TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1058193
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards
Children’s Services Award 2010
Educational Services (Teachers) Award 2010
11.32 AM, FRIDAY, 16 OCTOBER 2020
JUSTICE ROSS: Good morning, it's Ross J. I've got Clancy DP and Lee C also on the hearing. Could I have the appearances please, I'll just go through the organisations and if you can announce it for the record. The UWU?
MS L STEVENS: It's Stevens, initial L, appearing on behalf of United Workers Union, assisted by Kavanagh, initial G.
JUSTICE ROSS: Thanks, Ms Stevens. For the IEU?
MR M WRIGHT: If the Commission pleases, Wright, initial M, on behalf of the Independent Education Union Australia.
JUSTICE ROSS: Thank you, and Community Connections Solutions Australia?
MR J GUNN: If the Commission pleases, Gunn, initial J, for the CCSA.
JUSTICE ROSS: Thank you. For the ECEC employers?
MR J ARNDT: Your Honour, Arndt, initial J, and appearing with me is Ms Whish, initial S.
JUSTICE ROSS: Thank you, and for the AFEI?
MS S LO: If the Commission pleases, Lo, initial S.
JUSTICE ROSS: Thank you, Ms Lo. Have I missed anybody? No. Just by way of background, as you know there have been two previous decisions dealing with the substantive claims in relation to these awards, one on 10 June, the other on 29 September and this hearing concerns four outstanding claims. In a statement published on 13 October we summarised those claims and the submissions in support and a conference was held before Lee C at 10 am today. The purpose of that conference was to address the matters set out at paragraph 67 of the 13 October statement.
I wonder if I might begin by just canvassing the outcome of the conference in respect of the four issues that have been raised. The first issue concerned the views of the parties in relation to AFEI's submission regarding the part-time employment draft variation determination. It'll be recalled that AFEI took issue with that part of the draft variation determination that dealt with or provided that in circumstances where because of an emergency an employee was not given seven days' notice of a variation to their roster, they would be paid at overtime rates, and I think my understanding of the conference was AFEI maintained its position. I'm not sure of the position of the other employer parties.
I note more recently that I am not sure if it was the UWU, I think it might have been, drew everyone's attention to clause 23.2(b) which does seem to deal directly with the circumstance where it talks about a requirement to work after normal finishing time et cetera, because of an emergency situation. In view of that reference, can we just canvass the position of the respective parties on this issue and we'll see where we land. Can I start with - well perhaps if I go to the unions first and then go round through the employers. Ms Stevens.
MS STEVENS: Thank you. United Workers Union initially opposed the position that overtime was not payable in the circumstances where an emergency occurs, however on review of the award in the break between the conference and this hearing we identified the appropriate clause which actually specifies how overtime payments should apply in that circumstance. We think that it's important to draw the attention of the Commission to that clause so we weren't inadvertently creating a conflict within the proposed drafting between those two clauses, and also just to say that the United Workers Union would support a reference to that clause being included for clarity in the proposed changed clauses to identify how overtime is payable under those circumstances.
JUSTICE ROSS: Yes, I follow. So rather than the current draft variation determination which would prescribe the payment of overtime in all emergency circumstances in the part-time work clause, rather it should be - the provision should be in the same terms as clause 23.2(b). So the same rules apply consistently. Is that the proposition, Ms Stevens?
MS STEVENS: Yes, that is correct.
JUSTICE ROSS: Right. Does the IEU want to say anything about this?
MR WRIGHT: We support the UWU's position on this.
JUSTICE ROSS: Can I go to the various employer interests. Mr Gunn, what do you want to say about this?
MR GUNN: I'm just quickly reviewing the clause - sorry, I'm presuming that 23.2(b) that Ms Stevens refers to is the 19.2(b) that's in the exposure draft which is in the - as far as I can see is in the same words (indistinct) read.
JUSTICE ROSS: Yes.
MR GUNN: We're happy to support the UWU in (indistinct) Ms Steven's has just (indistinct).
JUSTICE ROSS: All right, thank you. Mr Arndt and Ms Whish?
MR ARNDT: Your Honour, we would agree with the position as you put it to Ms Stevens that it's fairly clear on the existing 23.2 what the entitlement is and if that's reflected in the new drafting we're comfortable with that.
JUSTICE ROSS: All right, thank you. Ms Lo?
MS LO: We are also comfortable with that.
JUSTICE ROSS: All right. Well that would seem to resolve that issue. Can I go to the second matter that was being discussed and - bear with me for one moment. As I understand it, the ECEC employers were not pressing their proposed inclusion of a reference to a room leader and there was general agreement to our provisional view, which was that the variation proposed by the CCSA be adopted. The variation proposed by the CCSA is set out at paragraph 27 of the October statement, our provisional view is at paragraph 31. Does anyone take a different view to that? Is that the position agreed at the conference?
MR ARNDT: It is, your Honour.
JUSTICE ROSS: Then if we go to the next issue of the minimum engagement term, if I never see this clause again it won't be a sad day. As I understand it there was a proposition circulated by the - I think it was the CCSA prior to the conference which was agreed by all parties other than AFEI. AFEI was seeking instructions on its position in respect of that proposal. Is that - well if that's not the position someone can tell me but assuming that is the case, can I go to you Ms Lo, have you had an opportunity to get instructions on that issue and if so, what are they?
MS LO: Unfortunately, I haven't managed to make contact with our members, but our position is, we don't support nor oppose the proposal put forward by the IEU and CCSA.
JUSTICE ROSS: All right, so neither support nor oppose. If I can go to the final issue, which was this question of coverage. My understanding in relation to this issue was that the discussions centred on the CCSA's proposed insertion of a new clause, 4.8. Their proposal is set out at paragraph 63 of the statement. And there seemed to be at least an emerging agreement around that proposal, subject to the various descriptors that appeared after the names of the awards being deleted, and also, I think, the deletion of what was in paragraph C, because that would no longer be necessary if you delete the descriptor from paragraph B.
That seemed to be where the conference was up to, but I'm not sure where you all landed on that issue. And I know how dear the issue of coverage is to everybody. So perhaps if we go around the room, and you can indicate whether the summation I've just given is one that has general support. I wasn't clear about what people were saying about the IEU's alternate proposition.
Speaking for myself, the insertion of a note in clause 14, with a hyperlink, to the wage rates found for teachers in the Teachers Award: because it's a note, it wouldn't be something that would affect, or could be said to affect any legal position. So that seemed uncontroversial. But perhaps if I can invite you to comment on both the IEU's note proposition and the CCSA's proposal, and the outcome of the conference, as I go around to each of you. I may as well start with you, Ms Stevens. What is the UWU's position?
MS STEVENS: Thank you. The United Workers Union initially indicated support with the position provided by the CCSA, as outlined in the statement. However, on further review (indistinct) it may create some confusion and some conflict into whether it constitutes a significant change to the coverage of the award as a whole, by including the reference to the award which was not previously referred to in the coverage clause. United Workers Union has and continues to support the IEU's proposal that a hyperlink be included in the clause, referencing the applicable pay rates, referring back to the applicable pay rates in the Teachers Award.
JUSTICE ROSS: Sorry, Mr Wright, I've inadvertently hit the mute button. Can I go to you next. What does the IEU say about the CCSA's coverage proposition?
MR WRIGHT: Thank you, your Honour. We initially, in discussions with the other parties, agreed that we could use the CCSA proposal, subject to taking the descriptors out and amalgamating B and C, as you described in the opening. Bearing in mind the UWU's concerns – and we've recently received an email from the ACA (indistinct) ABL, also expressing some concerns about possibly changing coverage. We're obviously happy to go back to our proposal, the note in clause 14, with a hyperlink, if that would address the concerns of the UWU and the ACA.
JUSTICE ROSS: All right, thank you. Mr Arndt.
MR ARNDT: Your Honour, just dealing with, I guess, the two proposals, and maybe filling you in on the process of the conference, the position in relation to the IEU proposal, the hyperlink into the pay rate clause, is opposed by those who instruct me, on the basis that, to the extent that those parties have an anxiety that references may serve to confuse employers in relation to the relevant rates, references included in the pay rate clause are probably most likely to confuse. So my instructions are that the IEU's proposal is not consented to.
In relation to the CCSA's proposal, in the course of this morning's conference, the parties reached some degree of agreement. And I must say, following the conference, it occurred to – and I was alerted to the fact that the CCSA's proposal, and, indeed, the variation of that proposal that the IEU propose, and which the parties were generally in agreement about, I think does change the coverage of the award. And that's not something that those who instruct us would consent to.
And, with absolute respect, I don't think that was the intention of the Commission raising it on its own initiative, to try and resolve. I don't think anyone has intended to change the coverage. So I think, from that perspective, our view would be that the CCSA's proposal probably is a non-starter, on the basis that it may serve to vary the coverage of the award where that's not intended. Unfortunately, reverting back to the IEU's proposal, I can't indicate consent from our side, that that would be something that those who we represent would be supportive of, on the basis that they – they do think it would give rise to confusion and complicate matters, rather than assist.
JUSTICE ROSS: Well, I can confirm that it wasn't our intention to alter the coverage. And as we've made clear in the previous statements and decision, it's not our intention to reduce or change the entitlements, either. I mean, the irony is that this issue arose because of concerns raised by your clients, Mr Arndt, and now they've opposed every single effort to make it simpler.
MR ARNDT: I'm acutely aware of that irony, your Honour. The position of the – if I could put it this way. If the position of the CCSA didn't give rise to coverage issues, those who instruct me would be far more comfortable in pursuing that line. The difficulty is, I think, that between the parties this morning, it occurred to everyone that what the parties don't want to do – and, indeed, what the Commission doesn't intend to do – is to give rise or foment questions about coverage, and have a fight about coverage.
So, unfortunately, that avenue didn't work. But as I said, my instructions are that, unfortunately, the reference through a hyperlink to the pay rate wouldn't be something that those who instruct me would be comfortable in consenting to.
JUSTICE ROSS: All right. Mr Gunn – I'm sorry, could I just go to Ms Lo first, Mr Gunn, then I'll come back to you, about – as it's your position, what do you say – or was your initial position, what do you say in response to those propositions that you've heard. Ms Lo, what does ABI say?
MS LO: Thank you. In relation to the CCSA's proposal, we hold the same concerns about the resulting effect of coverage variation. We say that coverage should be on merits, rather than automatic exclusion. And we also note that there is different criteria for the Commission to take into account when amending coverage. So, our position is that we don't support the proposal put forward by CCSA. In relation to the IEU's proposal regarding hyperlinks, we don't believe it's necessary, but we don't support nor oppose this proposal.
JUSTICE ROSS: All right, thank you. Mr Gunn.
MR GUNN: Your Honour, when we put this together initially, obviously it was in response to the Commission having put a particular issue to us. One of our concerns was the focus at the time, including back at the original hearing, by some of the employer witnesses, that they were only two awards that were relevant, that is, the Children's Services Award and the Educational Services (Teachers) Award.
What we were attempting to do with our proposed clause 4.8 was to draw attention to the fact that there are more than just those two awards that are routinely used in an early childhood setting. The Clerks – Private Sector Award I believe is used in virtually every early childhood setting in the country, or should be. And many services utilise either the Health Professionals Award or the Social and Community Services Award. And so that was the intent of the (indistinct words).
We're certainly not looking to create a situation where there is any coverage conflict of that arising issue. So we wouldn't press that, if it's the (indistinct) the remaining parties that that is the likely outcome. In regards to the IEU's proposal around the hyperlink, we have no objection to that. But again, I note it's only going to one award, and it's ignoring the fact that there are other multiple awards. And I think there would actually be a negative outcome from that, where it would cause people to ignore the existence or the relevance of those other awards.
So I would prefer if we weren't going to have our proposed clause 4.8, that there also not be the hyperlink, as proposed by the IEU. Not because I think it's a poor suggestion, but because I think that, in the absence of that other information that addresses employers' attention to the multiple awards, it could actually create confusion.
JUSTICE ROSS: Thank you, Mr Gunn. I follow that. I don't want to put words in your mouth, Mr Wright, but when there's a reference to the IEU's proposal, in fairness to the IEU, I don't think – they weren't advancing it in the way that would normally be understood. Rather, it was put forward as an alternative to what had previously been discussed. I think the IEU's primary position is that, 'Well, we shouldn't do anything in relation to it.' But it was, 'If we were minded to do something, then here are some things to think about.'
This has been an instructive exercise. It certainly taught me the lessons of trying to be too helpful, and that's something I'll take on board. Speaking for myself, I think my inclination would be, having heard what the parties have said – and I would invite you to comment if anyone has a different view, but my inclination would be not to take any further steps in relation to this issue, that is, not to pursue the coverage issue, having regard to the views of the parties, and, indeed, Mr Gunn's response to those, and nor to look at the issue of the hyperlink.
Essentially, for the reasons Mr Gunn has outlined, linking to one award may create more confusion than it solves. But what I will do, at an administrative level, is have a discussion, or initiate discussions with the Ombudsman, to see whether they can look at integrating some of their materials to provide greater assistance, a sort of a one-stop schedule or proposition that can provide greater assistance to small business employers in the ECEC sector, and that might draw their attention to the application of particular awards and rates.
It would really be a matter for the Ombudsman. I would point them to the evidence and the history of this matter on the public record, that is, some (indistinct) initially raised in evidence, and where the matter has gone since, and our efforts to – well, unsuccessful though they be, our efforts to try and simplify it, and see whether they can come up with some administrative solution that might make it easier for those parties. And I dare say, if they do that, they would talk to you about what that looks like. All right, does anyone have a contrary view about at least my expression of view regarding this issue, that is that we take no further steps in these proceedings in relation to that matter, or does someone have a burning desire to pursue a hyperlink or a change to coverage?
MR GUNN: Your Honour, Gunn for CCSA. I don't have any burning desire to do any of that but we would be strongly supporting the approach that you are suggesting regarding approaching further consult.
JUSTICE ROSS: Thank you, Mr Gunn. All right, is there anything further anyone wishes to say about any of the matters that have been canvassed? Just bear with me for - well my understanding on the four issues is if I can briefly summarise, in relation to the first the part-time employment matter and the payment of overtime in an emergency, that would be dealt with in a manner consistent with the terms of clause 23.2(b), the overtime rate provision. In relation to the minimum engagement term proposition, leave aside AFEI for a moment, the other parties have reached agreement on a proposition discussed at the conference that was advanced by CCSA. AFEI's position is to neither support nor oppose that proposition.
In relation to the coverage question, no further action will be taken in these proceedings to vary the award to address the issue that had been raised. Anyone take any issue with any of that? Have I missed anything?
MS STEVENS: Excuse me, your Honour, you just did not refer to the noncontact times matter.
JUSTICE ROSS: The noncontact time matter.
MR WRIGHT: Number 3, your Honour.
JUSTICE ROSS: Minimum engagement term?
MR WRIGHT: Number 2 is.
JUSTICE ROSS: Yes, I'm sorry. There was consent to the provisional view and the ECEC employers were not pressing the inclusion of the room leader. Is that the matter you're referring to Ms Stevens?
MS STEVENS: Yes, your Honour.
JUSTICE ROSS: Yes. All right, well with that addition is there anything else anyone wishes to raise or do they take a different view about any of that?
MR ARNDT: Your Honour - - -
JUSTICE ROSS: Yes.
MR ARNDT: I may have just misheard. Did you confirm that the issue 3 had been resolved in accordance with the agreed clause put forward by the parties?
JUSTICE ROSS: Yes, the parties had agreed to I think it was the CCSA proposal that was discussed and agreed at the conference. The only party taking a slightly different view on that was AFEI and as I understood their position, it was to neither support nor oppose the agreement.
MR ARNDT: Thank you, your Honour.
JUSTICE ROSS: I'm starting to get a bit nervous now about what everyone may have heard so at the risk of repetition, item 1 concerned the part-time employment draft variation determination and the question around the paying of overtime in circumstances where there was a variation to the regular hours of a part-time employee in an emergency situation. The resolution of that issue is to either include a cross-reference or something to that effect but the essence of it is that the terms of clause 23.2(b) would apply to those situations.
The second point concerned the noncontact time clause and there was agreement to the provisional view, which was to include the variation in the form sought by the CCSA, and the ECEC employers clarified that they were not pressing the inclusion of a reference to a room leader.
In relation to item 3, there was agreement to the clarification of the minimum engagement term consistent with the CCSA's proposal. All parties supported that position save the AFEI who took the view that they neither opposed nor supported the agreement of the other parties.
The final issue was the coverage matter and there would be no further action by way of award variation taken in respect of that issue. Everyone clear? Does anyone wish to add anything or express any contrary view?
No? All right, well thank you very much for your attendance and in particular thank you for your engagement in the conference. I think the resolution of the issues has been very helpful. That brings to a close at least the outstanding - those four outstanding matters. There are as you know issues relating to the educational leader and responsible person positions but they await the determination of the other Full Bench. When that happens we'll list those matters for mention. Nothing further today. Thank you again and I'll adjourn.
ADJOURNED INDEFINITELY [12.04 PM]