PN1732

THE DEPUTY PRESIDENT: All right. Let's begin. Do you think that just for the sake of the record it would be a good idea to do the appearances so that the transcript does show who's here? Sina? Actually, let's do Heath and - - -

PN1733

MR BULL: Steve.

PN1734

THE DEPUTY PRESIDENT: Steve, thank you. Then go to Sina.

PN1735

MR H DICKENS: Heath Dickens, DSA.

PN1736

THE DEPUTY PRESIDENT: Yes. So, do you think the record would have heard that, Grace?

PN1737

THE ASSOCIATE: Yes.

PN1738

THE DEPUTY PRESIDENT: You'll let them know. Thanks.

PN1739

MR S BURGESS: Steve Burgess, Flagstaff Group.

PN1740

THE DEPUTY PRESIDENT: Thank you.

PN1741

MR S MOSTAFAVI: Sina Mostafavi, Australian Business Industrial and the New South Wales Business Chamber.

PN1742

MS K LANGFORD: Kerrie Langford, National Disability Services.

PN1743

MR C CHRISTODOULOU: Chris Christodoulou, Greenacres.

PN1744

MS M WALSH: Mary Walsh, Our Voice Australia.

PN1745

MR S BULL: Steven Bull, United Voice.

PN1746

MS K WILSON: Kairsty Wilson, AED Legal Centre.

PN1747

MR J KEMP: James Kemp, Department of Social Services.

PN1748

MS R FREELAND: Rowena Freeland, Department of Social Services.

PN1749

MR R CURTIN: Rob Curtin from Access Industries for Disabled Ltd.

PN1750

MS M CARTER: Mary Lou Carter from Our Voice Australia.

PN1751

THE DEPUTY PRESIDENT: Excellent. That captures everybody. Thank you.

PN1752

MR CHRISTODOULOU: And Leigh.

PN1753

THE DEPUTY PRESIDENT: And Leigh Svendsen from the Health Services Union. Can I get your appearance, Leigh?

PN1754

MS L SVENDSEN: Leigh Svendsen from the Health Services Union on the phone.

PN1755

THE DEPUTY PRESIDENT: Very good. Thank you. So on the last occasion we agreed that we'd begin today with the SWS clause. A couple of housekeeping things though, before we dive into that. One is just our day's program. I'm yours until 4 and I have no other commitments today mercifully, so obviously you will be allowed to have a lunch break, but we can work really intensively today. So has anybody got any other time problems that they want to indicate? Kairsty?

PN1756

MS WILSON: I need to leave at 1 o'clock today.

PN1757

THE DEPUTY PRESIDENT: One o'clock leaving, okay. All right.

PN1758

MS WILSON: I can be on the phone if necessary in the afternoon.

PN1759

THE DEPUTY PRESIDENT: Okay.

PN1760

MS WILSON: But, yes, I have to leave then.

PN1761

THE DEPUTY PRESIDENT: All right. Let's try and get the ‑ ‑ ‑

PN1762

MR BULL: Also I'm going to leave � I have to leave probably around midday too.

PN1763

THE DEPUTY PRESIDENT: Okay.

PN1764

MR BULL: And the main issue I wanted to deal with is superannuation. That's the main substantive claim that we have in the award specific review.

PN1765

THE DEPUTY PRESIDENT: Okay. So we'll go from the SWS clause to superannuation. Try and get all that done before lunch time.

PN1766

MR BULL: We can mix it up but we've had plenty of the SWS so ‑ ‑ ‑

PN1767

THE DEPUTY PRESIDENT: The difficulty of course that leaves us with unless Sam arrives, which she did say she was going to, Kairsty, is ‑ ‑ ‑

PN1768

MS WILSON: Leigh has got to leave at � she's only available this morning as well.

PN1769

MR MOSTAFAVI: This might be an opportune time to raise this, your Honour, in caucusing with the ABI members and also NDS it strikes me that discussion in these sessions of the wage assessment tools might be most effectively dealt with � for one thing we need sufficient time to � Nigel wants to be involved obviously, as the CEO, to caucus with the ADEs and also NDS to discuss the matter. I think the broad positions of the parties are relatively clear, and while we can productively use the time we've got available today and Monday, whether we let programming and a little bit of time to allow for that at least, you know � we need a fair bit of time, I think, and then perhaps have the parties file written submissions in relation to all the substantive issues including detailed written submissions as opposed to outlines including all of the consideration of wage assessment tools, and then we can speak to those next time we're there, and bearing in mind that arbitration is not likely to be programmed until early to mid-next year, it just struck me as a more efficient use of time that ‑ ‑ ‑

PN1770

MR BULL: I've been a bit sort of ‑ ‑ ‑

PN1771

THE DEPUTY PRESIDENT: I need to tell you something about timetable too.

PN1772

MR BULL: Sorry. Yes. No, no ‑ ‑ ‑

PN1773

THE DEPUTY PRESIDENT: So maybe I'll do that because it might inform what you say, Steven.

PN1774

MR BULL: Yes.

PN1775

THE DEPUTY PRESIDENT: That is that unfortunately last night I had an urgent industrial action mater arising out of Port Botany and it was a stop industrial action order and I granted an interim order, but, you know, or the old hands in this Commission know that there's a time period within which these matters have to be dealt with, so they wanted it today, and I declined on the basis that people were already in transit, and I couldn't � wouldn't, anyway, could have but wouldn't, change today, but I have had to list it for 8 am on Monday morning. That doesn't mean that it'll require the whole day but it also means that there's uncertainty and I don't want to put parties, you know, particularly coming from Canberra and others in Melbourne in the position where you're sitting waiting. It's also a question of how much you can do on your own without my assistance, but also I thought that it might be that you wanted to talk about replacing Monday with some other day or days, and that's sort of I think what you said. Sina recommends that.

PN1776

MR MOSTAFAVI: Yes.

PN1777

THE DEPUTY PRESIDENT: Because it might be that there's more time therefore to really hone in a very precise way the respective positions of the parties in respect to the balance of the wage assessment tools, so that's the � Steven, does that ‑ ‑ ‑

PN1778

MR BULL: I didn't come to the last one because I was on leave and the last two days have been busy because I've had something blow up in the office. I thought we were heading to a happy place with the modified supported wage.

PN1779

THE DEPUTY PRESIDENT: Yes, I think we are with the modified but it's a balance of the tools, Steven ‑ ‑ ‑

PN1780

MR BULL: Right.

PN1781

THE DEPUTY PRESIDENT: ‑ ‑ ‑that I think Sina is addressing himself to.

PN1782

MR BULL: What are the problems? Could anyone summarise ‑ ‑ ‑

PN1783

MS WILSON: I can tell you what the problems are, that all the remainder of the tools have competencies and so our position, AED and IA and PWDA ‑ ‑ ‑

PN1784

MR BULL: But that's a substantive claim.

PN1785

MS WILSON: That's exactly right.

PN1786

MR BULL: Yes. All right. Yes.

PN1787

MS WILSON: So that's where we're at.

PN1788

MR BULL: I'm sorry, I thought we were talking just adding the modified SWS.

PN1789

MR MOSTAFAVI: No, no, no.

PN1790

MR BULL: No.

PN1791

THE DEPUTY PRESIDENT: No.

PN1792

MS WILSON: No, we're not talking about the modified � it's the SWS with clauses attached that will be used in the ADE.

PN1793

MR BULL: Very well.

PN1794

MS WILSON: So it's not a new tool.

PN1795

MR BURGESS: Voluntarily?

PN1796

MS WILSON: Yes.

PN1797

MR BULL: Voluntarily getting rid of the 26 or ‑ ‑ ‑

PN1798

MR BURGESS: No, no, no, no, no.

PN1799

MS WILSON: No.

PN1800

MR CHRISTODOULOU: Not voluntarily.

PN1801

MR BULL: Someone changed the medication in the water, you know, since I came here last.

PN1802

MS WILSON: No, it's the SWS with additional clauses that are voluntary in ADEs. So ‑ ‑ ‑

PN1803

MR BULL: That's a problem, is it?

PN1804

MS WILSON: No, no, it's � no.

PN1805

MR MOSTAFAVI: No, no, that's not a problem.

PN1806

MS WILSON: It's the guidelines of it being drafted.

PN1807

MR BULL: It's the rest of it.

PN1808

MS LANGFORD: That's right.

PN1809

MS WILSON: It's just the time that it's taking.

PN1810

MS LANGFORD: Yes.

PN1811

MR BULL: Sorry, I read the email last night and it was that � I interpreted that as there were technical drafting issues that just need more time.

PN1812

MS WILSON: Yes.

PN1813

THE DEPUTY PRESIDENT: It's just that we're dealing with two separate � wage assessment tools is an umbrella.

PN1814

MR BULL: Sorry, I didn't mean to ‑ ‑ ‑

PN1815

MS WILSON: Yes.

PN1816

THE DEPUTY PRESIDENT: And under the umbrella there's two parts and one is the SWS and I hope to work through that this morning, if not, to a substantive conclusion, at least to a process conclusion, but as for the balance of the wage assessment tools in the award it was agreed they would be dealt with in the modern award review. It's the disability advocates' position has been their complete removal from, and it remains I believe, their complete removal from the award. The employers' position is that they remain.

PN1817

MS WILSON: That they remain. That's correct.

PN1818

THE DEPUTY PRESIDENT: With an openness to adjustment and considering ‑ ‑ ‑

PN1819

MS WILSON: Yes.

PN1820

MR CHRISTODOULOU: And/or putting up some other alternatives.

PN1821

THE DEPUTY PRESIDENT: Yes.

PN1822

MS WILSON: Absolutely.

PN1823

THE DEPUTY PRESIDENT: Exactly. Yes. Yes.

PN1824

MR BULL: Returning to a process matter, and after unilaterally � I think Leigh is not unsympathetic to this view, we want to abandon our award variation once the modified SWS is inserted in clause 14 of the award.

PN1825

THE DEPUTY PRESIDENT: Yes.

PN1826

MR BULL: And obviously that does not prejudice the substantive, I suppose, desire to remove the other tools. It just means that, in terms of neatness ‑ ‑ ‑

PN1827

THE DEPUTY PRESIDENT: Yes.

PN1828

MR BULL: ‑ ‑ ‑there's no longer those proceedings running alongside.

PN1829

THE DEPUTY PRESIDENT: Yes. Yes.

PN1830

MR BULL: So I suppose, you know, somewhat selfishly I want that issue dealt with so I can abandon the award variation, and, you know ‑ ‑ ‑

PN1831

THE DEPUTY PRESIDENT: Yes. Yes. That's right, and we actually did deal with that on the last occasion, and it was understood that we would, from now on, be working in the AM2014/286, and that also � so there is a little bit of a ‑ ‑ ‑

PN1832

MS SVENDSEN: Can I just make a comment in relation to that?

PN1833

THE DEPUTY PRESIDENT: Yes, sure, Leigh.

PN1834

MS SVENDSEN: His Honour released a statement that � it might've been actually late the day before.

PN1835

THE DEPUTY PRESIDENT: Yes.

PN1836

MS SVENDSEN: Might be late Wednesday, not yesterday.

PN1837

THE DEPUTY PRESIDENT: Justice Ross she means.

PN1838

MS SVENDSEN: Under the guise of the family friendly stuff, family friendly, so that's 2016/01 I think. Anyway it doesn't matter. Matter number (indistinct) and attached to that is a list of matters that Watson � in relation to Benches that Watson was sitting which includes this Bench.

PN1839

MR BURGESS: This one? Yes, that's a reason to get rid of it.

PN1840

MS SVENDSEN: And our BSWAT Bench.

PN1841

MR BURGESS: Sorry.

PN1842

MS SVENDSEN: It actually led to make a comment to Ross about how we want the matter handled so that it can be moved forward and that's probably the easiest way for us to deal with it.

PN1843

THE DEPUTY PRESIDENT: Yes.

PN1844

MR BULL: Do you understand what Leigh is talking about?

PN1845

MR BURGESS: Yes, I do.

PN1846

MR BULL: That they've lost a � a Member of the Full Bench dealing with this matter resigned, so it creates an issue of the composition of the Tribunal. I don't think it's actually an issue because this matter can be dealt with by a single Commissioner.

PN1847

MS SVENDSEN: No, it isn't it, but we'll deal with it then. It might be easiest.

PN1848

MR BULL: But I don't want to go near the Federal Court if I don't have to.

PN1849

THE DEPUTY PRESIDENT: No. I mean, that communication from Ross J did add a dimension to where we ended on the last occasion. So just to be clear, and I'm sort of saying this a little bit laboriously for the sake of the record, for those who are not here and read the transcript, where we ended on the last occasion was me reporting that the President's preference was for us - in fact, direction, was for us to make any variation to the SESA Award via 2014/286 and so therefore we're discussing the finalisation of the clause that would insert the new SWS, or the SWS with modifications as an option.

PN1850

MR BURGESS: In the award review?

PN1851

THE DEPUTY PRESIDENT: Yes, into this award. That's our first agenda item this morning, but there was acceptance, I believe, at the table that the actual implementation of that, the realisation of that would occur pursuant to the other matter number. That's where we ended on the last occasion, on 10 April. Then Ross J sent this email to everybody who was party to any Bench that Watson VP was presiding over and asked for submissions about how things should be handled, so, Leigh, can I confirm that you're going to � your submissions in relation to how things should be handled will be consistent with our understanding last time that we'll move the matters into the award modernisation process?

PN1852

MS SVENDSEN: Yes, I suspect so. I haven't actually spoken yet with anybody formally about it but I looked at and thought I'll just have a chat with Steven, and I'm sure that that's actually what we'll be doing and we've indicated during these proceedings that's what we were doing anyway.

PN1853

MR BULL: There's no impediment too.

PN1854

MS SVENDSEN: No, there isn't.

PN1855

MR BULL: Because this is a variation under 157. There's no impediment to a single Member of the Commission making the ‑ ‑ ‑

PN1856

THE DEPUTY PRESIDENT: There isn't, but Ross J won't ventilate that.

PN1857

MR BULL: You know, if he ‑ ‑ ‑

PN1858

THE DEPUTY PRESIDENT: He won't refer it to me as an individual.

PN1859

MR BULL: Obviously the direction of the President of the Tribunal is significant.

PN1860

MS WILSON: It is to me. He carries a bit of weight.

PN1861

MR BULL: Sorry, I wasn't asking you to traverse a direction from the President but I'm just indicating that legally there's a distinction between a 157 variation and a ‑ ‑ ‑

PN1862

THE DEPUTY PRESIDENT: Indeed.

PN1863

MR BULL: ‑ ‑ ‑variation made in a four-yearly review which requires a Full Bench.

PN1864

THE DEPUTY PRESIDENT: Indeed. Yes. I think therefore the ball is in the applicant's court because if the applicants have faith that their aspirations contained within the application, or the contest about those aspirations can be appropriately handled in the award modernisation process, which is I think what we've all discussed, then the file can be closed at your request.

PN1865

MR BULL: I think we have faith, but I simply have a suspicious and cautious disposition.

PN1866

THE DEPUTY PRESIDENT: So it maybe that we ‑ ‑ ‑

PN1867

MR BULL: So I'd like to have this done.

PN1868

THE DEPUTY PRESIDENT: Yes.

PN1869

MR BULL: Because that's what I've said was going to be the end point of the variation.

PN1870

THE DEPUTY PRESIDENT: I know.

PN1871

MR BULL: And once it's done we'll withdraw award variation.

PN1872

THE DEPUTY PRESIDENT: Yes. So we'll just travel in parallel.

PN1873

MR BULL: If it's done as a part of the, you know, four yearly review it's just needs to be done.

PN1874

THE DEPUTY PRESIDENT: Yes. Yes.

PN1875

MR CHRISTODOULOU: Can I just ask a question of clarification because I'm very unclear these days about award reviews and processes but I presume the work gets done on the modified supported wages system, and that the guidelines are drafted, we're all happy, can the Bench actually make that amendment in advance of other things that need to be arbitrated?

PN1876

THE DEPUTY PRESIDENT: It certainly can if it's of a mind to.

PN1877

MR CHRISTODOULOU: Okay.

PN1878

MS WALSH: And is it of a mind to?

PN1879

THE DEPUTY PRESIDENT: I don't know because I'm not on the Bench, but the submissions would need to be made and certainly award modernisation has proceeded sequentially in awards. Is that to the parties' understanding?

PN1880

MS WALSH: Yes.

PN1881

MR CHRISTODOULOU: Yes. So that would also be the case if any other agreed matters as between the parties, so for argument sake, ceremonial leave, or any other things that we might agree along the way that we could make all those changes, and so the last remaining matters are those that are to be arbitrated.

PN1882

THE DEPUTY PRESIDENT: Yes.

PN1883

MR CHRISTODOULOU: Okay.

PN1884

MR BULL: That wouldn't be a bad way to deal with it. I'm not being critical, but I think this process has been � it's good to get results.

PN1885

THE DEPUTY PRESIDENT: Yes.

PN1886

MR BULL: And it pushes things along.

PN1887

THE DEPUTY PRESIDENT: Yes. Yes. If your joint submissions, or not your joint submissions, but if your several submissions are consistent to the Full Bench along those lines and I make that request to the President, I'd be surprised if it wasn't granted. I just know that because of this difficulty with the composition of the Bench under which the 2013/30 application was made is not aligned to, as I understand it at this stage anyway, I guess having sent this letter out, he's listening to what everybody thinks, but when we spoke he wasn't of a mind to reconstitute ‑ ‑ ‑

PN1888

MR BULL: He's seeking advice from the Federal Court, isn't he?

PN1889

THE DEPUTY PRESIDENT: I think he said he was thinking about asking for advice. I'm not sure if he has actually.

PN1890

MR BULL: Section 608.

PN1891

THE DEPUTY PRESIDENT: I don't know.

PN1892

MR BULL: You get advice on an appeal.

PN1893

THE DEPUTY PRESIDENT: Yes. Yes.

PN1894

MR CHRISTODOULOU: So one more question, your Honour. Do we know who the Bench will be?

PN1895

THE DEPUTY PRESIDENT: That is a very good question, Chris? I thought it was sort of the Bench presided over by Ross J. Leigh, you're our in-house expert on this.

PN1896

MS SVENDSEN: I don't think � the only thing I can say is that if it sits with the four year matters in the same group, so these are aged care, and social community home, the SCHADS Award, if it sits with those and that Full Bench, which I think it does, then it's actually � I think it's actually currently � I don't know that it's currently fully formed, but I think that both � yes, it's a little bit hard to tell. I think that Ross J, Hatcher DP, Lee C � who else was on that Bench? I'm just trying to remember. Maybe Kovacic DP although ‑ ‑ ‑

PN1897

THE DEPUTY PRESIDENT: But it's presided over by the President. That's your point, isn't it, Leigh, and that was my understanding?

PN1898

MR CHRISTODOULOU: The President. Okay.

PN1899

MS SVENDSEN: Yes. That was the Bench that actually have conducted the position in relation to most of the conferences, on second drafting and those sorts of things.

PN1900

MR CHRISTODOULOU: Okay, thank you.

PN1901

MS WALSH: Clarification, please, your Honour.

PN1902

THE DEPUTY PRESIDENT: Yes, Mary.

PN1903

MS WALSH: From Mary. On behalf of our constituency, we did support the inclusion of the modified supported wage system. So just so that I have it clear to report back, so are we saying that the modification can be built into the award arbitrarily even though we are waiting for the guidelines that will accompany that and � no?

PN1904

THE DEPUTY PRESIDENT: No.

PN1905

MS WALSH: Yes.

PN1906

THE DEPUTY PRESIDENT: No, you will need - I believe that you will need to agree on the clause itself.

PN1907

MS WALSH: Yes.

PN1908

THE DEPUTY PRESIDENT: And where the guidelines are heading.

PN1909

MS WALSH: Yes.

PN1910

THE DEPUTY PRESIDENT: It may be that as long as you're seeing them heading in the direction that you're happy with, that you � the answer to the question really is, it's when you give consent, and because of the nature of the change that is, the Bench would be wanting to see that as, you know, a collective consent rather than, you know, if a couple of people were outstanding then the Bench would hear those people and that would extend the process, and then would in effect be making a decision about it. So as long as everyone is consenting, at that point, I believe the variation can be made by the Full Bench and certainly, as I said, I think that they would be willing to make that ahead of any other arbitrated matters. I can't be sure, of course, but I think � and that makes sense to me, and therefore, as they're people with common sense, I think that that would happen, and certainly in other awards consent matters have, you know, come through.

PN1911

MS WALSH: Yes. Because we understand that it's going to take longer to get the guidelines done, and we support them taking longer to get them right. So I just needed to be able to report that back to our constituency. Thank you.

PN1912

THE DEPUTY PRESIDENT: Maybe by lunch time everything will be clearer, because we'll actually talk about the substantive issues in the guidelines and so on.

PN1913

MS WALSH: Thank you, your Honour.

PN1914

THE DEPUTY PRESIDENT: But can I just bring you back then to the Monday. It probably would be good to make a call on that now so that everybody knows what they're doing, and also while Grace is here to talk about an alternative day or even days for that matter.

PN1915

MS WILSON: I've got to come anyway because I � well, I don't suppose I have to come but I've already got my flights booked and ‑ ‑ ‑

PN1916

MS WALSH: I'm in the same boat, and it just costs ‑ ‑ ‑

PN1917

THE DEPUTY PRESIDENT: You don't have to worry about that. That's something.

PN1918

MS WILSON: So, I mean, it would be good to have it in the afternoon if that's ‑ ‑ ‑

PN1919

THE DEPUTY PRESIDENT: Okay. Right.

PN1920

MS WILSON: That would be good.

PN1921

MR BULL: I can't come on Monday. I've got stuff on Monday from 2.30 onwards.

PN1922

THE DEPUTY PRESIDENT: Leigh, if there was a session at 2 o'clock on Monday, could you be present either by phone or in person?

PN1923

MS SVENDSEN: Probably not.

PN1924

MR CHRISTODOULOU: No, I couldn't do 2.

PN1925

MS WILSON: I mean, the thing is that this date has been listed since last year.

PN1926

THE DEPUTY PRESIDENT: I know. That's ‑ ‑ ‑

PN1927

MR CHRISTODOULOU: I know I've got it in my diary, but ‑ ‑ ‑

PN1928

THE DEPUTY PRESIDENT: Would you go out to Port Botany, please, Kairsty?

PN1929

MS WILSON: Yes, why not? I've got nothing else to do.

PN1930

THE DEPUTY PRESIDENT: And sit down with all of the workers who are not loading and unloading vessels for Patrick terminals?

PN1931

MS WILSON: Yes, I'm happy to go and talk to them.

PN1932

THE DEPUTY PRESIDENT: Thank you.

PN1933

MS WILSON: I'm only going out to the docks.

PN1934

THE DEPUTY PRESIDENT: I genuinely apologise. This is not an easy thing for me but ‑ ‑ ‑

PN1935

MS WILSON: It wasn't directed at you. I was just saying that this date has been listed so ‑ ‑ ‑

PN1936

THE DEPUTY PRESIDENT: It has.

PN1937

MS WILSON: ‑ ‑ ‑obviously we've booked our flights, you know, some time ago to get here.

PN1938

THE DEPUTY PRESIDENT: Yes. Yes. Let's just do a poll. On Monday. So I'm just going to use initials for my own recording sake. So, Kairsty 2 pm available. Somebody else said they could come at 2 pm. Kerrie could come at 2 pm.

PN1939

MS WALSH: Mary. I'm available all day because I will be here.

PN1940

THE DEPUTY PRESIDENT: Mary. Yes.

PN1941

MS WALSH: Because I've made those arrangements.

PN1942

THE DEPUTY PRESIDENT: Okay.

PN1943

MS FRENCH: I'm available.

PN1944

THE DEPUTY PRESIDENT: Sam has arrived. Sorry, this often happens. I put my head down and my hair falls in my face and I don't see people arriving. So Sam, you could come as well?

PN1945

MR CURTIN: Yes.

PN1946

THE DEPUTY PRESIDENT: Okay. So Rob could come. What do you think, James and Rowena? Would it depend on the utility?

PN1947

MR KEMP: If Rowena is not able to come, but I wouldn't be pushing that the meeting had to be held if it's ‑ ‑ ‑

PN1948

THE DEPUTY PRESIDENT: Yes. Yes, but seem to have at least a reasonable assembly of employee advocates albeit it not unions but nevertheless with Sam and Kairsty ‑ ‑ ‑

PN1949

MS LANGFORD: I think Steven said � is it Michael ‑ ‑ ‑

PN1950

MR BULL: I can probably get Michael Robson to appear for the union but we've got to continue ‑ ‑ ‑

PN1951

THE DEPUTY PRESIDENT: I'm very fond of Michael but I think if you're going to have a smaller group and focus in on the guidelines, for example then he won't know ‑ ‑ ‑

PN1952

MR BULL: He's a warm body, he's not aware of this material so ‑ ‑ ‑

PN1953

MR KEMP: I'm happy to speak to the guidelines today but I don't think we'll be in a position to go through and workshop any guidelines on Monday.

PN1954

THE DEPUTY PRESIDENT: You don't? No, okay.

PN1955

MR MOSTAFAVI: I'm available, your Honour, but again I'll be guided by the group.

PN1956

THE DEPUTY PRESIDENT: All right.

PN1957

MR MOSTAFAVI: And how effective the discussion will be given availability.

PN1958

THE DEPUTY PRESIDENT: Yes. All right. I mean, my only caveat is that I'm starting at 8 am on Monday, so, you know, six hours is a long time to expect to get through witnesses and be able to make a decision and so on.

PN1959

MR BULL: Time goes longer with the MUA.

PN1960

THE DEPUTY PRESIDENT: It does and when there's evidence being led about things like who said what in a crib room. So if it got to sort of 5 to 1 and I was still sitting and they were on their feet, there wouldn't be anything I could do. I would have to just keep sitting. So if we did list it for 2, then, you know, if I wasn't here you'd need to just kick off on your own.

PN1961

MR BULL: For the benefit of the others you're running out of time, aren't you, in terms of the statutory responsibility to deal with the order?

PN1962

THE DEPUTY PRESIDENT: I think that's a bit of a piece of string as well, Steven.

PN1963

MR BULL: No, I thought you had to deal with it within ‑ ‑ ‑

PN1964

THE DEPUTY PRESIDENT: I did � the President asked me to wrap it up by the end of the April so that was my goal but I don't know whether he would, you know, be willing to adjust that, so I can certainly have a chat to him. So why don't we just � now, we know who can come and then by the end of today or whatever juncture today the room begins to dwindle we'll make a call on it.

PN1965

MR BULL: Yes.

PN1966

THE DEPUTY PRESIDENT: Okay. All right. So shall we go to the question of the SWS. There's two quite large issues of weighting and the minimum percentage of the production or productive capacity, and then there's an email from James also about the drafting process. Which would you like to begin with? It might make sense to begin with James' letter because it's kind of the bigger picture and then we can go from there. What do you think, everyone? Happy?

PN1967

MS WILSON: Happy.

PN1968

THE DEPUTY PRESIDENT: Okay. So, James, can you kind of just summarise your note and contextualise it?

PN1969

MR KEMP: So since we met, I think the time before last, we've had a look at what level of drafting was needed around the guidelines and the handbook and identified areas that would need to be amended. So I'd just like to say we're not looking at rewriting whole new guidelines for SWS or a whole new handbook. It's about adding in additional elements and so while we said, you know, we would welcome people's input and feedback to those we're not looking to totally rewrite the way in which the SWS operates. It's a light touch approach given that we're really just making some modifications and it's a tool that people can select. It's not, at this stage, the only tool, so ‑ ‑ ‑

PN1970

THE DEPUTY PRESIDENT: Yes.

PN1971

MR KEMP: We have identified areas that need to be amended. We've also engaged with Sharon and Walter to seek their assistance and guidance in the preparation of those documents but, in doing that, we've identified that it would take longer than we originally anticipated, so the email that I circulated yesterday identifies the areas of the handbook and the guidelines that we'd be looking to revise and also noted that we expect to have the amendments available for review from 10 May and then we propose some times for those to be provided to the parties, so we would provide it to the parties and then propose that we receive feedback by 19 May, and then we would consider that feedback and make amendments before circulating a final version to the parties on 26 May. So that was just a timeframe that we propose but that was based on having a draft by 10 May.

PN1972

THE DEPUTY PRESIDENT: Okay. Great.

PN1973

MR KEMP: And Rowena?

PN1974

MS FREELAND: In working through both the handbook and the guidelines and having some in-depth discussions with Sharon and Walter it's clear to us that there will be some issues that we'll need to resolve from an implementation perspective that will take some more time and our expectation would be that we can highlight those in both the handbook and the guidelines, and it will go to issues like the development of resources to support the implantation of the variations to the SWS under the SESA, and we would expect that would take quite a � it would happen over the next 12 months say, and that we would undertake a consultative process to work through that with interested parties.

PN1975

THE DEPUTY PRESIDENT: So just for clarity, Rowena, the changes to the handbook and the guidelines are one thing, and then an implementation process would be handled by way of perhaps, what, it would just be information in an email or a letter.

PN1976

MS FREELAND: Yes, yes, yes, we'd engage with the parties via ‑ ‑ ‑

PN1977

THE DEPUTY PRESIDENT: So they're not part of outline ‑ ‑ ‑

PN1978

MS FREELAND: ‑ ‑ ‑teleconferences.

PN1979

THE DEPUTY PRESIDENT: Right.

PN1980

MS FREELAND: Whatever might work.

PN1981

MR BULL: And you wouldn't want a variation without the guidelines being settled?

PN1982

MS FREELAND: No, we'd be happy for the variation to the award to go ahead without the guidelines being settled. What we would like, however, is for the parties to have an opportunity to see where we propose we would make up dates to the guidelines and the handbooks to give effect to those variations.

PN1983

MR CHRISTODOULOU: Your Honour, having looked at the proposed variation, which I didn't have a major difficulty with last time we talked through that, there was one aspect of the modification that I'm not sure that we'd talked about, and that was there was general agreement, although not necessarily the exact nature of it, that there were certain things that we were doing in an ADE that might not be counted as work time, and that was a very novel sort of � I've always been a bit concerned about it, but that was one of the issues that there was some consensus, well, if you could construct a clause that could sort of break up a person's day without necessarily having all these broken shifts.

PN1984

THE DEPUTY PRESIDENT: All right.

PN1985

MR CHRISTODOULOU: And you were very clear about what wasn't work in the normal way, that that would be taken out of the equation, so I don't know that we've actually had a clause drafted to deal with that actual matter.

PN1986

MR KEMP: So in terms of that the drafting that we've done has been focused purely around the modification to the SWS.

PN1987

MR CHRISTODOULOU: Yes.

PN1988

MR KEMP: The Commonwealth wouldn't object to a clause being drafted to give effect to that, but we see that as not part of the SWS. That would be part of amendments to the award itself.

PN1989

MR CHRISTODOULOU: Yes. Yes, okay.

PN1990

MR KEMP: Which we would be supportive of but we've just focused on modification to the SWS because we own the SWS.

PN1991

MR CHRISTODOULOU: Yes. So just on that, I'm wondering whether we might not have a go at that, and then maybe liaise with Leigh or Steven about, you know, what that clause might look like and then they can � everyone else then one we've had a look at that could have a look at the draft we've come up with.

PN1992

THE DEPUTY PRESIDENT: Right.

PN1993

MR BULL: Maybe we could tick it off that we've ‑ ‑ ‑

PN1994

MR CHRISTODOULOU: Yes.

PN1995

MR BULL: ‑ ‑ ‑queued it to get put it in the award.

PN1996

MR CHRISTODOULOU: Yes.

PN1997

MS WILSON: We would have to look at it very carefully because, I mean, just listening to you now we would be opposing it. Certainly it wouldn't be part of the SWS. It just doesn't � I don't know, I just don't quite ‑ ‑ ‑

PN1998

MR CHRISTODOULOU: That was what we'd all agreed to in the modified SWS. It's actually in the documentation.

PN1999

MS WILSON: No, no, no, we didn't agree to it the way that you're talking about.

PN2000

MR CHRISTODOULOU: It's actually written in there.

PN2001

MS WILSON: No, we didn't.

PN2002

THE DEPUTY PRESIDENT: I think you agreed, for the purposes of the demonstration, did you not?

PN2003

MR CHRISTODOULOU: Yes.

PN2004

MS FREELAND: Yes.

PN2005

MS WILSON: What we agreed is that the SWS assesses work and all of these things are taken into account, so if it is not work then it is not being assessed. It's not part of an assessment tool for work. That's what the tool is about. I mean, you're just complicating something that doesn't need to be complicated.

PN2006

MR CHRISTODOULOU: No, no, Kairsty, I'm not going to argue with you. We've had these discussions before and I clearly � because I had the reservations about it when people raised that if we're doing some other activities; taking people off to social events and whatever, that's not work. They shouldn't get paid for it, blah, blah, blah and I said, "Well, that's what we do. That's part of the" ‑ ‑ ‑

PN2007

MS WILSON: But it's not work.

PN2008

MR CHRISTODOULOU: That's right.

PN2009

MS FREELAND: That's right.

PN2010

MR CHRISTODOULOU: So what we're trying to do is build a clause ‑ ‑ ‑

PN2011

MS WILSON: And so why are you trying to ‑ ‑ ‑

PN2012

THE DEPUTY PRESIDENT: I think you might be agreeing but not appreciating your level of agreement. Leigh, I sense a desire to come in on this?

PN2013

MS SVENDSEN: Yes. There's no requirement to put anything in a clause that says people want to be paid when they're not at work.

PN2014

MS WILSON: Yes, but this is industrial.

PN2015

MS SVENDSEN: This is actually about people being paid and what they are paid when they are working. The fact that you have a social occasion that you're taking them off to that you had currently been paying them for is actually not a part of the instrument. There is nothing in the award now that says you pay people when they're taking them to the zoo.

PN2016

MR CHRISTODOULOU: Yes. We don't take people to the zoo but we do all sorts of ‑ ‑ ‑

PN2017

MS SVENDSEN: No, I'm just using that as an example.

PN2018

MR CHRISTODOULOU: Yes, yes.

PN2019

MS SVENDSEN: You know, I'm not saying you do go to the zoo. I'm just using it as an example. The award doesn't say those things. There's no requirement therefore for us to develop a clause that excludes that.

PN2020

MR CHRISTODOULOU: Okay.

PN2021

MS SVENDSEN: We don't have it in other awards.

PN2022

MR CHRISTODOULOU: I totally agree with you, Leigh, because when this actually got raised many, many months ago, I actually said I was really nervous about this because I think it was Paul or someone else who'd raised it but then it actually appeared in the documentation that we got when we were looking at the modified SWS.

PN2023

MS LANGFORD: I think what you're talking about, Chris, is where we had the definitions around what's paid time and what's not paid time.

PN2024

MR CHRISTODOULOU: That's right.

PN2025

MS WILSON: Paid time.

PN2026

MS LANGFORD: Yes. So ‑ ‑ ‑

PN2027

MS SVENDSEN: It's the product of the handbook not the award.

PN2028

MS LANGFORD: That was what was actually drafted back at that documentation. Yes.

PN2029

MR KEMP: That was instructional material to assist in the conduct of the trial administration.

PN2030

MS LANGFORD: Yes.

PN2031

MR KEMP: But that was not � we didn't see that as being modifications that we would put in to the tool.

PN2032

MR CHRISTODOULOU: No.

PN2033

MR KEMP: If parties agreed that they wanted to do it, we would say that that was separate from the SWS amendments that we're making now, and you would need to do that independent of what we've been drafting, so we wouldn't be looking to draft it I suppose is what I'm saying.

PN2034

MS LANGFORD: So I suppose that's what I'm trying to ascertain, Kairsty, is that you wouldn't be comfortable for those agreed things that we agreed with the terms of what was paid, those definitions, to be actually inserted as a clause into the award.

PN2035

MS WILSON: I'd have to look at them again, but I certainly wouldn't be comfortable and I wouldn't agree, or I'd oppose anything that is, you know, cut out, like, you know, I mean, if you're taking them off to a social � it is not work, so therefore it's not industrial. It doesn't belong in an award.

PN2036

MR CHRISTODOULOU: No. Okay, but ‑ ‑ ‑

PN2037

MS WILSON: You just don't pay them ‑ ‑ ‑

PN2038

MR CHRISTODOULOU: There's some ‑ ‑ ‑

PN2039

MS WILSON: You know, you don't pay them for doing that.

PN2040

MR CHRISTODOULOU: I think we need to go back and relook at the words that were in that document.

PN2041

MS LANGFORD: The definitions.

PN2042

MR CHRISTODOULOU: I haven't got them on me. It's a shame I haven't. And we'll have a look at it and maybe when we next come back we'll � when you come back with the guidelines we might have something to actually show. Whether you agree or not agree is neither here nor there. We'll put something on the table.

PN2043

THE DEPUTY PRESIDENT: We can certainly � we've got them in our system.

PN2044

MR KEMP: Yes.

PN2045

MS LANGFORD: Yes.

PN2046

THE DEPUTY PRESIDENT: So we can certainly make them available to you, and I do think that you need to come to a landing on this because notwithstanding that they are clearly not part of a wage assessment tool, and I don't think that it's ever been suggested that they were, they are clearly a recognition that would give the ADEs a higher degree of comfort in actually agreeing to, and using, more importantly, because at one level it's easy to agree to this proposal ‑ ‑ ‑

PN2047

MR CHRISTODOULOU: If you're not going to use it.

PN2048

THE DEPUTY PRESIDENT: ‑ ‑ ‑because it's optional, but actually what you want to achieve is for people to take up this option and to see a movement towards it, and if there can be clarification about what's paid time and what isn't paid time, notwithstanding when you say look at an award and of course it's not paid time if the person is receiving instruction on budget or financial literacy or they're receiving a psychological counselling session to improve their independence skills, but the trouble is that whilst it seems clear to you, Kairsty, and to you, Leigh, it apparently is not necessarily clear in the implementation in the ADE, so maybe it's not ‑ ‑ ‑

PN2049

MS WILSON: Maybe it's actually the guidelines in the ADE that need to be adjusted not an industrial instrument.

PN2050

THE DEPUTY PRESIDENT: It may be. It may be, but, you know ‑ ‑ ‑

PN2051

MS WILSON: You know, I just think it's becoming confused what we have to recognise as perhaps that that's support that the ADEs are giving that person is one thing, but it's not employment.

PN2052

THE DEPUTY PRESIDENT: But I'd really like you to ‑ ‑ ‑

PN2053

MR CHRISTODOULOU: That is the point, I'm agreeing with you, and therefore if it's not employment, therefore, from our point of view, it may well be that the people don't get paid for that support that we're giving them, right, and therefore but to do that industrially and to break their shift for an hour, or whatever it is, you need to have something in the award that says you can do that otherwise you're paying them.

PN2054

THE DEPUTY PRESIDENT: So don't get your anxiety about the means by which you achieve this outcome in the way of discussing the merit of the substance. Have the discussion about the substance, and then look at, well, how would you actually � where would you reflect that?

PN2055

MS WILSON: Say somebody, like, you know, I'm at work and I think, "Oh, well, I've got to go to the doctor", so I take, you know, a couple of hours to go to the doctor.

PN2056

MR CHRISTODOULOU: Sick leave.

PN2057

MS WILSON: What happens to that? They're just, you know, it's ‑ ‑ ‑

PN2058

MR BULL: They could be paid sick leave.

PN2059

MR CHRISTODOULOU: It's sick leave.

PN2060

MS WILSON: It could be sick leave or I want to go to the airport in the middle of the day, so I take that time.

PN2061

MR BULL: You can calculate all sorts of things as employment related.

PN2062

MR KEMP: Absolutely.

PN2063

MS WILSON: You can. But if you're � you know, if it's not � you still divide how � if you're going to be paid or if it's unpaid leave or whatever.

PN2064

THE DEPUTY PRESIDENT: You get people with sick leave.

PN2065

MR BULL: As Deng Xiaoping said it doesn't matter what colour the cat is as long as it catches mice, so I don't know whether this should be a problem, Kairsty.

PN2066

MS FRENCH: Clarification ‑ ‑ ‑

PN2067

MS WILSON: Well, I mean, as I said, we would oppose it if that's ‑ ‑ ‑

PN2068

THE DEPUTY PRESIDENT: It feels like you're opposing something without knowing what it is, Kairsty, to me.

PN2069

MR CHRISTODOULOU: We haven't seen it yet.

PN2070

MS WILSON: No, no, no, I actually � no, I do know what it is.

PN2071

THE DEPUTY PRESIDENT: No, I don't think anybody knows what it is, because it hasn't been settled upon.

PN2072

MS WILSON: I don't know. I mean, it's ‑ ‑ ‑

PN2073

MS FRENCH: I mean, we would have concerns too. I mean, there's great variation across ADEs in terms some will only do employment; others will have a mixture of other services that they provide. So there is great variation across ADEs. I mean, perhaps in some ways this is a policy or an ADE policy procedure issue. We certainly would have concerns and want to look at it in more detail in terms of what � you know, putting something into an award, as you're saying, or a clause that says, you know, it's okay to do non-work things, and to what degree that's - I mean, there's variation in the services provided by ADEs. There's variation in the amount of work conducted in ADEs. There's also a great variation in the productivity of workers within ADEs, and given that, you know, we haven't had a full assessment across ADEs, there are likely to be people there that are not productive and are spending a lot of their time not working but I just think that we would � I mean, we certainly would have concerns about saying that it's okay to have non-work time put into the actual award on the fact of it. I think I'm agreeing with Kairsty. I think work is work.

PN2074

MR BULL: Does the wording actually say "non-work time".

PN2075

THE DEPUTY PRESIDENT: That's not ‑ ‑ ‑

PN2076

MR CHRISTODOULOU: We haven't drafted anything yet.

PN2077

MS LANGFORD: We haven't drafted anything. That's the draft.

PN2078

MR BULL: I think this idea, and you trivialise it by saying going to the zoo, but there's loads of things that occur in mainstream employment where people go to training courses; they go � have a counselling session; they, you know, get time of for, you know, carer's leave and so forth so ‑ ‑ ‑

PN2079

MS FRENCH: Something like the employee assistance programs.

PN2080

MR BULL: You know, and it still worked in the sense that they're ‑ ‑ ‑

PN2081

MS FRENCH: Yes.

PN2082

MR BULL: ‑ ‑ ‑you know, under direction. You know, it's part of the day.

PN2083

MS WILSON: That to me is work and that � you know, that is related to work, but what Chris is talking about is social events that might take a group off to do social events and that is � if that's not work it shouldn't be ‑ ‑ ‑

PN2084

MR CHRISTODOULOU: Can I just say this in the document � here is the document. I didn't write this document actually because I wasn't involved in it, right?

PN2085

MS WILSON: I didn't say you did.

PN2086

MR CHRISTODOULOU: I think you guys were involved in the writing of this.

PN2087

MS FRENCH: Paul Cane was involved.

PN2088

MR CHRISTODOULOU: It says here:

PN2089

Unpaid time. Voluntary non-work activities offered or arranged by the employer will not be included as paid work time. This includes leisure activities, recreation activities, social events or non-work programs unrelated to the employees' actual job.

PN2090

I have a bit of an issue even with those words, and I wanted to have a talk about that, but just a general principle, you guys had agreed to this and now you're saying we don't agree to it anymore, so, you know, you've got to start to be consistent with the approach.

PN2091

MS WILSON: Hang on a minute. I didn't agree to that. That was something that was just presented. Okay. Paul Cane may have been involved in writing it but there's no � I mean, you can't say that something is agreed to just because you feel like saying it's agreed. When was that put on the table and said, "How do people feel about it?". It wasn't put on the table, to say that it was agreed.

PN2092

MR CHRISTODOULOU: It was all part of the trial that we did.

PN2093

MR KEMP: It's the report.

PN2094

MS WILSON: That's a trial.

PN2095

MS LANGFORD: It was part of the � it was what was agreed.

PN2096

MS WILSON: Part of the initial trial.

PN2097

MS LANGFORD: And was what agreed? There was a steering committee there that was actually being set up ‑ ‑ ‑

PN2098

MS WILSON: That's right.

PN2099

MS LANGFORD: ‑ ‑ ‑which had representatives that were agreed by all parties to represent them within that steering committee, so it had been agreed by your parties that Paul Cane would represent you; that Leigh would actually represent the unions; that NBS would represent some of the employees; there were a few other people who were here; it was agreed at that point of time that these were the representatives; that document was brought back as part of the ‑ ‑ ‑

PN2100

MR CHRISTODOULOU: That's appendix C.

PN2101

MR BULL: Yes.

PN2102

MS LANGFORD: ‑ ‑ ‑demonstration; things that were going to be actually used during the demonstration, so that document has been seen broadly by everybody before the demonstration.

PN2103

MS WILSON: Right. Kerrie, let's go back. Last week ‑ ‑ ‑

PN2104

MS SVENDSEN: It was part of the demonstration process and in relation to the handbook.

PN2105

MS LANGFORD: That's it.

PN2106

MS SVENDSEN: It's got nothing to do with the award.

PN2107

MS FRENCH: I would say how does that differ from any workplace or any � you know, like, as Kairsty was saying ‑ ‑ ‑

PN2108

MS SVENDSEN: It doesn't.

PN2109

MS FRENCH: No. So I don't see why we need to be making special arrangements for ADEs. They are places of work. If someone is not working then they're not paid for that time.

PN2110

MR CHRISTODOULOU: Thank you. That's all I was saying to not � but, no, no ‑ ‑ ‑

PN2111

MS FRENCH: We're not saying that they shouldn't be paid.

PN2112

MR CHRISTODOULOU: But the problem is if I employ somebody now at 20 hours a week, but part of that 20 hours I know I'm providing these things that are not ‑ ‑ ‑

PN2113

MS LANGFORD: Work related.

PN2114

MS WILSON: Then you're not employing them for 20 hours, are you?

PN2115

MR CHRISTODOULOU: No, but wait a minute. But then I can't deduct, at the moment, under the provisions of the award, and I stand to be corrected by Leigh or by Steven, I can't deduct an hour here or there and break their shift even though they're with us, because we're currently paying them.

PN2116

MS WILSON: If you employ them for 20 hours of employment, yes, you pay them, but if you're saying that there are times during that 20 hours that they're not actually doing work ‑ ‑ ‑

PN2117

MR CHRISTODOULOU: Yes, but ‑ ‑ ‑

PN2118

MS WILSON: ‑ ‑ ‑then they're not employed for 20 hours. They're employed for 16 hours or ‑ ‑ ‑

PN2119

MR CHRISTODOULOU: That's right. I'm agreeing with you but I don't know that there's a provision in the award that allows me to break the shift like that, because sometimes shift are continuous. As they say you've got to work a minimum of four hours or you've got to work � if you've given them on a roster of eight hours, it's eight hours.

PN2120

MS WALSH: Could I just raise an issue here from the perspective of the employee and the family carer, and that is that if we actually cut this down to the bone and it's either work or it isn't work and there's no flexibility in between, and no covering in the award, you will find, because ADEs are ADEs, that the wages for some of these workers will be reduced.

PN2121

MS WILSON: What I'm saying is if they're employed for ‑ ‑ ‑

PN2122

MS WALSH: Yes.

PN2123

MS WILSON: ‑ ‑ ‑20 hours then they're employed for 20 hours. But if what Chris is saying is that he's employed them for 20 hours, but in actual fact they're only working 16 hours then their contract should read 16 hours, not 20 hours.

PN2124

MS WALSH: But I guess, Kairsty, in any workplace there are issues or there are activities which are covered by the employer that don't relate to productive work, and I guess from our perspective, we talk about productive capacity, but from a commercial point of view we are actually talking about productive output.

PN2125

MS WILSON: But Chris has actually ‑ ‑ ‑

PN2126

MS SVENDSEN: I think you actually want to take into account that despite the fact that you all seem to consider that for instance, say, training is not productive capacity, that in fact actually does lead to increased productive capacity and therefore is of benefit to an employer, or dare I say other things. No. It's just you're just getting things confused, and Chris � if somebody is actually at the workplace 20 hours because you are actually employing them for 16 and doing four hours support then Kairsty is right, it should in fact be a 16 hour contract with four hours of support and then ‑ ‑ ‑

PN2127

MR CHRISTODOULOU: Then you'll be ‑ ‑ ‑

PN2128

MS SVENDSEN: ‑ ‑ ‑you actually won't have to think about broken shifts because they're not going home. You know, the concept about minimum engagement hours you're not actually paying them for three, sending them home for two, and bringing them back for two.

PN2129

MR CHRISTODOULOU: Okay. I actually think that's a sensible way of thinking about it. If we're very clear on that then maybe it's okay. Then maybe all we do need to do ‑ ‑ ‑

PN2130

MS SVENDSEN: It certainly doesn't require a change to the award.

PN2131

MR CHRISTODOULOU: No, no, but let me go back and have a look at the award and if what you say � the way you've constructed that argument I think I'm okay with that. I just want to go back and have a look at the award to make sure that no-one later on can say, "Look, you know, because it's unpaid for an hour, and that, you know, you can't say that we've breached any provision of the award".

PN2132

MS SVENDSEN: They don't have to stay there though. If you're telling them this hour is unpaid. If you're saying that though because there's nothing else for them to do that's up to them if they stay.

PN2133

MS WALSH: Actually, it's ‑ ‑ ‑

PN2134

MR CHRISTODOULOU: It's more than that. We � yes, okay.

PN2135

MS WALSH: Yes, I guess we're � sorry.

PN2136

THE DEPUTY PRESIDENT: Surely in the future, in some cases, NDIS is actually going to be funding the individual to take advantage of some of those activities.

PN2137

MR CHRISTODOULOU: No, that's exactly right.

PN2138

MS WILSON: That's right. Yes.

PN2139

MR CHRISTODOULOU: So there may well be what you call all sorts of other activities that are not paid employment activities; could be vocational training.

PN2140

THE DEPUTY PRESIDENT: I think you are closer conceptually, but I have to say, at this point, it disappointed me that you're not more sympathetic to each other's real underlying needs, so ‑ ‑ ‑

PN2141

MS WILSON: I'm just saying that this is an award.

PN2142

THE DEPUTY PRESIDENT: Have a conversation.

PN2143

MS WILSON: We're talking about the award and the award provisions.

PN2144

THE DEPUTY PRESIDENT: Yes.

PN2145

MS WILSON: Chris is saying, you know, there's unpaid work, and what I'm saying quite clearly I think is that if it's unpaid time ‑ ‑ ‑

PN2146

THE DEPUTY PRESIDENT: It's unpaid time.

PN2147

MS WILSON: ‑ ‑ ‑then that is not part of the award. I hadn't � you know, I think that it's great that that's happening, but what we need to be doing is concentrating on � you know, and we shouldn't be looking for ways of pulling away, you know, pulling out or taking away from these employees. They get little enough pay as it is, so it concerns me that we want to add clauses here and there that appear to be taking away more from them than what it is.

PN2148

THE DEPUTY PRESIDENT: I want the ADE representatives, and largely believe I've observed this, to be sympathetic to that concern, and to actually, as we identified our common interest, to sign up to that concern, and to look for creative solutions that meet that concern, but I think unless you discuss all of the needs and are ambivalent about how that's captured and explicitly stated and where it's explicitly stated you do yourselves a disservice because the ADEs won't ultimately come to the table in the implementation of the SWS unless they're confident that they can � it's practical for them, and this is making it practical.

PN2149

MS WILSON: Sorry, hang on a minute, it's not just the SWS; it's every single tool in all ADEs. There is going to be � so I just don't know why it's being picked at SWS when in actual fact it is in all ADEs. There is time that, you know, you'd considered that it's down time or unpaid time, so why is it, you know, we have to agree to this, you know, for the modification of the SWS when in actual fact it is every single tool or every single ADE that, you know, if you're talking about it, there is unpaid time, and therefore it just concerns me that it seems to be a way to undermine this process that we had agreed to and then suddenly today we get something else thrown up at it.

PN2150

MR BULL: It's been around for a while apparently, Kairsty.

PN2151

MS WILSON: No. No, it hasn't.

PN2152

MR BULL: I'm not that au fait with it. One of my common solutions to problems is that if you can cut it out, cut it out. Do we need this clause?

PN2153

MS WILSON: No.

PN2154

MR BULL: Can we just get rid of it? Surely this issue is a matter which employer discretion can deal with.

PN2155

MR CHRISTODOULOU: If the award allows us to do it that way, that's fine.

PN2156

MR BULL: No, an award doesn't take away employer discretion.

PN2157

MS WILSON: But perhaps ‑ ‑ ‑

PN2158

MR BULL: Looking at this list it seems to me there are a number of things that are on the border line where in mainstream, and we're taking mainstream employment as our, you know, our standard ‑ ‑ ‑

PN2159

MS WILSON: Yes.

PN2160

MR BULL: ‑ ‑ ‑there are many provisions in awards and agreements where job seeking is done in paid time. In notice periods and so forth most awards provide for job seeking within paid time. Work related educational training activities are commonly paid activities. It's obviously employer discretion because the employer determines that a worker goes to a conference or requires training and so forth. It does seem to me that we're creating a problem, and that if it doesn't in any grand sense diminish the sort of structure of the guidelines can't we simply delete this provision?

PN2161

MR KEMP: In terms of this, this was prepared for the demonstration.

PN2162

MR BULL: All right.

PN2163

MR KEMP: But I saw this as actually being separate, as Kairsty said, separate to the modifications to the SWS. As I said I think it's a separate issue and I'm happy for the parties to talk about it but I think it applies more ‑ ‑ ‑

PN2164

MR BULL: We don't want to talk about it anymore. What I'm saying is can it ‑ ‑ ‑

PN2165

MR KEMP: No, no, no, no, but I think it applies broadly.

PN2166

MR BULL: ‑ ‑ ‑just be cut out?

PN2167

THE DEPUTY PRESIDENT: You might not, Chris, but I think these do.

PN2168

MS WILSON: But it's all part of it though.

PN2169

THE DEPUTY PRESIDENT: Sorry, Steven I mean.

PN2170

MR KEMP: So we wouldn't be having that particularly as part of the SWS. So given we're not going to have it in the SWS, if it was to be considered, our position would be it should be considered outside of the variations that we're looking for.

PN2171

MR CHRISTODOULOU: Yes, I agree with ‑ ‑ ‑

PN2172

MR KEMP: Yes, yes.

PN2173

MR CHRISTODOULOU: ‑ ‑ ‑what James is saying. I'm going to take on board what Leigh has said. I'm going to go back and have a look at the award. We'll have a discussion about it. If we feel we want to pursue it in an industrial sense by putting up a provision to the award we will table something. Whether people want to agree to it or not is another matter but I think that's the best way of proceeding at this stage.

PN2174

THE DEPUTY PRESIDENT: Sam?

PN2175

MS FRENCH: I was just going to say, you know, perhaps what's - putting, you know, myself in the shoes of the ADEs it's probably what's needed then, I mean, what you've put on the table is perhaps, you know, a concern that a lot of ADEs might have. So perhaps it's about providing some additional information, some notes to, you know, to explain that because ADEs haven't been treated as workplaces in the past, and, you know, as I said, there's a lot of variation in how ADEs operate, so maybe if there is need for some extra guidance or notes or explanation as how, you know, they can implement an award. I'm not being patronising. I'm just saying, you know, that may be a real genuine concern of many ADEs, and it's maybe just a matter of providing some additional notes to that, but not as part of the award, so � yes.

PN2176

MS LANGFORD: Could I just probably respond to that, Sam, is going forward when, you know, ADEs are no longer funded by DSS; that there won't be guidelines that are being developed in terms of, or contracts between the Australian Disability Enterprise or the Commonwealth, that literally this will be a business who will be an employer who is employing somebody who will be attracting funding under the NDIS and so there will be the quality framework and the things that sort of drive how an organisation can actually provide that support but there won't be guidelines as per se actually as to outlining that, so ‑ ‑ ‑

PN2177

MS WILSON: Won't there be guidelines though at the ADE?

PN2178

MS LANGFORD: I mean, if the ADE is operating then there needs to be guidelines. There needs to be policies, and I see what is being raised ‑ ‑ ‑

PN2179

MS WILSON: Yes.

PN2180

MS LANGFORD: ‑ ‑ ‑as part of the actual ADE. So if you've got somebody who is coming looking for work and, you know, there would have to be that conversation. There'd have to be a contract between the employee or prospective employee and the ADE.

PN2181

MS WILSON: Yes, absolutely.

PN2182

MS LANGFORD: Part of that conversation would be, "All right, look, I'm going to employ you for 20 hours, but you can attend for 25 because we do all of these other things. They're not employment related" ‑ ‑ ‑

PN2183

MS WILSON: Correct.

PN2184

MS LANGFORD: ‑ ‑ ‑"and we might end up that, you know, you do five days a week and you attend five hours a day, but some of that time is spent doing dah, dah, dah", whatever. I mean it's not part of the actual ‑ ‑ ‑

PN2185

MS WILSON: Yes, I agree.

PN2186

MR CHRISTODOULOU: As long as we can do that without ‑ ‑ ‑

PN2187

MS FRENCH: Yes, I agree.

PN2188

MS WILSON: Absolutely agree. Yes, agree. Yes.

PN2189

MR CHRISTODOULOU: As long as we can do that without breaching the award I'm okay with that.

PN2190

MS WILSON: But, Chris, that's what we're saying, it's not part of the award.

PN2191

MR CHRISTODOULOU: I haven't ‑ ‑ ‑

PN2192

MS WILSON: But it's part of your relationship with your perspective employee.

PN2193

MS LANGFORD: Yes.

PN2194

MR CHRISTODOULOU: That's right.

PN2195

MS WILSON: And I could do the same now with any of my employees and not breach any award because I've got a contract. I've got that � it's ‑ ‑ ‑

PN2196

MR BURGESS: It's like an employer saying, "When you knock off at 5 you can use the computers till 7 to, you know, do the invitations to your children's birthday party". An employer has the capacity to do that.

PN2197

MS WILSON: Thank you. I'd like to do that.

PN2198

MS LANGFORD: I actually think we all agree. I mean, I ‑ ‑ ‑

PN2199

MS WILSON: It's just not part of the award. That's what I'm saying.

PN2200

MS LANGFORD: Yes. I think we all agree.

PN2201

MS WILSON: Yes.

PN2202

MR BURGESS: The beauty of this process, we have a record. Can we actually say we agree?

PN2203

MS WILSON: Yes.

PN2204

MR CHRISTODOULOU: No, I want to go back into the award.

PN2205

MR BULL: Chris, you're the difficult one.

PN2206

THE DEPUTY PRESIDENT: You agree in principle or conceptually.

PN2207

MR CHRISTODOULOU: Yes. Yes. Yes.

PN2208

MS WILSON: I would agree if it's not part of the award definitely.

PN2209

THE DEPUTY PRESIDENT: And the ADE representatives simply want to consider whether or not they think there's any risk associated with leaving it like that.

PN2210

MR CHRISTODOULOU: That's all.

PN2211

MS WILSON: Yes.

PN2212

MR BULL: Okay. So subject to, if Chris is satisfied that it's not risky, this issue is determined and we can move on.

PN2213

THE DEPUTY PRESIDENT: I think it's certainly parked for now because there's a process agreed and Chris is going to be the one to bring back either concerns or concerns plus a solution to concerns. Okay. So can we go back to the bigger picture of the timetable and process for the department to make the modifications to the guidelines and handbook bearing in mind that they are ultimately, as we know, owned by the Commonwealth and it's the Commonwealth seeking to incorporate concerns and ideally get consensus, but if consensus can't be reached I presume you will obviously publish the guidelines and handbook as you see fit, but you're looking for that very rich involvement and driving towards consensus, and the proposed timetable is as on page 2 of the email; draft by 10 May, comments back by the 19th and an endeavour to have the final version done by 26 May. What do people think about that?

PN2214

MR BULL: I'm comfortable with that.

PN2215

THE DEPUTY PRESIDENT: And everybody is part of the consultation, so there's no particular group that then works with the Commonwealth. Presumably you're happy to get all of the different feedback and you'll manage the reconciliation of that with the documents yourselves.

PN2216

MR KEMP: Yes. As I said we've engaged with Walter and Sharon to be the expert sort of advisors in the preparation of this as well so we're happy that in doing that, given their standing in the conciliation processes today, that will help produce something that hopefully the parties will be comfortable with, because while we can publish it, you know, we don't want to be publishing something that's going to cause division amongst the parties. Our preference would be that it was something that everyone was relatively comfortable with.

PN2217

THE DEPUTY PRESIDENT: Okay. So we can � the record will show that that timetable is acceptable to the parties and obviously if we have further conciliations in that timeframe we'll hear about the progress. If it turns out that we don't then the parties will simply be engaged with directly by the Commonwealth, which then brings me back, I think, to the variations, that is, the creation of appendix D1. I didn't re-read the notes of the last meeting or the transcript carefully enough to recall whether there was going to be a new draft brought forward of that.

PN2218

MR KEMP: Yes. So we've sought additional drafting based on comments that we received at the last meeting. I think the issue was that Chris had raised that rather than having appendix D as it is at the moment with an annexure D1 to that, that we should just have a whole new schedule, and call it something like D1. That incorporates everything. As I had stated the reason we had drafted it the way we did was to try and not amend the schedule D to try and provide some consistency. We'll have two draft versions and really we'll be guided by the Commission about which is the preferred way in which it should be presented. Taking on board Chris's comments about ease, but if the consistency is preferred then that's what we'll go with, so ‑ ‑ ‑

PN2219

THE DEPUTY PRESIDENT: So it would be sensible though, wouldn't it, for everyone to express their level of comfort with both the drafts and as between them, so I think ultimately if an agreement can be reached then it won't be necessary to get the Full Bench's guidance, but if an agreement can't be reached, then there will need to be a proper process of making submissions and having the Commission determine the matter which would be unfortunate.

PN2220

So what's the timetable for that and how are you going to progress that?

PN2221

MR KEMP: We have had some delays in � I mean, we've managed to turn them around pretty quickly to date, but given the Easter period and our lawyers not being available it's just taken a little bit longer. We've got a meeting ‑ ‑ ‑

PN2222

MS WILSON: Sorry, could you do that in the same timetable? Wouldn't it make it ‑ ‑ ‑

PN2223

MR KEMP: It'll certainly be done within the timeframe of the guidelines. It'll probably be able to be done ‑ ‑ ‑

PN2224

MS WILSON: I was going to say wouldn't it be worthwhile getting it, you know, like, at the same time so that we've got, you know, the whole picture to consider.

PN2225

MR KEMP: Yes.

PN2226

MS WILSON: Rather than have that and � because if we're going to consider, you know, any amendments; suggest any amendments, I mean, maybe we can give feedback at that time as well which would help.

PN2227

MR KEMP: We'll certainly be in a position to circulate the two versions by the 10th absolutely. We had hoped to be able to have the revised versions for this meeting today, but that just wasn't possible, so ‑ ‑ ‑

PN2228

THE DEPUTY PRESIDENT: All right.

PN2229

MS WILSON: It just makes sense if have it at the � you know, follow the same process.

PN2230

THE DEPUTY PRESIDENT: Does everyone agree with Kairsty on that one?

PN2231

MS LANGFORD: We're comfortable with that. Yes.

PN2232

THE DEPUTY PRESIDENT: Good. Nods all around. That's good, Kairsty. All right. There'll need to be, I guess, some toing and froing and Rowena and James will manage that. But there are ‑ ‑ ‑

PN2233

MS WILSON: Sorry. If we had the amendments, you know, like any suggestions by the, whatever, the 19th, was it?

PN2234

MS WALSH: Nineteenth.

PN2235

THE DEPUTY PRESIDENT: Same thing, the 19th.

PN2236

MS WILSON: Yes, and then ‑ ‑ ‑

PN2237

THE DEPUTY PRESIDENT: Yes, and an attempt to resolve. I mean, this is one where, you know, it really is essential to get agreement because it's a variation to the award.

PN2238

MS WILSON: Yes.

PN2239

THE DEPUTY PRESIDENT: And the Commission is not going to put it into the award unless it's completely agreed.

PN2240

MS WILSON: Yes.

PN2241

THE DEPUTY PRESIDENT: Which brings me to the point of those two outstanding matters of weighting and the percentage; how have we progressed on those?

PN2242

MS WILSON: Can I just say in regards to weighting I was going to speak to Walter and Sharon in regards to the 50-50 and the 20 per cent weighting. Walter's father passed away, and so I wasn't able to � I just didn't want to ‑ ‑ ‑

PN2243

THE DEPUTY PRESIDENT: Of course.

PN2244

MS WILSON: ‑ ‑ ‑talk to him about it, so I haven't had a chance to. I guess going back to that, if their view is that, you know, the 20 per cent is okay, is a fair enough figure, then I would be happy with that. So I would like their advice because I think that they work in the area and so that variation of 20 per cent I need to be comfortable hearing that they're, you know � and having talked to Paul about it as well, you know, that's where we would go, that we would support it if we think � if the discussions that I'd had previously was that, you know, there was a suggestion where I said the last time was five per cent. That was after discussions with them, so I need to go back and see whether that's how they ‑ ‑ ‑

PN2245

THE DEPUTY PRESIDENT: Sure. So we know that the ADEs are comfortable with it. Kairsty needs absolutely to get comfortable with it. Leigh and Steven, are you going be guided by the disability advocates on this one?

PN2246

MR BULL: Yes. No, not � we don't do what they say we do.

PN2247

THE DEPUTY PRESIDENT: No, guided. It's different from ‑ ‑ ‑

PN2248

MR BULL: No, look, I'm assuming we can deal with it.

PN2249

THE DEPUTY PRESIDENT: All right. Leigh?

PN2250

MS SVENDSEN: Yes, well, we'll get it when it's finished I think, but, yes.

PN2251

THE DEPUTY PRESIDENT: All right.

PN2252

MS SVENDSEN: I think I've kept track of what we have been talking about, but not necessarily. I can't quite hear you all.

PN2253

MR BULL: I hoped to be guided by Leigh.

PN2254

THE DEPUTY PRESIDENT: Sam, did you want to say something?

PN2255

MS FRENCH: No, no, not at this point.

PN2256

THE DEPUTY PRESIDENT: All right. In that case we can't land that here and now but it does look very good in terms of it being on a pathway to a resolution because I think everybody here has a great deal of respect for Walter and Sharon, and so we hope that their input adjusts it, then I'm sure everybody would listen very carefully to that. If their input gives Kairsty comfort then that should conclude the matter.

PN2257

MS LANGFORD: Sorry, there are the two.

PN2258

THE DEPUTY PRESIDENT: No?

PN2259

MS LANGFORD: No, so the 20 per cent that's ‑ ‑ ‑

PN2260

THE DEPUTY PRESIDENT: Weighting.

PN2261

MS LANGFORD: ‑ ‑ ‑weighting.

PN2262

THE DEPUTY PRESIDENT: Yes. Yes.

PN2263

MS LANGFORD: We're very comfortable and that is our position.

PN2264

THE DEPUTY PRESIDENT: Yes.

PN2265

MS LANGFORD: But the 50 per cent weighting in terms of the data that we, yes, are prepared to really move on that because that was what ‑ ‑ ‑

PN2266

THE DEPUTY PRESIDENT: No, but I thought that basically your level of comfort is all about the ‑ ‑ ‑

PN2267

MS WILSON: No, because the 50-50 was � you know and then ‑ ‑ ‑

PN2268

THE DEPUTY PRESIDENT: Yes, so that's given.

PN2269

MS WILSON: ‑ ‑ ‑going back to that ‑ ‑ ‑

PN2270

THE DEPUTY PRESIDENT: So that's whether it's 20.

PN2271

MS LANGFORD: Yes, the 20. Yes.

PN2272

MS WILSON: Then we'd move on to the other area.

PN2273

THE DEPUTY PRESIDENT: So it's the weighting as a package.

PN2274

MR CHRISTODOULOU: So the 50-50 is okay now?

PN2275

MS LANGFORD: The weighting, yes.

PN2276

MS WILSON: Yes, as long as we get ‑ ‑ ‑

PN2277

MR CHRISTODOULOU: Okay. All right.

PN2278

MS WILSON: You know, the rest of it is agreed to.

PN2279

MS LANGFORD: Yes, yes. Beautiful.

PN2280

MR CHRISTODOULOU: Okay.

PN2281

MS LANGFORD: Okay.

PN2282

THE DEPUTY PRESIDENT: The slightly more difficult one perhaps of the percentage, and you'll recall on the last occasion it really was a question of anywhere between 12.6 and 12.1 something; 19, I think.

PN2283

MS LANGFORD: You know, Kairsty, you indicated the other day that you would settle at 12.5. We're actually happy to settle at 12.5 per cent.

PN2284

MS WILSON: Good.

PN2285

THE DEPUTY PRESIDENT: Okay. Then that's a ‑ ‑ ‑

PN2286

MR BULL: That's all agreed, is it?

PN2287

MS WILSON: We are. Yes, Steven, we've got an agreement.

PN2288

MR BULL: Put it in the transcript perhaps then.

PN2289

THE DEPUTY PRESIDENT: It's on the transcript. It's in my notes.

PN2290

MS LANGFORD: Yes, absolutely, for 12.5 per cent.

PN2291

THE DEPUTY PRESIDENT: Yes. That's terrific. So we'll settle at 12.5.

PN2292

MS WILSON: Can I just question that?

PN2293

MR BULL: It was agreed to.

PN2294

MS WILSON: No, hold on a minute, Steven. At this stage we've got $82. Then it will go up. We will reach a time � so there's meant to be another review in four years perhaps maybe.

PN2295

MR BULL: There won't be.

PN2296

MS WILSON: All right. There won't be. So if it gets to a point that the amount ‑ ‑ ‑

PN2297

THE DEPUTY PRESIDENT: The DSS.

PN2298

MS WILSON: The DSS � not the DSS, you know, the amount.

PN2299

THE DEPUTY PRESIDENT: Sorry, DSP. There's too many acronyms.

PN2300

MS WILSON: Yes. But when you divide � the actual � it's by 38. It's over 12.5, we will need to look obviously at that and keep track of it.

PN2301

THE DEPUTY PRESIDENT: I think if you agree to this now for the award, and that happened, then you'd need to come back and seek a variation.

PN2302

MS WILSON: Yes.

PN2303

MS LANGFORD: Yes.

PN2304

MS WILSON: And vary it for ‑ ‑ ‑

PN2305

THE DEPUTY PRESIDENT: Have it conciliated. If you couldn't get agreement, have it arbitrated.

PN2306

MS WILSON: Yes. Because if that's the figure that the SWS � you know, the amount the SWS uses we would need to ensure that 12-and-a-half per cent was not below that. Does that make sense?

PN2307

MS FRENCH: Yes. Yes. Yes.

PN2308

THE DEPUTY PRESIDENT: But that would be for another time.

PN2309

MS WILSON: Yes, I know, but I just wanted to make that clear that we're agreeing to ‑ ‑ ‑

PN2310

THE DEPUTY PRESIDENT: Yes.

PN2311

MS WILSON: ‑ ‑ ‑you know, like, the 12.5, but we need to ensure that we keep abreast of that.

PN2312

THE DEPUTY PRESIDENT: Yes. No, no, that's ‑ ‑ ‑

PN2313

MS WILSON: Yes.

PN2314

THE DEPUTY PRESIDENT: I don't mean to say that's not � that's totally appropriate because what you're doing is just foreshadowing what your attitude would be should the driver of this ‑ ‑ ‑

PN2315

MS WILSON: Just say it went up to $100, the amount ‑ ‑ ‑

PN2316

THE DEPUTY PRESIDENT: Yes. Yes.

PN2317

MS WILSON: ‑ ‑ ‑well, 12-and-a-half per cent is not going to cut it, is it?

PN2318

THE DEPUTY PRESIDENT: Sure.

PN2319

MS WILSON: You don't know. So ‑ ‑ ‑

PN2320

THE DEPUTY PRESIDENT: It depends ‑ ‑ ‑

PN2321

MR BULL: Sadly I don't think the DSP is going to up in that it just went up.

PN2322

THE DEPUTY PRESIDENT: No. Of course the 12-and-a-half per cent will increase as the minimum wage increases too so ‑ ‑ ‑

PN2323

MS WILSON: Yes, it's the minimum wage and the way that you're allowed to � yes.

PN2324

THE DEPUTY PRESIDENT: The beauty of a percentage is that the dollar figure that the employee receives will continue to increase as the minimum wage changes happen.

PN2325

MS LANGFORD: Yes. Which is why we were quite comfortable with that, so � yes.

PN2326

THE DEPUTY PRESIDENT: Yes. Okay. Very good. All right. So that's good guidance and for the drafting variation, the drafting being done by the department in relation to the variation. So in terms of an overall timeframe, if these things come together nicely then you should be in a position to reach an agreement that the Full Bench could be informed of in the early part of June. Just so you know I won't be here in June. I'm having a month off from 5 June to 3 July, so we just need to make sure � and it's very much sort of industrial parties thing, I think. It's a Sina thing and a Steven and a Leigh thing, but in order to process this there'll just need to be some communication with the Full Bench about it, but I'll prep the Full Bench or at least the President so that he's � and if I hear back any kind of, you know, concerns that he's got I'll convey them to you, but I'm thinking that probably in the first week or two weeks of June you'd be in a position to actually put an agreed variation to the Full Bench.

PN2327

MS WILSON: Is it worth � you know, we were talking about dates, you know, for potentially coming back and discussing more, that we set one for after � what was it � 26 May before you go away? Is that going to be too ‑ ‑ ‑

PN2328

THE DEPUTY PRESIDENT: Unless it's a Saturday.

PN2329

MS WILSON: No, no.

PN2330

THE DEPUTY PRESIDENT: Grace, have we got anything in that week? Yes, that's the week I'm in Darwin.

PN2331

MS FRENCH: I don't mind going to Darwin.

PN2332

MR BULL: I have to go to Darwin too.

PN2333

MS LANGFORD: Yes, that'll be nice.

PN2334

MS WILSON: I mean, what's the difference? You know, Sydney, Darwin.

PN2335

MR BULL: It's hotter in Darwin.

PN2336

MS WILSON: So can we just note too that NDS conference actually is 15 and 16 May so those dates, and there are a few things it's going to be quite a congested time.

PN2337

MS LANGFORD: I think it's after anyway.

PN2338

MS WILSON: Yes. Yes.

PN2339

MS LANGFORD: I think it's 26 May.

PN2340

THE DEPUTY PRESIDENT: Yes, that's right.

PN2341

MS FRENCH: Where is it?

PN2342

MS LANGFORD: It's in Brisbane.

PN2343

THE DEPUTY PRESIDENT: Right.

PN2344

MS WILSON: Why don't you have it in Darwin and we can all come.

PN2345

MS LANGFORD: I would love to have it in Darwin.

PN2346

THE DEPUTY PRESIDENT: What about here. What about we do something here in the afternoon of the 29th and cross-over into the morning of the 30th if needs be, although you hope that there wouldn't need to be ‑ ‑ ‑

PN2347

MS WILSON: No, but if there's more discussion in regards to other tools and other, you know, because the work that's being done in between times, you know, it's useful to have that, you know, to have that time.

PN2348

THE DEPUTY PRESIDENT: How would people feel about the afternoon of 29 May, say starting from 2 o'clock?

PN2349

MS FRENCH: I'm not available because I'm actually flying to Darwin for the 1st.

PN2350

THE DEPUTY PRESIDENT: I'll see you in Darwin, Sam.

PN2351

MS FREELAND: We could all go to Darwin I really don't mind.

PN2352

THE DEPUTY PRESIDENT: I wouldn't mind at all either but it's probably unrealistic in terms of other people's, you know, financial capability.

PN2353

MR CHRISTODOULOU: I'm not available, but that doesn't matter.

PN2354

MS FRENCH: I'm pretty sure flights are in the afternoon.

PN2355

THE DEPUTY PRESIDENT: What time flight are you taking to Darwin on that day?

PN2356

MS FRENCH: I don't know. I just understand it's in � the flights are afternoon flights.

PN2357

THE DEPUTY PRESIDENT: Yes. So couldn't you do � so, I see. Could we do the morning of that Monday?

PN2358

MS FRENCH: Yes. Yes.

PN2359

MR KEMP: Yes.

PN2360

MR BULL: I'm around then.

PN2361

THE DEPUTY PRESIDENT: Like, even start at 8 o'clock.

PN2362

MS FRENCH: Yes.

PN2363

MR BULL: I'd prefer not to.

PN2364

MS SVENDSEN: What date are we talking about?

PN2365

THE DEPUTY PRESIDENT: Twenty-ninth of May. To have a day where it's post the expiry of the timetable for development of the guidelines and the variation. Just to lock down any kind of loose ends.

PN2366

MR BULL: Can't we just have a one hour conference at 9.30 or 10, because I think too much time is unhelpful. If this is simply to hopefully tick off, we can do that in that time and then ‑ ‑ ‑

PN2367

MS WILSON: Whether it was actually talk about � to go through � there's a lot more to discuss, so if we're going to do it, then why not put that aside ‑ ‑ ‑

PN2368

MR BULL: What's ‑ ‑ ‑

PN2369

MS WILSON: ‑ ‑ ‑you know, and then ‑ ‑ ‑

PN2370

THE DEPUTY PRESIDENT: You've got your other aspects of the award.

PN2371

MS WILSON: Yes, correct.

PN2372

THE DEPUTY PRESIDENT: And you've got the big issue of the other tools. They probably could be put on other days, even earlier than that, because I do have days earlier than that.

PN2373

MS SVENDSEN: We have ‑ ‑ ‑

PN2374

THE DEPUTY PRESIDENT: I'm just trying to accommodate.

PN2375

MS SVENDSEN: On that it would be better to actually have some indication of exactly what's being sought by people that we were going to talk about.

PN2376

MR BULL: Yes ‑ ‑ ‑

PN2377

MS SVENDSEN: I mean, one of the things that � some of the conversation this morning you've certainly, well, failed in because we don't actually know what we're all talking about. We don't know if we're talking about award variations or not, and so it seems to me that we actually ought to have something concrete that we're discussing.

PN2378

THE DEPUTY PRESIDENT: Yes. Can we come back to that, Leigh, because you've got to ‑ ‑ ‑

PN2379

MS SVENDSEN: Yes.

PN2380

THE DEPUTY PRESIDENT: Let's just stick to the SWS for a moment. You've got a timetable that ends on the 26th. You are hoping you will have consensus on both the variation to the award and that looks very good.

PN2381

MS WALSH: And the guidelines.

PN2382

THE DEPUTY PRESIDENT: And the guidelines, and you might have some loose ends, and there's this window between, at least if you sought my assistance between 26 May and 3 June.

PN2383

MS WILSON: June, yes.

PN2384

THE DEPUTY PRESIDENT: It could be by telephone even. Just to make sure that you've got it. I've got the feedback from the President about how he could handle it. You know, you absolutely have certainty about how that's going to proceed. In relation to the bigger question of the other wage tools plus all the little � I will call them rats and mice, but don't take offence, but there's a whole lot of little things in this award that you think you're going to get agreement about and they're completely unrelated to wages. I certainly can offer you some other dates earlier than the 26th that we can have some whole days or even half days or whatever. That's where I think your point, and Sina started the conference with that very same point. Leigh says let's be clear about what it is that the parties are actually seeking.

PN2385

MS WILSON: Yes.

PN2386

THE DEPUTY PRESIDENT: Let's, you know, have in effect agreed directions that by a certain date everybody puts on the table the other changes they want to the SESA apart from this change. But would you like, on the morning of 29 May, which I could do, and it would accommodate Sam, by changing a case around just to have either a face-to-face or a telephone to lock away this variation that we're now talking about?

PN2387

MS FRENCH: I'm sorry to be a pain, actually looking at my diary I'm delivering training all day on the Monday, the 29th, and then taking the red eye to Darwin in the evening.

PN2388

MS WILSON: See, I knew you could go on that one.

PN2389

MS FRENCH: So, sorry I'd forgotten that.

PN2390

THE DEPUTY PRESIDENT: You poor thing.

PN2391

MS FRENCH: Yes. And then I'm busy all day the 30th. But what about � did you say you're available on the Friday the ‑ ‑ ‑

PN2392

THE DEPUTY PRESIDENT: I don't think I did. Grace will tell us.

PN2393

MS FRENCH: Because if the deadline is the 26th then ‑ ‑ ‑

PN2394

MR BULL: You got a week.

PN2395

MS SVENDSEN: The deadline is the 26th in the sense that James is suggesting that we ‑ ‑ ‑

PN2396

MR KEMP: Have a look at the versions.

PN2397

MS SVENDSEN: I'm just re-looking at that email, and James is suggesting that on the 26th the final version will be sent to the parties.

PN2398

MR KEMP: That's right.

PN2399

MS FRENCH: It's too short, yes.

PN2400

THE DEPUTY PRESIDENT: So really you wouldn't really be able to � you had concerns.

PN2401

MS WALSH: Difficult when you've got to travel so far because only got stuff today.

PN2402

MS SVENDSEN: It says there's - you know (indistinct) by the 10th the draft, comments back by the 19th and a final version circulated to parties on the 26th.

PN2403

THE DEPUTY PRESIDENT: I mean, if there's no issues James and Rowena can really be those who alert. If there are no issues, you don't need a conversation about it. It's just that by the 26th you've got a document and everyone, you know, sends emails and says we agree. If it turns out there are issues, they may well become apparent before the 26th anyway and James can write to me and say, "We're going to need a session".

PN2404

MR KEMP: We should know by the 19th because if everyone has to provide comments by the 19th, and if the comments are just, sort of, you know, run of the mill little bits then that's probably fine. If there's big division then I think we'll probably have a good idea then.

PN2405

MS WILSON: Correct.

PN2406

MS FREELAND: If the parties are comfortable to cc in all of the parties when they're providing that feedback back to us then you'll be clear if you're going to be not in agreeance with something that another party is putting forward.

PN2407

MS FRENCH: If I'm not available, you know, Mark can attend, so I'm not critical to attend.

PN2408

THE DEPUTY PRESIDENT: So I think we're at the point of saying let's not lock anything in.

PN2409

MS LANGFORD: Yes.

PN2410

THE DEPUTY PRESIDENT: But James and Rowena will alert my Chambers if it looks like we need a session and then we can consult the parties about whether it's a telephone or a face-to-face.

PN2411

MS WILSON: I guess that's easy enough if you've got other people who can attend or do whatever, but I can't.

PN2412

THE DEPUTY PRESIDENT: Stand in for you.

PN2413

MS FRENCH: Yes.

PN2414

MS WILSON: And my time is very limited.

PN2415

MR BULL: We'll do something which suits you too.

PN2416

MS FRENCH: Yes.

PN2417

MS WILSON: I mean, I would like it, you know, even if we just lock in a teleconference on that day for an hour. If we don't need it, we don't need it.

PN2418

MS FRENCH: Yes.

PN2419

MS WILSON: Yes, I need to basically have it in my calendar, that's all.

PN2420

THE DEPUTY PRESIDENT: It sounds like it won't matter if it's not in the morning because Sam is not available anyway.

PN2421

MS WILSON: Yes, no, that's okay.

PN2422

THE DEPUTY PRESIDENT: So I'm happy to lock in a teleconference at 2 o'clock on the 29th if people can do that.

PN2423

MS WALSH: That's better, because it's very difficult to arrange travel times.

PN2424

MS FRENCH: Yes.

PN2425

THE DEPUTY PRESIDENT: Yes.

PN2426

MS WALSH: You actually lose it when you have to cancel.

PN2427

MS FRENCH: Yes.

PN2428

THE DEPUTY PRESIDENT: Yes, I know.

PN2429

MS LANGFORD: Agreed.

PN2430

THE DEPUTY PRESIDENT: Grace, is that okay? Two o'clock on the - maybe 3. Grace is suggesting 3 o'clock. She's must more realistic than I am.

PN2431

MS WILSON: Why, sorry?

PN2432

THE DEPUTY PRESIDENT: We have a hearing - a jurisdictional ‑ ‑ ‑

PN2433

MS WILSON: Can I be a pain and say 4 o'clock?

PN2434

THE DEPUTY PRESIDENT: Four?

PN2435

MS WILSON: Because I've got swimming lessons, so ‑ ‑ ‑

PN2436

THE DEPUTY PRESIDENT: Yes. How do people feel about 4? Yes, 4 pm, 29 May, teleconference.

PN2437

MS FRENCH: Yes.

PN2438

THE DEPUTY PRESIDENT: The specific purpose of this teleconference is just to finalise the SWS variation and associated, you know, handbook and guidelines issues, if any. All right. That's the last word on that. So that means that we are concluded on the variation agenda item, which brings us back to sort of all the other things, both the big issue of the other wage assessment tools and Sina has suggested that really we're not ready to have a conversation about that here and now, and that you would like the opportunity of putting your members' views in writing.

PN2439

MR MOSTAFAVI: Yes.

PN2440

THE DEPUTY PRESIDENT: What do other people feel about that and is it a sequential thing where � because obviously we know that the advocates' preference is for the abolition of the all the tools, so if the ADEs have some proposals then it'd probably be best for you to go first.

PN2441

MR MOSTAFAVI: Yes.

PN2442

THE DEPUTY PRESIDENT: A bit like the timetable that James has set down, for there to be a timetable for the advocates to look at that, see whether there's any room for adjusting the blanket removal position, and if there is, then I think it requires, you know, a conciliation session. If there isn't then it's referred to the Full Bench and a directions timetable is given.

PN2443

MS LANGFORD: Yes.

PN2444

MR BULL: But maybe, as you say, let's park that because I think there are some constructive matters which we can deal with.

PN2445

THE DEPUTY PRESIDENT: But it would be good to get a timetable.

PN2446

MR BULL: Yes.

PN2447

THE DEPUTY PRESIDENT: We're parking the substance but in terms of just giving the ADEs a timeframe within which to prepare that material, what are your needs and then ‑ ‑ ‑

PN2448

MR BULL: By sort of the end of the current millennia, I don't know.

PN2449

THE DEPUTY PRESIDENT: Come on.

PN2450

THE DEPUTY PRESIDENT: Let's ask them first, Steven. So it's their piece of work.

PN2451

MR MOSTAFAVI: Why don't we be guided in the first instance by your availability, your Honour, in terms of you indicated you've got some earlier availability.

PN2452

THE DEPUTY PRESIDENT: Yes. Yes. Yes.

PN2453

MR MOSTAFAVI: Then we can work within that the timeframe.

PN2454

MS LANGFORD: Yes. I think that's ‑ ‑ ‑

PN2455

THE DEPUTY PRESIDENT: It's probably sooner. It may be sooner than is convenient for you, but I could do 5 May all day. I could do 4 May from 11 am.

PN2456

MR BULL: Yes. Deputy President, if this is dealing with this (indistinct) competency issue I don't want to be rude but is there any point in having even a notional conciliation?

PN2457

THE DEPUTY PRESIDENT: We won't know, will we?

PN2458

MR BULL: Because it seems to me that the parties are � we've talked ourselves to death about it and no-one is going to agree, and I can indicate that one of the reasons we want to withdraw our variation is that we will participate in an arbitration but we do not have the capacity to run it so it is for others to run a merit evidenced arbitration seeking removal of these tools.

PN2459

So I don't think there's any point having a conciliation, and I know this place is busy; whether we should list dates and those � or what of the point, maybe just have a timetable for evidence and submissions and we can then address what sort of time is required for the arbitration.

PN2460

THE DEPUTY PRESIDENT: But I wouldn't be giving those directions, Steven. It would be the President.

PN2461

MR BULL: I know, but I'm just � I'm not trying to be abrupt, but I just think there's no point in any further conference, conciliation, whatever you want to call it.

PN2462

MS LANGFORD: We might - yes, if we could have a ‑ ‑ ‑

PN2463

THE DEPUTY PRESIDENT: ADEs would like to break for a caucus or discuss that. So ‑ ‑ ‑

PN2464

MR BULL: All right. There's one further matter which I want � because I've got to leave around 12.

PN2465

THE DEPUTY PRESIDENT: All right.

PN2466

MR BULL: I do want to talk about superannuation.

PN2467

THE DEPUTY PRESIDENT: Superannuation. So would you be prepared to park that, have the superannuation conversation?

PN2468

MS LANGFORD: Yes. Yes.

PN2469

THE DEPUTY PRESIDENT: All right.

PN2470

MS WILSON: Can I just say that we obviously support Steven's view in regards to that. I mean, I can't see any point in continuing to talk about something that we're not going to reach agreement on. I think it's, particularly in that bigger picture for it go to a ‑ ‑ ‑

PN2471

MR BULL: There's two options: we park it; it is adjourned ‑ ‑ ‑

PN2472

MS WILSON: We can't park it. It's gone on too long.

PN2473

MR BULL: ‑ ‑ ‑sine die or we have orders, and the orders would not necessarily involve hearing dates but they may involve the parties putting their cards on the table, at least in terms of submissions.

PN2474

MS WILSON: We wouldn't agree to it being parked sine die. We would want it � you know, it's been a long time coming and I think it's time that we, you know, took that step now.

PN2475

THE DEPUTY PRESIDENT: I think if it's going to be preparation for arbitration then the whole package has to be driven by the President.

PN2476

MS WILSON: Yes. No, I agree. It's not - yes.

PN2477

THE DEPUTY PRESIDENT: Anything that I issue or agree to. But you might be persuaded after � although, Steven, you won't be here but the ADEs just want to think about that. You don't know what - they might come back and say, "Actually we'll abolish all these tools if you do this".

PN2478

MS FREELAND: They might come back and say, "Right, let's get rid of them all (indistinct).

PN2479

THE DEPUTY PRESIDENT: That's right. So let's not rush ahead too quickly. Superannuation?

PN2480

MR BULL: I just looked at this.

PN2481

THE DEPUTY PRESIDENT: Touched on this on the last occasion so just tell us clearly, Steven, what you're ‑ ‑ ‑

PN2482

MR BULL: I wasn't here, so I haven't had an opportunity to read the transcript. Our only substantive claim involves superannuation and it is a matter which United Voice has committed to progress in, and I've got a draft variation which I don't know whether people have looked at it, but basically we want to increase the minimum amount and bring the percentage in line with legislation.

PN2483

What I'm proposing to do is the mischief, if you like, which the variation seeks to cure is that I understand many disabled people, the superannuation is a poor joke for the benefit of the financial sector because the contributions get gobbled up in fees and they don't get anything and it's absurd. I'm making contact with � I want to get some advice from � we have contacts with industry funds and so forth, so I've put a number in the variation which I think is 15. But I want to try and get is from someone in actuary or someone who's good with numbers, an amount which, given the normal fee and, you know, expected return will actually grow, so which will provide the employee with something, because I understand that it is the case with some employees that it's gobbled up and there's nothing there or whatever. So that's what I want to do, and hopefully this is something which can be done cooperatively. So if anyone wants to assist me? I've written to one of the super fund people we have contact with and I'll attempt to get evidence about what is a number in terms of fees and so forth and growth that should be appropriate.

PN2484

SPEAKER: So, Steven, will that be a percentage or a dollar figure do you think?

PN2485

MR BULL: You want to try and structure it. Percentages are always better because percentages don't need to be ‑ ‑ ‑

PN2486

MS WALSH: Accommodate change.

PN2487

MR BULL: But that's what I want to do. Okay. If anyone wants to help me? I'm not a superannuation expert. What's the industry fund in this award? I couldn't find it.

PN2488

MR CHRISTODOULOU: It has a few. Hesta and Australian Super.

PN2489

MR BULL: That's another thing, you know, and I'll be frank, we have an agenda with super. We believe that the government's plans to essentially deregulate super is dreadful. We want to defend industry funds because the statement that they are far superior to the alternatives is abundantly clear, and it would be a dreadful shame that disabled people become the play things of the financial sector and so forth in a deregulated super world. So this would be a case where there are, I would say, compelling arguments to maintain, irrespective of what occurs elsewhere, a more rigid default structure in relation to superannuation. Those are issues that I want to agitate in this review.

PN2490

There's one other matter which Chris pointed out to me. I don't know whether we can deal with this in the award. You know, super has an insurance component which, for disabled people, is a useless product.

PN2491

MS WILSON: Correct.

PN2492

MR BULL: Because, you know, they're already disabled and so forth, but I don't know how you can deal with that, because it's the fund you're sort of making ‑ ‑ ‑

PN2493

MR CHRISTODOULOU: Yes. Yes. Just on that issue, because it may help us arrive at a � you know, I don't want to speak about your claim but in terms of the dealing with the issue, there are discussions going on in the industry funds. I know we are lobbying Australian Super to come up with a different default option for people with disabilities which would mean that the contribution that we now make, which is I think about $9 a week, wouldn't get eaten up by insurance premiums, so we're looking at an arrangement where the default isn't that you're going to get insurance, but the default is that you don't get insurance unless you choose to have it.

PN2494

MR BULL: We would prima facie support that.

PN2495

MR CHRISTODOULOU: That's right. So if the industry was to pick up that arrangement then the actuarial advice that you're seeking to get would actually change.

PN2496

THE DEPUTY PRESIDENT: Yes.

PN2497

MR CHRISTODOULOU: Because it would then mean your claim of 15 might not necessarily have to be 15. It might be something less because the amount of money, the contribution, wouldn't get eaten away if you know what I mean. So there is some work being done on the side. By the time we get to this issue, if it's still an arbitrated case, may help us eliminate the extent of the differences between the parties if the industry themselves get their act together.

PN2498

MS LANGFORD: Can I also say, look, you know, from NDS's perspective that, you know, we'd be very concerned to see an increased impost on Australian Disability Enterprises without there being some benefit to the actual individual, and that is around the fees and the things, and so we would be keen to see what you come back with, but that's our big concern at this point of time; is that literally it's an additional impost with very very little benefit how it currently sits.

PN2499

MR BULL: No. We don't want to ‑ ‑ ‑

PN2500

MS LANGFORD: Correct. Correct.

PN2501

MR BULL: We'd want the money to go to the employees.

PN2502

MS LANGFORD: Yes. Yes.

PN2503

MR BULL: We don't want it to go ‑ ‑ ‑

PN2504

MS LANGFORD: And I suppose that's why we want to see ‑ ‑ ‑

PN2505

MR BULL: ‑ ‑ ‑to the financial people.

PN2506

MS LANGFORD: Yes. Yes.

PN2507

MR BULL: That's the problem at the moment.

PN2508

MS LANGFORD: Correct. That's exactly where it's going, and I think that's our big concern, is that additional impost with very little benefit to the people who require it the most.

PN2509

SPEAKER: That's perversely actually giving them more money.

PN2510

MS LANGFORD: That's right.

PN2511

SPEAKER: If we didn't somehow tackle what you're talking about, Chris.

PN2512

MR CHRISTODOULOU: Yes.

PN2513

MR BULL: If we can get a financial product and we would put it in the fund and it, you know � and there's an argument for more rigidity in this award.

PN2514

MS WILSON: Yes.

PN2515

MR CHRISTODOULOU: I know that Australian Super are looking at it. I know that Hesta is looking at it. I know that Care Super is sort of looking at it, but I think in the end if the industrial parties, some of which have got representatives on some of those major funds ‑ ‑ ‑

PN2516

MR BULL: We're on the board, so ‑ ‑ ‑

PN2517

MR CHRISTODOULOU: ‑ ‑ ‑were to be agitating as well, it's possible that we can get a landing where there are those changes made which then gets down to, you know, if there was an increase in the minimum, then at least we know it's going to be of some benefit to a person with disability.

PN2518

MS WALSH: Could I, your Honour, also raise the issue for these experts to be looking at, and that is that they also need to look at the taxation implications.

PN2519

MR BULL: You can't change � Mary, it's super.

PN2520

MS WALSH: No, no, but the issue is that where there is a superannuation guarantee payment taken out and the one that I dealt with was that there wasn't sufficient income received in the year and they would not send back the amount that was actually in there if that person retired.

PN2521

MR BULL: That probably concerns the legislation which is beyond the scope of this process.

PN2522

MS WALSH: Okay. But can you take it on board so that it is looked at further down the track?

PN2523

MR BULL: Yes. I'm not an expert on super, Mary, so ‑ ‑ ‑

PN2524

MS WALSH: They just wouldn't send back, I think it was just a matter of dollars, but they wouldn't send it back and they actually then went ahead and required 10 years of tax returns on which they added interest because their records didn't show that this person didn't receive enough income.

PN2525

MR CHRISTODOULOU: I'm just mindful, what time do you have to leave?

PN2526

MR BULL: Twelve-ish.

PN2527

MR CHRISTODOULOU: I'm just mindful, your Honour, that if we sort of say that we only need not more than 15 or 20 minutes it'd be good when we come back to it that Steven is here.

PN2528

THE DEPUTY PRESIDENT: Yes, for Steven to hear.

PN2529

MR BULL: I've got to be somewhere at 1 so I can hang around.

PN2530

MR CHRISTODOULOU: Yes.

PN2531

THE DEPUTY PRESIDENT: Okay.

PN2532

MR CHRISTODOULOU: Because I think it would be good.

PN2533

THE DEPUTY PRESIDENT: All right. So just quickly though wrapping that up, what you've really done is lay on the table your concerns. You were actually in the spirit of intra-space negotiations, Steven. You haven't said exactly how you think the problem can be solved but you see that there's a problem. You're looking for others to contribute to the solution to the problem, so it sounds to me like we need to devote, you know, we need to get some - identify the information that would be necessary to solve this problem.

PN2534

MR BULL: Yes. I think there's two aspects; there's an amendment to the clause which is 20 something or other, but I also think, having a fund which is actually appropriate to the circumstances of a person working in a disability enterprise, which is, you know, like, a slightly lower fee, not having that insurance and so forth, which means that it'll grow.

PN2535

THE DEPUTY PRESIDENT: But we'll need to - obviously you've ventilated it.

PN2536

MR BULL: Yes.

PN2537

THE DEPUTY PRESIDENT: That's what you wanted to do before you left, but we're not going to be able to have the conversation that we'd need to have to run it to ground because there is some information that will need to be done and maybe it's a process of one of these occasions where a smaller group may be valuable in actually putting their heads together and getting some expert advice perhaps from the industry fund sector.

PN2538

MR BULL: I've already sought that, so ‑ ‑ ‑

PN2539

THE DEPUTY PRESIDENT: Yes, but if we formalise it as part of the conciliation then you're doing it together and hopefully it moves you towards agreement, so just before we have that caucus, is there any appetite to do that, and if so, who would want to be involved?

PN2540

MR CHRISTODOULOU: I'm happy to be involved in discussions around the industry fund aspect of it, and I think Kerrie, I mean, we could ‑ ‑ ‑

PN2541

MS LANGFORD: Yes.

PN2542

MR CHRISTODOULOU: I think one of the things at least we should be doing is, as the employer group, is writing to, because Australian Super is the default fund in the main, is to be writing to them saying we want them to relook at the product, because if they end up coming up with a good product it could help resolve the issue.

PN2543

THE DEPUTY PRESIDENT: All right.

PN2544

MS WALSH: Just a question, your Honour, to the � so at the moment within the sector, does the employer have the ability to make those payments to particular industry funds or is there a choice about where you actually place those?

PN2545

MR CHRISTODOULOU: No, the default � so I employ you ‑ ‑ ‑

PN2546

MS WALSH: Nominate one.

PN2547

MR CHRISTODOULOU: ‑ ‑ ‑if you don't nominate one ‑ ‑ ‑

PN2548

MS WALSH: Yes.

PN2549

MR CHRISTODOULOU: ‑ ‑ ‑it's Australian Super or the superannuation fund that the employer was paying into prior to 12 September 2008.

PN2550

MS WALSH: Okay.

PN2551

THE DEPUTY PRESIDENT: That's what we call the default.

PN2552

MR CHRISTODOULOU: That's the default position.

PN2553

MS WALSH: That's the default position. All right.

PN2554

MR BULL: There's some discussion generally of removing that.

PN2555

MS WALSH: Yes.

PN2556

MR BULL: And part of my proposal is that in this award there is good reason to maintain a default structure in relation to superannuation.

PN2557

THE DEPUTY PRESIDENT: So would the whole group be happy if Steven and Chris just put their heads together and really tried to run this to ground with some input from experts and bring back, in an ideal world, a recommendation to the group?

PN2558

MR CHRISTODOULOU: Yes, except this, I don't want to be in a position where � because we pay more than $6, so the rest of the industry, I think, only pays $6 so ‑ ‑ ‑

PN2559

THE DEPUTY PRESIDENT: But I'm just talking about the fund.

PN2560

MR CHRISTODOULOU: The fund stuff, yes, I'm happy to put my hand up for.

PN2561

THE DEPUTY PRESIDENT: Adequacy. Really, what, you're raising; adequacy?

PN2562

MR CHRISTODOULOU: Yes.

PN2563

THE DEPUTY PRESIDENT: And vehicle?

PN2564

MR CHRISTODOULOU: Yes.

PN2565

MS LANGFORD: Yes.

PN2566

THE DEPUTY PRESIDENT: There's two things.

PN2567

MR CHRISTODOULOU: Yes.

PN2568

MS LANGFORD: Yes.

PN2569

THE DEPUTY PRESIDENT: You're really raising adequacy as the outcome rather than necessarily what goes in the front of the pipe.

PN2570

MR CHRISTODOULOU: Yes. Yes.

PN2571

THE DEPUTY PRESIDENT: It's what comes out the end of the pipe.

PN2572

MR CHRISTODOULOU: Yes.

PN2573

THE DEPUTY PRESIDENT: So that's ‑ ‑ ‑

PN2574

MS LANGFORD: And, look, NDS would be happy to put in some resources.

PN2575

THE DEPUTY PRESIDENT: So, Kerrie, on adequacy.

PN2576

MS LANGFORD: But it won't necessarily be me; it will be one of my colleagues.

PN2577

THE DEPUTY PRESIDENT: All right. So, Steven, would you want to also be the person on the end of adequacy?

PN2578

MR BULL: Yes. I'll email � I mean, when I get any information I'll email � I won't email everyone. Maybe I'll send it to Chris and Kerrie or ‑ ‑ ‑

PN2579

THE DEPUTY PRESIDENT: Yes. That's in relation ‑ ‑ ‑

PN2580

MR BULL: I'm happy to send it to everyone because it's ‑ ‑ ‑

PN2581

THE DEPUTY PRESIDENT: What I'd like you to do is to take responsibility for fully exploring this issue and coming back with a recommended course of action, and so if there's Steven on the end of both this issues � we're separating the issues; they're quite severable, these two issues, and, you know, Steven is involved in both, but if Steven and NDS look at the adequacy question and Steven and Chris look at the vehicle question then ‑ ‑ ‑

PN2582

MS LANGFORD: NDS is actually quite happy also to look at the vehicle.

PN2583

MR CHRISTODOULOU: The vehicle, yes.

PN2584

THE DEPUTY PRESIDENT: All right.

PN2585

MS LANGFORD: Primarily because I actually am aware that there are some different things that some of our members actually do undertake, and I think you would recall at the last national committee, remember we had one of our members talk about a different option that they had, so we would be happy to actually explore that and share it with Steven.

PN2586

THE DEPUTY PRESIDENT: Right. Leigh, are you happy to leave this one in Steven's capable hands? Leigh, have we got you? Looks like we don't have Leigh.

PN2587

MS SVENDSEN: Yes, you do. I've taken you off mute so that we didn't have the sound. We're just moving offices, so the sound in the office - we have a problem in terms of the phone. Yes, I'm happy to leave it with Steven and Chris for now.

PN2588

THE DEPUTY PRESIDENT: All right. Okay. Then what sort of timeframe do you think, because this will, I think, we'd need you to come back, so probably a good half day then of full explanation and ‑ ‑ ‑

PN2589

MR CHRISTODOULOU: I think, on the issue around what the industry is doing, I mean, this has been around for years and years and nothing has happened.

PN2590

THE DEPUTY PRESIDENT: Yes.

PN2591

MR CHRISTODOULOU: So I think we're going to need, you know, a good couple of months on that.

PN2592

THE DEPUTY PRESIDENT: Okay.

PN2593

MR CHRISTODOULOU: You know, but at least we can find out what they are doing and what they're likely to do.

PN2594

THE DEPUTY PRESIDENT: So subject obviously to any message I get from the President that says, well, you know, "These parties will have to agree by the end of June", or ‑ ‑ ‑

PN2595

MR CHRISTODOULOU: Yes, yes.

PN2596

THE DEPUTY PRESIDENT: But you're really saying the end of June.

PN2597

MR CHRISTODOULOU: Yes.

PN2598

THE DEPUTY PRESIDENT: July for this group to discuss your deliberations.

PN2599

MR CHRISTODOULOU: Yes.

PN2600

THE DEPUTY PRESIDENT: Okay. So we can just put down July and I'll track it, but I really want you to be energetic and organised, you know, and document your exploration and if you can come to a common position, then obviously the whole group is going to need to understand why you've come to that position in order to be willing to accept it into the award. So I don't need to see your project plan but we need you to have one.

PN2601

MR BULL: No, no, it takes me a while to get agitated, but once I'm agitated I'm moving.

PN2602

THE DEPUTY PRESIDENT: Excellent. All right. We will hold you to that, Steven, and you'll have the support of NDS for the contribution adequacy issue, and Chris and NDS for the fund or vehicle issue. All right. Now, time for your caucus, ADEs, and it's only 10 to 12, so can we have the pleasure of your company at least till half past 12? You said you had to be somewhere by 1.

PN2603

MR BULL: Yes, yes, I just have to be somewhere at 1.

PN2604

THE DEPUTY PRESIDENT: All right, so 15 minutes.

SHORT ADJOURNMENT�� [11.54 AM]

RESUMED�� [12.23 PM]

PN2605

MR MOSTAFAVI: Thank you, your Honour. In terms of - to just initially Steven's comment about conciliation on this issue, we agree that you know while in an ideal world we could agree on these that threshold issues are probably too fundamental to spend any time conciliating it, and we also agree that as per my comments at the start of today we would benefit certainly from greater detail but we need some relatively significant amount of time to corpus and come up with essentially alternative wage proposals amongst other things, and also put some flesh on the bones of the changes that we are proposing to make. We would need at least three months in order to put the submissions in evidence. Bearing in mind the program is not likely to be until early to mid-next year for an arbitration in any event. We wouldn't have thought that creates any prejudice for anyone.

PN2606

THE DEPUTY PRESIDENT: Leigh, did you hear that?

PN2607

MS SVENDSEN: No, not quite - - -

PN2608

THE DEPUTY PRESIDENT: So the - if you can hear me, the ADEs are really or all the parties are in agreement it would seem to me that conciliation's exhausted in relation to the ballots of the wage tools. Sina acknowledges that those who seek change - well actually it's the opposite, now that I've - Sina acknowledges that for any alternatives to be put forward the ADEs will need time. I mean it is the case, I suppose, that those who seek change, which is the, you know, the employees side, in the usual course would go first but actually what you're saying is you would like to go first, would be happy to go first and develop your - both your - any alternative proposals you have plus your justifications for retaining whatever it is that you seek to retain.

PN2609

MR MOSTAFAVI: Yes.

PN2610

THE DEPUTY PRESIDENT: So it's really a question of I think, subject to what everybody's got to say, of me reporting that to the President and having him issue a timeframe and indicate that at least three months before the set of directions is sought. Steven, yes?

PN2611

MR BULL: Can I make a point, and this is - I don't want to sound all technical. If we abandon the 157 application which is the award variation application, it then becomes a process under 156, which is the four yearly review, where some different criteria apply, basically the modern award objective, also the issue of change to enliven jurisdiction. That's - well, less of an inter-parties process than a straight forward variation so essentially everyone should do their evidence for material to get - not even evidence necessarily - - -

PN2612

MS SVENDSEN: Everyone will be required (indistinct) for those putting up changes at the same time as everyone else.

PN2613

THE DEPUTY PRESIDENT: But people will - - -

PN2614

MS SVENDSEN: As opposed to the changes put up by other parties will file - yes.

PN2615

THE DEPUTY PRESIDENT: So there will be still a sequential process, Leigh, but you're saying it'll be parallel sequence, if that makes any sense.

PN2616

MS SVENDSEN: That's right.

PN2617

MR BULL: Yes, and I'm indicating - I've got to talk to Leigh but I want this to be in the four yearly review and not in the award variation. And if that means - - -

PN2618

THE DEPUTY PRESIDENT: I think there's a unity ticket on that.

PN2619

MR CURTIN: Yes.

PN2620

MR MOSTAFAVI: Yes.

PN2621

THE DEPUTY PRESIDENT: Yes.

PN2622

MR BULL: If that means we have to, you know, file a notice of discontinuance I will do that.

PN2623

THE DEPUTY PRESIDENT: Yes, I think that would be tidy.

PN2624

MR BULL: I assume that the arguments - - -

PN2625

MS SVENDSEN: That's what I said earlier, your Honour, in relation to the request of Ross J which was put out yesterday, which includes this matter, the BSWAT matter and in relation to how we want it dealt with, and we're actually asked to file - - -

PN2626

THE DEPUTY PRESIDENT: Yes.

PN2627

MS SVENDSEN: - - - at least comment to him about how we propose or how it should continue, and I think it should be all be done under that, in that we've already been (indistinct) for an invitation.

PN2628

THE DEPUTY PRESIDENT: Yes.

PN2629

MR BULL: I suppose I just foreshadow that if it's in the four yearly review, it's a little more I suppose - it's less acute in the sense that the capacity to vary is slightly larger, if I'm making sense. So I assume that the union and the advocates will principally be asking that these particular instruments be removed because of NOGEN(?) and that they're in conflict with the Disability Discrimination Act, but there's actually other criteria that start playing a role and so forth.

PN2630

MS WALSH: Can I just add to that. Where they need time to develop some alternatives and again if they have competencies in them it's, you know - - -

PN2631

THE DEPUTY PRESIDENT: You're going to oppose them.

PN2632

MS WALSH: Yes, so - - -

PN2633

MR MOSTAFAVI: These are really for the benefit of the Full Bench.

PN2634

MS WALSH: Yes, and it's more just, you know, so you know.

PN2635

MR MOSTAFAVI: Yes, we understand.

PN2636

MS WALSH: Yes, it's - - -

PN2637

THE DEPUTY PRESIDENT: In case you were in any doubt.

PN2638

MR MOSTAFAVI: Yes

PN2639

MS WALSH: Well, that's right but I mean I guess that, you know, our view is that there should - like in any other award, there should just be the one.

PN2640

MR BULL: Might I propose that what has happened, in that there's been often orders about lodging claims and so forth and submissions, and draft variations, it might be appropriate if there's some order in three months hence or whatever that people lodge a submission outlining, you know, what should happen with the instruments annexed to clause 14(b) or whatever it is of the award, and we need to - the other thing is you need to deal with the fact that, you know, if they all go what does that mean and so forth.

PN2641

MS WALSH: Well, they're not all - - -

PN2642

MR BULL: So one needs a claim to replace them and so forth, so it creates finality and it brings this issue into focus properly where it can be resolved.

PN2643

MS WALSH: Just to clarify, we're not saying remove all the tools, we're saying that SWS remains. That's the advocate's position is that all tools apart from SWS. So our position is that, you know, there's no need for an alternative because it's there anyway.

PN2644

THE DEPUTY PRESIDENT: No, but in terms of process what Leigh has said is that the President has written to all of the parties to the modern award review who have had a Full Bench that was presided over by Watson VP, and this happens to be the case - he has said in relation to both 2013/30 and 2014/286. Having said that Leigh, I was a bit surprised about the reference to 286 because I didn't think that Watson was ever presiding over that Bench. But anyway that's what the President's done.

PN2645

MS SVENDSEN: No, 286 isn't an issue (indistinct).

PN2646

THE DEPUTY PRESIDENT: Well, it's there in the - it's there in those directions.

PN2647

MR BULL: Is 286 the four yearly?

PN2648

THE DEPUTY PRESIDENT: Yes, and it's there in the directions.

PN2649

MS SVENDSEN: 286 is part of the four year process and that's not been - it's not been asked for an opinion anyway into that.

PN2650

THE DEPUTY PRESIDENT: I think if you look at the document you'll see he's put it there but I don't think he's put it there consciously.

PN2651

MR BULL: We haven't even started. You could easily appoint another member.

PN2652

THE DEPUTY PRESIDENT: But anyway, the point is I'm just wanting to link Leigh and Steven up. Steven's talking about directions but Leigh's saying look, let's just all put our position to the President and that will include the three months, whatever timing the unions and the advocates think and then that's what will come out of the process isn't it? Am I understanding you correctly, Leigh?

PN2653

MS SVENDSEN: Yes, I think so.

PN2654

THE DEPUTY PRESIDENT: So really for the purposes of communicating with each other, having - making the comments you've made to me and in this forum and on this transcript is useful but it won't mean anything until you put it to the President as he has asked for, for those submissions.

PN2655

MR BULL: I have a preference for being told what to do and - - -

PN2656

MS LANGFORD: He's telling you what to do in his letter.

PN2657

MR BULL: No, I don't want to - okay.

PN2658

THE DEPUTY PRESIDENT: But I will still, you know, behind the scenes - not inappropriately behind the scenes, quite transparently behind the scenes, I will report to him that the conciliation parties to the support of the Employment Services Award, in relation to the balance of the wage assessment tools in the award, wish to put on submissions and wish a timetable that doesn't commence until the expiry of three months.

PN2659

MR BULL: If you need for the sake of tidiness for the 157 matter to be withdrawn, can we do that Leigh?

PN2660

MS SVENDSEN: Yes.

PN2661

MR BULL: Right.

PN2662

MS SVENDSEN: (Indistinct).

PN2663

THE DEPUTY PRESIDENT: I think that would be very tidy.

PN2664

MR BULL: Well, we might do that this afternoon.

PN2665

MS SVENDSEN: - - - I was going to actually make that comment to - I'll put to you what I was going to do first, but I was actually going to make that comment to (indistinct) in response to this matter which has to be filed by 6 May.

PN2666

MR BULL: Well, Leigh, I might give you a ring later this afternoon.

PN2667

MS SVENDSEN: Yes.

PN2668

MR BULL: Thanks, mate.

PN2669

MS WALSH: So can I just - this letter, is this on the website or was it - - -

PN2670

MS SVENDSEN: Yes, it is but it's under a real strange matter number. I'll flick it to everybody else, send it out to the parties. It's under the family friendly matter which his Honour has referred to the Federal Court because Watson had released the decision before he retired. So I'll - it's kind of strangely listed on the website so I'll send out the statement to everybody, a copy of the statement to everybody now.

PN2671

MS WALSH: Thank you, that would be helpful.

PN2672

MR MOSTAFAVI: So your Honour just so I understand, we as ABI and the Business Chamber will be responding in any event to his Honour's direction.

PN2673

THE DEPUTY PRESIDENT: Yes, yes.

PN2674

MR MOSTAFAVI: But in parallel to that there'll be that background discussion that you'll communicate the timetable internally. Our preference would be - - -

PN2675

THE DEPUTY PRESIDENT: Correct. I will, the preferred - - -

PN2676

MR BURGESS: What is the direction, is this the issue about going to the Federal Court to get advice or - - -

PN2677

MR MOSTAFAVI: No.

PN2678

THE DEPUTY PRESIDENT: Look it's related, so do you want me to try and sum up how it all came about and what it's all about? This will be interesting. So Watson VP expectedly resigned from the Fair Work Commission. He was the presiding member of a range of Full Benches including famously the Full Bench that was considering the common issue of leave for people who experienced domestic violence. He published his decision in relation to that uncoupled from his two colleagues on the Bench who had not completed their decision, and he declined the claim and so the President wrote to the parties to that matter and said I want submissions on whether you believe this Bench should be reconstituted and the case therefore re-heard or in some way the submissions reconsidered by the new Bench, or you think that the remaining two members can publish their decision and when taken together the decision would be either unanimous or majority, one way or the other.

PN2679

Employer organisations responded to that request variously and I'm sure Ai Group had a different response to ABI. The President said, you might say just off the cuff but on the record, that he may seek Federal Court guidance on the matter but to my knowledge he's not done so. But what he has done is now done a review of all of the Full Benches that Watson VP was presiding over, which includes the Full Bench that was dealing with the application to varying 2013/30 and he's written to the parties to all of those proceedings with a similar question; how should we proceed?

PN2680

I think what Leigh's suggesting is that that be responded to and it be responded to along the lines of well, in relation to the SESA, we the conciliation parties have got some level of agreement which we would be happy for the award to be varied pursuant to the award modernisation matter which is 2014/286 - - -

PN2681

MR BULL: Leigh and I will draft up a letter to that effect so you don't have to worry about this one.

PN2682

THE DEPUTY PRESIDENT: And in relation to the matters that we don't agree on, we're also happy for them to be dealt with in relation to 2014/286, and specifically it's agreed that with the wage assessment tool which is a really big and complicated matter, that we seek directions for arbitration but we seek them to commence no earlier than three months because the parties need that amount of time to consider their position in relation to that.

PN2683

MR BURGESS: So you just said - - -

PN2684

THE DEPUTY PRESIDENT: The parties.

PN2685

MR BURGESS: - - - the parties.

PN2686

THE DEPUTY PRESIDENT: Yes.

PN2687

MR BURGESS: We don't want arbitration to commence no - - -

PN2688

THE DEPUTY PRESIDENT: No, no, the directions.

PN2689

MR BURGESS: Directions, yes.

PN2690

THE DEPUTY PRESIDENT: Yes. So as Leigh said, the award modernisation directions proceed in parallel so rather than in an application to vary where you'd say applicant respondent applicant, because it's award modernisation they'll say please put on your proposals for change and your reasons for change, or your justifications for change and that might mean that the employee parties as well as the employer parties - or not parties, because they don't have parties to award modernisation but interested groups, put forward their changes in parallel and then there will be a set of directions that says "and we want to hear about what your response is to all of those". So it'll be proposer responder proposer, but in parallel.

PN2691

MR BURGESS: So in terms of the proposal that Sina put forward - - -

PN2692

THE DEPUTY PRESIDENT: Yes.

PN2693

MR BURGESS: - - - in any event we would in three months' time put forward some submissions and what we might be agitating in terms of the award review, which is the bigger question.

PN2694

THE DEPUTY PRESIDENT: Yes.

PN2695

MR BURGESS: We're not required at this time to actually put on evidence.

PN2696

THE DEPUTY PRESIDENT: No.

PN2697

MR BURGESS: Right.

PN2698

THE DEPUTY PRESIDENT: Well, it would - sorry, I beg your pardon, I shouldn't say no so quickly. It will depend on those directions, so Sina and those associated with the award modernisation I would expect that if the President issues that direction he'll probably say submissions and evidence. But it won't be the oral evidence, it'll be the statements.

PN2699

MR BURGESS: So not witness statements and all that sort of stuff.

PN2700

MR MOSTAFAVI: Well, it would be written witness statements - - -

PN2701

THE DEPUTY PRESIDENT: No, it would be written witness statements.

PN2702

MR BURGESS: Right.

PN2703

MS WILSON: Could we ask for the submissions first rather - if we're writing, couldn't we all just say look, at this point we would like submissions and then once there's an opportunity to respond to it then evidence. It just seems a bit out of - - -

PN2704

MR BURGESS: I actually don't mind that proposal. It gives us a bit more time if we're going to have this arbitrated we might as well do it properly.

PN2705

MS WILSON: Yes. I mean I think the arbitration here is probably different to what - like for me it would be a statement of claim, statement of defence and obviously coming from both sides in a - like I know it's not a statement of claim as such, and then you get to the witness statements and evidence then, once you've actually got, you know, your hearing - - -

PN2706

MR MOSTAFAVI: My only difficulty with that is submissions in the ordinary course drawing from evidence as opposed to the other way round. So it's almost like it's a draft determination, evidence, submissions, seems the logical sequence.

PN2707

MS WILSON: Yes, well that's right and so that's why I said not submission, I said statement of claim.

PN2708

MR MOSTAFAVI: Yes, yes.

PN2709

MS WILSON: So to me it would be - - -

PN2710

MR MOSTAFAVI: Pleadings if you like.

PN2711

MS WILSON: Yes, pleadings. This is where - - -

PN2712

THE DEPUTY PRESIDENT: We'll call them proposals.

PN2713

MR MOSTAFAVI: Proposals, evidence, submissions I would have thought.

PN2714

MS WILSON: Yes, yes.

PN2715

MR BURGESS: I agree with Sina actually. I think a more - frankly just applying the process that has been applied generally will clarify and refine these issues, and lead to finality, which is what is required in this process.

PN2716

MS WILSON: So the pleadings are important, you know - - -

PN2717

MR BURGESS: Well, you don't have pleadings. You have - - -

PN2718

MR MOSTAFAVI: That's right, you have draft determinations.

PN2719

MS WILSON: Well, whatever they're called, it's a - - -

PN2720

MR BURGESS: You know, you've got to say if you remove everything what's then there, and that just puts into proper focus what this is about.

PN2721

THE DEPUTY PRESIDENT: He may say to me that if the parties want to separate the process of making proposals from their support for the proposals that it should be done as part of the conciliation process. So I mean you could have, subject to him agreeing with that timetable, you could agree amongst yourselves that you will prepare your proposals in three months and bring them here.

PN2722

MR BURGESS: Yes, that's fine.

PN2723

MS WILSON: Yes, bring them here to what, to a conciliation again?

PN2724

THE DEPUTY PRESIDENT: Well, you may not want to discuss them very much but I'm just - I guess I'm warning you that I'm not sure he's going to be too sympathetic to the idea of segmenting those directions in that way because it's a bit unusual.

PN2725

MS WILSON: Well, it's not actually.

PN2726

THE DEPUTY PRESIDENT: Well, it is in the Commission.

PN2727

MS WILSON: I mean be unusual here but it makes better sense to do it that way because, you know, at least we know what we're responding to.

PN2728

THE DEPUTY PRESIDENT: But he'll say that you're giving them to me or to the Full Bench, what am I going to do with these?

PN2729

MS WILSON: You're filing them effectively.

PN2730

THE DEPUTY PRESIDENT: Yes, I know that but he's going to say because I'm going to list it, and so therefore I want, you know, everything has to be there. Whereas if you're still in conciliation technically - - -

PN2731

MS WILSON: Yes.

PN2732

THE DEPUTY PRESIDENT: - - - then you're not required to start the process of arbitration.

PN2733

MR BURGESS: We're comfortable.

PN2734

THE DEPUTY PRESIDENT: Look, this is my considered advice. It's not to be cavilled with, it's simply take it on and do what you like but - - -

PN2735

MS WILSON: I understand. It's just - - -

PN2736

THE DEPUTY PRESIDENT: I'm pretty sure that's the view he'll take.

PN2737

MS WILSON: Yes, maybe so.

PN2738

MR BULL: Well, I'm happy to do whatever the President directs us to do. I will put on record that United Voice has limited capacity to participate in a complex arbitration of these matters.

PN2739

MS WILSON: It is complex.

PN2740

MR BULL: That is not a statement that we will not participate. We will likely produce a submission and I'll have to think about whether we have draft determinations, but I just put that on record in that we - and that's I suppose indicating to others that, particularly in relation to witnesses, we will have very limited capacity to produce statement evidence from affected people. Just because of the workload of the next six months.

PN2741

MS WILSON: Can I just say this is a very complex issue. It's not something that can be trivialised. It is - and that's why I think setting it out in that way, it needs to be addressed because obviously the employer groups are going to say well no, you know, and each of those tools is going to need to be presented, and any alternatives are going to need to be presented and then, you know - so it is very complicated. It is going to be very time consuming and it has been a long time coming. We've obviously been involved in it since 2002. It's a very, very long process.

PN2742

MS WALSH: You and I, Kairsty, we've been there a long time.

PN2743

MR BULL: That's the obligation for the proponent of change so - - -

PN2744

MS WILSON: There's no, you know, we understand there's limited resources but we've got to - I believe this needs to be done properly and addressed in a way that every issue - because otherwise it's going to create more problems down the track unless we do it in a way that's - - -

PN2745

THE DEPUTY PRESIDENT: Well, let me advocate for you and if he's willing to issue directions that says I just want to know what you want and then I'll hear you on further directions, let's see if that works. I mean I think there is some precedent in the award modernisation process for everything that you want coming out because that's already been called for, it's just that you're really wanting to refine that.

PN2746

MS WILSON: I think it's actually setting it out in a - you know, in a more deliberate way so that, you know, I mean we're saying we want all the tools removed. Well, I would assume that Greenacres, for example, are going to come forward and say we want Greenacres to remain and these - - -

PN2747

MR BURGESS: You shouldn't assume that at all.

PN2748

MS WILSON: No, no, no, well I'm just saying - I'm using Greenacres as an example but every one of those other tools it's - well, I won't assume, I expect them to come forward and say this is where it's at. But without presenting the evidence, because the evidence is going to come later. It's just it's a process that makes sense to follow, but anyway.

PN2749

THE DEPUTY PRESIDENT: I shall advocate that and then you can advocate that also when you respond to his letter or email, however it came out or set of directions. So that deals then with the balance of the wage assessment tools. We've got - - -

PN2750

MR BULL: I'm going to - sorry.

PN2751

THE DEPUTY PRESIDENT: Time for you to go?

PN2752

MR BULL: Thank you.

PN2753

THE DEPUTY PRESIDENT: Thanks Steven.

PN2754

MR BULL: I'll excuse myself.

PN2755

THE DEPUTY PRESIDENT: It's quarter to one and I know Kairsty, you've got to go at one, is that right?

PN2756

MS WILSON: Yes, and I think Leigh is unavailable - - -

PN2757

THE DEPUTY PRESIDENT: Leigh's got to ring off on the phone about that time. But Sam, you can stay?

PN2758

MS FRENCH: I can but, you know, it's not a great situation to be in without their wise - the wisdom of my colleagues.

PN2759

THE DEPUTY PRESIDENT: So are there - we went on the last occasion through a whole lot of what might be called sort of smaller issues, some of which were quite - people were quite comfortable with and said yes, we'll do that. So do we want to sort of go back, almost do a stocktake. I mean it wouldn't - that wouldn't be too uncomfortable for you to do if we just do a stocktake after lunch of where we're up to.

PN2760

MS FRENCH: Sounds good.

PN2761

MR MOSTAFAVI: And we need to consider what's happening with Monday.

PN2762

THE DEPUTY PRESIDENT: That's right, so let's do that before everybody disappears. So what's the view now about the utility of Monday?

PN2763

MS WILSON: Well, I can't see there's much point really.

PN2764

MR BURGESS: No, I think if we're going to stay and do the stocktake then we'll have almost done and know where we're up to.

PN2765

THE DEPUTY PRESIDENT: Everything we - - -

PN2766

MR BURGESS: Yes.

PN2767

THE DEPUTY PRESIDENT: Yes. Then I did offer either 5 May as a whole day if you wanted to take that up.

PN2768

MS WILSON: I don't know if there's any point in - - -

PN2769

THE DEPUTY PRESIDENT: Well, there would be for all the little things, all the little changes to the award that you want made that you agree on.

PN2770

MS LANGFORD: Your Honour, I'm actually not available between 1 and 10 May.

PN2771

THE DEPUTY PRESIDENT: Right.

PN2772

MS LANGFORD: The following week, 15, 16 and 17 May as well.

PN2773

THE DEPUTY PRESIDENT: You're very significant, Kerrie, or your organisation is so - - -

PN2774

MS LANGFORD: Yes.

PN2775

THE DEPUTY PRESIDENT: - - - that's a difficulty.

PN2776

MS WILSON: 15th you weren't available.

PN2777

MS LANGFORD: No, 15th, 16th and 17th I'm not available.

PN2778

THE DEPUTY PRESIDENT: Start thinking dates. So what does that mean when you are available.

PN2779

MS LANGFORD: Part of the dilemma is because I would have been on leave and we have our disability work conference 15, 16 May, as the core person who organises that I really do need the 11th and 12th if there's been some big disaster that's - - -

PN2780

THE DEPUTY PRESIDENT: So it's really after the 17th isn't it?

PN2781

MS LANGFORD: That would be preferable to me, your Honour.

PN2782

THE DEPUTY PRESIDENT: Grace, do you want to bring the computer over here again like you did last time.

PN2783

THE ASSOCIATE: There's not a whole lot of scope.

PN2784

THE DEPUTY PRESIDENT: No, still we could go back to those right at the end of May days that we didn't take advantage of. So from the 17th - you become free on the 17th.

PN2785

MS LANGFORD: I become free on the 17th and - - -

PN2786

THE DEPUTY PRESIDENT: The 22nd if I went down later in the afternoon, that would work?

PN2787

MS LANGFORD: It works for me.

PN2788

THE DEPUTY PRESIDENT: I've got to be there at 5.30, so if I left on - so the morning, what about the morning of 22 May?

PN2789

MS SVENDSEN: What are we proposing on the morning of the 22nd?

PN2790

THE DEPUTY PRESIDENT: So we're looking for a date to come back and wrap up all the really - hopefully the agreed changes to the award that - - -

PN2791

MS SVENDSEN: I can't do anything the week of the 22nd.

PN2792

THE DEPUTY PRESIDENT: Right.

PN2793

MS SVENDSEN: I will be in Perth most of that week.

PN2794

THE DEPUTY PRESIDENT: Let's go back then to the next week. So that brings us back to what we were doing on the 19th - 29th, and I said we've got a teleconference then. Do we want to do it on a teleconference?

PN2795

MR CHRISTODOULOU: Your Honour, I'm just wondering if we do the - if we actually go through where we're up to with the issues - - -

PN2796

THE DEPUTY PRESIDENT: This afternoon.

PN2797

MR CHRISTODOULOU: - - - this afternoon, and allocate again the discussions between smaller groups, like Kelly's got the issues around coverage, I will email Leigh the clause that we're proposing in relation to the role of family carers and others in informing people about their employment rights et cetera. Why don't those groups continue to work on those things and in the event that there is agreement, they write and say we've got agreement on this. If the small group can't agree it's unlikely the bigger group's going to agree.

PN2798

THE DEPUTY PRESIDENT: Reasonable point. What does everyone think about that? Leigh?

PN2799

MS SVENDSEN: That sounds like a good idea.

PN2800

THE DEPUTY PRESIDENT: Good plan. Then we've got a teleconference anyway at 4 o'clock on the 29th, so we can also just tough base on everything else during that to say is there need for any further listings.

PN2801

MR CHRISTODOULOU: Yes.

PN2802

THE DEPUTY PRESIDENT: So no further listings until the teleconference on the 29th but lots of activity being undertaken and I will definitely come back to you on the email about the President's - or if there's any - yes, if the President - I'll try and get back and conclude the view. He may say I can't give you a view until after I've received submissions in relation to that letter and so on, but I'll keep you informed.

PN2803

MR MOSTAFAVI: So no further listing apart from 4 pm on the 29th.

PN2804

THE DEPUTY PRESIDENT: That's it, yes. What we'll do now is break for lunch and then after lunch we'll come back for those who can stay and James and Rowena may not be necessary because it really is a stocktake on matters that are unrelated to the matters that you're at the table to progress, but if you'd like to stay we're very - - -

PN2805

MR KEMP: We'll come back.

PN2806

THE DEPUTY PRESIDENT: Stay?

PN2807

MS FREELAND: Always happy to have your advice.

PN2808

THE DEPUTY PRESIDENT: Terrific. Well, your input is very welcome so - - -

PN2809

MR MOSTAFAVI: The pub's across the road.

PN2810

MR KEMP: So Monday is not - - -

PN2811

THE DEPUTY PRESIDENT: Monday is not proceeding, no. Nothing until the teleconference on the afternoon of 29 May. How long do people want for lunch? Would half past one be reasonable to come back?

PN2812

MR CHRISTODOULOU: Yes.

PN2813

MR MOSTAFAVI: Sounds good.

PN2814

THE DEPUTY PRESIDENT: That gives you 40 minutes. Those who come back, come back. Those who don't, don't. We'll know when you arrive.

PN2815

MR MOSTAFAVI: (Indistinct) on the transcript from last time.

PN2816

MS WALSH: That letter from - you know, that letter from Leigh is being sent through to us all.

PN2817

THE DEPUTY PRESIDENT: Thank you, Leigh very much. Now Leigh, we won't be dialling you back in because you're done, yes?

PN2818

MS SVENDSEN: No, I'm done.

PN2819

THE DEPUTY PRESIDENT: Thank you very much, see you.

PN2820

MS SVENDSEN: Thank you very much, bye.

PN2821

THE DEPUTY PRESIDENT: Good.

PN2822

MS WILSON: Can I just - before you go, sorry. Just before they go, it doesn't have to be on transcript. It's just that the - it's in relation to the BSWAT payment - - -

LUNCHEON ADJOURNMENT�� [12.52 PM]

RESUMED�� [1.44 PM]

PN2823

THE DEPUTY PRESIDENT: Do we want to look at the notes from the last meeting or my aide memoire notes anyway just to work through them in that order? Does that make sense?

PN2824

MR CHRISTODOULOU: Yes.

PN2825

THE DEPUTY PRESIDENT: I think with status of claims, I suppose we should just to be complete, we should start with that item status of claims and then Margaret went first and then Kerrie and then Chris. But some of them are already dealt with, so Margaret first of all said that there were - I don't know why I've got the word, the number three there but it's got:

PN2826

Three wage assessment, reference to new versions of wage assessment tools, insert propose wage assessment tools and alternative to other tools.

PN2827

So obviously that's not three wage assessment matters but that's what we've just dealt with so we don't need to deal with that. So there was school aged employees and then there's a second item junior rates that we discussed. So did we - - -

PN2828

MR CHRISTODOULOU: So with the school aged employees I haven't yet sent Leigh a proposal but then in the issues that Kerrie had raised about coverage and the like of the award, what she's putting forward would actually resolve my issue if indeed she can resolve what she's putting forward with Leigh.

PN2829

MS LANGFORD: Yes.

PN2830

THE DEPUTY PRESIDENT: I see.

PN2831

MR CHRISTODOULOU: So I've decided to let Kerrie try to see whether she can resolve her issues. If she can't I'll need to go back and re-look at my particular issue.

PN2832

MS FRENCH: Can I just clarify which notes you're referring to but there's - - -

PN2833

THE DEPUTY PRESIDENT: Yes, sorry, I was - - -

PN2834

MS FRENCH: Not the actual transcripts from the last session but - - -

PN2835

THE DEPUTY PRESIDENT: No, because that's a little discursive. That's the one, Sam, yes. What I'm calling now my aide memoire which we've agreed is still only - is confidential because it's often wrong because I don't know where the three came from. But yes - - -

PN2836

MR CHRISTODOULOU: So yes, so the students - clarifying that students can be paid a supported wage can be clarified in the context of the coverage questions that Kerrie's looking at. In terms of the junior rates, we haven't really progressed that matter because I think the issue was there was some, not disagreement but we weren't sure I think on the one hand Leigh had indicated that she thought that if ADE's were operating some of their enterprises in say the retail industry or the hospitality industry - - -

PN2837

THE DEPUTY PRESIDENT: They should use that.

PN2838

MR CHRISTODOULOU: - - - that they could use that award.

PN2839

THE DEPUTY PRESIDENT: Yes.

PN2840

MR CHRISTODOULOU: This is not for people with disabilities, this is just - - -

PN2841

THE DEPUTY PRESIDENT: Yes, yes.

PN2842

MR CHRISTODOULOU: So I think I'm going to have to get some advice of ABL or ABL may need to advise us as to their thoughts about that. Because if that is the case then that would also mean that other of our support workers that are now covered by the SCHADS Award or this award when they're working out in other industries supporting our people with disabilities, that same principle would apply and that's not the intention.

PN2843

THE DEPUTY PRESIDENT: Right.

PN2844

MR CHRISTODOULOU: So I actually think - - -

PN2845

THE DEPUTY PRESIDENT: So one solution creates another problem.

PN2846

MR CHRISTODOULOU: Yes, I think the easy solution is you just put a junior rates provision in our award.

PN2847

MR CURTIN: So this is for supported employees?

PN2848

MR CHRISTODOULOU: No, no, not - - -

PN2849

THE DEPUTY PRESIDENT: No.

PN2850

MR CHRISTODOULOU: No, no, this is different for supported employees. So let's say we were to run an enterprise which we're going to be opening up a caf� soon, at the moment it's only Monday to Friday but let's just say we decided to open it up on a Saturday and apart from having, you know, a trainer and a couple of supported employees we also want to employ some juniors to assist, what award covers those juniors. If it's the SESA Award then there are no junior rates, and that's what we would say should cover it because everyone else in our organisation is covered by it. Whereas Leigh's saying no, it should be the retail award. So I can't quite work out why that would be the case just because they're juniors.

PN2851

THE DEPUTY PRESIDENT: Well, I think probably she's saying that it's the case for anyone who isn't a person with a disability.

PN2852

MR CHRISTODOULOU: No, this award covers both.

PN2853

THE DEPUTY PRESIDENT: That's perhaps a conversation that you need to have. What you're wanting from an ADE perspective is for the award to be exhaustive and to cover all those employees working within an ADE or employed by an ADE, irrespective of whether they're a person with a disability or not.

PN2854

MR CHRISTODOULOU: Yes.

PN2855

THE DEPUTY PRESIDENT: That would be the case for someone who was perhaps working as a barista - - -

PN2856

MR CHRISTODOULOU: Yes.

PN2857

THE DEPUTY PRESIDENT: - - - in your caf� to mentor and coach of a person with a disability who is also working alongside. So obviously, you know, we've not got either Leigh or Steven here to - or Kairsty to say what their view is about junior rates and utterly without prejudice would you have a view about this? Understanding that it's meant to be confined to people without a disability?

PN2858

MS FRENCH: No, I wouldn't at this point. It's not an area I'd be confident to speak on.

PN2859

THE DEPUTY PRESIDENT: Is it the case that the ADEs are comfortable not having junior rates apply to people with disability? It makes - - -

PN2860

MR CHRISTODOULOU: Not having junior rates apply to people - - -

PN2861

THE DEPUTY PRESIDENT: Yes, because you're not likely to have a junior - - -

PN2862

MR CHRISTODOULOU: No, no, they get their supported wages.

PN2863

MS LANGFORD: Correct, yes. There wouldn't be a - - -

PN2864

MR CHRISTODOULOU: So the juniors that would come in would be just on the supported wage, we would treat them - because the wages are not high, so I don't think we want to discount them anymore.

PN2865

MS LANGFORD: No.

PN2866

THE DEPUTY PRESIDENT: In any event you're either dealing with that transition to work person to be dealt with under the school aged employees question, or they have finished their school and they're coming in as over 18.

PN2867

MR CHRISTODOULOU: Yes, that's right.

PN2868

MS LANGFORD: Yes, correct.

PN2869

THE DEPUTY PRESIDENT: So have I captured this at least in our notes correctly.

PN2870

Chris notes that Leigh considered that those employees would be covered by other awards because if this principle applied it might catch other workers such as support workers and this would be undesirable.

PN2871

MR CHRISTODOULOU: Yes.

PN2872

THE DEPUTY PRESIDENT: Continuing:

PN2873

There is no desire to have a junior rates clause for people with disability. ADEs wish to have a junior rates clause for employees without disabilities.

PN2874

MR CHRISTODOULOU: Yes.

PN2875

THE DEPUTY PRESIDENT: So would it be sensible to actually communicate that quite explicitly and separately to firstly Steven and Leigh and see whether their first reaction is okay, that's all right.

PN2876

MR CHRISTODOULOU: Yes.

PN2877

THE DEPUTY PRESIDENT: Perhaps with a little bit of an explanation of why it's important. If it can't be agreed then obviously we'll put it onto the list for further discussion or ultimately arbitration.

PN2878

MR CHRISTODOULOU: I want to just get some advice off Sina about the legality of it because I still think there's - yes, I think the award's pretty clear. Like if you're an ADE we capture all employees. Within, you know, the classification structures and the like.

PN2879

THE DEPUTY PRESIDENT: Yes. Your coverage proposal to Leigh, Kerrie, doesn't address this does it?

PN2880

MS LANGFORD: Not that particularly, no.

PN2881

THE DEPUTY PRESIDENT: No, but you're confident that you'd want some legal advice to confirm your view - - -

PN2882

MR CHRISTODOULOU: Yes.

PN2883

THE DEPUTY PRESIDENT: - - - that as presently expressed the award would cover people who were not employed with a disability but working alongside those with a disability.

PN2884

MR CHRISTODOULOU: That's right.

PN2885

THE DEPUTY PRESIDENT: Who would take responsibility for writing to the employee advocates?

PN2886

MR CHRISTODOULOU: Do you want me - - -

PN2887

MS LANGFORD: Do you want to do in terms of this one because I will be in terms of - - -

PN2888

MR CHRISTODOULOU: Yes, yes.

PN2889

THE DEPUTY PRESIDENT: Thank you, that's lovely. So Chris will write - Chris on behalf of all the ADEs here, is that - that deals with that. Now variation of penalty rates was the next issue that Margaret raised and it was really about the, I think I'm right here, the Full Bench penalty rates decision being applied in the SESA - - -

PN2890

MR CHRISTODOULOU: No, no, it wasn't.

PN2891

THE DEPUTY PRESIDENT: No, it wasn't. So that's a mistake.

PN2892

MR CHRISTODOULOU: It was actually - when we first raised this issue it had - it wasn't even considered in terms of the Full Bench penalty rates decision. It was really that we just wanted to put in a penalty rates regime similar to what was happening in hospitality and retail, again so we could pay our employees the same rates as other hospitality, catering et cetera, employers were paying. Of course then we've had the penalty rates decision which now has confused things. So had that decision not been there we still would have been agitating for the penalty rates to apply.

PN2893

Now this is where this gets confused with the previous issue because if Leigh is saying well, if you're working in that particular industry you can apply those conditions, again we're moving away from the SESA Award again and all of a sudden we're moving to say well, do we actually need a SESA Award at all, because you're telling us to apply all these arrangements in other awards.

PN2894

THE DEPUTY PRESIDENT: But your preference is still to have your own award cover for two kinds of employees; employees with two different characteristics.

PN2895

MR CHRISTODOULOU: Yes.

PN2896

THE DEPUTY PRESIDENT: In that sense you're still seeking to have some kind of comparable penalty rates regime as the hospitality and retail industry in the award, but you've got doubts now about what.

PN2897

MR CHRISTODOULOU: No, that's what we'd still like.

PN2898

THE DEPUTY PRESIDENT: So whatever happens with the Full Bench - - -

PN2899

MR CHRISTODOULOU: Yes.

PN2900

THE DEPUTY PRESIDENT: - - - you'd seek to reflect that.

PN2901

MR CHRISTODOULOU: Yes, and that Full Bench because it's off - I don't know what will happen to it, it might be off in the Federal Court, there might be a stay on it. So even if we had what's there now, it's better than not having anything at the moment.

PN2902

THE DEPUTY PRESIDENT: Right.

PN2903

MR CHRISTODOULOU: Because I think the rates they're applying now are - - -

PN2904

MR CURTIN: No, not the rates, hospitality and retail - - -

PN2905

MR CHRISTODOULOU: No, no, but what is there at the moment is 150 per cent on Saturdays, 200 per cent on Sundays and 175 per cent in catering on Sundays, whereas in retail and hospitality I think even without the Full Bench decision, they're different.

PN2906

THE DEPUTY PRESIDENT: But you're still saying that that's for now but then when the Full Bench is implemented in the retail and hospitality you would want the SESA Award to reflect that.

PN2907

MR CHRISTODOULOU: Well, if we follow our logic yes, because we need to be competitive with everyone else in the marketplace.

PN2908

THE DEPUTY PRESIDENT: But it won't be the natural consequence of the conclusion of that Full Bench for that to occur because it's only particularly focused on those awards and - - -

PN2909

MR CHRISTODOULOU: Yes, that's right.

PN2910

THE DEPUTY PRESIDENT: - - - it's absolutely not clear that there's going to be any further cases run - - -

PN2911

MR CHRISTODOULOU: Yes, and in which case - - -

PN2912

THE DEPUTY PRESIDENT: - - - and you're not necessarily saying that in this award modernisation process you would want to run that case.

PN2913

MR CHRISTODOULOU: No. No.

PN2914

THE DEPUTY PRESIDENT: So it's really that you appreciate that that would be another - that would need to be advanced at another time.

PN2915

MR CHRISTODOULOU: Yes.

PN2916

THE DEPUTY PRESIDENT: So let's actually specify exactly what you're seeking so that people can respond to it.

PN2917

MR BURGESS: So Chris are you seeking to have hospitality and retail included as classifications in the schedule are you, rather than just capturing it under the blanket of catering.

PN2918

MR CHRISTODOULOU: Well, we hadn't thought about that but yes, we should actually think - that's actually - we hadn't articulated that in the claim really, but we - - -

PN2919

THE DEPUTY PRESIDENT: To catch that.

PN2920

MR CHRISTODOULOU: Yes, that's a good point that Steve's raised. Under the classification structure as it currently stands all of the ADEs if they're running some sort of caf� or whatever are really doing it under the guise of catering and therefore we don't actually have something that says retail or hospitality or caf�. You know how we've got - look at the classification you've got horticulture and you've got foam and plastic, you've got specialist packaging, you've got gardening, you've got laundries, you've got printing, you've got catering, we don't actually have retail and hospitality written in the current classification structure.

PN2921

THE DEPUTY PRESIDENT: Which makes Leigh's case stronger.

PN2922

MR CHRISTODOULOU: Well, in which case we probably should be saying we should put it in there.

PN2923

THE DEPUTY PRESIDENT: Well, that's a whole other thing, isn't it?

PN2924

MR CHRISTODOULOU: Well, the thing is if we're going to be able to modernise and create little enterprises out in the community social enterprises, we need greater scope in the award to do that.

PN2925

THE DEPUTY PRESIDENT: Right. So expansion of classifications to allow for new social enterprises noting currently cafes are conducted under the - I suppose under the classification - - -

PN2926

MR CHRISTODOULOU: Catering.

PN2927

THE DEPUTY PRESIDENT: Catering and ADEs would like to add retail and hospitality - I'll correct the spelling later - to the current classifications.

PN2928

MR CHRISTODOULOU: Yes.

PN2929

THE DEPUTY PRESIDENT: I'll just fix that up. I probably never will do a touch typing course but it's - hostility, no, you don't want hostility.

PN2930

MR MOSTAFAVI: Your Honour, that's probably noting currently caf� funded, that would be conducted under those classifications.

PN2931

THE DEPUTY PRESIDENT: Conducted. I don't know how I got funded out of that. That was actually not what I intended. Cafes are currently run under the classification, I'll put it in inverted commas, "catering":

PN2932

ADEs would like to add retail and hospitality to the current classifications to allow for those types of businesses to be created.

PN2933

So just - let's finish the penalty rates one and then come back down to what you might do to advance that because that'll be new to everybody and it's just come up now. So I'll just take that out there. So the current penalty rates are - would you mind just telling me what they are and what you'd like to change them to?

PN2934

MR CHRISTODOULOU: The current penalty rates are - the second question I can't answer because I haven't brought my document with me. But however they're currently reflected in the hospitality and/or retail award that covers cafes.

PN2935

THE DEPUTY PRESIDENT: That's how you want them to become - - -

PN2936

MR CHRISTODOULOU: Yes.

PN2937

THE DEPUTY PRESIDENT: - - - but what are they now?

PN2938

MR CHRISTODOULOU: But what are they now? They are - - -

PN2939

THE DEPUTY PRESIDENT: Or even where they're contained, just - - -

PN2940

MS LANGFORD: 20.3 - sorry, 20.

PN2941

MR CHRISTODOULOU: Yes, it's under - well, we're not worried about the penalty rates as in shift penalties but the weekend work, they're currently 150 per cent on Saturdays, 200 per cent on Sundays and 175 per cent - although in this case it says catering services on Sundays. Now as I understand it, the current hospitality rates are 125 - or retail is 125 I think on Saturdays and 150 on Sundays, but I could be wrong.

PN2942

THE DEPUTY PRESIDENT: So you want to reduce the rates to the same - - -

PN2943

MR CHRISTODOULOU: But only where we're doing that work in those industries. So not for the other work we do in our ADEs.

PN2944

THE DEPUTY PRESIDENT: Is this for people with disability as well as people without disability?

PN2945

MR CHRISTODOULOU: Yes, I think it's got to be for everybody in this case.

PN2946

THE DEPUTY PRESIDENT: So how to progress, I think there was, even though I expressed it inappropriately, I think there was a general predisposition against that outcome when you raised it on the last occasion with the employee advocates. I don't know if that's your recollection, Sam.

PN2947

MR CHRISTODOULOU: Yes.

PN2948

THE DEPUTY PRESIDENT: Yes, so the reference in my notes was:

PN2949

ADEs want penalty rates for employees of ADEs and retail and hospitality to be in line with the retail and hospitality awards. Unions and employee advocates are not comfortable with this.

PN2950

Which is putting it mildly:

PN2951

ADEs to consider their position in the light of coverage for the retail and hospitality awards.

PN2952

So again you were going I suppose to the point that if you accepted the proposition that - but that still wouldn't cover people with disabilities anyway.

PN2953

MR CHRISTODOULOU: Then if you accepted the premise that they were covered by the retail and hospitality award then the realities are also then accepting that the wage assessment tool in those awards would have to apply, which is the SWS.

PN2954

THE DEPUTY PRESIDENT: So is it the case perhaps that - I'm just thinking really for the purpose of that grid that we had provided earlier by the award mod team was to sort of summarise these things, but now you're moving on and they're reflected in my notes. Perhaps that's good enough for, Sam, rather than having - there be a separate communication from the ADEs on all these different items, there's a reason for communicating to the employee advocates in relation to somethings because by doing that they can be advanced. But when it's simply a matter of a stocktake my notes can actually serve as the communications means if that's all right.

PN2955

MS FRENCH: But I'm also conscious of the fact that I think - although I was there on this conciliation day I think this was one where I came later in the day, so I don't recall this specific conversation. So again, yes, I can't - I don't think I was present when the advocates provided their response to this issue, so.

PN2956

THE DEPUTY PRESIDENT: So just to be sure about my wording then, so I've said, "ADEs are seeking to pay the same rates as in other", not other, just, "as in retail and hospitality as at present" - that is before the Full Bench decision applies:

PN2957

Once the penalty rates decision is clear and implemented they would like to vary the SESA to reflect the new rates but accept that this would need to be advanced at another time.

PN2958

MR CHRISTODOULOU: Yes.

PN2959

THE DEPUTY PRESIDENT: Continuing:

PN2960

The current rates are contained in SESA - 150 per cent Saturday, 200 per cent Sunday. Except catering 175 per cent on Sundays, they want to reduce these rates to the same as retail and hospitality, only where employees are doing work in those industries.

PN2961

Yes, doing work in those industries. So that's employees meaning with and without disabilities.

PN2962

MR CHRISTODOULOU: Yes, all employees, yes.

PN2963

THE DEPUTY PRESIDENT: Just to be clear. So that may well be one that does have to be advanced by arbitration. Coming back to our notes. So then there was clause 20.5 "Clarify applicability of nightshift rates", and what we said about that on the last occasion was:

PN2964

Current clause in the current award before exposure draft is clause 20.5. ADEs consider that if they were to employ a person on the nightshift it would be very unlikely to be a rotating roster. They would like the award to express the loading for a nightshift, 30 per cent.

PN2965

So you want - yes, and:

PN2966

Unions and employee advocates are comfortable with this agreed change as per Margaret's draft in principle.

PN2967

So that's really just agreed. I'll just quickly capture that. So it's nightshift only agreed to be corrected in SESA at 30 per cent. Is that right?

PN2968

MR CHRISTODOULOU: Yes.

PN2969

THE DEPUTY PRESIDENT: So again somebody will need to do some drafting but that's good. Next. Then we went to Kerrie, and the notes say - just talk about submissions made last year, eligibility - that's coverage. So there was two - there was the coverage issue in terms of both the definition of the support of the ADE and definition of a supported employee.

PN2970

MS LANGFORD: Correct.

PN2971

THE DEPUTY PRESIDENT: So where are you up to with your communications and deliberations with Leigh?

PN2972

MS LANGFORD: So I actually sent yesterday a couple of definitions that we would like to be considered. She didn't respond so I'll - - -

PN2973

THE DEPUTY PRESIDENT: So it's work in progress.

PN2974

MS LANGFORD: So it's a work in progress.

PN2975

THE DEPUTY PRESIDENT: Yes.

PN2976

MS LANGFORD: And as Chris said we also, as part of what we're proposing, we'll pick up on some of Chris' issues as well. So what we've got, we've got a definition for the employee with a disability, a definition for the supported employment service and also some words around the coverage of the supported employment services.

PN2977

THE DEPUTY PRESIDENT: Apart from the fact that I can't type, is that basically right?

PN2978

MS LANGFORD: That's basically right, that's correct.

PN2979

THE DEPUTY PRESIDENT: That's a heading so I'm just going to put that in inverted commas. So this will be one of those ones that's dealt with in the way that Chris suggested, which is that you try to reach agreement bilaterally through exchange of correspondence and phone calls and whatever. If you can't then we will get a bit of an update on the 26th as to where you're up to.

PN2980

MS LANGFORD: Lovely.

PN2981

THE DEPUTY PRESIDENT: Good. So that takes us to the superannuation where we really did agree a course of action before so there's nothing much to be said about that. It's just a heading, "Superannuation, see previous notes". Chris, main concern wage assessment, reference to the Greenacres tool. Everything that you said on that day related to wage assessment Chris, so we can move on from that. Leigh mentioned wage assessment and then there was the ceremonial leave clause, 10 days unpaid leave, varied to include Torres Strait Islanders. So there's already a ceremonial leave clause. Does it have 10 days?

PN2982

MR CHRISTODOULOU: In our award?

PN2983

THE DEPUTY PRESIDENT: Yes:

PN2984

Update ceremonial leave clause, 10 days unpaid leave varied to include - - -

PN2985

MR CHRISTODOULOU: No, we don't have ceremonial leave in the current award.

PN2986

THE DEPUTY PRESIDENT: Right, well she definitely was proposing as a - - -

PN2987

MR CHRISTODOULOU: She was proposing on it.

PN2988

MS FRENCH: She was proposing it and we all agreed.

PN2989

THE DEPUTY PRESIDENT: I was under the wrong impression that you already had one. So was there and if there wasn't - there's no reference in my note as to whether there was an appetite on the part of the ADEs to incorporate a ceremonial leave clause with Torres Strait Islanders as well as Aboriginal people included. Have you given thought to it?

PN2990

MS LANGFORD: I don't think we were opposed to it.

PN2991

MS WALSH: Yes, we weren't opposed, yes, so - - -

PN2992

MR CURTIN: (Indistinct) over or under representation, Aboriginal or Torres Strait Islanders.

PN2993

SPEAKER: There's an under representation I understand.

PN2994

MR CHRISTODOULOU: Probably yes, but it doesn't matter in a sense - - -

PN2995

SPEAKER: No.

PN2996

MS LANGFORD: It's not quite that way in some of the regional ones.

PN2997

SPEAKER: But wouldn't it be not part of the (indistinct).

PN2998

MS LANGFORD: But across the board.

PN2999

MR MOSTAFAVI: It's been dealt with in the Aboriginal award which I'm (indistinct) on our team for. It's not something that we considered controversial.

PN3000

MS WALSH: I don't see it being controversial.

PN3001

MR DICKENS: Only that - and Mary just mentioned it too, in some regional areas, particularly in the top half of Australia you might some ADEs that have a fairly high representation. To go from - if it's zero at the moment - it's not something I'm completely familiar with in this part of the award - to go from zero to 10, it could mean - and quite often these little communities, they all will know somebody. Say if it's somebody who's died or something like that, that's what we're talking about isn't it?

PN3002

THE DEPUTY PRESIDENT: No, this is ceremonial leave not compassionate.

PN3003

MR DICKENS: Because there are some cultural practices that can overlap with that. Just an example, it doesn't have to be a death, it can be another thing and it could take people out of the business for - it can mean a place shuts down for a few days or 10 days. I'm only - - -

PN3004

THE DEPUTY PRESIDENT: Do you therefore need to consult with - - -

PN3005

MS LANGFORD: I'd need to go back and actually have a look at potentially what - - -

PN3006

MR DICKENS: I'm just conscious that for us - I mean we have a handful of indigenous people that work in our organisation but it's certainly not the case in some other areas and it's something we need to consider.

PN3007

MS WALSH: Alice Springs would be a bit different.

PN3008

MR DICKENS: Yes.

PN3009

MS WALSH: So would places like Kingaroy or (indistinct) and some of those places because they're a bit different.

PN3010

MR DICKENS: Townsville.

PN3011

MS WALSH: Yes.

PN3012

MR CHRISTODOULOU: Although you'll probably find that - you should consult but you'll probably find in those communities they already do it.

PN3013

MR DICKENS: They already do it.

PN3014

MS LANGFORD: They already do it.

PN3015

MR DICKENS: That's right.

PN3016

MS LANGFORD: And also in terms of how many providers are currently - they're actually only in Northern Territory itself, there's only two providers.

PN3017

MS WALSH: There's only two providers in Northern Territory.

PN3018

MS LANGFORD: But look, you know, I would go back and consult. I think it is a good point, just to make sure that there aren't - because it could potentially close down a small employment enterprise for, yes, a couple of days. Absolutely.

PN3019

MR DICKENS: I think it's a good thing to have, I think - - -

PN3020

MS LANGFORD: Absolutely, we'll just - yes. But I'll go back and consult.

PN3021

MS WALSH: Have to be seen to have consulted.

PN3022

MS LANGFORD: Yes.

PN3023

MR KEMP: Your Honour, I wasn't here for that discussion. Leigh's contribution was limited to Aboriginal and Torres Strait Islanders.

PN3024

THE DEPUTY PRESIDENT: Correct. And it was specifically to add Torres Strait Islanders because apparently that's been a gap in some clauses. It's quite a common clause to have in general awards and as you say there's a - is there a specific award for - - -

PN3025

MR MOSTAFAVI: Aboriginal Community Controlled Health Services, yes.

PN3026

THE DEPUTY PRESIDENT: Right, Aboriginal Community Controlled Health Services has their own award. But in your case it would be the introduction of the whole clause for the first time and so the note - my notes anyway, which are just for me really but shared with you for your assistance, are that you're likely to agree to it but you want to consult with ADEs who are in regions that have a high proportion of Aboriginal and Torres Strait Islander employees.

PN3027

MS LANGFORD: Yes, please.

PN3028

MS WALSH: Actually, your Honour, I'm also wondering whether the department might actually have a - do you have an idea in those regions what the breakdown of supported employees or would you be able to - - -

PN3029

MR KEMP: Supported employees who (indistinct) to identify (indistinct).

PN3030

MS WALSH: But who may - yes.

PN3031

MR KEMP: I don't think our data is that good. It did use to be captured.

PN3032

MS FREELAND: Yes, it did used to be captured definitely in the census and different things like that, so - - -

PN3033

MR KEMP: Well, in (indistinct) it was captured.

PN3034

MS FREELAND: Yes.

PN3035

SPEAKER: Yes, it might have been captured in (indistinct), I'm not sure and that would be reliant on the ADEs - - -

PN3036

MS WALSH: Providing it.

PN3037

MR KEMP: We don't collect anything that's not ADE declared.

PN3038

MS LANGFORD: Yes.

PN3039

MR KEMP: And so I suppose our perspective is we can use it as an indicative thing but we don't know how reliable it is. We wouldn't hold it up as government sort of - - -

PN3040

MR DICKENS: Yes, we are telling you that there is amount - - -

PN3041

MR KEMP: That's right.

PN3042

MS LANGFORD: It might be useful data just to get an indicative thing though. We wouldn't be holding you to it, but it just makes it easier for me in terms of if I'm going out and consulting just to - - -

PN3043

THE DEPUTY PRESIDENT: Do you ask the question about the - is it correct to say ethnic origin, it might not be.

PN3044

MR KEMP: It's one of those things where we leave it up to ADEs to tell us so we don't effectively - it's not something that we use for any administrative purpose.

PN3045

THE DEPUTY PRESIDENT: Right.

PN3046

MR DICKENS: We don't ask, your Honour. We don't ask if people identify as Aboriginal.

PN3047

THE DEPUTY PRESIDENT: It's also not a straight forward question in our community because of the - - -

PN3048

MS LANGFORD: It's a sensitive question.

PN3049

THE DEPUTY PRESIDENT: Well, some people identify as Aboriginal and Torres Strait Island, do you identify as but there's not like a - you know, there's the whole thing isn't there around - - -

PN3050

MS FRENCH: Except in (indistinct) communities.

PN3051

MR BURGESS: Just curious - interested, the NDIS eligibility assessment asks.

PN3052

THE DEPUTY PRESIDENT: Does it?

PN3053

MR BURGESS: Yes.

PN3054

THE DEPUTY PRESIDENT: Right. Well, over time then you will have a source of data.

PN3055

MS LANGFORD: Absolutely.

PN3056

MR KEMP: We wouldn't want to put it forward as something that can be used as evidence.

PN3057

MS LANGFORD: I would be truly doing it from my perspective, from and NDS perspective in terms of NDS perspective in terms of just trying to identify - - -

PN3058

MS WALSH: Where to consult.

PN3059

MS LANGFORD: Correct.

PN3060

MR KEMP: So, outside of this process? (Indistinct)

PN3061

MS LANGFORD: Yes. Absolutely outside of this process. Entirely outside of this process, without prejudice.

PN3062

THE DEPUTY PRESIDENT: I'm just noting that as a matter of interest that the NDIS does ask the question but it's likely that because it's early days, the data will be incomplete. Moving down the list.

PN3063

Kairsty, remove all tools that have a competency basis. Agreed variation to SWS, yes. Support HSU and UV regarding ceremonial leave and superannuation.

PN3064

So we've dealt with that.

PN3065

James, variation to (indistinct) appendix as proposed. Mary and Mary Lou, be heard about other tools, SESA has an assumption.

PN3066

So did you get anywhere Mary on formulating something that would address that issue that you raised, there's assumption about parent/guardian support decision making?

PN3067

MS WALSH: Well, from the last meeting, your Honour, we - Mary Lou, myself and Chris formulated a - we're still formulating work in progress on a draft to be perhaps considered by Leigh and others as to its appropriateness. Perhaps Chris would like to speak to that.

PN3068

MR CHRISTODOULOU: No, no, the draft is basically without prejudice. It's complete. I'll email it to Leigh on Monday and then we'll get some response back and it'll be one of those issues that we may have to and fro about.

PN3069

THE DEPUTY PRESIDENT: Yes.

PN3070

MR CHRISTODOULOU: But hopefully we can reach a landing on it.

PN3071

THE DEPUTY PRESIDENT: Right.

PN3072

MS WALSH: The other issues, your Honour, was one which following that meeting in discussion with - and we'll meet further on it tomorrow, is in relation to - and I'm sure there's no answer to this but I'll put it on the table anyway - is that the whole award is based on people with a disability, however what families and carers and some of the workers themselves are saying is that where there is difficulty with informed decision making and difficulty in communication, that really isn't recognised within the award, the differentiation in disability.

PN3073

Now that's a nightmare on the ground we would - you know, we would concur with that but it really is disadvantaging those people within the ADEs, and they are the majority, who have a lack of communication skills and really have a severe to moderate intellectual disability as opposed to other types of disabilities. Now how we ever get that into anything is - I understand would be quite difficult but it's the main - that's what our families are grappling with.

PN3074

THE DEPUTY PRESIDENT: So the draft that you're doing and emailing to Leigh on Monday doesn't deal with that question?

PN3075

MS WALSH: Doesn't cover - no, it doesn't cover that. We will do some more work on that on the weekend but perhaps if I read you in consulting with our constituency, this is an email - because we've put out some feelings. This is an email which I received from one of our parents and Estelle has been before the Commission, and this is her comment, "Only last week I took two" - I'll give you a copy of this:

PN3076

I took two young occupational therapists to see my son at his ADE. Before attending they were of the sweatshop slave labour mentality but after observing the clients through the viewing window for an hour, they conceded that my son was in the right place for him and most of the others were too. Also, that it was a busy and efficient workplace.

PN3077

She has asked that I actually introduce that concept, because this is what so many of our parents and family carers are saying and unfortunately their sons and daughters, brothers and sisters, are not able to go out into the public forum to present their views. So that's where they're sort of saying that well, the award says people with a disability but unfortunately this group are the most disadvantaged.

PN3078

THE DEPUTY PRESIDENT: Doesn't that speak though to what has generally been a theme - - -

PN3079

MS WALSH: Social policy.

PN3080

THE DEPUTY PRESIDENT: - - - of this since we began - - -

PN3081

MS WALSH: It has.

PN3082

THE DEPUTY PRESIDENT: - - - about the opportunity and captured in the interests that we wrote down, that there is an opportunity for people with a disability and in the - I think when we said those words were thinking very much of people with intellectual disability - - -

PN3083

MS WALSH: Yes.

PN3084

THE DEPUTY PRESIDENT: - - - to be meaningfully employed.

PN3085

MS WALSH: Yes, and I think it goes to the heart of - I mean even some comments over time since I've been representing this group of people, is that you know like comments that well, we need this particular wage and whether or not the ADE has the capacity to pay it is not a consideration. Well - and that's real concern for our workers. I mean I know this young man would be devastated if his job wasn't there tomorrow and there are so many people like him.

PN3086

MR DICKENS: Completely correct me, I'm just trying to rephrase what - or understand.

PN3087

MS WALSH: Yes.

PN3088

MR DICKENS: The sentiment of what you're raising there, is it saying that a large percentage of people feel that - or the people that you're representing anyway - - -

PN3089

MS WALSH: Yes.

PN3090

MR DICKENS: - - - feel that the award and this process is being unduly influenced by a small proportion of - - -

PN3091

MS WALSH: Exactly.

PN3092

MR DICKENS: - - - of the workforce that don't feel represented.

PN3093

MS WALSH: They don't feel represented and you know no one would take away from the class action that happened but the issue that our membership is considering at the moment is whether or not the award should have within it a better or more considered and progressive dispute resolution issue that would ensure that before a class action could happen or should happen, that you know - that a process has been followed. Because in the real business world, which is what we're all supposed to be about, you can't sack anyone. You've actually got to give them so many - I've been there, done it, you know, the three steps. This, you've got your first warning, you've got your second warning, so no action can be taken without having followed a due process. Our memberships feels that the dispute resolution process or the grievance mechanism within the award should in fact spell out more clearly a process that should happen.

PN3094

Now I know that they will say but Fair Work is there and this is there and that is there, but in the ground - on the ground, you know, that needs to be spelt out to both the workers and to the employers, and I'd be interested to hear the comment of the providers on that.

PN3095

THE DEPUTY PRESIDENT: Well, Chris has raised a question of dispute resolution before and I think it's perfectly reasonable to put forward something. I think there's quite a lot in what you said and I should say on the record, I think, for those reading it afterwards that if we're going to have a bigger discussion about representation, these proceedings, other proceedings that should be done with those who are being spoken about present so that they can discuss it, although Sam's here and it's not fair for her to have to be the one to, you know, to respond to those concerns. But really what I think you're narrowing down on is not so much that's a reflection and we know the views that you've expressed at this table before about a range of issues including that, but what you're really saying is that the grievance procedures and dispute resolution provisions of the award should be more tailored and customised to the use by people with a disability, in particular those - - -

PN3096

MS WALSH: With an intellectual disability.

PN3097

THE DEPUTY PRESIDENT: - - - with an intellectual disability. Whether it's about representation in the course of the dispute or whether it's about some additional supports that ought to be made available for them to understand.

PN3098

MR CHRISTODOULOU: Just on the question of supports, when in part we try to address that issue in the clause that I'm going to be sending Leigh, because it actually raises a whole range of different supports that a person with a disability should have available to them, including the support of their family and carers.

PN3099

MS WALSH: Family carers.

PN3100

MR CHRISTODOULOU: And spelling out all their employment rights, but I think then apart from that there is well if there is a dispute there ought be a procedure, and I think the end product of that was a debate which we really hadn't quite concluded. I don't even think on our side we've concluded yet whether, you know, there ought not be the scope for arbitration of a dispute and that's not normally what's in a grievance procedure with most awards at the moment.

PN3101

THE DEPUTY PRESIDENT: Well, the grievance or rather dispute resolution procedures in the model - the modern awards, I should say, don't have dispute - funnily enough, don't have provisions that are the same as the model term in the Act.

PN3102

MR CHRISTODOULOU: Right.

PN3103

THE DEPUTY PRESIDENT: So the model term in the Act is quite - which is replicated in most enterprise agreements is - has the right of arbitration - - -

PN3104

MR CHRISTODOULOU: Yes.

PN3105

THE DEPUTY PRESIDENT: - - - whereas in the awards, because they're arbitrated as opposed to agreed and there's a High Court decision on this, they don't have the right of arbitration unilaterally. They only have it by agreement.

PN3106

MR CHRISTODOULOU: But if for some reason we were all to agree - - -

PN3107

THE DEPUTY PRESIDENT: Yes, maybe. I'm not sure to be honest.

PN3108

MR CHRISTODOULOU: Right.

PN3109

THE DEPUTY PRESIDENT: It's got to do with the arbitral and judicial distinction and this High Court decision that said that parties could agree but then who are parties when it's an award. There are no parties.

PN3110

MR CHRISTODOULOU: That's right.

PN3111

THE DEPUTY PRESIDENT: It's like acquired by legislative instruments, so I'm just not sure that that would be possible but - - -

PN3112

MR BURGESS: Mary, can I ask - I'm trying to get my head around it, I hear what you're saying but what's the end goal. I get the feeling that part of your frustration is that this whole process is taking place because a very, very small minority said they were representing the majority and that's not the case. How do we avoid that happening again?

PN3113

MS WALSH: Well, there are already processes in place to ensure it happens again with the current - with the current, I guess, move to remove all the existing tools. Now how that process will happen is not - you know, not for consideration here today but certainly our parents and carers and their sons and daughters and their family members do feel in many cases that the insecurity that has been inflicted on them and their lives, and the lives of the extended families has created a lot of consternation. So if perhaps in the model award going forward we could put in a better protection for people with intellectual disability as opposed to people with a disability and build in a provision within the grievance mechanism that ensured a due process was followed, and that the people involved - you know, that there was wider discussion. So I mean if it's simply - if it's simply a disagreement between a worker and their boss, as in any other place, there's a due process to be followed.

PN3114

One would expect that it would be well documented which is why we have been so I guess forthright in stating that we do not accept that a service provider should be allowed to keep no internal profile stuff, in relation to a wage assessment. We believe that if the wage assessment is to occur then the service provider should have an appropriate standardised form, and this is being looked at in the guidelines now but with the modified one. But it actually isn't in the award, there's nothing there. It obviously has to be part of the guidelines as I understand. So does that explain what our issue is?

PN3115

MR BURGESS: Personally I think there's two issues here.

PN3116

MS WALSH: Yes.

PN3117

MR BURGESS: I'm not entirely sure - I have no trouble with a strong grievance process, don't get me wrong. I'm not sure that no matter how much we strengthen an individual person's grievance capabilities or options, it's going to avoid some of the concerns that you have.

PN3118

MS WALSH: Yes.

PN3119

MR DICKENS: Or is it about, I guess a representative - is that what you're driving at? Like to have something - so you don't have a 95 per cent affected by five. Is that - - -

PN3120

MS WALSH: Well, that's what we got. Well, it's not 95, it's about 85.

PN3121

THE DEPUTY PRESIDENT: I think I want to just curtail the conversation because it just happens to have occurred on an occasion when the two union representatives and the representative from AED are not here and when read in transcript, it could appear like an attack on their representative status.

PN3122

MS WALSH: Certainly.

PN3123

THE DEPUTY PRESIDENT: There are big philosophical and practical issues to do with stakeholder relations and how in our civil society voices are heard in public policy, and I just wouldn't want it to read as though on the one afternoon that they are not here, you go into a whole conversation where you critique, you know, that they're representing (indistinct) people with disability.

PN3124

MS FRENCH: But I mean I think that was helpful to ask some of those questions because I must say I'm not 100 per cent clear about, and I think there are some different issues, and I agree we shouldn't be discussing them in any depth without the other advocates here. But just as a general comment, we would - I don't think we would have any disagreement with strengthening complaints mechanisms and rights of individuals to have the right sort of supports to go through any sort of procedure, whether it be disciplinary or any other sort of procedure. Absolutely agree that for some people with disability and high proportion of those working in ADEs do have higher support needs with communication and walking through - we would have - we certainly wouldn't agree to anything that would limit representation.

PN3125

The reality is of workplaces and I note that your comments about people with the higher support needs and workers have a right to be represented and no representative action is 100 per cent of people being fully informed and agreeing in full to that. It's - representative action is of itself representing a group based on the experiences of a number of people and they're wanting a policy change or a law change or an award change. We would not agree to something that would prevent employees in ADEs, even those with intellectual disability, from having that representation. So that's just a general comment back, but I think it would be worth a conversation when the other advocates are here.

PN3126

MS WALSH: Yes, certainly, and I wasn't - it isn't meant to be something that was raised probably in the depth that we did raise it because I know that you're probably at a disadvantage, Samantha, because the others aren't here. So I'm sure that they will transcribe what is necessary to transcribe to ensure that it doesn't appear to be a critique.

PN3127

THE DEPUTY PRESIDENT: I think now that we've had this qualifying conversation that's fine but I think when it comes to the actual content of the award, what is being said is that the dispute resolution provisions, and that is exactly what you're working on, Chris, as I understand it.

PN3128

MR CHRISTODOULOU: No, not the dispute resolution. What I've worked on is the heading is "Rights at work for supported employees", and it actually overcome - it actually says - it spells out all the various options as far as I can determine myself that employees with disabilities would have so that they can be given all the necessary information they require about rights of work. Whether it be from advocate groups, unions, family and carers, and so it spells out a whole range of what we would regard as reasonable things for the employer to do to provide that information to employees. So that's one issue.

PN3129

The second issue really is on the grievance procedure, and I think the thing that - maybe I can interpret it in my own way, Mary, and you can tell me if I'm wrong. I think what Mary's saying is if the dispute procedure was clearer and more stepped in relation to employment related matters, it may in some situations not stop but it could prevent things going off to another jurisdiction, whether it's the Human Rights Commission or other places like that, because you've been able to deal with them as a consequence of those steps. So for argument's sake, if someone thought they were being discriminated in employment in relation to the application of a wage assessment tool, could be the supported wage system, that they thought they were being discriminated, they would go through the dispute settling procedure and try to resolve it that way. And of course if they couldn't get it resolved, well, the rights are open to people then to go to whatever other jurisdiction they want to go to.

PN3130

MS FRENCH: I think, look, in general principle, I think I took that to be what Mary was going towards.

PN3131

MS WALSH: It's what I was trying to say.

PN3132

MS FRENCH: But I can just - a correction or an addition up there - - -

PN3133

THE DEPUTY PRESIDENT: Yes, please do.

PN3134

MS FRENCH: - - - is where it says Sam supports representation, I think the focus for us is on it being independent representation. Now that does not mean - that does not exclude family and carers. All it is is saying that independent information and advocacy and independent representation for groups of employees is fundamental to our industrial relations system, and so it should be too for supported employees. So although, you know, in your experiences Mary there might be very supported families and they're advocating, there are people with disabilities and workers who don't either have any support - - -

PN3135

MS WALSH: No, I'm aware of that, yes.

PN3136

MS FRENCH: Or have support that is not working in their best interests, or people that are fearful of closures, mass closures, mass job losses, when we're saying we don't see that as - we don't believe that that's as gloomy or even a reality to the same extent as others might. So I think the need for independent representation must remain a right and must be promoted for these employees, because there are many. I'm thinking here if you look at New South Wales, many that live in boarding houses where they have no family support, the only support they're getting outside of their ADE - many of those boarding house residents work in ADEs, and our advocates go into the boarding houses, they don't get much access to the ADE, but they're fully aware that those people are totally vulnerable, they're not getting the supports that they need. They're reliant on their ADE manager to be providing them with all the industrial rights, information, and some may be doing that. I'm sure many are.

PN3137

SPEAKER: And some don't.

PN3138

MS FRENCH: But there are many that are not. You know, we could put - in New South Wales where are advocates are and Queensland, we could give you a list of those boarding houses and those ADEs where people are being - are in a really rough position. So I think really - although your situation is good and your families are working to support people, we've got to think about those where they just don't have that support.

PN3139

MS WALSH: I think that what we're putting together here, Sam, actually addresses that by way of representation.

PN3140

MS FRENCH: Yes.

PN3141

MS WALSH: The draft document.

PN3142

THE DEPUTY PRESIDENT: Does that mean that there needs to be more work done on whatever the current dispute resolution procedure and I think you said that there was also a grievance procedure in the award, which always the presence of two confuses the situation because people don't know which one to use. So that might even be a rationalisation opportunity that you could take on.

PN3143

MR CHRISTODOULOU: Let me find it, I've got to find it.

PN3144

SPEAKER: What's the distinction?

PN3145

THE DEPUTY PRESIDENT: Precisely. I might be wrong and there might not be two. I just heard you use those two terms.

PN3146

MS WALSH: Dispute resolution on page 9.

PN3147

MS LANGFORD: Yes, just dispute, yes.

PN3148

THE DEPUTY PRESIDENT: I see. So it's just the standard dispute resolution procedure that's in every modern award.

PN3149

MR CHRISTODOULOU: What clause is it?

PN3150

MS LANGFORD: There's 28 - - -

PN3151

MS WALSH: I haven't got the exposure draft.

PN3152

THE DEPUTY PRESIDENT: Raise a problem with your supervisor, if that's not resolved raise it with your manager, if that's not resolved take it higher, if it's not resolved refer it to the Commission for conciliation.

PN3153

MS WALSH: But that assumes you see that the employee is actually capable of doing that.

PN3154

THE DEPUTY PRESIDENT: Yes.

PN3155

MS WALSH: This is the part - - -

PN3156

THE DEPUTY PRESIDENT: It raises the question of representation that Sam has raised.

PN3157

MS WALSH: It does.

PN3158

MR CHRISTODOULOU: So in this other clause we talk about providing information about - to employees about, you know, seeking representational rights, whether it's from a union, advocacy group, blah, blah, blah, and it specifically talks about things like making sure that they can get access to those organisations, whether it's during a grievance procedure, redundancy, significant workplace - anything that might be prejudicial to their employment.

PN3159

THE DEPUTY PRESIDENT: To them.

PN3160

MS WALSH: Or to them personally.

PN3161

MR CHRISTODOULOU: Yes, but anyway I'll send this off to Leigh. It doesn't actually though address the actual clause - the dispute settling procedure clause, which I wasn't going to try to take on at this stage. If we can get this resolved, it might be the next thing we could do.

PN3162

THE DEPUTY PRESIDENT: But very often, certainly enterprise agreement clauses - - -

PN3163

MR CHRISTODOULOU: Yes.

PN3164

THE DEPUTY PRESIDENT: - - - do build within them that parties may be represented at any stage in the dispute resolution procedure. So if you made a link between this clause and that clause - - -

PN3165

MR CHRISTODOULOU: This clause, yes.

PN3166

THE DEPUTY PRESIDENT: - - - that might at least provide the encouragement - - -

PN3167

MR CHRISTODOULOU: Well, I might actually try to do that. Maybe I can link something here back to the disputes.

PN3168

MS WALSH: Yes, and picking up on Sam's comment too, the actual - the reason for this is that the actual award states, "guardians or carers", and there are many as you rightly say who don't have either, and guardianship is very hard to get. There is an assumption that it's very easy, it isn't and that many of these people now have no family and there are siblings who are trying to step in and the issue of carers get confused with paid support workers. So we believe that that needs to be clarified better.

PN3169

THE DEPUTY PRESIDENT: The work that Chris has done - - -

PN3170

MS WALSH: We are working - we will work on that with Chris.

PN3171

THE DEPUTY PRESIDENT: - - - is attempting to do just that.

PN3172

MS WALSH: Yes, so that will be actually two issues.

PN3173

THE DEPUTY PRESIDENT: Good.

PN3174

MR CURTIN: Another (indistinct) is independence.

PN3175

MS FRENCH: Independence, yes. Look, I think often carers and families might read that as being that they're being shut out by the word independent, but I think it's mainly in regards to independent from those that have a conflict of interest, and so you know independent perhaps from the employer. This is what we're seeing is that sometimes they've only got the ADE employer as their sole source of information, advice, and that the proprietor of some of these boarding houses are acting in ways that we are finding very difficult to tackle. They're being - there's a lot of abuse that's happening inside boarding houses but because of the legislation - and I'm talking New South Wales here at the moment, which I know the best, it differs by state. But there's a huge amount of financial abuse and physical, emotional and all other manner of abuses.

PN3176

We can send advocates in and they can be supporting people as much as possible but it's not stopping those proprietors from taking 95 per cent of that person's income, and doing what they like with it. There is just no law that we're finding at the moment that we can actually address that in a systemic way. So I think, you know - so although that's about boarding houses, like I say many of those residents are ADE employees and it's so - you know, if we're going to be improving the situation for the wages and conditions for people in ADEs, which we're all here to be doing, I think we need to be mindful that there are going to be a number of people that need that independency, whether it be from the ADE employer or it could at times be family members who may not be supporting the person appropriately, or it could be a proprietor of a boarding house, it could be some other carer, whether they be paid or not. So you know just that independence, that opportunity for representation.

PN3177

MR DICKENS: I concur with you, Sam. Ironically I've had an example where I moved one of our employees who was in a boarding house and he was being financially abused and I took the work he did myself because he was in hospital, and I went and moved his whole little unit, and he was sleeping on the floor. We moved - and they were taking 95 per cent of his - - -

PN3178

MS FRENCH: Yes, it's shocking.

PN3179

MR DICKENS: Yes, but the point being that we were his only support in his life so it was up to me to go and move this poor chap.

PN3180

MS FRENCH: You did the right thing in that situation.

PN3181

MR DICKENS: But it highlights what you're saying though, that I was the only support in his - or we were the only support in that person's life.

PN3182

MS FRENCH: He's vulnerable, yes. I mean this has got direct implications for what's happening under the payment scheme where, you know, we've got to worry about that after 30 April when the registrations close. But this is something that we need to be keeping in mind, is that people will be getting lump sum payments - - -

PN3183

MR DICKENS: Yes, yes.

PN3184

MS FRENCH: This is outside this meeting that we're dealing with here but I think - - -

PN3185

THE DEPUTY PRESIDENT: It's illustrative of the point.

PN3186

MS FRENCH: Yes, very, very significant.

PN3187

MR BURGESS: We're very worried about it actually. Some of our people (indistinct) we're really worried about what's going to happen to them.

PN3188

MS WALSH: But I think too the point that you've both raised on the word "independence", I mean I've been present when family members who really were doing the right thing, were accused of a conflict of interest, because this is about your particular family member who is a worker and it's got nothing to do with you. Now that wasn't from the employer so the point that you've made quite rightly is the word "independence" is a little bit like a red flag to a bull with some families. Now it is deserved with some but not with all, and the point you've made is I have and know of workers and people with an intellectual disability, severe to moderate, whose only support is their employer, and at times have had to take action in relation to family in relation to that.

PN3189

So I think that in using the term independence and actually locking the service provider out, there's a risk attached to that in the case that you just instanced and one that I've been involved in as well. Is that it's finding somebody, be it an advocate, a neighbour, someone who actually has the interests of the person with the severe to moderate intellectual disability at heart, and sometimes it is the family member, sometimes - it often is the family member but sometimes it is the employer, the service provider who knows the person best and who genuinely makes the right decisions. So I think we need to be very careful that we don't jeopardise their involvement either.

PN3190

MS FRENCH: No, but I think that there could be benefits - not benefits, positives, certainly what we have always supported would be the requirement for there to be independent support and advocacy in a situation where somebody is having - going through a dispute resolution process, we would think that it be essential or compulsory that they have access to, not just the right but they - there is a requirement that they have an independent support advocate, support person involved because of the difficulty in decision making that some people can have.

PN3191

So when you say you've got a right to a representative, people may not know that they've got that right and there may not be - it may not be - yes, I think that saying someone's got a right can be quite different to saying they've got - they can exercise that right. So we know they've got - they should have the right like any employee to have that independent representation but given the heightened difficulty that some employees have with decision making and the heightened need for support, perhaps that means that we should be making it a requirement if things progress to a disciplinary level that there must be an independent advocate support person to assist with decision making. Without the other advocates I can't say that's definitely the line but I think if we were going to go down this line of talking about the dispute resolution procedure, particular needs of these employees and we would see that that would be a positive to have in there.

PN3192

MS WALSH: Perhaps, your Honour, it is an issue we can raise when the other advocates are present at a later meeting.

PN3193

THE DEPUTY PRESIDENT: Yes, I think it will probably inevitably come up through the receipt by Leigh of that document and then when we discuss that, if indeed we do get to do that again - - -

PN3194

MS WALSH: Because we didn't have independence in there did we?

PN3195

MR CHRISTODOULOU: Well, it's all presumed.

PN3196

MS WALSH: We presumed.

PN3197

MR CHRISTODOULOU: Like a union's independent or I use the term advocacy group but I'm presuming they're independent.

PN3198

MS WALSH: It's independent.

PN3199

MR CHRISTODOULOU: Now, you know, of course if you refer to a carer or family member, yes, well, there's some question mark as to - but you know are we going to say a family member shouldn't be involved by - - -

PN3200

MS FRENCH: No, no, no, but somebody with appropriate capacity to assist with decision making.

PN3201

MR CHRISTODOULOU: Well, I don't know how you make those judgments really. At the end of the day if you're telling - - -

PN3202

MS FRENCH: Yes, that's why we haven't got in in there.

PN3203

MR CHRISTODOULOU: All we can do is provide as much information, and I use the word information required to exercise their employment rights, and there's a whole range of things that follows in this clause. I just think we can do as much as we possibly can but then the onus probably then is that if we find later on the employers didn't take these reasonable steps and decisions were made. Like someone was unfairly dismissed and they then decided then they'll take an unfair dismissal and they then subsequently found the employer didn't actually comply with this by telling the employee that they could do this, they could do, they could have someone present, et cetera, well, then obviously the employer's going to be found out for not having done what their obligations are under the award.

PN3204

But look let's get the clause out there and we'll see what happens.

PN3205

THE DEPUTY PRESIDENT: Yes. Well, are there other issues because that actually ends the list that we went through on the last occasion.

PN3206

MS WALSH: Just one other, your Honour. As you may recall, because it actually happened from around our conciliation table, we prepared a late submission to the four yearly review, but it doesn't appear to be on there.

PN3207

THE DEPUTY PRESIDENT: That's right. We said - and I'm looking to Grace this time. Did we not say that we would check in with the award mod team to see whether they were going to update that table? Because your submission will be on the web.

PN3208

MS WALSH: But I got - well, it's not in this list.

PN3209

MS LANGFORD: No, they're not in there.

PN3210

MS WALSH: It's not in this list.

PN3211

MR DICKENS: It doesn't appear to have been updated for a little while.

PN3212

THE DEPUTY PRESIDENT: Is that right?

PN3213

MR DICKENS: Yes, the transcript's on there.

PN3214

THE DEPUTY PRESIDENT: Because as you know we're not responsible for that.

PN3215

MR DICKENS: I appreciate that.

PN3216

MS WALSH: No, no, no.

PN3217

MR DICKENS: The transcript's on there but some of the documents that I believe were filed last week - - -

PN3218

THE DEPUTY PRESIDENT: Just pass that over to me Mary and I'll make sure I familiarise myself with it and specifically - - -

PN3219

MS WALSH: Certainly. That's what I did printout off the web, your Honour.

PN3220

THE DEPUTY PRESIDENT: So where is your submission then?

PN3221

MS WALSH: It's not there.

PN3222

THE DEPUTY PRESIDENT: No, no, but physically where is it now?

PN3223

MS WALSH: Here. Well, I've emailed it to the Fair Work.

PN3224

THE DEPUTY PRESIDENT: Well, maybe it is our responsibility then. Maybe if it's - if it came pursuant to this process - - -

PN3225

MS WALSH: On 29 August.

PN3226

THE DEPUTY PRESIDENT: - - - then perhaps we didn't - - -

PN3227

THE ASSOCIATE: I have asked the AMOD team - the award modernisation team whether they have that submission and they don't and it's on the website, and we don't have it.

PN3228

THE DEPUTY PRESIDENT: We don't have it either.

PN3229

MR MOSTAFAVI: Mary, I've got you 6 April one, is that what you're referring to?

PN3230

MS WALSH: No, no, this was the one that you may recall around the table that we weren't aware that 286 even existed, the modern - because, and that goes back to the issue - - -

PN3231

MR MOSTAFAVI: Far earlier, right.

PN3232

MS WALSH: So we submitted a late one in August last year.

PN3233

MS LANGFORD: I do recall that.

PN3234

MS WALSH: But it doesn't show up as ever having been - we did get something back - - -

PN3235

THE DEPUTY PRESIDENT: So can you just resend - all you need to do is resend that to me or to Grace and we will send it to the AMOD team and say please put this up on the web.

PN3236

MS WALSH: I'll do that.

PN3237

MR CHRISTODOULOU: And then - - -

PN3238

MR MOSTAFAVI: Sorry, Chris, and also Margaret sent through something, Kerrie sent through something, I think they were both initially didn't - they were - I think Margaret's email didn't have the two filled in initially so it had a whole bunch of cc's and then she filled it in on Friday. In any event, that's just housekeeping.

PN3239

MR CHRISTODOULOU: My corros not on there.

PN3240

THE DEPUTY PRESIDENT: Well, sometimes because it was all under 30 and was considered part of the confidential robust cut and thrust, it wasn't put up. But if you want it to go up - - -

PN3241

MR CHRISTODOULOU: But I did refer - I did put the two C numbers on there.

PN3242

THE DEPUTY PRESIDENT: Right.

PN3243

MR CHRISTODOULOU: Including the award modernisation C number.

PN3244

THE DEPUTY PRESIDENT: So let's just have a little list here of submissions.

PN3245

MR DICKENS: There has been a short week too, your Honour.

PN3246

THE DEPUTY PRESIDENT: It has.

PN3247

MS WALSH: We had Easter remember. Easter was a memory.

PN3248

THE DEPUTY PRESIDENT: To be raised on the website. I think there's two things; one is putting them on the web but the other is capturing them in the award modernisation's summary of issues - - -

PN3249

MR CHRISTODOULOU: Mine are captured now in what you've done.

PN3250

THE DEPUTY PRESIDENT: Yes.

PN3251

MR CHRISTODOULOU: Because I've referred to the letters.

PN3252

THE DEPUTY PRESIDENT: I think we - so we've got carers alliance, just tell me the dates so we're sort of distinguishing it.

PN3253

MS WALSH: I've got a copy of it here.

PN3254

THE DEPUTY PRESIDENT: That's going to be NDS submission, if you happen to have the date of your submission, Kerrie, that's - - -

PN3255

MS LANGFORD: That was 10th I think it was.

PN3256

THE DEPUTY PRESIDENT: Then there's an ABI submission.

PN3257

MR MOSTAFAVI: The ABI submission was dated - there were two documents dated 7 April. The NDS one is 10 April.

PN3258

THE DEPUTY PRESIDENT: Now Grace, will it be easier - will certainly be assisted by those things being resent?

PN3259

THE ASSOCIATE: That's ABI - - -

PN3260

THE DEPUTY PRESIDENT: So ABI 7 April, NDS submission dated 10 April and carers alliance.

PN3261

MS WALSH: I'm happy to resend it.

PN3262

MR DICKENS: I believe our documents wouldn't have arrived to chambers until the 10th because that's when they attached the earlier one sent to myself.

PN3263

THE DEPUTY PRESIDENT: What do you think, Grace, will we ask to make sure that we - - -

PN3264

MS WALSH: That's the copy and I have it electronically so I can send it electronically.

PN3265

THE DEPUTY PRESIDENT: So it's dated 29 August 2016. Is that a spare copy?

PN3266

MS WALSH: Yes, you can have that copy, your Honour.

PN3267

THE DEPUTY PRESIDENT: Because I just have that for recognition. 2016, right. You're sure you sent it to chambers, you didn't send it to the AMOD team. Anyway, look, I don't need - I'm just perplexed.

PN3268

MS WALSH: I'm sure I sent it to chambers because I think my comment was I made the deadline, because there was an issue over whether it got it done in a week or - - -

PN3269

THE DEPUTY PRESIDENT: You might have sent it because - you were responding to directions issued by the President though, so you might have been an email address that wasn't ours but was rather the Full Bench.

PN3270

MS WALSH: As long as it's - - -

PN3271

THE DEPUTY PRESIDENT: Anyway, let's get it right now, let's not worry about how it didn't - - -

PN3272

MS WALSH: I'm not worried about it but we'll get it right.

PN3273

THE DEPUTY PRESIDENT: Yes. We're going to - Grace, what do you think, ask everybody to resend just so that we can - - -

PN3274

THE ASSOCIATE: Well, I only need Mary's.

PN3275

MS WALSH: I'll resend that to you Grace. I'll send it to you, thank you.

PN3276

THE DEPUTY PRESIDENT: NDS and ABI we - - -

PN3277

THE ASSOCIATE: I have them.

PN3278

THE DEPUTY PRESIDENT: - - - we're received. Super. So that's the three things, there's nobody else's that - - -

PN3279

MS WALSH: No, thank you, your Honour.

PN3280

THE DEPUTY PRESIDENT: I mean to be honest I think probably it isn't worthwhile now asking the AMOD team to update that document, because we've kind of moved on from that with these notes and where you're going to be. It'll just, you know, just end of being a whole lot of administrative work for no purpose, but as long as you're happy that your submissions are actually up on the web and reflect your current stance.

PN3281

MS WALSH: Well, it enables our constituents to actually go and look at it.

PN3282

THE DEPUTY PRESIDENT: Absolutely, yes. I'm sorry, I cannot imagine how - if we'd received that, I'm sure with that AM number we would have - see we don't - this is the fall in-between the cracks thing, so we've been dealing with 2013/30 and being quite cautious not to put things up on the web because we were all at that point, particularly back in 2016 working in a confidential space. But paralleling that there's been just a whole lot of AM2014/286 stuff happening, which is outside of us and, you know, in response to a direction the President's issued and they always have their own email address and it goes into what we call the AMOD team, and perhaps in that case it's fallen between the cracks. But it could be our responsibility as well, Mary, and if it is I'm really sorry.

PN3283

MS WALSH: Well, it's just - - -

PN3284

THE DEPUTY PRESIDENT: We'll make it right now.

PN3285

MS WALSH: We're not going to worry about it. We'll just send another one.

PN3286

THE DEPUTY PRESIDENT: Right. So do we have anything else that we need to cover off. We've got issues, we've got processes, we've got our teleconference set up and hopefully in-between time there's going to be lots of bilateral communication crossing over and if final agreement is reached on the form of words capturing it, and then maybe when that happens sending it to our chambers is the right thing to do. Are we don then for the day? Yes, Rowena.

PN3287

MS FREELAND: Could I ask that you send through your meeting notes to all the parties. Were they sent from the last - - -

PN3288

THE DEPUTY PRESIDENT: Now I normally do and they - were they not?

PN3289

MS FREELAND: No.

PN3290

THE DEPUTY PRESIDENT: Look what happens is because it is a human process as opposed to some kind of - you know, is that I intend to do it and then of course I get back there, three things happen so I do apologise. I will - we well - Grace, we will send both notes from last week and this week as soon as we get back upstairs.

PN3291

MS FREELAND: Fantastic.

PN3292

THE DEPUTY PRESIDENT: Thanks.

ADJOURNED INDEFINITELY�� [3.00 PM]