Epiq logo Fair Work Commission logo






Fair Work Act 2009                                       1056669






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Children’s Services Award 2010










JUSTICE ROSS:  Can I have the appearances, please.


MR M WRIGHT:  Wright, initial M, on behalf of the Independent Education Union of Australia.  With me I have Ms Heron, initial V.


JUSTICE ROSS:  Thank you.


MS N DABARERA:  If the Commission pleases, Dabarera, initial N, for United Voice.


MS S WHISH:  If the Commission pleases, Whish, initial S, on behalf of ACA, ABI, NSWBC, NOSHSA and Junior Adventures Group.


JUSTICE ROSS:  Thank you.


MR J GUNN:  If the Commission pleases, Gunn, initial J, for CCSA.




MS N SHAW:  If the Commission pleases, Shaw, initial N, for AFEI.


JUSTICE ROSS:  Thank you.


MS S BAHAS:  If the Commission pleases, Bahas, initial S.


MS E ARRABALDE:  If the Commission pleases, Arrabalde, initial E, appearing as an individual.


JUSTICE ROSS:  All right, thank you.  When this matter was the subject of a mention on 22 October and I published a report on 30 October dealing with the programming and which matters are to go forward and I asked ABI to co-ordinate a position amongst the parties and they've filed a joint report, I thank you for that, Ms Whish, there were two aspects of the joint report, before I go to the IEU issue which seems to be the main matter in contention, the first is confirming NOSHSA's position.


MS WHISH:  Yes, your Honour.  I can confirm that NOSHSA's position is that they consent to the report.


JUSTICE ROSS:  All right, thank you.  Can I take you to 1.6 of the report, it's only a small point.  It talks there about a four day hearing.  The directions refer to a three day hearing to the 6th to the 8th.  Do you want the 9th as well?


MS WHISH:  I'd be interested to hear what the other parties have to say in terms of a timeframe but I'd thought that three days would be suitable.


JUSTICE ROSS:  Look, we can always do - I don't think we need to get too caught up in it.  We can say three days is the expectation.  We'll reserve a fourth on the 9th, just in the event that something amiss happens.  Look, in any event, there'd be liberty to apply, once the material comes in, often that's the point at which these things crystallise.  That's when - we'll have a mention at some point once the material's there and that'll discuss things like which witnesses are required for cross-examination, when and that may affect that program, but I think, for the moment, probably best to reserve four but the expectation is three and we'll play it a bit by ear.  Is everyone content with that?


MS DABARERA:  Yes, your Honour.


JUSTICE ROSS:  All right.  Well then we're really to the IEU matter.  Can I just - and it really comes down to how to deal with two of the IEU claims.  It's agreed that one of them, claim three, will be dealt with later and separately.  The two IEU claims are the quarter day claim and the definition of teachers, that's my understanding.  Is that right?


MR WRIGHT:  They're the other two remaining claims.


JUSTICE ROSS:  Yes, and really the issue is are they dealt with this mob or are they dealt with later as part of the general - - -


MR WRIGHT:  Well actually, I guess that, your Honour, our submissions go more broadly to the timing of all of the matters that impact on the teacher's award.


JUSTICE ROSS:  In what sense?


MR WRIGHT:  In the sense that say, for example, for the claims by the United Voice and the individual, we would argue, as we do in the revised IEU submission, that they should be dealt with as part of the normal - the anticipated timetable for the education services teachers award.  We don't accept necessarily that there's a nexus between the educational services award and the children services award for the purposes of joining them together and if there is - well if there is a nexus between the two, then we would argue that the matter should be dealt with after the ERO - - -


JUSTICE ROSS:  Sure, but you're not the claimant.


MR WRIGHT:  That's true, your Honour, but we've got concerns that the employer representatives in this case will seek to delay the proceedings in the ERO work value case on the basis of these proceedings occurring.  If we could get some sort of undertaking from the employers in this case that they won't - - -


JUSTICE ROSS:  Well the ERO proceedings will be a matter for the ERO bench but I'm not persuaded about your timing question.  In the event that they want to make the application, then you can deal with it there but is there any present indication by any of the employer parties here that they're going to seek to delay the ERO case because of anything that's happening here?


MS WHISH:  Not at this stage.  As far as I'm aware, the parties in the ERO and the parties to these proceedings, as much as they cross over, have every intention of having ERO heard as quickly as possible.  It's gone on for long enough.


JUSTICE ROSS:  Yes.  I can't control the timing of the ERO case, yes.


MR WRIGHT:  I appreciate that, your Honour.


JUSTICE ROSS:  All right.  Well I think that deals with your timing question and let's turn to the quarter day claim and the definition of teachers claim.


MR WRIGHT:  Your Honour, in terms of the quarter day claim, it does have an impact in the child care industry.  We say there's no equivalent claim within the children services award, so in that sense it's distinct, but it is in the realm of the child services in terms of the child care industry.


JUSTICE ROSS:  All right, and what about the definition of teacher?


MR WRIGHT:  Your Honour, the definition of teacher, it obviously is, again, in the realm of the child care industry but it has no - - -


JUSTICE ROSS:  No direct - - -


MR WRIGHT:  There's no nexus with the children services award in that sense.  That's purely within the context of the teachers award.


JUSTICE ROSS:  All right.  Anyone else want to say anything about this?


MS DABARERA:  Your Honour, our position is that it is a matter for the IEU when they seek to progress their claims.  In relation to their claim regarding ensuring that teachers who are directors are covered under the teachers award, we would say there is a correlation with the children services award in the sense that currently directors who are teachers can be covered under either award so in that sense, there is an issue but nonetheless it's our position that if they want to progress their claim within the teachers award review, that's a matter for the IEU.


JUSTICE ROSS:  Can I just ask you, I mean it's focussed in the report on is it really a coverage point, which award are they covered under?  If that's the issue, and leave aside whatever other aspect of your claim there may be relating to teachers in the teacher award, if we deal with that question of coverage, are you content for that issue alone to be dealt with in these children's proceedings?  You've got clarity when you come to deal with any substantive claims in teachers about what it covers?  I'm sorry, is that, on its face, is probably going to be a submission based argument, I say optimistically, but.


MR WRIGHT:  Your Honour, I hear what you're saying about there might be aspects of coverage in it.  I mean, the clause that - the change being sought is just to remove some doubt as to how the existing clause is interpreted.  It relates to what a teacher is and what a teacher is alone.  We're seeking no changes, obviously, to the children services award.


JUSTICE ROSS:  No, but probably there'll be an indirect effect if you define the scope of yours then it's to the exclusion of others really, isn't it?  You're not arguing they should be covered by both awards, presumably.


MR WRIGHT:  Well we're not arguing about how it affects another award but I take your point, your Honour.


JUSTICE ROSS:  Look, it's the sort of thing, and I'm not trying to confine your submissions, but usually you'd look at the award history and we can get some work done on that, what were the predecessor awards in the two, what definitions they had.  I can have some people in the award review crew look at those general proposition but for all parties and what you make of it, but if it's not going to cause a significant problem for you, I'd probably lean towards having that matter determined in the children's one as well.


It's a really a question of -if you can give some thought to that and I think the quarter day you've raised, there's the impact.  I don't want to form a concluded view about it now because I've only just heard your concerns and I want you to have a think about the narrow compass of that part of the teacher matter and the quarter day.  I'd ask you to give some thought to that.  I propose publishing the report, the joint report, and give yourself and any other party with an interest until 4 pm on Friday just to - if you could take it on board.


Look, it would be of assistance, I think, if we can.  I understand, and I've got some sympathy for Ms Dabarera's position as well, they're your claims, but to the extent they can be accommodated because that'll probably be the most efficient way of dealing with it, then I'd prefer to but I don't want to create an insurmountable problem for the IEU, so if you can bear that in mind.


I can indicate that I'm content with the directions, I'm content with the hearing date and the other aspects of the report, so it's really only this issue and I'm really doing it out of an abundance of caution so that everyone's had an opportunity to look at it, who may not be represented and you may not have had a chance to get around and if you can send a soft copy of the report, which I think I've got, I'll publish it on the website and do that.


But I am indebted to you and Ms Whish for bringing it together.  It mentally crystallises what the issues are.  We've really only now got the two matters with the IEU.  I'll hear what parties say by 4 o'clock and I'll let you know on Monday and I'll set out a statement which will be largely the report resolving these two issues and setting the directions.  Is there anything else?


MS WHISH:  Just in relation to my client's position and perhaps some of the other parties on this side of the room, the concern with both of the IEU claims, the claim number one and claim number two, is that the evidence that we propose and the witnesses we propose - - -


JUSTICE ROSS:  No, no, I understand the concern.


MS WHISH:  - - - will be the same for either hearing.


JUSTICE ROSS:  No, no, I understand the concern and you should feel free to reiterate that by Friday but I understand the issue you've got, as you mentioned the last time.  You may have the same witnesses being called that can canvass all of it and it does save bringing them back and I've asked IEU to give some thought to that and try and balance that with their concerns and I'd encourage you to have a discussion about it and it may be there's a mid‑path.


No, I understand the - but it becomes a balance between cost and convenience and on the other hand a party having some latitude about the timing of when they want to prosecute their case and I'm trying to balance those interests and I'm hoping that you can reach an accommodation between you that balances that.  If not, well then I'll make a call on Monday.


MS WHISH:  Thank you.


JUSTICE ROSS:  All right.  But, no, I well understand the problem and it's obviously desirable to try and deal with it efficiently but that has to be balanced against the IEU's interests as well.  Nothing further?  I'll put liberty to apply in the directions.  I've also put a mention date after the material's in so we can talk about witness evidence and the like.


You can take it, as would be my usual practice, I'd encourage the parties, once the material's in and before the mention, have a discussion amongst yourselves about which witnesses you're going to want to cross-examine, how long do you think you'll be, do you have an order of witnesses, et cetera, so that - and you can take it that if you say you're going to be cross‑examining for four hours, I'm probably only going to allow two and a half in the program because I don't want us to have any dead time.


It may mean that some witnesses are waiting a little while to come on but it means we'll get through it and I well appreciate it's very difficult to estimate cross‑examination times and the natural tendency of every advocate is to come up with a number and then double it to give them enough time and my natural tendency is to halve it so if you can give some thought to that when we get to it but it looks like we'll have a clear program and a way ahead on Monday.  Nothing further?


MS WHISH:  No, your Honour.


JUSTICE ROSS:  Thanks very much for your co-operation and engagement in the process.  I think it'll mean it'll go much smoother.  Thank you.

ADJOURNED UNTIL MONDAY, 10 DECEMBER 2018                [9.48 AM]