PN1

THE DEPUTY PRESIDENT: As with previous conferences these proceedings are being recorded, so I might just get everyone to announce their appearance quickly for the record, beginning here in Sydney, perhaps with you, Mr Mitchell.

PN2

MR P MITCHELL: Yes. Mitchell, initial P, on behalf of the Printing Industries Association.

PN3

THE DEPUTY PRESIDENT: Thank you.

PN4

MS A DEVASIA: Devasia, A, on behalf of the AMWU.

PN5

THE DEPUTY PRESIDENT: Thank you, Ms Devasia.

PN6

MS L CASSIN: Cassin, L, on behalf of the AMWU.

PN7

THE DEPUTY PRESIDENT: Just in case we didn't hear - yes. Yes, Mr Smith?

PN8

MR S SMITH: Smith, S, with H Harrington on behalf of Ai Group.

PN9

THE DEPUTY PRESIDENT: Thank you. In Melbourne?

PN10

MS M HOGAN: Hogan, M, for the AMWU.

PN11

THE DEPUTY PRESIDENT: Yes, and Adelaide?

PN12

MR P LANE: Lane, P for Peter.

PN13

THE DEPUTY PRESIDENT: Thank you, Mr Lane. The AMWU have filed a proposed draft determination. There have been some discussions with at least some of the interested parties. As I apprehend from the correspondence that has been exchanged, the position seems to be this, that the Printing Industries Association supports the draft determination.

PN14

MR MITCHELL: Substantially.

PN15

THE DEPUTY PRESIDENT: All right. I note you say "substantially", but you don't indicate any particular differences, that is, are there bits of it you don't support?

PN16

MR MITCHELL: There are things that we'd like clarified, but that's going to come prior to the hearing of - if there is a hearing scheduled to determine the final determination, but nothing in principle.

PN17

MS DEVASIA: The only thing that we're really apart on, Deputy President, is essentially just the weighting of some of the competencies, which are just taken for all that you would call various sort of small adjustments, but other than that nothing substantial at all.

PN18

THE DEPUTY PRESIDENT: Yes, all right. And the position of the Ai Group is that you would support the proposal with a number of amendments, as set out in your correspondence of 5 June?

PN19

MR SMITH: Your Honour, I wouldn't put it in those terms. I put it this way, that at the moment the award has a long list of competencies that have weightings and directly related to the classifications and the wage rates.

PN20

THE DEPUTY PRESIDENT: Yes.

PN21

MR SMITH: We obviously don't have any objection to obsolete competencies being removed, because they're irrelevant anyway; they're obsolete. We do object to any new competencies coming in and we do object to any upward weighting, but we are - and we have had many discussions with the AMWU about this - we are prepared to look at any particular competency units that, you know, may need to be the subject of more discussions. But the problem that we've got, your Honour, is there has been a process within the training system, if you like, of updating a training package, and of course training packages should be updated and reflect the latest technology, but to suddenly say just because a training body has made changes for reasons relating to training suddenly the award needs to completely reflect that, without consideration of what that means for wages rates, what that means for reclassification outcomes, to us jurisdictionally that would not be possible anyway because the Commission needs to be satisfied that the modern awards objectives are met. So what the union is seeking is a sweeping change to that linkage, and we're not able and prepared to just take the risk of what might flow from that. We would also make another point, as we do in our submission, that if this all gets too difficult there is a very simple - sir, and that is to break the link between the competencies and the award, and then the training package can of course be updated continuously without it affecting wage rates and classifications in the award, which is something that we've floated as a possible option if this matter goes to arbitration.

PN22

THE DEPUTY PRESIDENT: Much like the Federal Court did with casuals in an award and casuals' entitlement to NES.

PN23

MR SMITH: Yes, and the other thing that we sort of point to, your Honour, is your decision in that BGC case where even in the bargaining system there is an obligation to ensure that employees understand what they're agreeing to, and I'd defy anyone to explain in a simple way what that linkage is between all those competencies, the wage rates, the classifications, and you know, in the context of where we've got to with the bargaining system; it becomes even more complicated.

PN24

THE DEPUTY PRESIDENT: Those in Newcastle - sorry, Mr Smith - apparently we need to connect one other party so just bear with me. Mr Smith, I think I did you a disservice. I didn't mean to say that you were proposing amendments to the existing provisions in the award, as opposed to the AMWU's proposal. Sorry, Ms Tiederman, are you there?

PN25

MS M TIEDERMAN: Yes, I am, thank you. Sorry.

PN26

THE DEPUTY PRESIDENT: Yes, sorry, we forgot to link you in, but in your absence we've managed to reach agreement so your need for attendance is no longer required - only kidding. All right, yes, Mr Smith, I understand that position. Mr Lane, you also filed a brief submission making comment about the AMWU's proposal, and essentially, if I read your submission correctly, you are not convinced that the amendment is necessary and you say that the AMWU hasn't made out a case, or set out its justification for the proposed amendments. Is that fair?

PN27

MR LANE: Yes, that's correct, your Honour, and I support a lot of the comments that the Ai Group has just made as well, including the proposal in the case of the future consideration of separation.

PN28

THE DEPUTY PRESIDENT: Yes. Can I say that from the Commission's perspective, as joyous a task as award modernisation has been - award review has been, we're quite keen to try and wrap up all outstanding matters before the end of the year, partly because technically we've got to embark upon an exercise again shortly, unless the legislative scheme changes. So what prospect is there of there being any meaningful agreement between the parties? I want a realistic assessment, rather than the parties indicating that of course they're happy to talk, but - - -

PN29

MR SMITH: Your Honour, I'd put it this way from our perspective - you know, the deletion of obsolete units is simple. They should just go. You know, that's of no relevance. But in terms of the re‑weighted units and the bringing in of additional units, that will require a lot of discussion to work out what the implications are of that, and you know, we're always willing to have discussions, but if the union thinks that just because a training forum has agreed to something that it's a given that that all has to be reflected in the award, if that's the union's position there is no chance of us agreeing to that and the matter should just be listed for arbitration, and we will strongly oppose.

PN30

THE DEPUTY PRESIDENT: Yes. (Indistinct)?

PN31

MS DEVASIA: Deputy President, I think what we would say to that is essentially obviously the AiG's position to this has come in quite late in the piece after substantial work was done to get this to a point where we have a competency package that's reflective of the training package. I think it's disingenuous to say that it's just a wholesale reflection of the training agreement. The competencies are quite specific to the industry that we want. It's a very modest proposal compared to what the training package looks like at the moment. It's reflective of both employer positions - employee positions as well as the training framework that's in place. We don't use a competency network - the competency system to classify workers at the moment. That's done through the indicative tasks list in the classification. So other than the submission that we've had from Mr Smith in writing, we've actually not been approached to work out exactly how this would look, other than take it out completely - you know, I just feel like we haven't had a chance to understand exactly what their objections are other than it's going to lead to higher classification outcomes and higher wage outcomes, which quite frankly, 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 not what it is used for. The competency listings that are in the schedule are used to settle disputes. They've been in there for 15 years. At the time that they were put in it was always assumed that they would be updated to reflect what's happening outside the industry, and it needs to be done. So now I'm back to consensus position across all employees in that particular sector. So you're right when you say that other than saying we should discuss, that it might not progress anywhere, but we really haven't had opportunity to understand what the AiG's position is on this one, other than in a knee‑jerk reaction it seems.

PN32

THE DEPUTY PRESIDENT: Rather than throwing barbs at one another, the fact is that whether they came in the piece late or not, the AiG's position in response to your proposal has been known since June. I haven't been stopping you from having discussions. I mean, you can have discussions whenever you like, but this matter needs to be progressed.

PN33

MS CASSIN: Correct, and I attended the one meeting that we pursued with the AiG, I agree, your Honour, with Stephen back in - I think it was in June - correct me if I'm wrong - where their position was well we just can't get our head around - you might go out there and argue people are entitled to more wages - no evidence base. The AiG sat with Peter Caven(?), who sat on the - it was the group that did this training, (indistinct), Mr Lane. We're not asking for the full suite to be put in there. It's reflective of the industry. I understand the frustrations of yourself and probably others around the room, but it's just well remove it all or take out what's obsolete, but for goodness sake don't modernise it.

PN34

MR SMITH: Your Honour, this is a complete misrepresentation of what has occurred. When this claim was first made a couple of years ago, we said to the AMWU we're happy to sit down and work through the issue. What we got at that stage was a nonsensical position of tack the entire training package on the back of the award, which we said it makes no sense, it's a training package. We had - - -

PN35

MS HOGAN: Excuse me, can I just add something in there, your Honour? It's Ms Hogan from Melbourne.

PN36

THE DEPUTY PRESIDENT: Why don't you let Mr Smith finish and then you can - - -

PN37

MS HOGAN: Okay.

PN38

THE DEPUTY PRESIDENT: Yes.

PN39

MR SMITH: And as Ms Hogan's aware, we had a number of meetings with Ms Hogan and others, and Ms Cassin attended one meeting in a series of meetings. Finally, out of that process, we said tell us what specific changes you want to make to the award, and that's when we finally got that draft order. Up until then, in our view, we got nothing sensible. The PIAA had not participated in any of those discussions up until, you know, the recent matters in the Commission before yourself. We've now finally got exactly what the union wants to change in the award; we've analysed that, and we've written that submission in response to that, and that's where things are up to from our point of view. The fact that one of our training people had some involvement in a discussion about training just highlights the point that both the AMWU and some other industry parties seem to have a view that by expressing a view about the implications for wage rates and classifications in an award, somehow or other that's expressing some opposition to the training package. A training package is a completely different document, and this award and the Manufacturing Award are about the only two awards in the country that are linked to the competencies in training packages, and both the AMWU today and the PIAA in its submission made the submissions that no one uses the competency standards in the award, and they're both powerful submissions in support of the fact that just get rid of them, because they're not being used, how can they possibly be necessary for the purposes of meeting the modern awards objective.

PN40

THE DEPUTY PRESIDENT: Yes. Sorry, yes, Ms Hogan?

PN41

MS HOGAN: Yes, sorry, I was just going to make a comment on Mr Smith's - with the history of the matter and the nonsensical position, as he terms it. That is correct, a very different (indistinct) - - -

PN42

THE DEPUTY PRESIDENT: Sorry, Ms Hogan, would you mind just moving the microphone a bit closer. You're cutting in and out.

PN43

MS HOGAN: Okay. Is that better, your Honour?

PN44

THE DEPUTY PRESIDENT: Very much so.

PN45

MS HOGAN: I was just going to make a comment on Mr Smith's comment about the history of the matter and the way he termed a nonsensical position put. That was corrected very quickly. It has been about 18 months or so now that the AiG has been very clear on the competencies that are to go in. In essence, what we're looking at in the competencies are 48 less points than what currently sits in the award, and we've said that to Mr Smith on numerous occasions. Pretty much this, the new units to go in are pretty much about four digital units, which we say are reflective of the changes in the industry since this package went in or that the competencies as they sit now went in in 2005, and Mr Smith's comments about removing it entirely and what work it has to do in meeting the modern awards objective, it's very important to have it there because the competencies are used in case of a dispute about an employee's classification. So if you have the indicative tasks and there's a dispute, you go to the competency system, which is very transparent and very forensic, where a list of the competencies an employee uses in their job are listed and agreed, and then you simply go to the training.gov website, down by the assessment criteria, and there it is in black and white to see. So it is very necessary in case of a dispute. I'm aware of at least one that has come across my desk - very forensic, very clean and resolved very quickly, so it does meet the modern awards objectives. If you go back to the original decision with Marsh SDP, there are comments there made that the competency should have a mandatory task to do in resolving disputes. So there is reference in the original decision as to the role these competencies should have to play, and the thought that they should sit there for the next 13 years and not be updated, just (indistinct) the obsolete ones but leave the others just sit there if they have no work to do, is really not meeting the modern awards objective either.

PN46

THE DEPUTY PRESIDENT: Yes.

PN47

MS HOGAN: The other point I'd like to make, your Honour, is I was at a conference called "Digitalisation 18" Wednesday week ago, very flashy, run by Siemens, all about digitalisation, automation, artificial intelligence, and the Ai Group gave a speech at that conference where references were made to the need to take advantage of new technology, manufacturing needed to embrace a road of digitalisation, high performance manufacturing, new collar jobs, fusing a wonderful new array of skills and processes digitalisation will produce and so on and so forth, and I don't think anyone at that conference hearing that speech would be thinking in a proceeding like this that the Ai Group would be saying that any modern skills should be as taken out of an award and have nothing to do with the recognition of those skills and how they practice on the ground in the industry.

PN48

THE DEPUTY PRESIDENT: Well, that just underscores the view that I had before coming in here that this matter needs to be fixed by arbitration so it can be determined.

PN49

MR SMITH: I think so, your Honour, because there's just a fundamental misunderstanding of Ai Group's position; you know, we're out there all day every day talking about modern workplaces and so on. That isn't what this issue is about. This issue is about wage rates and classifications, potential impacts on the coverage of the award, and the training package is not the award. There seems to be this view that whatever happens with a training package has to automatically be adopted in the award, which is just completely not correct.

PN50

MS DEVASIA: Deputy President, I would - - -

PN51

THE DEPUTY PRESIDENT: Yes?

PN52

MS DEVASIA: I'm here, over here.

PN53

THE DEPUTY PRESIDENT: Sorry. It has been a long week.

PN54

MS DEVASIA: That's okay. The AMWU position - maybe there's also a fundamental misunderstanding of our position in that it's not our view that it's linked directly to wages or to classifications. It's about the viability of what would be the competencies in the industry. I think it's somewhat misleading to constantly talk about a training package because that's what these competencies are extracted from, but it's about gauging what the workplaces - it's about the pulse that the workers are doing. When we talk about a modest insertion of three competencies from a training package, we're not talking about what that training package needs to look like. That's a separate issue. We agree that is something that happens outside the ambit of what's in the award, but it's also misleading to categorise that as something that doesn't need to be reflected. These are jobs that people are doing that they need to be able to assess. Other industries have competency assessors that come on site, will sit down with you, go through that forensic examination as an external provider that might happen at the place to place. In graphics, that's not what happens. There are a small group of workers and employers who use this award mechanism to be able to assess what happens, and that's what we're asking for, in the event of a dispute. When Margaret was speaking about the 48 less points, we've taken out the relevant ones, that's correct, and the insertion of the digital competencies that we're asking for I think are at most three or four all up. 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.

PN55

THE DEPUTY PRESIDENT: Whether that's right or wrong really isn't a concern that I need to resolve here. What I'm trying to understand is whether if I give you some more time you are likely to reach agreement or at least narrow the scope of differences. Putting aside the relative merits of the claim, or the relative merits of the position adopted by Ai Group, the fact remains that the issue needs to be resolved one way or the other. As I indicated at the outset, we at the Commission are very keen to resolve all outstanding modern award review matters by the end of the year. We're now halfway through August, and so what I'm asking for is an indication as to whether it is likely that you will reach some agreement. If that's not likely, then let's not waste one another's time and let's program the matter, an orderly arbitration, so the matter can be concluded by the end of the year.

PN56

MR SMITH: Your Honour, from our point of view, we are - - -

PN57

THE DEPUTY PRESIDENT: Which doesn't stop you having discussions in the intervening period, but it gives you a timeline to work toward.

PN58

MS CASSIN: Yes, it makes sense.

PN59

MR SMITH: Yes. We don't object to directions being issued, and there were actually some directions issued some time ago, which required the union to file its submissions and evidence.

PN60

THE DEPUTY PRESIDENT: Yes. It was 2007 and they were put to one side because you were having discussions.

PN61

MR SMITH: Yes, and we're not opposed to having that detailed discussion that would need to be had, because despite the view that there's no link to classifications and wage rates, there is a link there. Every one of those competencies has a weighting, and if someone possesses that competency they're entitled to those points, which has a direct impact on their classification, and the fact that both the AMWU and PIAA are saying they're never used, as Ms Hogan said they can be used any time someone says that there is a dispute about a classification. So it needs a detailed competency‑by‑competency assessment. The obsolete ones can just go out. Of course, they're obsolete; we agree. But in terms of any new ones that are coming in or any re‑weighting upwards of any existing ones, that competency unit needs to be looked at, needs to be assessed against the one that is currently referred to in the award, to look at the classification and wage rate implications of that, and we're happy to devote the resources to that and have a detailed discussion about it. But what we're not prepared to do is just give a sweeping endorsement for an outcome of what happened in a training environment, because of obvious reasons. There could be huge reclassification implications of that.

PN62

MS HOGAN: Could I just in response to Mr Smith there, I mean you have been provided, Stephen, with the comparison table of what sits in the award now and what's proposed in the weighting. That was given to you back in April, I think, so you have had that, which gives a direct comparison, and then on top of that of the new units, which are the digital ones that Abha has referred to. So a lot of that information has been given to the Ai Group.

PN63

MR SMITH: And we have analysed that information and we have significant concerns about it, because in looking at that, it looks like there have been a lot of new units put in and a weighting upwards of existing units, and on our assessment that is going to lead to reclassification claims and potential wage increases. So we've done that work; we're prepared to hear your point - - -

PN64

MS HOGAN: You've not come back to us with any of that.

PN65

MR SMITH: Yes, we have. We wrote a submission on it in June. But we're happy to have a discussion and hear your view on that, but it will have to be at that detailed level, not just this sweeping thing that the training package has been updated, therefore we've got to accept it.

PN66

MS HOGAN: Well, with respect, we haven't put that to you. Abha has been very careful and forensic in the work she has put to you with the direct - which was a lot of work on our part, on Abha's part - the direct comparison table of what sits in the award now and what's proposed in the weighting comparison. That was a big task, and then the draft order had the additional units in, and you haven't come back to us in any detail with that documentation you've been given.

PN67

MR MITCHELL: Yes, your Honour, if I could? It really is worthwhile sitting down with the union and going through it forensically like we have. As I put in our submission, the overall number of competency points is lower than what it otherwise was due to the removal of some unnecessary competencies, and I think there is agreement there already that those should be removed, but the categorisation that they're trying to just increase points on that system is not correct. It is truly reflective of what the training package is. Some go up, some go down; others are added consistent with new technology within the industry. I spent half a day with the union in Melbourne, went through the training package; it was a comprehensive discussion, and we were satisfied that it wasn't, you know, a white elephant in the room. It wasn't scary to talk about it. It satisfied any anxieties that we had that it was anything but an updating and a modernising of our industry's award.

PN68

MS DEVASIA: Deputy President, I think we might start talking about some dates, because as you can probably tell, we've arrived at a place where everyone just needs a timeframe I think for us to sort of progress things and revisit the conversation.

PN69

THE DEPUTY PRESIDENT: What I had in mind was for the union to file - assuming that the draft determination filed on 24 April remains its position, without amendment - - -

PN70

MS DEVASIA: Not substantive amendment, no.

PN71

THE DEPUTY PRESIDENT: Well, if there's a substantive amendment, or if there's any amendment, then perhaps you might just send that through at your earliest convenience so that the most comprehensive and up‑to‑date proposal is the proposal that will be subject to further submissions. So if you can do that, say, during the course of next week, and if I were to give the union until 14 September to file its submissions and any statement of evidence on which it proposes to rely and any other document; I'll give other interested parties until 12 October to respond, either in support or in opposition, or by way of counter proposal, to file outlines of submissions, statements of evidence and so forth; and for the union to file its reply by 19 October. In the meantime, the parties obviously can have discussions by way of clarification or narrowing of the issues, and that would be encouraged. I couldn't give you a date now, because I need to consult the other Members of Bench. Clancy DP's away at the moment. It's only another week at least I think, but in any event, I can ascertain his availability and I'll undertake to come back with a date next week. Does that work?

PN72

MS DEVASIA: Yes. Thank you, Deputy President.

PN73

MR SMITH: Yes, your Honour. Just a point of clarification, on 12 October, you mentioned there the submissions and evidence in response, and also any counter proposals. We'd assume that if we are pressing ahead with this breaking of the lent, we would file a draft determination on that date to do that?

PN74

THE DEPUTY PRESIDENT: Yes.

PN75

MR SMITH: Yes. Thank you.

PN76

THE DEPUTY PRESIDENT: All right. Do those dates work for everybody else?

PN77

MS HOGAN: Yes.

PN78

THE DEPUTY PRESIDENT: Mr Lane?

PN79

MR LANE: Yes, they certainly - - -

PN80

THE DEPUTY PRESIDENT: All right.

PN81

MR LANE: Yes. Thank you.

PN82

THE DEPUTY PRESIDENT: I'll issue directions to that effect and have them published in the usual way early next week, and if the AMWU can file an updated draft determination in the (indistinct) of next week I'll have that uploaded as well. (Indistinct) the parties - I have consulted with other members of the Bench a hearing date. In the meantime, if parties have a view that a hearing longer than a day is required, if they could let my Chambers know by close of business Monday by email. I'm going to aim for one day, but if more is required, the parties think more might be required, let me know.

PN83

MS DEVASIA: Thank you, Deputy President.

PN84

THE DEPUTY PRESIDENT: Anything else? No? Well, have a good weekend, and perhaps I won't see you in some time late October but if I do I'll see you then. Goodbye. Thank you.

ADJOURNED TO A DATE TO BE FIXED [2.35 PM]