PN1

DEPUTY PRESIDENT GOSTENCNIK: Yes, good afternoon. Mr Butler, you're appearing for APESMA?

PN2

MR BUTLER: Yes, your Honour.

PN3

DEPUTY PRESIDENT GOSTENCNIK: Yes, thank you. Mr Corrigan, you're seeking permission to appear for the Association of Consulting Architects?

PN4

MR CORRIGAN: Yes, I am, Deputy President.

PN5

DEPUTY PRESIDENT GOSTENCNIK: Yes, and Mr Butler, is permission opposed to be represented?

PN6

MR BUTLER: No, no.

PN7

DEPUTY PRESIDENT GOSTENCNIK: Permission is granted Mr Corrigan.

PN8

MR CORRIGAN: Thank you.

PN9

DEPUTY PRESIDENT GOSTENCNIK: Did the parties have any discussions about the order of presentation this afternoon?

PN10

MR BUTLER: Perhaps if I can assist the Bench.

PN11

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN12

MR BUTLER: APESMA's got two applications, proposed variations.

PN13

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN14

MR BUTLER: To do with the Graduate of Architecture and the progression between the Graduate of Architecture and likewise, the Association of Consulting Architects have a similar proposed variation for the Graduate of Architecture. We've had discussions with them on the second part of our proposed variation that's progression from Graduate of Architecture to registered architect.

PN15

We've had discussions and in the light of those discussions, I can advise that we have a joint position that we would like to put the Commission. In respect of the other matters, the Association of Consulting Architects and they can speak for themselves, but they have four other proposed variations. Two we don't object to and two are contested.

PN16

Of course, the fact that the parties agree, that's one thing. It's another thing for us to persuade the Bench. But there's two contested matters.

PN17

DEPUTY PRESIDENT GOSTENCNIK: All right, well, perhaps in that case, perhaps Mr Butler, the order of proceeding, if you like, is perhaps you can deal with the classification issue which is not in contest.

PN18

MR BUTLER: Yes.

PN19

DEPUTY PRESIDENT GOSTENCNIK: And then Mr Corrigan can deal with the other matters that are uncontested.

PN20

MR BUTLER: Yes.

PN21

DEPUTY PRESIDENT GOSTENCNIK: And then finally, deal with the contested matters to which the union reply. Is that a convenient course?

PN22

MR BUTLER: Yes.

PN23

DEPUTY PRESIDENT GOSTENCNIK: Mr Corrigan, is that satisfactory?

PN24

MR CORRIGAN: Thank you, yes.

PN25

DEPUTY PRESIDENT GOSTENCNIK: Yes, Mr Butler.

PN26

MR BUTLER: To assist the Full Bench, I - before I do that, if I could just so refer to our outline of submission and could that be formally marked as an exhibit.

PN27

DEPUTY PRESIDENT GOSTENCNIK: It's not my practice to mark those matters.

PN28

MR BUTLER: Okay, thank you. In that case, I would like to present a revised attachment A which sets out the APESMA proposed variations. Perhaps, first of all if I draw the Bench's attention to the differences between this attachment A and the attachment A that was included with the APESMA outline of submission.

PN29

On page one, there's under clause 14, minimum wages and related matters. There's a scale under clause 14.7 and in the first line across, first year of experience there was an hourly rate of $22.10. That's in error. That has now been corrected to $21.90.

PN30

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN31

MR BUTLER: The second amendment is to the proposed changes to clause 14.3.1 progression from Graduate of Architecture to registered architect. There's a number of - and that lists a number of prescribed competencies as approved by the Architects Accreditation Council of Australia. There were a number of omissions from the competency standards and perhaps just for the record, if I read those into the transcript.

PN32

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN33

MR BUTLER: On page 3 roman (iii) is headed Conceptual Design. There's two additional standards at the bottom. The first one says, the second last dot point says:

PN34

Ability to prepare drawings which communicate a scheme design.

PN35

The second one is consideration of material characteristics with regard to the design durability and ascetic qualities and environmental considerations. They are two additions.

PN36

Further down, members of the Bench to roman (v), there's an additional dot point that reads:

PN37

Expiration of an explanation of construction techniques and details suitable to a design.

PN38

Then finally, over the page the continuation of roman (vi) which deals with documentation. Two additional dot points. The second last one:

PN39

Engagement with manufacturers, material systems and instructions and guidelines and preparation of drawings to explain how a project should be assembled.

PN40

And, so they are the differences between this revised attachment A and the one that was originally attached to the APESMA outline of the submissions.

PN41

DEPUTY PRESIDENT GOSTENCNIK: Mr Butler, could I just ask you this? You see right at the beginning clause 2 definition insert and that the sentence begins with "A completed Bachelor's degree"?

PN42

MR BUTLER: Yes.

PN43

DEPUTY PRESIDENT GOSTENCNIK: Is that to be distinct from something that is not completed, which is not a Bachelor's degree? I'm asking whether or not the word completed is actually necessary? That which is not completed is not a degree at all.

PN44

MR BUTLER: Yes, thanks.

PN45

DEPUTY PRESIDENT GOSTENCNIK: Can we just - are you happy for that word to be deleted?

PN46

MR BUTLER: If it's not something that adds - - -

PN47

DEPUTY PRESIDENT GOSTENCNIK: Well, I don't think it adds anything and I'm not sure it distinguishes it from any other particular instrument. Something that is not complete is not complete and by definition would not be a Bachelor's degree of any description. Yes, all right. Yes, Mr Butler.

PN48

MR BUTLER: Perhaps first of all, if I address the Commission on the proposed variation for the Graduate of Architecture.

PN49

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN50

MR BUTLER: Both the Association of Consulting Architects and APESMA accept that there's a current anomaly in the award in respect of those persons who possess a Bachelor qualification which is design-related. The current award in clause 2 defines a Graduate of Architecture as an employee who holds an approved qualification under the eligibility requirements for admission to the architectural practice examination for registration as an architect under Australian legislation.

PN51

In order for an employee to fall within the coverage of this classification, it is necessary for them to have completed a Masters degree. During the period of study, the architectural students will, at various times, and dependent on the structure of their course, be employed and are therefore paid the appropriate student of architecture rate as set in clause 14.4 of the award.

PN52

The difficulty and the creation of the anomaly relates to the definition of what is a student of architecture. Clause 2 of the award defines a student of architecture as an employee who is normally enrolled full time I a course of architecture and who is employed to gain experience in the practice of architecture.

PN53

So, by way of background, for a time the possession of a Bachelor degree - - -

PN54

DEPUTY PRESIDENT GOSTENCNIK: Given the current registration requirements, that definition would currently be confined only to persons who are undertaking the Master's program?

PN55

MR BUTLER: Yes.

PN56

DEPUTY PRESIDENT GOSTENCNIK: You want that broadened back to - - -

PN57

MR BUTLER: That hasn't always been the case.

PN58

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN59

MR BUTLER: In the past the possession of a Bachelor degree was sufficient in order to satisfy the entry requirements. In this regard in attachment B to the Association's outline of submission, which is a document produced by the Architect's Accreditation Council of Australia, the accreditation body, there is a column that shows the current classifications that describe Masters degrees and the previously accredited qualification.

PN60

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN61

MR BUTLER: The issue at the moment is that as outlined in our submissions, is that those who have a Bachelor qualification, depending on whether they are normally enrolled, can be covered by the award or not covered by the award, depending on how the terms normally enrolled are interpreted.

PN62

As Mr Corrigan and his colleague may be in the position to provide additional information, architectural courses are different. With some courses, I understand, that a person can take a leave of absence from the course or someone simply might take a semester off. The difficulty at the moment is this uncertainty.

PN63

DEPUTY PRESIDENT GOSTENCNIK: Just on that, if a person was two years into completion of the Bachelor qualification and they took a year off, could they still be regarded as normally enrolled?

PN64

MR BUTLER: It would depend. I would say it would depend on the circumstances. It someone expressed - went to the particular course, the Dean of the Faculty and said I intend to take a year off and I'm coming back next year, there's an argument. I don't know where that would fall to be quite honest.

PN65

DEPUTY PRESIDENT GOSTENCNIK: Whereas, at the completion of the Bachelor degree prior to the commencement of the Masters and a break were taken, you say there's a distinction there where a person may not be regarded as normally enrolled.

PN66

MR BUTLER: Might very well be. It depends, because the architectural courses are different, and a person might take time off with every intention of returning and then change their minds.

PN67

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN68

MR BUTLER: But as a problem, which I suppose if - I'm unaware of this particular provision ever being enforced in the sense of the court having to rule on it. I think it's just uncertain as to how to act on it.

PN69

In practice, because of the uncertainty, as to what is meant by normally enrolled, and in practice, it is our understanding that some architect employers at least, have been using the C5 classification in the modern Manufacturing and Associated Industries and Occupations Modern Award. In the submission of APESMA, I think this is done as a matter of convenience and it probably not legally binding. We would submit, almost certainly, not legally binding.

PN70

So, the application that both parties are supporting is to try and resolve this ambiguity to insert the new classification. Someone who has successfully completed a three year degree continues to move through the student of architecture structure. At the moment, someone who commences at the year one and works gaining experience throughout their three year degree, will at the end of their degree, be paid at the student of architecture third year rate.

PN71

If our proposal is adopted, then the three year degree holder whose working in an architectural practice would then continue to be paid the fourth, fifth and sixth year. The classification would then cut out just below the Graduate of Architecture rate. That's important from APESMA's perspective because the Graduate of Architecture rate is loosely aligned with the rates applicable to other technology-based professionals in awards such as a professional employees' award.

PN72

DEPUTY PRESIDENT GOSTENCNIK: Your proposal would require the deletion of the student of architecture definition?

PN73

MR BUTLER: Sorry?

PN74

DEPUTY PRESIDENT GOSTENCNIK: Your proposal would involve the deletion of the student of architecture definition?

PN75

MR BUTLER: No, no your Honour, because see, there would be people who would continue as students of architecture to progress through to obtain their Masters of Architecture qualification. So, they would - there'd be dual streams.

PN76

DEPUTY PRESIDENT GOSTENCNIK: I guess my issue is this, that the present definition is that a student of architecture is an employee who is normally enrolled full time in a course of architecture.

PN77

MR BUTLER: Yes.

PN78

DEPUTY PRESIDENT GOSTENCNIK: And, is it a person who is enrolled in a design-based Bachelor degree, is that a course of architecture? It's a pathway to.

PN79

MR BUTLER: It's a pathway, yes.

PN80

DEPUTY PRESIDENT GOSTENCNIK: Given that you opened with the current definition being ambiguous, does it require some work to make it clear that we're talking about a person who is normally enrolled in a design-based Bachelor's degree, for example?

PN81

MR BUTLER: Probably.

PN82

DEPUTY PRESIDENT GOSTENCNIK: Because the only thing that can be described as a course of architecture as such, is a Master's degree.

PN83

MR BUTLER: Although the Bachelor degree is a pathway along to the Masters.

PN84

DEPUTY PRESIDENT GOSTENCNIK: But it may not - a person may choose not to go down there.

PN85

MR BUTLER: Yes.

PN86

DEPUTY PRESIDENT GOSTENCNIK: Yes, so I'm just wondering whether, rather than having enrolled full time in a course of architecture, the better description might be, enrolled full time in a design-based Bachelor's degree?

PN87

MR BUTLER: As?

PN88

DEPUTY PRESIDENT GOSTENCNIK: As an alternative to a full time - sorry, a course of architecture.

PN89

MR BUTLER: That might include a design-based.

PN90

DEPUTY PRESIDENT GOSTENCNIK: Yes, no. My question starts with a proposition. Is it proper now, given the qualification requirements to become an architect, to describe the Bachelor's degree as such a course?

PN91

MR BUTLER: Our submission would be it's along the pathway towards a Masters of Architecture.

PN92

DEPUTY PRESIDENT GOSTENCNIK: And given that you've gone to the trouble to describe that in your new definition, why not utilise that definition for the purposes of the student of architecture definition?

PN93

MR BUTLER: To make a similar adjustment.

PN94

DEPUTY PRESIDENT GOSTENCNIK: Yes, to make it clear.

PN95

MR BUTLER: Yes.

PN96

DEPUTY PRESIDENT GOSTENCNIK: Otherwise, you're using different nomenclature to describe the same thing.

PN97

MR BUTLER: Yes, yes.

PN98

DEPUTY PRESIDENT GOSTENCNIK: Perhaps you can take that on board and let us know. But it just seems to me to be a sensible amendment. Sorry, Mr Butler, go on.

PN99

MR BUTLER: The proposed rates, as I've just outlined would be the person who has the Bachelor degree would start at the fourth year student of architecture rate and then continue through the fourth, fifth and sixth year. Then the rate would cut out just below the Graduate of Architecture rate.

PN100

We would submit that there would not be any relativities issues with other awards but this exercise would be a rectification of what is an anomaly. We would say that this approach would be in accordance with the preliminary jurisdictional issues decision at paragraph 23 where the Full Bench distinguished between changes that were significant and what we'd humbly suggest changes are self-evident. That this is an anomaly where people have fallen out of coverage.

PN101

We would submit that for consideration would be covered by section 161 of the Act where the Fair Work Commission is able to vary a modern award to remove an ambiguity or uncertainty. We submit that this uncertainty currently exists. I think on this particular issue I would just rely on the rest of the submission that we've put forward.

PN102

Would you like me stop there before - - -

PN103

DEPUTY PRESIDENT GOSTENCNIK: That covers all you want to say about - - -

PN104

MR BUTLER: The Graduate of Architecture.

PN105

DEPUTY PRESIDENT GOSTENCNIK: About annexure A?

PN106

MR BUTLER: Yes. Well, the next item is the progression from Graduate of Architecture to registered architect.

PN107

DEPUTY PRESIDENT GOSTENCNIK: Is there agreement on that point, or not?

PN108

MR BUTLER: Yes, there is agreement on that point. I was uncertain if you wanted me to continue with that, or wait for - - -

PN109

DEPUTY PRESIDENT GOSTENCNIK: If the whole of attachment A is agreed, then we'll hear you on that.

PN110

DEPUTY PRESIDENT MASSON: Sorry, before you move on.

PN111

MR BUTLER: Yes.

PN112

DEPUTY PRESIDENT MASSON: My understanding is the rates that you've proposed in attachment A, which largely reflect that which was attached to your submissions.

PN113

MR BUTLER: Yes.

PN114

DEPUTY PRESIDENT MASSON: The rates and relativities are different to those proposed by the employers. Is that correct?

PN115

MR BUTLER: The employers and the Association now agree on the wage.

PN116

DEPUTY PRESIDENT MASSON: I see, all right, sorry. I just wanting to clarify that. Thank you.

PN117

MR BUTLER: Yes, there's been movement between the parties since the filing of their submissions last Monday.

PN118

DEPUTY PRESIDENT MASSON: No, thank you.

PN119

MR BUTLER: The second matter progression from Graduate of Architecture to registered architect. As outlined, in Appendix A, APESMA's proposed variations clause 14.3 in order to delete the existing 14.3(d) which lists the competency standards. The relevance of the competency standards is that a person who is a Graduate of Architecture as they move through the years of experience towards becoming a registered architect, there must be an annual review process to assist the Graduate of Architecture's progress.

PN120

The annual review process is based on the prescribed competencies for registration. The existing competencies in the award no longer exist. The proposed competencies in the revised attachment A are the updated described competencies and again, I would rely on our outline of submission which traces the history of this. The accreditation body is the Architects Accreditation Council of Australia.

PN121

This body made a submission to this process and they listed the updated prescribed competencies and we have adopted their submission, with a couple of minor amendments proposed the Association of Consulting Architects. This again, would resolve an ambiguity, an uncertainty and I would rely on section 160 that removes a provision from the award that no longer exists in practice and updates that.

PN122

DEPUTY PRESIDENT GOSTENCNIK: If it makes it relevant, having regard to the current competencies.

PN123

MR BUTLER: Yes.

PN124

DEPUTY PRESIDENT GOSTENCNIK: I understand.

PN125

MR BUTLER: That's all I'd say at this stage.

PN126

DEPUTY PRESIDENT GOSTENCNIK: Thank you Mr Butler. Mr Corrigan.

PN127

MR CORRIGAN: Thank you Deputy President. Would you like me to address just a couple of issues in those two submissions from the union?

PN128

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN129

MR CORRIGAN: In regards to the Bachelor's degree with a pathway to a Mastery of Architecture, the reason behind that as well, is that there are some people that do choose to say, take a gap year from university, so they're not enrolled. So, they don't have a category sitting there because they're not enrolled in the Masters degree. But also, they may then - and we've had these questions, decide to just sit and not forward on with their education.

PN130

At the current moment, they are utilised in an architectural practice as a draftsperson. Hence, why we use the C5 level in regards to it. But I do agree with the submission of the union too, that it's maybe not the best use of that level, because of their pathway. But there are people who do then decide not to go on an do their Masters. That's why that's the important thing to have that classification sitting in there, because their design degree is based towards architecture more so than drafting, even though they can be utilised as drafting personnel in the practice. That's one of our reasons behind that classification, where people just don't move any further as well.

PN131

That's all we had to say on that matter. In regards to the competencies. The competencies also that we are seeking in 15.2 also apply to 15.3 as a registered architect. Because the movement in those first few levels of a registered architect under the award, do require them to go through competency base as well. So, those competencies would apply at 15.3.

PN132

DEPUTY PRESIDENT GOSTENCNIK: Sorry, how would that be reflected?

PN133

MR CORRIGAN: At 15.3 of the Award, it says:

PN134

A registered architect will move from the entry to the first, second point rates upon the demonstration of acquisition of competencies as set out in the National Competency Standards of Architecture, adopted by Architects Accreditation Council of Australia, in addition to those accepted for advancement to the current classification level.

PN135

Those would be the ones that will be seeking to change in 15.2.

PN136

DEPUTY PRESIDENT GOSTENCNIK: Yes, but there's no need to change 15.3 because it's self-evidently the current, yes.

PN137

MR CORRIGAN: No, no. But we just wanted to - yes. But they are appropriate, that's all.

PN138

DEPUTY PRESIDENT GOSTENCNIK: Thank you.

PN139

MR CORRIGAN: Just a thought on those two matters, but we did have two other matters that we actually had an agreeance on.

PN140

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN141

MR CORRIGAN: That was the changes to the equipment and superannuation.

PN142

DEPUTY PRESIDENT GOSTENCNIK: Right. We're dealing with perhaps, superannuation first, Mr Corrigan. Is there agreement on the proposal to 18.4 as set out at page 13 of your submission?

PN143

MR CORRIGAN: Yes, to eight Cbus. Currently, our reason behind that is because of the - being that the architects - - -

PN144

DEPUTY PRESIDENT GOSTENCNIK: Or some of your members would work in the construction industry.

PN145

MR CORRIGAN: Yes, yes. So, we would submit that our submission obviously - - -

PN146

DEPUTY PRESIDENT GOSTENCNIK: Some of our members work in the construction industry as well.

PN147

MR CORRIGAN: Sorry? Yes.

PN148

DEPUTY PRESIDENT GOSTENCNIK: It's all right, sorry.

PN149

MR CORRIGAN: Thank you. So, we would submit that because it's the construction industry, it should have been a default superannuation fund in the award at the outset. Being what we've described, we've had no opposition from the unions. We do believe it's a simply matter of just an oversight that can be fixed in regards to the basis of our submissions. I suppose the variations aren't significant in regards to.

PN150

And, as Mr Butler referred before the preliminary jurisdiction issues, the decision at (2014) FWCFB 1788 in regards to the comments made by the Full Bench.

PN151

DEPUTY PRESIDENT GOSTENCNIK: Yes, all right. Mr Butler, that 18.4 is agreed?

PN152

MR BUTLER: Yes, it is.

PN153

DEPUTY PRESIDENT GOSTENCNIK: Thank you. The other agreed issue is?

PN154

MR CORRIGAN: Is the equipment and clothing issue. We've got here:

PN155

Where the employer requires the employee to provide relevant technical equipment or special clothing, the employer must reimburse the employee for the cost of purchasing such equipment.

PN156

The reason for the changes are at number two of our submission:

PN157

Drawing board, powerline or drafting machine, paper pencils, leads, colours, inks, and wearable parts of pens and pencils are listed as equipment issued. Currently none of this equipment is issued with the exception of paper or as currently required will be used in a practice.

PN158

We're looking as a technology advancement. For example, if employees were required to have iPads, we believe this covers it that the employer should be supplying the iPad or reimbursing the employees for any technical equipment that they may need to utilise. It's updating the clause to, you know, ensure that protective clothing is till included in our submission that the employer has to pay for it.

PN159

So, the safeguards are still there for the employees. We don't believe it has any effect on any changes to the employees that are not worse off and are actually better off; it clarifies it. The old clause we said - currently, if you read the old clause and we said that you needed to get an (indistinct) for example, you know, it may be interpreted incorrectly. We would certainly not provide that advice. We would say you provide - you require equipment. But to make it simpler and fairer, as with the modern award reviews, this is why we propose these changes.

PN160

DEPUTY PRESIDENT GOSTENCNIK: Yes. So, to be clear, that's the proposal set out at page 12 of your submission.

PN161

MR CORRIGAN: Yes, that's correct. At 16.3 we accede the amendment, yes.

PN162

DEPUTY PRESIDENT GOSTENCNIK: Mr Butler, that's agreed?

PN163

MR BUTLER: Yes, yes it is.

PN164

DEPUTY PRESIDENT GOSTENCNIK: Thank you. All right Mr Corrigan, the contentious issues.

PN165

MR CORRIGAN: Can we start with time off instead of payments for overtime. You will see from our submission, we were asked on many occasions our position in regards to time off instead of - time for time in regards for TOIL. We answered the question back in 2009. As Mr Butler has rightly said, the submission was adopted, but it wasn't also denied.

PN166

The answer to the question in regards to this, on 13 May 2016, the exposure draft the Commission issued, and the question was "The parties were asked to confirm whether time off is granted on an hour for hour worked basis or in accordance with penalty rates being 1.5 hours for each worked." Now, on 30 June we provided a response saying that it was time for time.

PN167

In reply to our submission, the union advised that they wished to adopt the provisions of FWCFB 4579 which forms part four of our attachment. The Architects Award was not listed. But we would support the inclusions of all awards listed in that decision had TOIL at ordinary time. On 30 November 2016, is a summary of submissions of technical and drafting was again issued by the Fair Work Commission. This noted our submission for TOIL was again at time for time.

PN168

A Full Bench hearing on 6 December at 11am via video conferencing, we again submitted that that issue of time in lieu was a substantive matter and that is on the transcript as provided. The revised submissions again, detailing technical and drafting issues from the Fair Work Commission were issued. Again, the following documents still asked if we were seeking TOIL at time for time.

PN169

The exposure draft on 6 January 2017 again said parties are asked to confirm whether time off is granted on an hour for hour basis. Again, the revised summary of technical drafting came out again in 2017 and it was still listed as an outstanding matter. At FWCFB 1548, issued on 21 March 2018, the Full Bench at line 203 noted:

PN170

Item 2 which relates to time off instead of paying for overtime is the subject of discussion at the hearing. APESMA noted that this may become a substantive issue. Accordingly, we will not deal with the time off instead of payment for overtime issue. Further to this decision, APESMA or any other interested party are to confirm whether this matter will be pursued as a substantive variation at a following date again in 2018, support out submission.

PN171

Now, we say TOIL since the inception of the award back in 1988 has always been interpreted as time for time. That is, one hour worked for one hour time in lieu. The Tasmanian NAPSA Architects Award which was based on the Architects Award, contains the following:

PN172

For work done outside ordinary hours, the rates of pay shall be at time and a half time off in lieu. Notwithstanding provisions elsewhere in the award, the employer and majority of employees identified now agree to establish a system of time off in lieu of overtime provided. An employee may elect with the consent of the employee, to take time off in lieu, or payment of overtime at the times agreed with the employer.

PN173

Overtime taken at this time off during ordinary hours shall be taken at the ordinary time rate, that is hour for each hour worked, unless provided for elsewhere in this award.

PN174

Now, the previous Federal award, whilst silent on these words, as used above in the Tasmanian award, are still clear that TOIL was time for time. At clause 20.1 agreeing time off in lieu or the payment such as successive time of accrual we believe, is fine because it pays it at time and a half. The clause emphasises that TOIL should not be taken at time and a half if there is no definition.

PN175

There's been ongoing custom and practice in the industry to ensure that TOIL was taken at time for time and other professional - we're talking about the professional industries, we've listed the other awards there that have TOIL as time for time, and other professional awards that are silent on the issue, are also listed at 18.

PN176

What we have - the issue is that the decision of FWCFB 2602, the Full Bench made a statement that:

PN177

The Architects Award contained an overtime provision for TOIL.

PN178

Then they go on to say at attachment E of that decision that the award was actually silent on the matter.

PN179

As the matter was silent on payment, the question has been asked as part of the award review provision, the clause should be adopted was the modern award TOIL clause. The other 21 awards listed in their decision were clear on the provision that TOIL was at overtime rates.

PN180

That's why our submission is based on the fact that we were asked prior to this Full Bench matter being listed, as to what our position was. We've always put our position forward as soon as possible, as soon as asked, as soon as requested. That's why we're proposing to make that change that TOIL is actually at time for time.

PN181

Based on those submissions and the previous award - - -

PN182

COMMISSIONER CIRKOVIC: Mr Corrigan, is the essence of your submission that when the Full Bench was dealing with those awards that included provisions for TOIL at overtime, at a multiple of the hours actually worked, is it your contention that the Architects Award was wrongly bracketed with those other awards and had the model provision inserted?

PN183

MR CORRIGAN: Yes, Commissioner.

PN184

DEPUTY PRESIDENT MASSON: Right. So, even though the award dealt with TOIL, it didn't deal explicitly with the basis on which TOIL would be taken. Not time for time or at overtime rates.

PN185

MR CORRIGAN: No.

PN186

DEPUTY PRESIDENT MASSON: And you say that you've continued to press in relation to that point, since that.

PN187

MR CORRIGAN: Yes, we have. Since before that actual decision and continued on up until today.

PN188

DEPUTY PRESIDENT MASSON: Okay.

PN189

MR CORRIGAN: So, it's been some four years.

PN190

DEPUTY PRESIDENT MASSON: Thank you.

PN191

DEPUTY PRESIDENT MASSON: Further to that, when the architects became aware of the inclusion of a provision as part of those other 21 awards, beyond expressing a view on each occasion, an opportunity arose, were any separate applications made in relation to that?

PN192

I just have one final question and it goes to when the modern award was made in 2009, and I think Mr Butler's likely to make some submissions on this point. In APESMA's submissions, they go to the clause as it was reflected in the 2009 modern award. Do you have a copy in front of you of that particular provision as it was? I think it may be in Mr Butler's material.

PN193

MR CORRIGAN: You mean our submission? Mr Butler put a copy of a letter that we submitted in regards. Is that the one you're talking about?

PN194

DEPUTY PRESIDENT MASSON: No, no, I'm just talking about the particular clause that was inserted in 2009. I think it was 19.1(a) which said:

PN195

Granting time off instead or by payment for such excess time within six months of it accruing, the payment for such excess time must be in accordance with clause 19.1(b).

PN196

That's as it was.

PN197

MR CORRIGAN: Yes.

PN198

DEPUTY PRESIDENT MASSON: Obviously, not as it is now.

PN199

MR CORRIGAN: No, no.

PN200

DEPUTY PRESIDENT MASSON: Now, I'm sure Mr Butler can speak for himself and will make this point, but I understand the essence of his submission, or APESMA's submission to be that their interpretation of that was and then remains that, that provided for time in lieu at overtime rates, effectively. Time and a half for an hour worked. Do you disagree with that?

PN201

MR CORRIGAN: Yes, because the submission that we - and I'll just go through the submission we proposed. As I said before, that it wasn't accepted, but it wasn't also denied by either the union nor the Full Bench. Also, going into Mr Butler's statement, he wanted to accept that there was a decision with 23 awards in regards to TOIL that he said that we should adopt and all those awards in those 23 - I'll have to go back and quickly check that decision - were actually all awards that only contained TOIL provision at time for time.

PN202

It's in part of my submission there as well, but they only contained time for time. So, even prior to that decision coming out, we believe the union was accepting of that decision which all those 23 awards in there were at time for time. So, the position has been at time for time, I believe, stretching even back to 1994 when the interim award came in place.

PN203

DEPUTY PRESIDENT MASSON: Thank you.

PN204

DEPUTY PRESIDENT GOSTENCNIK: Mr Corrigan, why should we entertain a claim which is effectively an argument that another Full Bench was in error? Isn't the more appropriate course that if there was an error that an application be made to that Full Bench asking it to correct an obvious error, if that's what it be? Isn't that the more - - -

PN205

MR CORRIGAN: I suppose because this issue started before the Full Bench started that other decision, we thought the most appropriate to - - -

PN206

DEPUTY PRESIDENT GOSTENCNIK: No. I do understand that, but ultimately, you now have clause 19.3 which is inserted into the award by reason of a Full Bench of the Commission decision, you say erroneously made, that may or may not be right. But assuming that it is right, isn't the most appropriate course to make that representation to that Full Bench in order that it can correct its decision, if it be in error.

PN207

If it isn't in error and it was intended, then your remedy is elsewhere rather than here.

PN208

MR CORRIGAN: Deputy President, I suppose the reason we find it appropriate here, is because if the question was asked - has been asked all along through the process.

PN209

DEPUTY PRESIDENT GOSTENCNIK: Sure. I understand - I do understand why you say that and you may well be right. You may well be right that the Full Bench in the decision which gave right to clause 19.3, was in error. But, speaking for myself, I wasn't on the Full Bench, so I can't put myself in their position as to whether or not in fact, I as a member of the Full Bench, intended that outcome, or simply it was erroneously made.

PN210

If it was erroneously made, I'm sure that the Full Bench will correct it. And if it wasn't, then it will explain to you why it is that they made their decision and if you're aggrieved by that, then your remedy is elsewhere. I'm happy to be persuaded otherwise, but I'm having some difficulty accepting that we should correct another Full Bench's decision based on an obvious error, in circumstances where we weren't privy to the argument or the deliberation.

PN211

MR CORRIGAN: I still think that it does deal within the issues of anomalies and past decisions made by the Commission, that you do have the jurisdiction in which to deal with the issue. As we've outlined before with the preliminary jurisdiction issues of the Commission and other matters that fall - we submit that 156 considerations would not apply, in the sense that this is just formalities to try and correct errors that have been made.

PN212

DEPUTY PRESIDENT GOSTENCNIK: I do understand that.

PN213

MR CORRIGAN: Sorry, that's how - that's our submission.

PN214

DEPUTY PRESIDENT GOSTENCNIK: Yes. All right, thank you Mr Corrigan. You might move to your next issue.

PN215

MR CORRIGAN: Termination of employment. Look, we have - we believe in the essence of termination of employment. It says notice of termination is provided for in the NES and that instead of section 1173 of the Act, in order to terminate the employment of the employee, the employer must give the employee one month's notice except where the NES provides for a longer period of service.

PN216

What we are seeking is changes to when an employee is on probation or within that qualifying period prior to their being unable to lodge an unfair dismissal application. That's hence why we said for six months for big business and 12 months for small business, of moving that back to a week.

PN217

But the submission behind the changes is the employment shall be terminated by one month's notice and we're relying on the Architect's Interim Award, the Technical Services Award and at the times they weren't covered by the NES and the termination is per the NES. But at the moment, the previous awards were two weeks' notice when a person was within the first six months. So that was the Technical Services Architect's Award 2000 and the Architects Award Interim Award 1994.

PN218

Now, whilst we might - we have based some costings on the higher rates of pay in regards to our submissions and whilst we understand that we might have a harder position pushing it over the line to get it back to one week, we don't believe that actually having it at two weeks, as it was in previous awards, is an issue for the Full Bench, given the fact that it's based on previous awards and historical content.

PN219

The historical content was the fact that all those awards provided notice of termination up to six months with two weeks' pay instead of one month's pay. Now, we don't believe that that would be an issue more so that perhaps us seeking one week, which has never been part of the historical award position.

PN220

Also, in regards to - the Full Bench has just recently made a decision that we believe could be misinterpreted in regards to redundancy. Now, people will read the two clauses re termination of employment, separately to redundancy. The redundancy clause now says:

PN221

An employee leaving during redundancy notice period. An employee given notice of termination in circumstances of redundancy may terminate their employment by the minimum period of notice described by S1173 of the Act.

PN222

Now, if you go to 113 of the Act, that is of course, the one week's notice of the National Employment Standards termination of employment. So, this award now has that anomaly in there that if the redundancy - suddenly the notice period is being reduced in the redundancy, because of the termination of employment. And, I know that people see them as separately. People see a redundancy - was the termination of employment based on different issues?

PN223

If you follow with the Commission, if you terminate someone due to a redundancy, they can't normally - if you follow the provisions of the Act, you can't run an unfair dismissal. But there's notice of the termination, which a lot of people see as differently when you've given that person say three warnings or you've followed the small business dismissal code. People reading that redundancy provision, won't go up and ready the notice of termination in the other clause to see that 1113 actually doesn't apply and it's a week's notice.

PN224

We would be seeking to have the clause amended to reflect what is the termination clause of the Architect's Award.

PN225

DEPUTY PRESIDENT MASSON: In those employees who have less than six months' service.

PN226

MR CORRIGAN: Yes.

PN227

DEPUTY PRESIDENT MASSON: Coming back to the issue that you've raised in relation to redundancy, they may be made redundant, but they wouldn't have an entitlement beyond notice anyway, would they?

PN228

MR CORRIGAN: Yes. But for example, if someone was made redundant at say three years under the Architect's Award, currently the way you're reading this clause, is if they're made redundant, they're entitled to their redundancy pay, obviously if the business is more than 15 and they would be entitled to three weeks' notice, which is actually incorrect because the notice period is a month. But it says the actual notice for redundancy is as per S117.

PN229

DEPUTY PRESIDENT MASSON: But that's by an employee. 13.2 relates to notice to be given by an employee. So, that if an employee is to be made - is given notice of termination by reason of redundancy - - -

PN230

MR CORRIGAN: Yes, but 13.2 is actually giving less notice period than the current award.

PN231

DEPUTY PRESIDENT MASSON: What it says is:

PN232

An employee given notice may terminate their employment during the minimum period of notice prescribed.

PN233

So they can terminate their employment during that period. That's all that's saying - during the notice period. It refers to things that an employee can do. The employer must give notice in accordance with relevantly here, the award and to the extent that the award is less beneficial than the NES - than in accordance with the NES.

PN234

So, the employer in a redundancy situation, the scheme of the award would be I give - forget about the probationary - the qualifying period. Let's assume you've got a long-serving employee who's entitled to four weeks' notice plus a week, because of their age. So, they're entitled to five weeks' notice, which is greater than the period provided for in 12.1. So, the employer gives them five weeks' notice.

PN235

MR CORRIGAN: Yes.

PN236

DEPUTY PRESIDENT MASSON: And, presumably hasn't paid them in lieu of notice, so they're working out their notice. 13.2 simply allows the employee to terminate their period - to terminate their employment during that period, during that five week period. That's all it does.

PN237

MR CORRIGAN: Yes. But I suppose if 13 point - sorry, at 12.2 the employee is required to give a month's notice. So, then in redundancy it's a different position.

PN238

DEPUTY PRESIDENT MASSON: Yes.

PN239

MR CORRIGAN: Yes.

PN240

DEPUTY PRESIDENT MASSON: And there's a very good reason for that and that is, in a redundancy situation, the employee has been told that their position is going to be made redundant, so they'll be actively looking for work and if they find work, they can leave during the notice period without affecting their redundancy pay. That's the purpose of that clause. But I understand the point you're making.

PN241

MR CORRIGAN: Yes. We still submit that even - that the previous awards had those prior to six month probation two week notice period. We believe that that could be rectified as in something of - as we said previously, they were in the old awards and it was historical content that wouldn't require anything other than the submission from us and don't believe it's a major change in regards to what may have been an omission by the Commission on previous occasions.

PN242

Because when the award was made, when they were first made, they were made with a single Commissioner and then a Full Bench just oversaw the awards, as you would be aware, be here before now, the provision is in front of the Full Bench for every matter. But we do believe that that would be a fair and equitable clause to be inserted in regards to termination of employment.

PN243

Because it's a costly exercise if somebody comes in after say two or three weeks and they're not performing and an employer - those are why the provisions are there, has a right to one month's salary. It's a lot of money on any business to pay someone. You're looking at say, $4500 to move somebody on. I understand that people should be professional, but I still think the Commission has set a benchmark for what you're supposed to achieve in a qualifying period. I believe that two weeks' notice, it would be fair and equitable to be paid, rather than one month's salary is a person was moved on during the notice period.

PN244

DEPUTY PRESIDENT MASSON: Just a question on your costings which you've included there, which is - I think you've relied on a survey of the Australian Human Resource Institute, 18 per cent.

PN245

MR CORRIGAN: Yes.

PN246

DEPUTY PRESIDENT MASSON: You've applied that 18 per cent as if the additional notice that you're seeking to avoid by this variation would apply on every occasion a person left an organisation?

PN247

MR CORRIGAN: Yes.

PN248

DEPUTY PRESIDENT MASSON: Is that a reasonable assumption, given that employees might leave of their own volition or be dismissed with periods of service in excess of six months?

PN249

MR CORRIGAN: We were only - - -

PN250

DEPUTY PRESIDENT MASSON: Be a bleak assessment of all those people that are terminated, will be at the initiative of the employer, and they'll be of less than six months' service.

PN251

MR CORRIGAN: Yes, but we're doing it based on less than six months or less than 12 months' service. Anyone with more than that, they're entitled - we still believe that they're entitled to one month's notice and we weren't seeking to change. So, it's people not in their qualifying period. So, where we've got the information from, the Australian Human Resources Institute about turnover in the first six to 12 months.

PN252

DEPUTY PRESIDENT MASSON: Well, that wasn't clear to me when I read it.

PN253

MR CORRIGAN: All right, fine.

PN254

DEPUTY PRESIDENT MASSON: So, you say that 18 per cent relates to turnover in the first 12 months of employment.

PN255

MR CORRIGAN: Employment.

PN256

DEPUTY PRESIDENT MASSON: That does seem very high.

PN257

MR CORRIGAN: That was based on the Australian Human Resources Institute.

PN258

DEPUTY PRESIDENT MASSON: Okay.

PN259

MR CORRIGAN: Look, it might be high, but it's still a cost. The cost to the business is, I said - it's roughly around $4000 for an employee, or based on the calculations, an extra $3273 if we accept the one week. One month's salary against one week. But even again, if we look at what was in the previous awards, as I'm saying, there was a two week notice period, I believe that is again another matter that the Full Bench could consider based on historical provisions provided for the previous awards.

PN260

Our submission in the 2009 award was again, for the national employment standards to be inserted and again, the Commission did make their decision just to insert the clause that is currently in there.

PN261

DEPUTY PRESIDENT MASSON: Thank you.

PN262

DEPUTY PRESIDENT GOSTENCNIK: Yes, thank you Mr Corrigan.

PN263

MR CORRIGAN: Thank you.

PN264

DEPUTY PRESIDENT GOSTENCNIK: Mr Butler.

PN265

MR BUTLER: Thank you. I'll deal with the time off, instead of overtime issue first. There's been assertion by the Association of Consulting Architects as to the custom and practice of the interpretation of the time off in lieu provision. I don't think it's as clear cut as the Association of Consulting Architects, in the absence of any evidence can claim.

PN266

The reference to the Tasmanian Board that was made, this particular state award was essentially - if I can just work through my notes, was essentially superseded by one of the pre-modern awards. The Technical Services Architects Award 2000, which was essentially a significant roping-in exercise under the old conciliation and arbitration power.

PN267

DEPUTY PRESIDENT GOSTENCNIK: And what, it picked up employers in Tasmania who would otherwise have been covered by the sole state award?

PN268

MR BUTLER: Yes, just the C number, I have the print version of the old Architects Award here. It was C number 30428 of 1999 print number S7996. That Federal award was one of those gigantic roping-in exercises that were common at that time which roped in. So, the provision that applied was the provision that didn't make reference to Mr Corrigan's reference to the time off in lieu being take on an hour for hour basis.

PN269

But the point that we would make is to go back to the 2009 award modernisation proceedings. As Mr Corrigan agreed, the Association of Consulting Architects made in their exposure draft, and I make reference to that in attachment D to our outline of submission. But in their exposure draft and I quote from it in the outline of submission, they proposed that the time off in lieu be take on an hour for hour basis.

PN270

Now, one of the difficulties with the different type of proceeding was that the award modernisation proceeding was is that there weren't always reasons given for decisions. So, one can only speculate as to the reason why they did not choose to accept the wording put forward by the Association of Consulting Architects. But I would suggest that insofar as one can speculate, that the Bench looked at the issue, decided to leave the wording out and we would argue the inference from that was that that particular submission was rejected.

PN271

Some might argue that's a long bow. But, that's the clause as it is. But I would say that in the absence of any other evidence as to the custom and practice in the application of this clause, and I would say at best it might be uneven. Then the only other decision available, I would say, is the award modernisation decision, however that is interpreted. That might not be much help to the Bench and of course, the award flexibility Full Bench too the decision to vary the award accordingly to provide time off in lieu at the penalty rates on that issue.

PN272

If I could turn to the - - -

PN273

DEPUTY PRESIDENT GOSTENCNIK: We went from a position of being silent as to manner of taking to time off at penalty rates. The award mod decision simply inserted a provision without specifying the manner of the taking and the subsequent Full Bench dealt with the issue by making it clear that time off was an overtime - time at the equivalent overtime rate, yes?

PN274

MR BUTLER: Yes. And, it might be an issue to be argued under a different application.

PN275

DEPUTY PRESIDENT GOSTENCNIK: Well, just to be clear Mr Butler, do you say the Full Bench in the decision in FWCFB 2602 correctly decided the matter, or do you accept that there might have been an error?

PN276

MR BUTLER: We would support the decision.

PN277

DEPUTY PRESIDENT GOSTENCNIK: Right. Yes, thank you.

PN278

MR BUTLER: The second matter, the matter in relation to the notice of termination of employment, the employers' claim is that the period of notice with up to six months' continuous service shall not be less than one week. Or, but also not with an employer - not just with an employer with up to six months' continuous service, but also 12 months' continuous service if the employer is a small business employer, as defined in section 23 of the Act.

PN279

The Association has a number of concerns about that particular issue as we outlined in our outline of submission. But I would just like to reiterate a number of those points. First of all, what is being proposed in isolation to I think other awards, is that there be a different standard for small business as opposed to those who are not defined as a small business by section 23 of the Act.

PN280

I just question whether that's an appropriate use of that section of the Act that I think was put there to service a different purpose. Also bearing in mind that that most - I would again, and this is just an assertion, most architectural practices would probably fall within the definition of small business.

PN281

DEPUTY PRESIDENT GOSTENCNIK: But the effect of the proposal would be no more than, in the case of employees who are within the qualifying period for the purposes of exclusion from the unfair dismissal jurisdiction, a case of non-small businesses, that those employees would get the same as the NES entitlement. And those from the larger businesses would get the same as the NES entitlement but after six months, they'd be entitled to one month, which would be more than the NES. That's the effect of the proposal.

PN282

MR BUTLER: But we would question - - -

PN283

DEPUTY PRESIDENT GOSTENCNIK: I know it's complicated; I get that. But it doesn't undermine the safety net created by the NES.

PN284

MR BUTLER: But our submission would be that it would establish a precedent.

PN285

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN286

MR BUTLER: I understand it wouldn't undermine the NES, but we successfully argued that the NES supplemented as allowed in accordance with the Act. What is being proposed is a process that would reduce the entitlement under this award we would submit in isolation, to other awards, and may potentially - and I don't want to overstate this, but may potentially have serious implications if it was done just for the Architects Award just on that point.

PN287

Also, I think that I go back - - -

PN288

DEPUTY PRESIDENT GOSTENCNIK: Most awards simply, so far as notice is concerned, state the NES as the basic entitlement. So, to that extent, this award would still be more beneficial.

PN289

MR BUTLER: But in the - this issue was agitated during the award modernisation proceedings and I make reference to that in paragraph - - -

PN290

DEPUTY PRESIDENT GOSTENCNIK: Your real point is that the organisation that you represent argued for supplementation, succeeded, and if that's to be changed, a merits based case should be mounted to reduce it.

PN291

MR BUTLER: Yes, exactly. This was not a matter that was ignored, the award modernisation Full Bench noted the competing claims. Whereas, sometimes one has to be speculative or its impossible to look into the mind of Full Bench if it doesn't give reasoning. But it made a very clear decision and our argument would be that there should be a case to show what has changed over the last nine years.

PN292

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN293

MR BUTLER: I'll stop there.

PN294

DEPUTY PRESIDENT GOSTENCNIK: Thank you Mr Butler. Mr Corrigan, anything briefly in reply to those comments?

PN295

MR CORRIGAN: Just if I could in regards to the notice period.

PN296

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN297

MR CORRIGAN: In regards to what awards that the union looks after, they do have differences of notice period in their awards. The Professional Employees Award does have the same notice period as the Architects Award. But the Pharmacy Award has the national employment standards. So, there isn't always that same set of conditions across professional practices, as Mr Butler has outlined.

PN298

That's why we believe those changes could be made, and even if the proposal that is not accepted in regards to the one week notice, we still believe that the proposal in regards to two weeks, might be more amenable as it was, what was in the past, in an award. It was what was an application.

PN299

Yes, whilst the process has taken a while to get here, it would have been four years when we first did the - when we first started the review, the changes to the award, we were seeking were only four years old; now nine.

PN300

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN301

MR CORRIGAN: Thank you.

PN302

DEPUTY PRESIDENT GOSTENCNIK: Thank you Mr Corrigan. Well, we propose to reserve our decision. We thank the parties for their helpful submissions and we will publish our decision in due course.

PN303

We'll adjourn.

ADJOURNED INDEFINITELY [3.16 PM]