MR WARD: Yes, your Honour. We are not quite as far progressed as we thought we would be, although we have sent something to Mr Clarke on Friday. Can I explain where I think we are, and perhaps a part forward. Mr Clarke raised the concern that the preamble in the grades two to seven in the Commission's decision may not reflect statements relating to qualifications and competency that are otherwise found in the awards that are signposted in those grades most relevantly for five and six.
THE VICE PRESIDENT: I think the issue was with grades four to seven.
MR WARD: Four to seven, yes. Can I make this observation, straight away, that it's entirely legitimate that the ACTU have raised that. It is correct. We have done our own analysis and some of the qualifications don't properly align with those contained in those awards. I could hand up an analysis if that would help. I haven't sent our analysis to Mr Clarke yet. On Friday we sent some alternative wording to Mr Clarke which I can hand up on this basis. We didn't feel that Mr Clarke had necessarily solved the problem. And so we provided some language to the ACTU which we thought did solve the problem. Now I have to be fair to Mr Clarke and we tried to contact him on Friday but in all fairness, we weren't able to so it might be a little premature to put him on the spot in relation to what was sent, but - so we - well, there is a problem. I don't think the ACTU properly resolved it and we've provided alternative wording which we hope might resolve it. I will hand that up in a minute. There appears to be a residual issue which isn't about that confusion but the residual issue is that the Commission in its decision aligned grades six and seven to AQF4, and I understand Mr Clarke is agitating that they should be aligned to AQF3. That seems to be a separate issue, if I can use that term.
Can I just for completeness hand up what was sent to Mr Clarke. And I'll also hand up our workings behind that but I'll have to undertake to send that to Mr Clarke and the other parties electronically in due course because I can't physically hand it to them. So that's what was sent to Mr Clarke and these are the workings that we went through to try and do the analysis. If I can - I've handed up one copy for each member of the Bench if it's required. I wold have thought rather than perhaps put Mr Clarke on the spot and try and sort of agitate it today, it might be best if your Honour gave us a very limited period of time to see if we could resolve it, maybe say 48 hours, or something like that. I suspect we're now debating what's the best language to resolve a problem we all agree exists. As I said, that's entirely separate to the AQF4 and AQF3 issue.
THE VICE PRESIDENT: All right. Anyway, do you want to speak to this document to just explain what you've done?
MR WARD: Well, just if I can, very briefly. When the ACTU formulated their document with respect to it, it seemed to be everything and nothing in terms of all of the competencies all of a sudden became mays, rather than wills. In our case we have reverted back to, I think, what the Commission's original intention was, which is making certain competencies a requirement. But we have added in language which is quite often found in most of the referenced awards, and that language is in the second dot point, for instance, in grade four, which is equivalent recognised enterprise or industrial experience, training or prior learning experience and/or skills to a grade four. If one adopts that language throughout the controversial grades you can actually then very quickly solve the alignment problem but also, at the same time ensure that people at the various grades "must" have some competencies rather than, "may" have some competencies. So we have tried to solve the "may" back to a "will", but we've done it in a way which we believe is sufficiently aligned to the various awards, by adding in that extra part.
THE VICE PRESIDENT: All right.
MR WARD: Other than that, the explanation is going to take about 40 minutes and I don't think we have time for it this morning.
THE VICE PRESIDENT: All right. Okay. Mr Clarke, have you seen the document?
MR CLARKE: Yes. Yes, I have, your Honour. Yes.
THE VICE PRESIDENT: Do you wish to make any response to it today or?
MR CLARKE: Only to highlight that our document, as we explained in the covering email to it, sought to resolve issues with differences in standards as between the grades as specified in the decision and the reference award of classifications, if you like, as well as differences in the alignment between the grades as specified in the decision and the award as it stands today. And it's that second issue which is the explanation for the difference in classification standards in six and seven, as between our document and the document that was handed up today. But I'm happy to work through the issues to see if we can come to a common position.
THE VICE PRESIDENT: I mean, it seems to be, leaving aside the question of the AQF standard for grade seven, I think everyone agrees that a person can fall within any of these grades if either they meet the generally described training and work qualifications, or they fall within any of the incorporated classifications. And so we just need a drafting fix to make it clear that you fall into the grade if you meet those standards, or if you perform work to the standards in any of those classifications.
MR WARD: We actually tried to go a little further, and rather than have to have the kind of, but anyway, this applies - - -
THE VICE PRESIDENT: Yes.
MR WARD: We have actually tried to use language which achieves both at the same time.
THE VICE PRESIDENT: Yes, all right.
MR CLARKE: Yes.
THE VICE PRESIDENT: All right, thank you. Well, Mr Clarke and Mr Ward, and any other parties, how much longer do you want to try and resolve this between yourselves? Otherwise - - -
MR CLARKE: Well, if it's - - -
THE VICE PRESIDENT: Just bear in mind that the timetable we are now working on has to have this resolved by 31 March.
MR CLARKE: Your Honour, if I can speak through to you to Mr Clarke, it might be a question of when Mr Clarke is available because my office could talk to Mr Clarke today subject to his availability.
THE VICE PRESIDENT: All right. Well, perhaps we'll review the position at the end of the conferences to what the future timetable will be. Does any other party wish to make a comment about this issue?
MS WILSON: We haven't seen the paper, at all, so we can't comment on it at this stage.
THE VICE PRESIDENT: All right. Okay, so the second issue, Mr Ward, is the proposal which you've sent to my chambers on Friday concerning modifications to grades A and B. Do you want to speak to that?
MR WARD: I do, your Honour. Can I commence by saying that there's no intention to try and change the Commissioner's decision. When we circulated the original wording we simply were hit by a variety of questions which are quite normal when the sort of first award is created, for want of a way of describing it. And we simply identified some suggestions to language which might assist operators better understand how it is to be applied. Now, if in any sense the language we proposed diverts from the intention of the Commission then we don't press it. There were two issues which materialised in our conversations with ADE's. The first one was the use of the word, "action." And the challenge there was that the perception was that an action could simply be a muscular contraction. Now we spent a lot of time debating alternative words but at this stage we've adopted a word, "subtask", which we think is consistent with what the Commission intended and certainly consistent with the exchanges between the Commission during the past conferences. And it appears that that action seems to be better understood, I'm not going to say perfectly understood at this time, hence there's a trial, but better understood than the word, "action", because the anxiety was that "action" could simply be, for want of a way of putting it, moving a thumb. So the first issue is the suggestion of - - -
THE VICE PRESIDENT: Just hold on a sec, Mr Ward. Where is this noise coming from? Yes, go on, Mr Ward.
MR WARD: Thank you. The second one was perhaps something to be expected, which was grade B had included a reference that the (indistinct) may involve the use of mechanical equipment or tools. And we note that there's a "may" there but there was a general confusion where any use of equipment or tools meant you had to be in grade B. But we have just attempted to try and resolve that by introducing some language into A, again which is the use of jigs similar to the one Mr Christodoulou demonstrated for you. But for instance, there's a number of operators who use counting jigs, where basically you have a sheet of paper in front of you that says, "one", "two", "three", "four", and you count out. For clarity during the trial we didn't want somebody to think that was a piece of equipment because we didn't think that was what was intended. So we've added those words in. And we've attempted to ensure that it's very clear that they have to have basic functionality which is important.
We then used the word, "use of those", in distinction to - changing the word, "use of those", to "operate" in (b), simply because by way of example you could have somebody who is nothing other than feeding a towel into a folding machine but they don't actually operate the machine. So we have attempted to try and provide two suggestions to the Commission. One is, "actions" is replaced by "subtasks." People seem to have a better handle on that. And the second one is to ensure that there isn't this misconception that the minute you use any form of tool or equipment you automatically have to go in (b), and hence we've added in those additional words. We have done that simply because the feedback pre-trial suggested that would help give effect to the Commission's decision. As we said at the beginning, if we've done anything to distort the Commission's decision that's not our intention and we wouldn't press, if that's the case. But otherwise it appears that that would more readily allow ADE's who are inexperienced in doing this, to better understand how to grade people. And I use the analogy of the first award. It is in many ways akin to a first award in that employers who are used classifying people in an award structure over many years can do it almost blindfolded, but when it's first done it's actually quite a challenging issue. So we've simply done it, hopefully to improve the chances of the trial being successful rather than non legally qualified people getting into confusion as to how the grades operate. If the Commission pleases.
THE VICE PRESIDENT: All right. Is this advanced on the basis that it's more or less a consensus, a proposal by ADE's?
MR WARD: Your Honour, all ADE's agree with this proposal.
THE VICE PRESIDENT: All right. So - - -
MR WARD: I apologise. All represented ADE's agree with this proposal.
THE VICE PRESIDENT: All right. So, Ms Langford, Mr Christodoulou or Ms Boulton, do you want to say anything in addition to what Mr Ward has said?
MR CHRISTODOULOU: No, your Honour.
MS LANGFORD: No, your Honour.
THE VICE PRESIDENT: All right.
MS BOULTON: No, your Honour.
THE VICE PRESIDENT: Okay, thank you. Mr Clarke and Ms Wilson, I know you only received this on Friday. Do you want to make any comments about this now or do you want to consider this further? Or both?
MR CLARKE: Yes, look, we do need to consider it a little further, your Honour, or certainly speaking for the ACTU, we do. I didn't hear any explanation of the change to direct supervision and constant monitoring becoming direct supervision, or constant monitoring in grade A during that explanation.
MR WARD: Sorry, your Honour, that's a typographical error. It should be "and." I apologise, your Honour.
THE VICE PRESIDENT: All right, thank you. Sorry, Mr Clarke.
MR CLARKE: Yes. And the - yes, we're still a little confused on the distinctions between actions and subtasks, and whether this is an attempt to measure productive operational outcomes or worker output, or a bit of both, or how much of each is still a little unclear to us. And there is an issue about whether this reference to operation of mechanical equipment increases the breadth of it somewhat. So, look, we do need some time to think about whether or not this is actually something that advances on our previously expressed concern of whether or not it could be sensibly implemented even in a trial. I'm not sure how much I can add to it at this point but we can certainly have a closer look at it.
THE VICE PRESIDENT: All right. Ms Wilson, do you want to give a response now?
MS WILSON: No, we need more time to consider it at this point, thank you.
THE VICE PRESIDENT: All right. Does the Department wish to say anything about these issues?
MS KELLAR: No, your Honour.
THE VICE PRESIDENT: All right. Well, having regard to the timetable we are working from what I'm inclined to do is this, to just have a further report back within a week with a direction to the parties to confer about the issues in dispute. Next week's conference will be, I think the final opportunity to see if the parties between themselves can reach a resolution of the disputed matters. Beyond that point if the matters remain in dispute what I would propose is to allow the parties another week to file written submissions about the matters. And then we will issue a final decision about the form of the structure for the purpose of the trial, by the identified deadline of 31 March. Does any party have any problem with that proposed approach?
MR CLARKE: Not from the ACTU's perspective, no.
MS WILSON: Not from the AED perspective.
THE VICE PRESIDENT: All right. Well, that's the proposal we will adopt and directions will be issued to that effect. Is there any other issue which any party wishes to raise at this point?
MR WARD: Your Honour, could I just foreshadow this and it's not for the purposes of the trial. We understand that the issue of the definition used for the coverage of the award might become a live issue as of 30 June. And can I just put the Commission on notice that we might be bringing that back in due course, well in advance of 30 June.
THE VICE PRESIDENT: Sorry, just remind me, what's the significance of 30 June?
MR WARD: This is this question about the award being - the coverage being referenced to the Disability Services Act, some changes in relation to how ADE's operate and whether or not they fit that definition, anymore. So it's more about the fact that we might have to have what might be described as a standalone definition in the award rather than a referential definition.
THE VICE PRESIDENT: Yes, all right.
MR WARD: We just might need to bring that back.
THE VICE PRESIDENT: All right. Okay, but that's not a matter that interacts with the trial?
MR WARD: No, no. No, that's what I'm saying. No. That's all.
THE VICE PRESIDENT: All right then. All right, well, I thank the parties for their attendance and contribution. I will issue directions as foreshadowed and we'll now adjourn.
ADJOURNED INDEFINITELY [10.26 AM]