PN1

DEPUTY PRESIDENT GOSTENCNIK: Yes, good afternoon. Mr Smith, are you ready to proceed?

PN2

MR SMITH: Yes, your Honour.

PN3

DEPUTY PRESIDENT GOSTENCNIK: Yes, all right.

PN4

MR SMITH: As the Full Bench is aware, Ai Group is pursuing amendments to the award that would remove Schedule C, and the extremely complicated and unused point system for classifying employees. That would leave employees under the award to be classified by Schedule B, the system that's already being used to classify employees under this award.

PN5

The system in Schedule B involves indicative tasks and a link to the formal qualifications in the relevant industry training package, and that system is consistent with the approach in numerous other awards, the terms of the proposed award variation set out in attachment A to our submission of 15 October.

PN6

On 16 November Ai Group wrote to the Commission about various matters relating to the current proceedings and included in that correspondence some additional draft amendments which were aimed at addressing the "or equivalent" issue that the Full Bench asked Ai Group to give consideration to towards the end of the last hearing.

PN7

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN8

MR SMITH: To assist the Full Bench we have prepared an amended draft determination which includes those additional amendments.

PN9

DEPUTY PRESIDENT GOSTENCNIK: There might be some difficulty in my colleagues in Melbourne having a look at that right now. Perhaps I'll hold it up to the screen and they can read it from that. But, we'll ensure that a copy is ‑ ‑ ‑

PN10

MR SMITH: And if I can just explain for the purposes of the Bench that is simply the ‑ ‑ ‑

PN11

DEPUTY PRESIDENT GOSTENCNIK: Just bear with me for a moment. Perhaps if you might hand my associate another copy and I might have it scanned to my colleagues while you're on your feet, Mr Smith.

PN12

MR SMITH: Yes. Thank you.

PN13

DEPUTY PRESIDENT GOSTENCNIK: Thank you.

PN14

MR SMITH: Just to reiterate that is simply the other draft determination with the amendments in that email of 16 November ‑ ‑ ‑

PN15

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN16

MR SMITH: ‑ ‑ ‑just dropped into the document.

PN17

DEPUTY PRESIDENT GOSTENCNIK: Highlighted in yellow?

PN18

MR SMITH: As highlighted in yellow, yes.

PN19

DEPUTY PRESIDENT GOSTENCNIK: Yes. Thank you.

PN20

MR SMITH: Our preference is for the award to be varied without those additional amendments but if the Full Bench took the view that those amendments were useful then we could certainly understand that view. Now, the reasons why we submit that Ai Group's proposed amendments are consistent with the requirements of the Act and should be adopted by the Commission are set out in detail in our submission of 15 October and in the evidence given by Mr Daniel Murray.

PN21

If I could highlight some relevant aspects of our submission of 15 October without going through the whole submission. Chapters one, two and three of that submission of 15 October we'll just rely on our written submissions and those sections, with the exception of one paragraph that describes what is in the former AMWU claim we would submit are equally relevant and are highly relevant to Ai Group's proposed amendment.

PN22

Chapter 4 of that submission deals with the history of the link between the eight level classification structure and the competency standards. It provides useful background but is not directly relevant to Ai Group's application. The only point we would make is that the fact that the link was seen as being consistent with the Workplace Relations Act in 2005 following that 16 year case before three different members of the AIRC does not mean of course that the provisions are relevant to the Fair Work Act.

PN23

Chapter 5 of our submission we believe is highly relevant. This is the chapter that deals with the purpose of industry training packages and as we argue in that chapter, which starts at paragraph 37 on page 16, the purpose of an industry training package is to determine standards that registered training organisations need to meet when delivering training in an industry. It is not to determine wage rates and classifications under a modern award which is obviously an instrument outside of the training system.

PN24

So chapter 6 of our submission deals with the typical linkages between industry training packages and awards, and we've just highlighted there a number of awards that might be seen as having some, not necessarily direct relevance to the graphic arts award but in industries that are not completely removed from the sorts of functions carried out in the graphic arts industry; awards like the Manufacturing Award, the Clerks Award, et cetera and it shows that it is very common to have classifications determined by an approach that is very similar to what is in Schedule B being indicative tasks with a link to the formal qualifications in the industry training package.

PN25

It is extremely uncommon to have this approach of, you know, a bolted on system of linking in with specific competency standards, and the thing that's unusual about this system, it's not even a system that is part of the training package. The weightings have been determined outside of the training package. So we'd submit that that system is extremely complicated and unused.

PN26

With chapter 7 this is an important chapter starting on page 21 because it deals with the problems with weighting competency standards in an industry training package, and those problems were identified in some detail by Mr Murray in his witness statement, and they include – you know, of course, once you have competency units weighted in this way, any additional competency units that are added waters down the classification requirements because each one has points. Any competency units that are removed would potentially impact classifications as well to the extent that they had any relevance, and all of the other problems that Mr Murray sets out in some detail, and I don't think anyone would argue that Mr Murray is an expert in this area. Those problems do not arise if the competencies in an industry training package are not weighted. No one is arguing that the current version of the industry training package is not a very worthwhile instrument. It is there to do the purpose that it was intended to be developed for, that is to guide industry training outcomes. It's not there to determine wage rates in an award.

PN27

As also pointed out there, the system that is in the current version of the Graphic Arts award is a system that was seen by the AIRC back in 20015 as being relevant. The training package has been updated a large number of times since then and even on the submissions that were made earlier by the AMWU that training package is out-dated and includes numerous obsolete competencies.

PN28

What that system is, is a system of weighted competencies that lives only in the award. It doesn't integrate with the training system. The points values do not reflect training times or match with packaging rules, qualifications, and would lead to a raft of unintended consequences. The only thing that has saved employers from all those consequences is that despite being in the award now for all of those years, there's no evidence of it being used at all, and I'll come to that in more detail in a moment.

PN29

Chapter 8 of our submission makes the obvious point that the classification structure is already linked to the latest version of the training package. Because it links with formal qualifications as soon as the training package is updated those links to the formal qualifications are, if you like, automatically updated. It's not linking to the minutia of a very large number of competency units with this weight system that the AMWU has come up with.

PN30

Chapter 9 of our submission simply outlines our proposed amendments which I think the Full Bench would now understand. And then we move on to deal with a few other chapters in our submission that are no longer directly relevant. Chapter 10 was an explanation of the AMWU's proposed amendments which the AMWU has now withdrawn, so that chapter is not relevant. Chapter 11 deals with the work value requirements of the Act which at no stage did the AMWU ever try to address, and therefore that chapter is not relevant, and the fact that the system is not being used would mean that that chapter doesn't have any relevance to Ai Group's amendments either, because it's a system that is just there in the award when all the evidence is showing no one actually uses it.

PN31

Chapter 12 deals with award coverage issues. It deals with some useful background and historical matters but is not overly relevant to Ai Group's proposal. It had more relevance to what the AMWU was previously pursuing where they were proposing to include a raft of additional competencies outside of the areas that the award covered.

PN32

Chapter 13, in our submission, is highly relevant. It deals with enterprise agreement issues. It's very important that award provisions which are incorporated by reference into an enterprise agreement are able to be readily understood by the employer, the employee and the Commission. Given recent Federal Court and Commission decisions the relevance of this is very stark. You know, it's critical to ensure that genuine agreement is able to be reached; that there is that understanding and it's also critical so that the employer is able to adequately explain the effect of incorporated terms on the employee's during the access period. It is almost impossible for anyone to explain how an employee could be classified under this convoluted process in Schedule C.

PN33

Award provisions need to be able to be readily understood by the employer, the employees and the Commission to enable the better off overall test to be understood and applied. We do accept that it's common for enterprise agreements to incorporate the terms of relevant awards by reference. The latest AMWU submission identifies half-a-dozen agreements that refer to the Graphic Arts Award, which is simply the point we're making. There's no evidence that anyone in those workplaces is actually using Schedule C. It just highlights the point that we're making that if an enterprise agreement is to be linked to the Graphic Arts Award then everyone needs to understand what the terms of the Award are, and highly complex provisions and outdated provisions are obviously not easily understood.

PN34

At paragraph 83 there, your Honour, we have identified a decision that you made in BCG Contracting referring back to the Federal Court's One Key Workforce decision about the importance of employees understanding the terms of awards that are incorporated by reference.

PN35

DEPUTY PRESIDENT GOSTENCNIK: Particularly in circumstances where the award incorporated had no actual application to the employees voting on the agreement, an important caveat.

PN36

MR SMITH: Yes, we accept that point, your Honour, but the broader point that we make ‑ ‑ ‑

PN37

DEPUTY PRESIDENT GOSTENCNIK: But I understand the ‑ ‑ ‑

PN38

MR SMITH: Yes.

PN39

DEPUTY PRESIDENT GOSTENCNIK: Yes, I do. I'm not quarrelling with it.

PN40

MR SMITH: In chapter 14 we go through the section 138 considerations, and, you know, obviously section 138 requires that awards only include provisions that are necessary to enable the award to achieve the modern award's objective. And, you know, as we point out at paragraph 92 of our submission on page 43, the AMWU cannot claim that the existing competencies in Schedule C and the points system is necessary given that, in their own submission, of 16 September, they state at paragraph 38:

PN41

Many of the competency units have been updated and replaced and are no longer operative.

PN42

Then at paragraph 69 they say:

PN43

The AMWU submits that the current competency package in the award is outdated and largely irrelevant due to the transformation of the training package that initiated it.

PN44

If I could just refer the Bench to the transcript of the proceedings of 17 August, and this transcript is on the Commission's website, and I've got some copies here if that would assist.

PN45

DEPUTY PRESIDENT GOSTENCNIK: Yes, Mr Smith.

PN46

MR SMITH: Yes. Just a few points that I'd like to highlight in there. At paragraph 31 on the bottom of page 3 and the top of page 4, the AMWU states, and this is on the top of page 4:

PN47

We don't use a competency network. Competency system classify workers at the moment. That's done through the indicative tasks list in the classification.

PN48

Then Ms Devasia goes on to say:

PN49

If an employee has a dispute and the indicative tasks say that they should be at a higher classification so be it, but that's what it is used for.

PN50

The competency listings that are in the schedule are used to settle disputes and, you know, we think what the AMWU is clearly saying there is that the competency system is not being used to classify workers at the moment ,and we completely agree with that. Then ‑ ‑ ‑

PN51

DEPUTY PRESIDENT GOSTENCNIK: That would be, I would think, unsurprising given, at least on my reading of the provisions, first an employer determines whether he or she will use Schedule B or Schedule C to determine classification, or a dispute about classification, and the employer then makes a determination. If there's a dispute about whether or not the employer should use B or C or if there's a dispute about the classification assigned after using B, and there needs to be consultation, and after that the Schedule C points are used to determine the disputed classification. That's the way I read the provisions.

PN52

MR SMITH: Yes. Or I think it could be used to determine the dispute, because there are disputes that have been before the Commission where ‑ ‑ ‑

PN53

DEPUTY PRESIDENT GOSTENCNIK: Sure. Sure.

PN54

MR SMITH: ‑ ‑ ‑the Commission has just looked at Schedule B.

PN55

DEPUTY PRESIDENT GOSTENCNIK: Yes, they're not mandatory.

PN56

MR SMITH: Yes.

PN57

DEPUTY PRESIDENT GOSTENCNIK: Yes. That's right. But, yes, the starting point is that they're under 23.4, the employer determine which of B or C it will use.

PN58

MR SMITH: Yes. And all the information before the Full Bench highlights that. You know, there's no evidence of even one employer or employee choosing to use Schedule C. What we have is some information from Ms Hogan at paragraph 45 where she says:

PN59

I'm aware of at least one that has come across my desk. It was very forensic, very clean and resolved very quickly.

PN60

So what we have is only one employer or it might have just been one employee, but the AMWU has only been able to point to one circumstance in all these years where the competency standards have actually been used, and the extent of that was someone raising with the AMWU's industry training expert this issue, so, you know, those comments stand as stated, and then paragraph 54 Ms Devasia says:

PN61

There are a small group of workers and employers who use this award mechanism.

PN62

We're unaware of who that small group might be, but even on the AMWU's submissions, it's a small group. Then the comment is made:

PN63

So maybe there is a fundamental difference of opinion about how this works, but we honestly don't think that it's in any way directly linked to wage outcomes or reclassification as the AiG seems to feel.

PN64

To us, you know, we may be misunderstanding the submissions being made, but if it's saying that there is no direct link with wage outcomes and reclassifications we think that is just completely wrong. There is a direct link because a union at any stage can generate a dispute and that dispute would be resolved by the competency system. So, you know, the point with raising those is it further supports the submission that we're making that this system is not being used.

PN65

Paragraph 93 of our October submission we just reproduce what the PIAA has stated in its submission of 6 June, where the PIAA states that the competency units/points system has only rarely, if at all, been used in the event of a dispute. And there is a consultation requirement, et cetera, so similar to the AMWU the PIAA cannot claim that the points system in the award is necessary.

PN66

At chapter 15 of our submission we go on to address the modern awards objective and we make a couple of points there. Firstly, of course, the modern awards objective requires a fair and relevant minimum safety net of terms and conditions, and fairness has to be addressed from the perspective of employers and employees, and relevance as held by the Commission in the penalty rates decision is intended to convey that a modern award should be suited to contemporary circumstances.

PN67

In our submission, it cannot possibly be fair for an employer to be exposed to claims under this system that is so extremely complicated that is almost impossible to understand. It's also not fair for employers to be potentially exposed to problems with having their enterprise agreements approved because of this issue.

PN68

We also make the point that it is unfair on employees because quite conceivably possibly even likely an employee who is assessed under the process in Schedule B versus an employee who is assessed under Schedule C could quite easily come to a completely different outcome because the two systems are not aligned.

PN69

The changes that we're seeking to the award would ensure fairness for employees and employers, and is consistent with what is being implemented throughout the industries covered by the Graphic Arts Award.

PN70

In terms of relevance what we are seeking, of course, are changes to the award that would make the award relevant in the sense that the award would be suited to contemporary circumstances. Schedule C would be deleted. It's outdated. It's not being used. Schedule B would then be the basis for classifying employees, which is what is being used. It's contemporary in the sense that it links in with the current version of the industry training package. Seven versions, I think it is, later than the one that's referred to in Schedule C, and it's consistent with the approach in a larger number of other awards. And it's certainly not inconsistent with the approach in all the other awards because, you know, as we've identified a lot of awards do refer to the formal qualifications in the training package in conjunction with indicative tasks. The other awards that don't do that typically just have indicative tasks. There's only two awards that have any link to a points system, and the other award, the Manufacturing Award, only links to a points system for the people covered under the metals competency standards, and also the points system in that award is actually in the training package. This isn't a points system that lives in the training package.

PN71

With the 134 considerations, 134(1)(a) about the relative living standards and the needs of the low paid, in our submission, is a neutral consideration. 134(1)(b) about the need to encourage collective bargaining. As we've identified and as set out in section 13 of our submission, this weighs very heavily in favour of Ai Group's proposed amendments.

PN72

It's common for agreements to include references to the Graphic Arts Award and for all of the reasons we've set out in our submission this proposal that we've put forward is consistent with the requirements of 134(1)(b). 134(1)(c) about the social inclusion, we would submit is a neutral consideration. 134(1)(d) about the need to promote flexible modern work practice and the efficient and productive performance of work, again, this weighs very strongly in favour of Ai Group's proposed amendments. Our amendments would promote flexible modern practices. Classification definitions, as we've explained, would be linked to the current version of the training package through the formal qualifications and out of date unused provisions in Schedule C would be removed. It's consistent with efficient and productive performance of work because businesses would know what classification procedures apply. They wouldn't have to devote all the resources to trying to understand the system in Schedule C.

PN73

134(1)(d), (a) and (e) we, as we've said in our submission, would say are neutral considerations. But perhaps the biggest factor that weighs very starkly in favour of Ai Group's proposed amendments are 134(1)(f) the likely impact on business including productivity, employment costs and the regulatory burden. Ai Group's proposed amendments would obviously substantially reduce the regulatory burden for employers covered by the Graphic Arts Award. The printing industry is composed of a large proportion of small businesses and, you know, the evidence and information for the Bench shows that at the moment small businesses are not using this system but should they ever be required to use it through a disputes process it would be extremely difficult for any small business person to understand how to apply Schedule C.

PN74

Going to costs considerations in 134(1)(f), you know, of course, at the moment the costs are not arising because no one is using it, but if the system was ever to be used through a dispute there could be a potentially large cost impost on a business because the whole system is so vague who could possibly know what the outcome of such a process, were one ever to be pursued, might be.

PN75

134(1)(g) is about awards needing to be simple, easy to understand, and so on and for all the reasons we've mentioned this is not simple or easy to understand. Ai Group's proposal is simple and easy to understand. The 2005 version of the training package has or had six volumes, was over 2000 pages in length and the second version or the current version is over 3000 pages in length. That doesn't include the weighting system. It doesn't even exist within the training package. How any person or even the Commission is expected to understand all of that is anyone's guess, but we would submit it is the absolute opposite of anything that is simple and easy to understand.

PN76

There are currently three methods for classifying employees under the Graphic Arts Award. The classification of employees with a relevant formal AQF qualification is the first one. So if someone has a trade certificate as a printer, for example, they're entitlement to the relevant classification, and the second one is in accordance with the definitions and indicative tasks, and the qualifications are linked in with that where relevant. And the third one is the points based competency system which isn't being used. So the removal of that third one still leaves two systems within the award for classifying employees. It creates a much fairer, a much simpler, much more easily understood system.

PN77

The removal of that system would reduce the complexity of the Graphic Arts Award, would ensure that people can understand their classifications and wage rates, would reduce the potential for disputation, and for all the reasons that we've set out in our submissions during the proceedings we would submit that our proposal is very strongly consistent with sections 134 and 138 of the Act.

PN78

We raise a few other points in chapters 16 and 17 that are not particularly relevant given the AMWU has withdrawn its proposal but we commend our proposed amendments to the Bench, and those are our submissions, if the Commission pleases.

PN79

DEPUTY PRESIDENT GOSTENCNIK: Yes. Thank you, Mr Smith. Normally at this time I whisper to my colleagues whether they have questions, but I can't do that, so, colleagues?

PN80

DEPUTY PRESIDENT CLANCY: No, no questions.

PN81

DEPUTY PRESIDENT GOSTENCNIK: Yes. Thank you very much. Thank you, Mr Smith. Ms Devasia?

PN82

MS DEVASIA: Thank you, your Honour. If I might just begin with speaking to the reference to the transcript of 17 August that Mr Smith has made at paragraph 54, I think it is on page 5, where he speaks to or where he referred to my comment about the difference between how ‑ ‑ ‑

PN83

DEPUTY PRESIDENT GOSTENCNIK: Ms Devasia, could I just get you to pull the microphones a bit closer to you?

PN84

MS DEVASIA: Is that better?

PN85

DEPUTY PRESIDENT GOSTENCNIK: It's fine for me. I think it's for the transcript and my colleagues.

PN86

MS DEVASIA: Sure. It speaks to where Mr Smith referred to my comment about the difference about how this might work, and where I have that I don't honestly think that there was anywhere directly linked to wage outcomes and reclassification, I was speaking directly about whether the competency should be reviewed and at a very early stage before we had gone through that process. So that's all I would really wish to say to that.

PN87

It would be our submission that the AiG have not made out their case for removing the entirety of the competency schedule. They have not provided any new material that supports the departure of the existing schedule. In reliance I ‑ ‑ ‑

PN88

DEPUTY PRESIDENT GOSTENCNIK: Other than it's out of date and bears no resemblance to the current one you mean?

PN89

MS DEVASIA: No, your Honour, I might refer initially to the AMWU's submissions that we filed on Thursday the 5th.

PN90

DEPUTY PRESIDENT GOSTENCNIK: But why should we retain a provision in an award which is out of date?

PN91

MS DEVASIA: It would be our submission AiG's position is that there's been no evidence put forward that the schedule is being used. What we would say to that is that an absence of formal dispute of itself doesn't indicate that the schedule is not being utilised. As you pointed out, it's part of a process that goes to ‑ ‑ ‑

PN92

DEPUTY PRESIDENT GOSTENCNIK: No, I accept – let's assume for a moment we accept that, and let's assume that there is no evidence one way or the other that the schedule is being used or is not being used, the fact remains that the schedule appears to be out of date ‑ ‑ ‑

PN93

MS DEVASIA: Parts of it ‑ ‑ ‑

PN94

DEPUTY PRESIDENT GOSTENCNIK: ‑ ‑ ‑so that even if it were being used why should we by award regulation maintain a scheme that is out of date for the purposes of being used to determine wage outcomes under the award?

PN95

MS DEVASIA: The schedule as it currently stands is linked to the ICP05 package which is the 2005 package.

PN96

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN97

MS DEVASIA: There are certain competencies in that that have become obsolete through essentially evolution, but in terms of the point system as it works within the award it still operates effectively in that if there is an employee that is doing the task that can be assessed based on a competency that exists within that schedule. It can still be aligned for points that it needs to for the mechanism that it was put there for in the first place which is about dispute resolution.

PN98

DEPUTY PRESIDENT GOSTENCNIK: So we should retain it on the basis that some for the matters are still relevant and they can still be utilised for the purposes of resolving disputes?

PN99

MS DEVASIA: Disputes. That's correct. There are some, for example, if I might take the Commission to the comparator document that we provided to the Commission, there are certain points in there – this is prepared obviously in preparation for our draft.

PN100

DEPUTY PRESIDENT GOSTENCNIK: Yes, I understand.

PN101

MS DEVASIA: But there are points in there that align completely with the existing package. There are some competencies that have changed in name or in essentially labelling but in terms of the skills that are being utilised they're exactly the same. So for example if you have an employee that has arrived at a dispute with an employer about the classification that they're supposed to use, you use those competencies to find out within the schedule - in some ways the fact that it's been alienated from the existing training package it still had the relevant skills that you would be doing. So for example when AMWU was essentially pressing for 3D printing to go in, and that has now fallen away, if you don't use 3D printing in your job then it doesn't appear in the schedule, but if you have those particular tasks that you may be doing that align to different competencies within the package that exists in the schedule you're still granted those points that allow you to resolve your dispute.

PN102

DEPUTY PRESIDENT GOSTENCNIK: I understand.

PN103

MS DEVASIA: I might also speak briefly to the proposed variation that the AiG is presenting. I think the large crux of the AiG's submissions has been that there is a problem with the schedule appearing in an award that needs to be incorporated into enterprise agreements.

PN104

We have outlined our submissions that we filed on 6 December, but I will just speak to those briefly. As we said, the AMWU, in our membership we have approximately 75 per cent of our membership that is currently covered by an enterprise agreement, and the remainder are 25 per cent award reliant. Although the AMWU does not have specific figures of award reliant employees within the entirety of the sector, as at May 2017 there was approximately about 30,000 employees who belong to the prints and graphics. Assuming at least maybe 20 per cent are award reliant, and this is, I grant, an assumption, those who are award reliant would be able to utilise the points system to resolve a dispute about their classification. Those particularly without a formal qualification would be denied the very fair and transparent means of classification if the AiG's proposal is accepted.

PN105

The AiG has spoken to the unfairness to employers who would be apparently burdened with an untoward cost or unexpected burden that's been actually in the award for the past 15 years. Employees with a qualification would simply present their trade certificate to be accurately classified whereas those employees doing the same job beside the employee with formal qualifications do not have a clear path to classification, and that is what the points system has been inserted into award to address.

PN106

It is not just award reliant employees who would be affected, it is, as we spoke to earlier, those agreements that incorporate the award. There's no evidence provided by the Ai Group that there are any agreements that have not been approved due to the complexity of Schedule C. If anything, the schedule provides an easy point ‑ ‑ ‑

PN107

DEPUTY PRESIDENT GOSTENCNIK: But, the removal of Schedule C from this award doesn't prevent the AMW as a bargaining representative pursuing an agreement which, in effect, incorporates the provisions of this award at point in time.

PN108

MS DEVASIA: No, it does not.

PN109

DEPUTY PRESIDENT GOSTENCNIK: No. And it's not unusual to see enterprise agreements, as you'd be well aware, that seek to preserve a particular instrument at point in time.

PN110

MS DEVASIA: No, there isn't anything prohibiting the AMWU from doing that. No.

PN111

DEPUTY PRESIDENT GOSTENCNIK: No.

PN112

MS DEVASIA: But in terms of those employees that might not have representation to organise enterprise agreements obviously the award stands as the minimum safety net.

PN113

DEPUTY PRESIDENT GOSTENCNIK: But what is it about this industry that requires there to be this separate mechanism for resolving classification disputes when the award appears to do no more than other modern awards do when they adopt a fairly standard classification or classification description by reference to (a), a qualification and/or (b) indicative tasks.

PN114

MS DEVASIA: We would say to that that the adoption of that particular points system as it happened back in 2005 when it was inserted into the award was very specific to the industry because there was such a large – at that time, a large component of employees that were unqualified or doing that kind of work. We would not – there isn't a case made that just because the graphic arts has an extra mechanism for resolving disputes through a competency system that it should be removed just because other awards don't have it. There is nothing that says that – none of the Commission's decisions have ever pointed to the fact that just because there's an extra limb of dispute resolution for classifications in the Print and Graphics Award that it should be removed because other awards do not have it.

PN115

DEPUTY PRESIDENT GOSTENCNIK: But here we're talking about a mechanism which is out of date, at least in respect of some of the matters that are contained there presumably will over time become more and more out of date.

PN116

MS DEVASIA: It is out of date in terms of the current package, but the schedule is aligned to the OCP05 package which is the 2005 package, the initial version.

PN117

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN118

MS DEVASIA: So in terms of ‑ ‑ ‑

PN119

DEPUTY PRESIDENT GOSTENCNIK: Which no longer has currency?

PN120

MS DEVASIA: It has no longer currency, but then as you said if you were getting to the point of dispute where you've gone through the first two iterations of dispute resolution, so, as Mr Smith said, if you were in Schedule B and need to classify your employees based on the indicative tasks, relying on the current existing package, then you don't have that problem. Once you move on and you haven't resolved that dispute, you have a certain level of schedules that you are able to look to that gives you the point system, which is what will be calculated to settle the dispute. The existing training package doesn't have a point system. That's been given – but the schedule in the award does and it's been put in there in 2005 aligned with when each of those competencies first appear in the training package, so that point system is at the crux of what supports the dispute resolution process.

PN121

DEPUTY PRESIDENT GOSTENCNIK: Yes. All right.

PN122

MS DEVASIA: We would also say in terms of – if I could just speak to the regulatory burden, the Ai Group's submission seems to be based on the proposition that there would be an increase to the cost of employment. There has been no evidence suggested that there are any employers who are currently unable to meet their award obligations because of the unnecessary burden that Schedule C seems to present to it.

PN123

To assert that disputes are costly is certainly to make a statement of fact without evidence. Their retention of the schedule and the attached clauses for dispute are an encouragement for disputation is a nonsense. We would say that if anything the award works as a very clear process for how to step through a dispute if, in the event, the first two clauses don't operate. And I would note that in the initial decision that inserted the competency package at paragraph 27 of our submissions we've made reference to paragraph 298 of the 2005 decision of Marsh SDP.

PN124

DEPUTY PRESIDENT GOSTENCNIK: 298?

PN125

MS DEVASIA: Yes, 292.

PN126

DEPUTY PRESIDENT GOSTENCNIK: 292.

PN127

MS DEVASIA: Which was at the second dot point at that paragraph Marsh SDP speaks to it and says:

PN128

An examination of the structure of the competency standard contained in the training package supports the view of the AMWU and the Ai Group that access to a trained assessor will not be a perquisite for classifying employees at the workplace level or for resolving disputes. This material together with the training package itself should provide the rigor and transparency claimed by the AMWU and the Ai Group to prevent manipulative claims being brought by employees.

PN129

When the competency package was inserted into the schedule this was one of the concerns that was sought to be addressed that there would be frivolous disputation brought by employees apparently and the points system would be a clear system and a transparent system that would resolve that issue. That continues to be the case.

PN130

The reference to a trained assessor was brought up in the context of costs to the employees or to employers in terms of how an employee would be assessed to see where they fall within the classification. The existence of the schedule, contrary to what AiG may say, doesn't involve a huge amount of work to sit down and go through pages and pages of a training package, which is what would happen in Schedule B.

PN131

What would happen in this instance is that you have the award with the schedule attached to it where you go through the points system, allocate the points as you align to the – I withdraw that – where you go through the points system, isolate the competencies that apply to the employee, allocate the points and then use the points within clause 17 to ascertain where you fall within the classification system. It doesn't involve an extra-regulatory burden. There is no need to go off to an assessor. It minimises the need to go to extrinsic material to the award to try and figure out where you fall within the classifications.

PN132

It would be our submission, essentially, that even where Schedule B, as AiG are saying, are linked to formal training it doesn't address the question of those employees who are formally trained. It cannot be fair for employees or for those who are in small enterprises and do not have the time or ability to go through training packages to withdraw the schedule. It still continues to act as a one-stop shop.

PN133

The only thing else I would add, that I would reiterate that while the AMWU does acknowledge that there are some competencies that are contained within the training packages that aren't live so to speak they're still relevant to employee and employers and they will continue to be of utility in the event of a dispute.

PN134

That would be our submissions.

PN135

DEPUTY PRESIDENT GOSTENCNIK: Colleagues?

PN136

DEPUTY PRESIDENT CLANCY: Sorry, Ms Devasia, are you able to give evidence of how often there are disputes in which the schedule is called upon for resolution?

PN137

MS DEVASIA: No, your Honours, I don't have that information.

PN138

DEPUTY PRESIDENT CLANCY: Have you or any of your colleagues there today been involved in any disputes?

PN139

MS DEVASIA: Yes, Ms Hogan, who is the industrial officer in the Victoria branch, has been involved in one dispute where the classification was calculated based on the competencies.

PN140

DEPUTY PRESIDENT CLANCY: Thank you. I'll ask Mr Smith the same question?

PN141

MR SMITH: Your Honour, I can't recall any dispute where this schedule has been used. I'm not aware of any, no.

PN142

DEPUTY PRESIDENT CLANCY: Thank you.

PN143

DEPUTY PRESIDENT GOSTENCNIK: Ms Devasia, the dispute that you have just mentioned in answer to the question posed by Clancy DP, this is presumably a dispute that was resolved as between the parties so to speak. It's not one that came to the Commission?

PN144

MS DEVASIA: That's correct.

PN145

DEPUTY PRESIDENT GOSTENCNIK: Yes. And when was that?

PN146

MS DEVASIA: About 14 months ago, Commissioner.

PN147

DEPUTY PRESIDENT GOSTENCNIK: Yes, all right. Thank you. Sorry, you're finished now, Ms Devasia?

PN148

MS DEVASIA: Yes. Thank you.

PN149

DEPUTY PRESIDENT GOSTENCNIK: Yes. Thank you. Mr Smith, anything in reply?

PN150

MR SMITH: Just a couple of very brief points. On the issue of the scope of the matters in Schedule C and the AMWU's submission that this schedule could still be used to resolve a dispute, if you look at the content of that schedule you can see that the units that are referred to there are units in the 2005 training package. They're not units in the current training package, so to actually make any sense of Schedule C you actually have to go to the 2005 training package, seven sets of amendments back, to find out what– for example, the first one, applied knowledge and requirements of printing machining. This is a unit in the 2005 version of the training package that's explained over a number of pages.

PN151

It is, in our submission, a ridiculous idea that this system is still intended to be relevant. How could the Commission – assuming even, like, for the time being, as we understand it, you can still get access to the 2005 version of the training package but at any time that may cease to become available on relevant websites, because it now goes back 13 years, and has been updated seven times. So it really is not a sensible system any more to classify anyone.

PN152

Another point was made about needing to be able to classify someone without formal qualifications. We do not accept, and it's quite clear, that there is a system to classify people. If you take the example that was raised of someone that allegedly has the same skills as a tradesperson but doesn't have the piece of paper, there's a raft of ways that that individual could achieve a classification outcome equivalent to the person that has the piece of paper. You know, of course there are trades rights processes where people with equivalent qualifications can be granted the right to have a formal qualification, but leaving aside that, we have Schedule B, and Schedule B has the indicative tasks that are intended to deal with that example and in that amended draft determination that we handed up and as we set out in the proposal that we put forward in that email in November the additional words that we have drafted there to pick up on this "or equivalent" concept would enable someone to be recognised through advance standing and recognition of prior learning. So if someone did have equivalence then not only would the indicative tasks would be relevant but also they could say that they wanted to have recognition of their prior learning towards that qualification which is recognised in the training package anyway.

PN153

Then just one final point, this issue of freezing the award at a point in time, the AMWU printing division has been frustrating Ai Group's members for a very long time by insisting in the bargaining process to the pre-Work Choices version of the Graphic Arts Award being referred to in enterprise agreements. That is a very longstanding claim of the AMWU printing division and it is very common for enterprise agreements to be linked in with that 2005 version of the Graphic Arts Award in this industry. If the Commission pleases.

PN154

DEPUTY PRESIDENT GOSTENCNIK: Yes. Thank you, Mr Smith. Before we adjourn I should just acknowledge that we had also received a written submission from the Printing Industries Association of Australia dated 6 September 2018 which either has been or will shortly be published on our website. In short compass the organisation supports the AMWU's position as to the retention of Schedule C. It says that it's reflective of the industry's position. I'm assuming, Mr Smith, you've seen a copy of that?

PN155

MR SMITH: We have, your Honour, and I'm not sure if you're about to mention it, but the Lane Print Group yesterday filed another submission ‑ ‑ ‑

PN156

DEPUTY PRESIDENT GOSTENCNIK: I was.

PN157

MR SMITH: ‑ ‑ ‑in support of Ai Group's position.

PN158

DEPUTY PRESIDENT GOSTENCNIK: Yes. Yes, I was going to note that also.

PN159

MR SMITH: Thank you, your Honour.

PN160

DEPUTY PRESIDENT GOSTENCNIK: But, yes, there was a submission received. I received it this morning which was to the effect that Mr Smith has indicated.

PN161

We thank all the parties for their contributions. We'll reserve our decision, and we are adjourned. Thank you.

ADJOURNED INDEFINITELY [3.01 PM]