PN1

JUSTICE ROSS: Good afternoon. I have with me Ms Regan, from HIA?

PN2

MS L REGAN: Yes, your Honour.

PN3

JUSTICE ROSS: Mr Maxwell from the CFMMEU?

PN4

MR J MAXWELL: Yes, your Honour.

PN5

JUSTICE ROSS: And Ms Sostarko from the Master Builders?

PN6

MS G SOSTARKO: Yes, your Honour.

PN7

JUSTICE ROSS: Thank you. Thanks for making the time available today. My apologies for having to move the time. An appeal I had earlier today just took a bit longer than I thought. There are just two things that I wanted to cover: the first is I have received the revised draft determination, Mr Maxwell, with the changes that have been agreed. I also note that the agreement by the MBA and HIA is without prejudice to their primary and secondary positions put in the course of the proceedings. There was one matter arising from your correspondence, Mr Maxwell, of 17 August, that I wanted to deal with, because I didn't understand what the issue in dispute was.

PN8

It's the last dot point, if I can take you to that email now, Mr Maxwell? It's the last dot point about the foundation skills training package.

PN9

MR MAXWELL: Yes, your Honour, the position there is that (indistinct) want to get out of the pack, so to speak. Given that the foundation skills training package isn't included in the whole schedule, we didn't want this to be seen to be - I suppose - (indistinct) the other awards.

PN10

JUSTICE ROSS: Well, it wouldn't set a precedent that would apply in other awards. The reason why I raise the issue is having read through the - I'll be the first to admit not having understood each and every part of the training package, because it's 400-odd pages - it looks like it's dealing with foundational skills around literacy, numeracy, the use of digital technology, et cetera, and oral communication skills. Speaking for myself, I didn't really see why that sort of package would not be included in the joinery award. Are you saying that it's not relevant or is your sole concern about the potential precedent it may create for other awards?

PN11

MR MAXWELL: Your Honour, there's two issues: one is that we're not sure this would actually be done in (indistinct) arrangement because the - whether we look at the complications of pay packages, it talks about someone doing that training to pre-employment, to gain pre-employment skills.

PN12

JUSTICE ROSS: Yes.

PN13

MR MAXWELL: We have got only one suggestion to (indistinct) the training package in there. But our one concern was that there may be others that will take the cue that - - -

PN14

JUSTICE ROSS: All right.

PN15

MR MAXWELL: If (indistinct) award that wasn't the case (indistinct).

PN16

JUSTICE ROSS: No, I follow that. without wanting to force the issue, Mr Maxwell, can I frame it this way and see if that's agreeable to you, that - leaving aside for a moment the determination of the primary and secondary positions advanced by the MBA and HIA - it can be framed as that this training package was included in this award and it was - the inclusion of the package was sought by the MBA and HIA. It was not opposed by the CFMMEU on the basis that it not provide a precedent for its inclusion in any other modern award and if the Bench was minded to adopt that approach, it would say in any decision that it is not int4ended to pre-empt whether or not the package should be included in the schedule broadly, the model schedule, or in any other award.

PN17

If we adopted that approach, would you be content to deal with on that basis?

PN18

MR MAXWELL: Yes, your Honour.

PN19

JUSTICE ROSS: The parties generally agree it would be covered by wage level B, is that right? That's in the note, yes.

PN20

MR MAXWELL: (Indistinct).

PN21

MS SOSTARKO: Your Honour, it's Ms Sostarko. If I could, just to clarify our position on that: in our correspondence of 17 August to Mr Maxwell, we did in making that determination say that it was our view that that package would fall within that (indistinct).

PN22

JUSTICE ROSS: Yes.

PN23

MS SOSTARKO: But on further consideration of this and investigation and, as you say, getting a closer look at the details of that package, it is probably given at entry level structure. It's probably more likely that it would fall within the wage level B category, because it is firstly a - as you say, it is about improving adult literacy, numeracy, digital literacy.

PN24

JUSTICE ROSS: Yes.

PN25

MS SOSTARKO: But I certainly would - I would dispute the point that Mr Maxwell has raised. It was a minor point but that it is a pre-employment - - -

PN26

JUSTICE ROSS: No, that's okay, Ms Sostarko - we don't - - -

PN27

MS SOSTARKO: (Indistinct) that's generally the case.

PN28

JUSTICE ROSS: We don't need to determine whether it's - how you characterise it. It could be included on the basis that I outlined but the problem now is that if you haven't agreed on the wage level, then you would need to run a proceeding to determine that question.

PN29

MS SOSTARKO: Yes. I understand today, your Honour, we were - this conference is confined to the discussion of a particular package but it is obviously relevant, given that more broadly we have submitted that wage level should be retained and we would argue that if the Commission was minded to include this in the award schedule it's even more reason why that would be necessary.

PN30

JUSTICE ROSS: Yes, but I guess the point I'm making to you, Ms Sostarko, is that speaking for myself, I'm not sure I'd be inclined to insert the package in circumstances where there is no agreement about the wage level, because we'd need to hear from all of you in more detail about why you say it's wage level C versus the union's contention that it's level B. I understand what you say about the retention of wage level C but if you're wanting some sort of work value type determination on this package, I don't think there has been enough debate about that issue, to either decide the matter in your favour or in the CFMMEU's favour - so the C or the B level.

PN31

MS SOSTARKO: I think, your Honour, this is the issue that we foreshadowed throughout, is that obviously in this case the package hasn't been included on the model schedule and given the fact that these packages are developed and reviewed ongoing, and there is going to be circumstances, no doubt, down the track where there are going to be packages, if not now but certainly soon enough that it would be (indistinct) to a joinery traineeship that would fall within that wage category and that is where we have the problem with its removal in - - -

PN32

JUSTICE ROSS: No, no, I understand the retention of wage level C argument. I'm really just trying to explain where I'm coming from in relation to the inclusion of this package at this time, where there is no sort of agreement around which wage level. All right? Thanks, Ms Sostarko.

PN33

MS SOSTARKO: I'm sorry, your Honour.

PN34

JUSTICE ROSS: You go.

PN35

MS SOSTARKO: I certainly think that given that if there is an opportunity for us to make some submissions on that point, even if it were in a short timeframe, we would be seeking that opportunity, if it pleases the Commission.

PN36

JUSTICE ROSS: Yes, okay - thanks, Ms Sostarko. Ms Regan, is there anything you wanted to add?

PN37

MS REGAN: Your Honour, other than to obviously point out in that (indistinct) of the CFMMEU's correspondence there was a further training package raised, the (indistinct) training package. Given we're talking about an award-specific type schedule, we would see that as necessary to have that particular training package listed within the schedule.

PN38

JUSTICE ROSS: I haven't got anything on the sustainability package.

PN39

MS REGAN: Right - it was made in the CFMMEU's February - - -

PN40

JUSTICE ROSS: Yes, I'm sorry. You're quite right, it's the second of the packages from the certificate I. In relation to the sustainability training package, is there an agreement about the wage level for that?

PN41

MS REGAN: Your Honour, in our view, it would appropriately and neatly fit under wage level B.

PN42

JUSTICE ROSS: Yes, that seems to be reflected in Mr - - -

PN43

MS SOSTARKO: (Indistinct) concur with that.

PN44

JUSTICE ROSS: All right. The issue about the wage levels is really in relation to the foundational skills package?

PN45

MS REGAN: Yes, your Honour.

PN46

JUSTICE ROSS: Whereas you all agree - I know there is an issue about the sustainability training package and the certificate I from the manufacturing and engineering training package. You agree that if it were to be inserted it would be under B. Is that right?

PN47

MS REGAN: Correct.

PN48

JUSTICE ROSS: Mr Maxwell, can I just go to those two packages, the sustainability training package and certificate I from the manufacturing and engineering training package - is the basis of your opposition to the inclusion of those packages the same as the point you took with the foundational skills package or is it something different?

PN49

MR MAXWELL: No, it's the same issue.

PN50

JUSTICE ROSS: Could we resolve that on the same basis?

PN51

MR MAXWELL: Yes, your Honour.

PN52

JUSTICE ROSS: Thank you all very much. I think I understand your respective positions. I'll provide a copy of the transcript and the material to the other members of the Full Bench and we'll seek to resolve this matter in the coming week or so. Thank you very much, I'll adjourn.

ADJOURNED INDEFINITELY�� [1.43 PM]