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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                       1057632

 

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT BOOTH

 

AM2014/286

 

s.156 - 4 yearly review of modern awards

 

Four yearly review of modern awards

(AM2014/286)

Supported Employment Services Award

 

Sydney

 

9.43 AM, MONDAY, 10 FEBRUARY 2020


PN1          

VICE PRESIDENT HATCHER:  Can I take the appearances in Sydney.  So Ms Walsh, you appear for (indistinct).

PN2          

MS WALSH:  Ms Walsh, M Walsh, Our Voice Australia.

PN3          

VICE PRESIDENT HATCHER:  Yes, thank you.  Ms Langford, you appear for NDS.

PN4          

MS LANGFORD:  Yes, I am.

PN5          

VICE PRESIDENT HATCHER:  Mr Ward, you appear for the ABI and NSW Business Chamber.

PN6          

MR WARD:  Yes, your Honour.

PN7          

VICE PRESIDENT HATCHER:  Mr Sotiropoulos, you appear for the Department.

PN8          

MR SOTOROPOLOUS:  Yes, that's right.

PN9          

VICE PRESIDENT HATCHER:  Mr Donne, you appear for Endeavour Foundation.

PN10        

MR DONNE:  Yes, thank you.

PN11        

VICE PRESIDENT HATCHER:  Mr Harvey you appear for Greenacres.

PN12        

MR HARVEY:  Yes.

PN13        

VICE PRESIDENT HATCHER:  All right.  Is that all the appearances in Sydney?  In Melbourne, Mr Clarke, you appear for the ACTU.

PN14        

MR CLARKE:  Yes, your Honour.

PN15        

VICE PRESIDENT HATCHER:  Ms Liebhaber, you appear for the HSU.

PN16        

MS LIEBHABER:  Yes, your Honour.

PN17        

VICE PRESIDENT HATCHER:  Mr Harding, you appear for the AED Legal Centre.

PN18        

MR HARDING:  I do, your Honour, and can I indicate that we can't see the Bench.

PN19        

THE ASSOCIATE:  Yes, sorry.  I'll fix that now.

PN20        

VICE PRESIDENT HATCHER:  Mr Harding, we can't hear you very well so can you make sure you stay near a microphone.

PN21        

MR HARDING:  Is that better?

PN22        

VICE PRESIDENT HATCHER:  Not quite.  Anyway, we'll do the best we can.

PN23        

DEPUTY PRESIDENT BOOTH:  Shall we just pause for a moment to see if we can get it right because Shanae - - -

PN24        

MR HARDING:  It looks like it's not plugged in.

PN25        

DEPUTY PRESIDENT BOOTH:  Do you think.

PN26        

THE ASSOCIATE:  Yes, you can see the cord.

PN27        

DEPUTY PRESIDENT BOOTH:  Right.  The cord, see, it's not plugged in, therefore he's just speaking to the ether.

PN28        

THE ASSOCIATE:  Sorry.

PN29        

VICE PRESIDENT HATCHER:  Did you do that, Mr Clarke?

PN30        

DEPUTY PRESIDENT BOOTH:  That's the equivalent of calling the electrician who says, you know you have to turn it on at the wall.

PN31        

MR HARDING:  Yes, it would help if I looked.  I have now.

PN32        

DEPUTY PRESIDENT BOOTH:  That's better.

PN33        

VICE PRESIDENT HATCHER:  That's better, thank you.  All right, well today we just want to work through the issues identified in the statement which the Bench issued on 21 January, so we'll just do those in turn.  The first is the timetable that's identified in paragraph 3 of the statement.  Does anybody have an issue with that?

PN34        

MR HARDING:  Your Honour, this is the last date, which is 1 January 2022, is that meant to be 2021?

PN35        

VICE PRESIDENT HATCHER:  No, it's meant to be 2022.  So that's the same date that was in the main judgment, so it involves more or less once the final determination is made, a year's period to implement before it comes into effect.

PN36        

DEPUTY PRESIDENT BOOTH:  It's on the assumption which obviously we'll talk about in some detail, I hope, that there will be support for the application of the supported wage system to employees who are transitioning from their current, if you like classification to the new classifications and the assumption that it would not be possible to do that all in one hit, and so the ADEs would need time to gradually, one by one, use the resources of the commonwealth.  Does that make sense?

PN37        

MR HARDING:  I understand, Deputy President.

PN38        

VICE PRESIDENT HATCHER:  Mr Harding, did you want to advance any different view about that?

PN39        

MR HARDING:  Sorry, your Honour, did you ask me a question then?

PN40        

VICE PRESIDENT HATCHER:  Yes.  Did you want to advance any different view about that?

PN41        

MR HARDING:  I don't have any instructions about that, your Honour.  I simply queried the date.

PN42        

VICE PRESIDENT HATCHER:  Right, so if there's no further issues about the timetable we'll take that for the time being as the outcome.  The next issue is the wages structure.  The first one was the issue raised by the ACTU concerning Grades 4, 5 - I thought it was 7 but there's also apparently 6 but Mr Clarke on behalf of the ACTU in response to the invitation which was issue to the - at the last conference was filed a proposal to change the structure and resolve the problem he identified.  Do you want to speak any further to that, Mr Clarke?

PN43        

MR CLARKE:  Just briefly, your Honour.  I have managed to get it wrong in one respect, which is the penultimate dot point, the word classification can come out of it.

PN44        

DEPUTY PRESIDENT BOOTH:  Sorry, in which grade, Mr Clarke?

PN45        

MR CLARKE:  Sorry, Grade 7, second last dot point.

PN46        

VICE PRESIDENT HATCHER:  Yes.

PN47        

MR CLARKE:  I've said an equivalent to an equivalent, so the word classification can come out after that.

PN48        

VICE PRESIDENT HATCHER:  Yes, all right.

PN49        

MR CLARKE:  There's just an issue which I replicated in the original drafting and didn't realise was an issue until this morning in that from Grade 5 and 6 and I think - sorry, almost all of them up to Grade 7 use the expression 'will perform work above the beyond the skilled', I think it's meant to say 'above and beyond' because that's the expression that's used in the draft determination for Grade 7 but it's a general typo.

PN50        

DEPUTY PRESIDENT BOOTH:  Sounds a bit like something we hear out of Toy Story, Mr Clarke, above and beyond.

PN51        

MR CLARKE:  Sorry?

PN52        

DEPUTY PRESIDENT BOOTH:  Sounds like something we'd hear out of Toy Story, above and beyond.

PN53        

MR CLARKE:  Yes, that's right.

PN54        

DEPUTY PRESIDENT BOOTH:  Do we have to sort of replicate that antiquated language?  Does it mean anything different?

PN55        

MR CLARKE:  It doesn't matter whether you say above or beyond but I mean I think the expression that the Bench had used in the draft was above and beyond for Grade 7 but - - -

PN56        

DEPUTY PRESIDENT BOOTH:  Did we?  What were we thinking?

PN57        

MR CLARKE:  It says above and beyond in the old so - we're probably better to say - use either the word above or the word beyond because if you use both you'll probably end up in plain language drafting as well.

PN58        

DEPUTY PRESIDENT BOOTH:  Absolutely, yes.

PN59        

MR CLARKE:  Then we can put it to 2025.  But look, the generality of it - - -

PN60        

DEPUTY PRESIDENT BOOTH:  That's just above.

PN61        

MR CLARKE:  - - - of what we're attempting to do here is to ensure that we don't exceed the minimum qualification and competency requirements that were either set out in the award as it stands today or in the indicative classifications that are now referred to in the draft determination.  So that's the alignment that we're seeking now.

PN62        

VICE PRESIDENT HATCHER:  All right.  Does anybody want to respond to this proposal?

PN63        

DEPUTY PRESIDENT BOOTH:  We are particularly interested obviously, Mr Ward, in the ADEs reaction because you're the ones who need to make that initial decision about where employees are classified.

PN64        

MR WARD:  The only anxiety I'd express is probably this, I have to confess I'm not entirely sure what it actually achieves.  I apologise, I've only just come back from leave, I've been away for the whole of January so I haven't had the chance to talk to Mr Clarke about it but I'm just literally not entirely sure what it's meant to achieve or what it's meant to remedy.

PN65        

DEPUTY PRESIDENT BOOTH:  I mean perhaps we should go back to the thinking behind the classification structure and the decision and allow me to apologise if I let through above and beyond because I can't imagine why I would have done that, it probably was in the old classification structure.  But the idea was to try and give you as much objectivity and clarity as possible at each level.  Mr Clarke, I understand why it would be important to make sure that under the SESA classification or grade a higher skill wasn't required than under the comparative other awards, that makes sense.  But again I'm not sure about the word 'may'.  It troubles me that 'may' still allows for a discretion and I mean the best classification is written tightly so that it's very clear really what the distinctions are between levels.

PN66        

In a way it's the distinguishing features of classifications that are more important than you know, I mean subject obviously to skill, there's always that catch all where people can work at any - they can perform work that they're skilled and capable of doing.  It's a question of the reward, the purpose of the classification fundamentally is to make sure you get paid correctly and you want to be really clear about the distinction between the two.  So if you say may have this and may have that, I'm wondering if that helps the employer make that correct decision and does it help the interpreter should there be a dispute about it.

PN67        

VICE PRESIDENT HATCHER:  I think to answer your question more directly, Mr Ward, it's in the statement that for example in the proposed Grade 5 it says employees will hold a trade certificate or equivalent qualification and then Mr Clarke pointed out that some of the incorporated classifications, for example, Waste Management Award, don't actually require a trade qualification at those levels.  There was a contradiction - - -

PN68        

MR WARD:  I didn't see that as controversial in the sense of my understanding was the Bench were trying to link Assessor Award with a variety of other awards with a more sort of simple clarity.  No issue with that whatsoever.  If it came to pass that, to use that example, the language that was used to link wasn't actually aligned to the language in the award you're referring to, we have no issue with that.  We seem to have got a lot more language now added in than I anticipated, I'm just concerned I haven't had time to forensically compare it to every award.

PN69        

MR CLARKE:  Would it assist if I gave an example of how this might work?

PN70        

VICE PRESIDENT HATCHER:  Yes, Mr Clarke.

PN71        

DEPUTY PRESIDENT BOOTH:  I distracted the Vice President, sorry, Mr Clarke.

PN72        

MR CLARKE:  So take for example Grade 4, the new draft determination says that the employees at that grade will hold a qualification at or equivalent to AQF2 or above.  The award as it stands today is that those employees have completed relevant training so as to perform work within the scope of this level.  The reference classifications that have been inserted in the draft determination vary in terms of either stating that there is no formal qualification required for work at that grade, or for example there's in the Gardening and Landscaping it says for Level 3 which is referenced 'a course in horticulture at a recognised training institution' and AQF courses go anywhere from Certificate I to Advanced Diploma in Horticulture.  There are some, for example, waste management which imply that somebody has some sort of a licence to drive a vehicle and so forth.  So there's a lack of uniformity at each level in what the actual qualifications - what the qualification requirements are for the particular work.  It's the same with the competency.  Some awards don't say anything for those qualifications about the general competencies that you find in some awards like, you know, must be able to make their own decisions and perform work with a minimal degree of supervision et cetera.  I mean in some of these reference awards or many of them, many of the classifications that are referenced here, those types of requirements are entirely absent.

PN73        

VICE PRESIDENT HATCHER:  Perhaps a more simple answer, Mr Clarke, may be to say that at any grade if you fall within the corporated award classification that's deemed to satisfy the requirements of the grade.

PN74        

MR CLARKE:  Yes, and that's sort of what the trailing text at the end of the grades we propose to be inserted was, so at the end of the dot points, for example, we have that sentence.

PN75        

The skill and competency requirements for the performance of Grade X employee of work included in any of the above qualifications are those if any specified in those award classifications.

PN76        

That's done because instead of sort of leaving it at that and getting rid of the rest of it, it's done because it seemed to us and we weren't there, I said that at the last conciliation, we weren't there, I didn't look at the work that was done there but the draft determination seemed to be written on the basis of look, here's some indication of the type of works that would be done under this grade but it's not an exhaustive list.

PN77        

VICE PRESIDENT HATCHER:  Yes, all right.

PN78        

MR CLARKE:  Just in relation to the more general point about using classifications - sorry, pardon me - using qualifications to anchor the whole structure, it needn't be in our submission quite so rigid given that you can distinguish the work value, if you like, either on the basis of the skill or the nature of the work or the conditions under which it's performed, and each of those will have a varying degree of influence on work value and classifications in different - you know, in different awards.

PN79        

VICE PRESIDENT HATCHER:  Right.  Anyway, Mr Ward, do you want more time to consider this and give a considered response?

PN80        

MR WARD:  I think it might be helpful if we could have a short period of time to allow Mr Clarke and I just to go through it.  I don't think we're in any sense sort of violently opposed to what's being said.  It's very useful that the other awards have been cross-referenced.  I think that's terribly useful.  I think we're probably on the same page in that if one of those other awards has certain criteria for qualifications or whatever, we don't want to change that, they should be adopted.  So it might just be useful that Mr Clarke and I could have a small period of time to discuss this and see if we can just come to some clear understanding.  I don't think we'll be far off.

PN81        

VICE PRESIDENT HATCHER:  Right.  We'll certainly - - -

PN82        

MR WARD:  He's nodding affirmatively which is very positive.

PN83        

VICE PRESIDENT HATCHER:  - - - we'll accommodate that to occur.  Does anybody else wish to contribute to this debate?  All right, we'll move to the next issue and that is that identified in paragraph 6 of the statement and that concerned concerns raised by a number of ADEs and ABI about the definitions for the new Grades A and B and we invited I think on the last occasion that those ADEs in the first instance try to come up with a consensus alternative for consideration.  What's the progress there, Mr Ward?

PN84        

MR WARD:  Well, I do apologise because I've been absent for the whole of January.  A consensus was formed until 9 o'clock this morning which probably gives you an idea how controversial it is.  Our challenge has been simply this, I think we probably got a little carried away with trying to solve every problem rather than create a little more clarify for the purposes of trial.  In relation to the defining of the sequential action, I apologise, I don't have anything to hand up but the gist of where we've ended up is something like this.  We think if one considers the exchange between your Honour the Vice President and Mr Christodoulou on the other occasion the matter was on, the important thing for assisting in the trial is to ensure people understand that a sequential action could have a series of - I'm going to use the word movements, and a definition something along the lines of this would therefore be of assistance.  A sequential action means a series of key actions that may be made up of a series of - and it's at that point that we have some debate in our group - a series of sub-actions or a series of steps or a series of movements to complete a task.

PN85        

Now we don't have a - I apologise, we don't have a concluded view on the exact words that should be used but something of that nature would be greatly helpful to allow people to be better informed as they enter the trial.  We can do a number of things.  We can leave that for the Bench and the Bench can give that some thought.  We can have a little bit further discussion amongst ourselves to see if we can come up with what we might say is a formal proposal.  We had many other ideas but I think the anxiety with those is they were almost trying to solve every conceivable concern we had, which really negates the whole purpose of the trial.  The purpose of the trial is to find out what's workable, what the problems are or the issues are.  So at this stage we are simply left with the view that some definition of sequential action to be added to what the Bench have already put for Grade A and B, along those lines would be of some use during the trial.

PN86        

VICE PRESIDENT HATCHER:  One of the fundamental issues that was raised by Mr Christodoulou was how do you count what constitutes a sequential action.

PN87        

MR WARD:  Yes.

PN88        

VICE PRESIDENT HATCHER:  Have you made any progress about that?  So it's a concept - the basic concept is there'll be a single task which consists of a number of - I keep on using the words sequential actions or separate actions.  Have the parties been able to work out how one actually identifies what they are and count them?

PN89        

MR WARD:  I'll be frank, you know.  Not with the sort of specificity that we might like.  We have a variety of examples and documents we had prepared but again this morning there seems to be some ongoing debate about whether or not everybody's comfortable with those examples.  So I think the simple answer is no.  No, we have not.  We could have - I'm quite happy to say now I'm back and I do apologise for being away for January, we could have another go at that to try and get closer and to illuminate what sequential action and what below that is meant to mean.  I don't think we'll end up with a definition that will be 100 per cent perfect first off.  I think we're going to learn during the trial that that definition however well we worded it might cause some concerns or it was harder here to apply or it was less hard there to apply.  I think that's just the candid truth of where we've arrived at.

PN90        

So for instance, if you take the jig, I think we were - let me use an analogy, sorry, let me use an analogy which is an entirely separate one and I apologise but we actually tried to physically do this ourselves.  If you take the concept of mowing the lawn at home we had a view that that probably has three sequential actions in it.  It's the process of getting the lawn mower going was a key activity.  That action might involve putting petrol in it, it might involve priming it, it might involve pulling the cord.  You've then got the physical - the action of actually mowing the lawn, probably pushing the lawn mower up and down and then you've probably got a third sequential action which is the action of putting the mower away.  It's the dusting it off and doing whatever one has to do to put it away.  The task is mowing the lawn, seems to have three key sequential actions but below those sequential actions, each sequential action could have a number of movements or sub-actions.

PN91        

It's simply very difficult to try and come up with a set of words that is perfect in every case, hence we thought the best thing to do was, for the purpose of the trial, make sure people are informed that there's a task, there are at least things called sequential actions but a sequential action cannot itself be more than one movement or sub-activity and see how people go with that.  So we're happy to come up with some better examples to add to that but it seems to be as long as the set to understand that its tasked sequential action and something underneath that, we seemed to be able when we were in the conference, to be able to come to a reasonably good consensus as to well that would include this number of sequential actions and that would include that number.  I think the anxiety we had was that each movement shouldn't in and of itself be seen as a 'sequential action'.

PN92        

VICE PRESIDENT HATCHER:  Right.  Does anyone else want to say anything about this?  Does anyone in Melbourne want to say anything about this?

PN93        

MR HARDING:  Only - excuse me - only this, your Honour and Commission and Deputy President, this concept of sequential action is at the heart of the classification, the criteria that this Full Bench proposes to introduce and the employers seem to be struggling to identify how that concept would operate in practice.  I think in these circumstances they ought to be directed to at least provide to the Full Bench a concept of how they think it would operate in order for the parties to give that consideration, otherwise the Full Bench will be in a position where it will have to be guessing about a hypothetical set of actions and how they might operate in practice in trying to devise an order for the purposes of giving effective trial, but it is troubling that at this stage there isn't greater clarify about something so fundamental.

PN94        

VICE PRESIDENT HATCHER:  Yes, well you can assume Mr Harding that at some stage if there's a desire to displace the drafting which the Full Bench came up with someone will have to come up with something better, otherwise that will be the drafting.  But Mr Ward, what procedural do you take - - -

PN95        

MR WARD:  Can I just respond to this.  Our exploration at the moment has purely been to provide some greater assistance during the trial to give effect to what the Bench have put forward.  We're not attempting to change it and with respect they weren't our words that we came up with, we're happy to have the trial.  We have no difficulty if you could give us a little more time formally proposing a set of words.  We will have no difficulty providing a series of examples to go with that to try and assist people during the trial.  We have no difficulty with that.  I think we have over the last little period since I have been back from leave got considerably closer as to the type of guidance that might assist people during the trial.  I'm happy to do that.

PN96        

VICE PRESIDENT HATCHER:  Can I emphasise this though that there's been a focus of this phrase 'sequential action'.

PN97        

MR WARD:  Yes.

PN98        

VICE PRESIDENT HATCHER:  If the parties can come up with an alternative phrase which better defines the step they're welcome to do so, I don't want the parties to think that they have to agonise over that phrase if they can come up with a better one.

PN99        

MR WARD:  Well, with respect, I'm not sure we've agonised.  I think we've just tried to ensure that we were giving effect to what the Bench intended but your Honour we'll take that on board and if for some reason that language is creating a hurdle which we can find a better way over then we'll put that as part of the proposal.  Commission please.

PN100      

VICE PRESIDENT HATCHER:  Well, procedurally what should we do about this matter, Mr Ward?

PN101      

MR WARD:  Look, what I - obviously we're all here attempting to assist the Commission give effect to its decision in preparation of the trial.  One of two things could occur.  We could say to the Bench well you've heard us, what do you think you should do.  I think the onus is on - has been put on us to perhaps try and suggest that rather than put it back to the Bench.  If you could give us maybe two more weeks we will put something to you including if we believe it's - if it's of great clarity an alternative to that phrase.

PN102      

VICE PRESIDENT HATCHER:  Right.  Does anyone oppose that course?

PN103      

MR HARDING:  No, we don't oppose it.

PN104      

VICE PRESIDENT HATCHER:  Right.  The next thing is the conduct of the trial but I might skip ahead to paragraph 8 which is the issue of commonwealth funding because this might have some effect on it.  Can I indicate that there was a communication between the Department and myself about some developments which Mr Sotiropoulos is going to now develop concerning the role of SWS inspectors and some consideration of that by the government.  So do you want to explain Mr Sotiropoulos?

PN105      

MR SOTIROPOULOS:  Yes, sure, thank you, your Honour.  As we discussed in the phone conversation I guess the initial indication was that there would be - the commonwealth would fund all SWS assessments, so that'd be upwards of 20,000 assessments.  That would be - we recognise that's a significant increase to what we currently do.  At the moment the commonwealth is funding assessments purely for 38 ADEs that use the SWS tool, that is the commonwealth sponsored tool.  We recognise that all the other ADEs are required to do their own assessments, so they have they own assessors on-site.

PN106      

Clearly the Commission in its decision mentioned, you know, that that wasn't ideal given that there's an opportunity that it's not as independent as it could be.  The proposal we were just wanting to consider during the trial is in addition to maybe funding all SWS assessments maybe there as an alternative approach which is an accreditation system, which provides a regulatory framework around organisations continuing to do their own assessments but subject to a framework that's been developed that provides clarity and can create a level of consistency across ADEs when those assessments are conducted.

PN107      

So what we're really saying is we'd like to use the trial to consider an alternative approach to just the commonwealth funding independent assessors, because it may be a more cost effective approach but also provide an opportunity to consider a different package of measures to support the ADEs as they transition through this process.  As you'd be aware, the commonwealth has provided 67 million in funding, that's in public documentation and ideally we'd like to see that be used in the best possible way.  We just feel that an independent set of SWS assessors, firstly it'd be difficult to get that number of assessors up and running given at the moment we do maybe up to 5000 a year, to ramp that up significantly would be difficult and we think there might be a better way to do that.  We really just want to use the trial as an opportunity to test that proposition.

PN108      

VICE PRESIDENT HATCHER:  How do you envisage that being done?  That would require ADEs, or at least some of the ADEs participating in the trial to have what internal persons trained to do SWS assessments.

PN109      

MR SOTIROPOULOS:  Yes.

PN110      

VICE PRESIDENT HATCHER:  And that would then be compared to presumably the same assessments being done by external assessors.

PN111      

MR SOTIROPOULOS:  That's right.

PN112      

VICE PRESIDENT HATCHER:  To see if there was any significant disparity in the results.

PN113      

MR SOTIROPOULOS:  That's right.

PN114      

VICE PRESIDENT HATCHER:  Is that what you envisage?

PN115      

MR SOTIROPOULOS:  That's how we would see it, and then we'd also discuss, you know, what would an accreditation system look like, what sort of funding would the commonwealth put to that.  What would sort of training would need to be required?  Because what we recognise at the moment is people in the ADEs doing their current assessments are obviously well placed to do those, and so they've been doing them and it's been a requirement.  Why would - you know, our question is do we need to displace that system or can we just enhance that system through an accreditation process, on the basis that we believe those people could do the assessments.  The SWS tool will have to be readjusted slightly anyway based on this decision, so even the independent assessors will be required to familiarise themselves with the new environment.

PN116      

VICE PRESIDENT HATCHER:  Right, does anyone want to respond to that?

PN117      

MR WARD:  Your Honour, Ms Langford might say something as well.  We're obviously keen to get on with the trial. It's been suggested that about 500 employees participate in the trial.  If some 5000 people are being assessed today then 10 per cent isn't a - doesn't seem to be a dramatic impost on the capacity of the Department.  So the first issue might have been maybe the Department's thinking more long term what happens after the trial rather than the trial itself.  If having said that at the end of the day the only effective way to get the trial under way with the assistance of the Department would be for propriety incumbent assessors currently working in ADEs to be the subject of some form of accreditation and oversight from the Department and that was the best way forward, as long as that was funded, I think we'd be comfortable taking that course if that was the only way we could get the trial going.

PN118      

VICE PRESIDENT HATCHER:  I don't think this is an issue about the funding of the trial.  It's an issue about the funding of the future.  That is, I don't think the governments got any issues about funding the use of assessors during the trial, the government is expressing concern that if the system's fully implemented - - -

PN119      

MR WARD:  Well, we've got several years to solve that problem.

PN120      

VICE PRESIDENT HATCHER:  I'm not endorsing that, I'm just trying to - - -

PN121      

MR WARD:  Yes, we've got several years to - - -

PN122      

VICE PRESIDENT HATCHER:  - - - reframe what's been put.

PN123      

MR WARD:  We've got several years to solve that problem.  I suspect there'll be ongoing dialogue during that time.  If at the end of the day an accreditation system is seen as the most effective way for the sector to proceed, then an accreditation system it will be.  I'm more interested at the moment in the trial, if what I've just heard is they're going to fund the trial and do the trial, I don't have a problem with that.  Ms Langford's concern might be more for the future, my concern at the moment is the trial.

PN124      

VICE PRESIDENT HATCHER:  Right.  Ms Langford.

PN125      

MS LANGFORD:  Yes, your Honour, I actually have a couple of concerns.  I mean I think I want to understand the commonwealth whether there is an intent to actually trial the accreditation during the trial as part - that's the first one.  And if that is the case to make sure that that's adequately covered because that will come at quite an expense to the organisation.  So that would be my first concern.  My next concern would be around the ongoing funding for that going forward because we want to make sure that we always have on hand really good accredited trainers within each - sorry, assessors within each ADE to ensure that the assessment is undertaken transparently and where we've got no concerns about that.  That would be one of my big concerns, that ongoing funding.

PN126      

MR SOTIROPOULOS:  So in terms of the trial, if I could respond, absolutely we understand and I think our view is that we'd want to test that during the trial to make sure that there is a robustness around a system that relies on assessors that are out of ADEs as opposed to independent assessors.  So we recognise that might come at an additional cost but that's not an issue in terms of funding for the trial.

PN127      

VICE PRESIDENT HATCHER:  Does that involve double assessing every participant in the trial?  That is, every employee that's involved gets assessed by SWS inspector and a putative accredited internal person to see whether they come up - I mean the first thing is whether they can even come up with the same result.  Because if they - it seems to me that if there's disparities exposed by the trial between the way an independent assessor assesses somebody and an internal accredited assessor assesses somebody, that's a problem from the start is it not?

PN128      

MR SOTIROPOULOS:  It could potentially, your Honour, I think mean we have to double - we have to assess each person twice and that's the sort of thing we'd like to discuss in terms of designing the trial just to see, and I think we do need to find a way to rigorously test it and I do think if you had one person assessed by an independent assessor, you'd need that person to also be assessed by the internal assessor within the ADE.  So I recognise that as an issue but I think within the trial we'd need to determine how we best do that to not impose unnecessary, I guess, pressure on even the worker themselves, because they'd be, you know, subject to assessments and I think we've got to be careful how we do that as well.

PN129      

VICE PRESIDENT HATCHER:  I mean it would require, would it not, government support.  I mean each ADE participating would then have to make a person available to be trained in this methodology and undertake it for the participants and that's obviously a cost and inconvenience.  One, it's a cost and two, it's somebody taken out of the system who would presumably be doing something else.  Would the government support that?

PN130      

MR SOTIROPOULOS:  We'd support that during the trial, your Honour, yes.

PN131      

VICE PRESIDENT HATCHER:  Right.  Yes, Ms Walsh.

PN132      

MS WALSH:  Yes, just in relation to the assessors, the availability and the necessity for there to be seen to be an independent adjudication in the level of wages paid, the issue of assessors, their availability, their number, has almost been a problem.  It ended up with us before the Human Rights Commission trying to justify why it took so long to transit from BSWAT to alternatives, and that was due to the lack of assessors and the requirement on those assessors and on (indistinct) to ensure that whatever the final judgment is on the wage level that it is fair, just and non-discriminatory for the worker.  And the families and carers really require this to be sorted out during the trial so that we don't have a repeat of what went on previously, and the January 2022 date again revolves around the availabilities and the necessary accreditation of assessors.

PN133      

VICE PRESIDENT HATCHER:  Does anyone in Melbourne want contribute to this?

PN134      

MR HARDING:  No, your Honour.  Not at this stage.

PN135      

VICE PRESIDENT HATCHER:  Mr Clarke or Ms Liebhaber?

PN136      

MR CLARKE:  I'd just make the point that you might expect me to around the accreditation of effectively privatisation of assessments undertaken under this model.  There is a scope for some conflict in how all of this works.  There's a scope for the independence to be compromised and you know you can sort of see the sort of thing that happened with the privatisation of building surveyors really, but in a much more morally difficult way.  So I just record our misgivings about that conceptually.  Obviously we're participating in a consultation around the detail of it but conceptually it raises some alarm bells for us.

PN137      

VICE PRESIDENT HATCHER:  Well, it won't have escaped anyone's attention that in our decision one of the benefits of the SWS which we identified was the independence of assessors and one of the criticism we had of existing wage assessment tools were that they were being internally assessed and allowing employees in effect to set their own wage levels.  That remains our view but at the end of the day the purpose of the trial is to see what works and what doesn't so if the government wants to trial this system I can't see why we shouldn't do it.

PN138      

At the end of the day, I hate using that expression but if the government's not prepared to fund SWS assessors in the future to the extent necessary to cover the whole sector then the system we propose in the decision obviously can't work.  So we're in one sense at the mercy of the government's funding decisions in that respect and that I think necessitates this alternate approach to be trialled.  But obviously once the results of the trial are known then the parties will have a full opportunity to ventilate whether that should be the system going forward having regard to the results that the trial exposes.

PN139      

So from a practical perspective, Mr Sotiropoulos, how are we going to organise training and some form of provisional accreditation for persons to act as SWS assessors for the purpose of the trial within the very limited timespan that we have?

PN140      

MR SOTIROPOULOS:  Yes, so we've already, your Honour, commenced procurement of an external consultant to assist us with the process because we recognise, you know, to get to 1 May there is a lot of work to be done.  We're going out to several independent organisations to just test their services.  We've done that - as I understand prior when we moved from the BSWAT to the new SWS tool, a similar trial was conducted and we are looking at one or two of those firms contributed at that point in time.  So we're well on the way, absolutely appreciate there's a lot of work to be done here but the quicker we can get the consultant on board the better.

PN141      

The other thing is I think the Commission indicated a desire to have a steering committee of some sort to sit over the top.  Again, to facilitate commencement of the trial by 1 May we propose that the steering committee maybe meet sooner rather than later, so sometime this month we'd be looking to that started where we could put on the table.  By then we'd have hoped to have procured the external consultant and we can actually then start commencing and discussing with everybody what we see as how the trial could be conducted.  So the quicker we can get to that point I think the better.  We're actually working on a position paper, we're doing all the work at the moment to be ready to move very quickly.  So if we could have a steering committee sooner rather than later - - -

PN142      

VICE PRESIDENT HATCHER:  Right, I'm going to come to who's going to be on that committee.

PN143      

MR SOTIROPOULOS:  Yes.

PN144      

VICE PRESIDENT HATCHER:  From the ADEs perspective has there been some further clarification as to who they see as participating in the trial?

PN145      

MR WARD:  Look, I must say, your Honour, no, we had the initial volunteers.  I think Ms Langford's talking to a number of people at the moment but we haven't got a list at this stage.

PN146      

MS LANGFORD:  We can have one within a week.

PN147      

MR WARD:  If that's on a two week timeframe now that January and Christmas have gone.  I think we'd be in a good position in a fortnight to have a suggestive list of participants.

PN148      

VICE PRESIDENT HATCHER:  All right.

PN149      

MR WARD:  That meet the criteria the Bench were looking for.

PN150      

MR SOTIROPOULOS:  Your Honour, just one point I'd like to make on that as well from our perspective is to make sure that list is there are a number of ADEs that already use the SWS tool.  I wouldn't want it to be just organisations that are currently self-assessing under their own tools, so we've got a broad cross-section of organisations.

PN151      

VICE PRESIDENT HATCHER:  Yes, right.

PN152      

MS LANGFORD:  Can I just make a point.  One of the things that we really want to do, your Honour, is make sure that whoever participates in the trial, that there is a depth and breadth that really is representative of the sector, so you know it needs to be a mixture of large, small, regional, rural, metropolitan and different business models.  Because if we don't do that we're not going to be able to fully test the capacity of this to work.

PN153      

VICE PRESIDENT HATCHER:  Yes.  All right, well let's come directly to the issue of the - what's been called the steering committee.  Has there been any thought given as to the constitution of that committee?  I can indicate from the Commission's perspective that Booth DP will be Commission's representative on that committee.

PN154      

MR WARD:  Your Honour, I must say I haven't spoken to the parties but from what I might describe as the employer perspective, Ms Langford and myself anticipate being the persons nominated for that committee.

PN155      

VICE PRESIDENT HATCHER:  All right, and Ms Walsh you wanted to participate, I think?

PN156      

MS WALSH:  Yes, please, because we have members throughout most of the facilities in Australia and we can get feedback via them, which I think would be helpful for everybody.

PN157      

VICE PRESIDENT HATCHER:  Right.  From the point of view of the Melbourne participants, what's their desire for involvement?

PN158      

MR HARDING:  I'm instructed,  your Honour, that my client, subject to its rights, wishes to be involved.

PN159      

VICE PRESIDENT HATCHER:  Have you got any particular person in mind, Mr Harding?

PN160      

MR HARDING:  Ms Wilson.

PN161      

VICE PRESIDENT HATCHER:  Ms Wilson, right.  Mr Clarke, I think a single representative of the union movement might be appropriate but do you have a view about that?

PN162      

MR CLARKE:  Yes, I just need a little bit of a discussion between us as to who that might be or who the ultimates might be but there is a desire to be involved.

PN163      

VICE PRESIDENT HATCHER:  Right.  Well, that makes a total of six people.  Does anyone else - plus obviously the government's representatives in addition.  Does anyone else want to say anything about this?  All right, well in the absence of any further submissions about that the Commission will propose to issue a statement indicating the constitution of that committee.  Mr Clarke, when can you advise us as to the union representative, who that person will be?

PN164      

MR CLARKE:  Probably by the end of next week, your Honour.

PN165      

VICE PRESIDENT HATCHER:  End of next week.  Can you do it faster than that?

PN166      

MR CLARKE:  From today I won't be back in the office until next week but I can try and get it done by the middle of next week if that's any better.

PN167      

VICE PRESIDENT HATCHER:  All right, I mean I thought you might be able to do it today but okay.  Is there any other issue anybody wishes to raise at this stage?  Mr Clarke.

PN168      

MR HARDING:  Your Honour, I have a question - - -

PN169      

VICE PRESIDENT HATCHER:  Mr Harding.

PN170      

MR HARDING:  Yes.  Just a question in terms of the machinery to give effect to 31 March.  Did the Commission have in mind how it intended to introduce the final wages structure for the purposes of the trial?

PN171      

VICE PRESIDENT HATCHER:  Yes, well I think for that purpose we need to finalise - well we first need to receive Mr Ward's response to Mr Clarke's proposal, that's the first thing and secondly endeavour to see whether the ADEs wish to come up with some firmer proposal with respect to Grades A and B. Ultimately having regard to those matters, the Commission will make a final decision about what the classification definitions will be for the purpose of the trial and that will be indicated by 31 March.

PN172      

MR HARDING:  In the form of a decision is it?

PN173      

VICE PRESIDENT HATCHER:  Well, it may - I mean we're hopeful that there may emerge a consensus position which we can endorse if we're happy with it.  If no consensus is identified then we will issue a decision indicating what it will be for the purpose of the trial.  Of course you understand, Mr Harding, that we're only talking about the trial at this stage.  We'll then have a full reassessment in the light of the results of the trial, there'll be a further hearing at which parties can make submissions and it's only then that we'll proceed to make a final determination.

PN174      

MR HARDING:  Yes, I understand that, your Honour.

PN175      

VICE PRESIDENT HATCHER:  Right, thank you.  Is there anything further that anyone else wishes to raise?

PN176      

MR WARD:  No, your Honour.

PN177      

VICE PRESIDENT HATCHER:  Right, well we're going to have a short adjournment and then we'll come back and indicate what we think is the appropriate procedural course from here.

SHORT ADJOURNMENT                                                                  [10.33 AM]

RESUMED                                                                                             [10.56 AM]

PN178      

VICE PRESIDENT HATCHER:  Can we indicate that we intend to procedurally from here on is to bifurcate the process, so the issue concerning the finalisation of the classification structure will be continued to be conducted at Commission hearings like these.  I will finalise that process and for that purpose there will be another report back in conference on 2 March at 10 am, and by that time I hope Mr Ward that firstly you've developed a response to Mr Clarke's proposal, and secondly that if there's some more formal proposal about Grades A and B forthcoming there'll be a document distributed by then or desirably before then for - - -

PN179      

MR WARD:  It will be, your Honour.

PN180      

VICE PRESIDENT HATCHER:  - - - for further consideration.

PN181      

MS LIEBHABER:  Apologises, we're having a bit of trouble hearing you in Melbourne.

PN182      

VICE PRESIDENT HATCHER:  I'll just say all that again.  So what we intend to do is bifurcate the process.  Can you hear me now, Ms Liebhaber?

PN183      

MS LIEBHABER:  A little bit better.  Could you repeat that again?

PN184      

VICE PRESIDENT HATCHER:  Yes, just hold on.

PN185      

DEPUTY PRESIDENT BOOTH:  We're just seeing if we can improve the audio.

PN186      

VICE PRESIDENT HATCHER:  All right, can you hear me now?

PN187      

MS LIEBHABER:  Yes.

PN188      

VICE PRESIDENT HATCHER:  So what we intend to do is bifurcate the process, so the issues concerning the classification structure to be the subject of the trial will be dealt with in further Commission hearings in the same format as this one.  I will conduct that process and for that purpose the next report back and hearing will be on 2 March at 10 am and by that time I hope and expect that firstly ABI and other ADEs will have a response ready to Mr Clarke's proposal about Grades 4 to 7, and secondly that if the ADEs wish to advance anymore formalised proposal in respect of the classification definitions for Grades A and B they will have a document which reflects a firm proposal either on that date or desirably distributed before that date.  So that will deal with the classification definitions.

PN189      

Insofar as the conduct of the trial is concerned, that will be to be worked out by, we'll call it now the steering committee, to be chaired by Booth DP and all the other issues concerning the conduct of the trial which we have discussed today will be resolved by that steering committee.  It will conduct its meetings in private at this stage unless some controversy requiring resolution arises, and I can indicate that Booth DP intends to conduct the first meeting of that steering committee on 27 February.  Deputy President Booth will liaise with the parties as to the precise time and location of that meeting.  Mr Clarke and Ms Liebhaber obviously you'll have to have the union representative nominated before that time so that they can be involved in the logistics for that.  So that's 27 February 2019 - 2020, at a time and place to be advised by Booth DP's chambers after further liaison.

PN190      

Does everyone understand that?  Is there any other matters any other party wishes to raise?  We thank you for your participation, we'll now adjourn.

ADJOURNED INDEFINITELY                                                        [11.00 AM]