TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1056483
JUSTICE ROSS, PRESIDENT
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards
Children’s Services Award 2010
10.00 AM, MONDAY, 22 OCTOBER 2018
JUSTICE ROSS: Can I have the appearances please.
MR BULL: If the Commission pleases, Bull again with my colleague Ms Dabarera for United Voice.
JUSTICE ROSS: Thank you. Ms Whish.
MS S WHISH: May it please the Commission, Whish, initial S, on behalf of the Australian Childcare Alliance, ABI and NSWBC.
JUSTICE ROSS: Thank you.
MS N SHAW: Shaw, initial N, for AFEI.
MS S LO: Lo, initial S, for AFEI.
JUSTICE ROSS: I understand there are two individuals?
MS E ARRABALDE: Yes.
JUSTICE ROSS: Your names are?
MS E ARRABALDE: My name's Arrabalde, initial E.
MS I ARRABALDE: My name's Arrabalde, initial I.
JUSTICE ROSS: Right, thank you. So I've received correspondence from ABI and United Voice, both confirming the claims in attachment A and well, similar issues arise that arose in the matter at 9.30. That is we need to get draft variation determinations filed so they can be published and I need to get an indication as to what sort of case each of you will be running, how many witnesses, if any, and what directions you propose and how many hearing days you think will be necessary.
MR BULL: This is going to be probably the most complicated one of the three we're dealing with this morning. We could have up to 10 witnesses.
JUSTICE ROSS: Right.
MR BULL: We may have less but we have a number of relevantly significant complex claims. As you may be aware this is an award which is critical to our union, so I would have thought at least four or five days potentially.
JUSTICE ROSS: Ms Whish.
MS WHISH: I would agree that it's going to be rather complex. The other thing I'd like the Commission to have regard to is that the ERO and work value proceedings are also ongoing and involve a number of unions, and while they generally involve the teachers award, there's a lot of considerations and some of the claims that have been raised by United Voice that may crossover in terms of evidentiary material into the ERO or the work value case.
JUSTICE ROSS: Right. Any proposed directions?
MR BULL: We haven't actually - and this is nothing to do with our opponents, we haven't had communications in the same manner. I would suggest - - -
JUSTICE ROSS: Well, one option is you can have those discussions and file a proposed - just bear with me a moment - and we can finalise that matter at the mention at 11 am on Friday, 9 November.
MR BULL: What I was going to suggest, it would be - the hearing of these claims should probably be after any hearings for aged care and SCATS.
JUSTICE ROSS: Why?
MR BULL: Because it's more complex and I think all parties are going to need more time in marshalling their evidence. I don't know - - -
JUSTICE ROSS: When's the ERO case?
MS WHISH: June, July.
MR BULL: Next year?
MS WHISH: That's correct.
MR BULL: Well, that complicates things. The allowance claims theoretically have some effect.
MS DABARERA: We've made similar allowance claims in relation to the teachers award, in relation to the educational leader allowance.
JUSTICE ROSS: Right.
MR BULL: In terms of the fiction that allowances aren't related to wages but - - -
JUSTICE ROSS: Well, yes.
THE BULL: - - - they're money.
JUSTICE ROSS: But they're not reimbursement allowances, so presumably they're related to the work and the way it's carried out.
MR BULL: The work - well these would be wage related allowances.
MS DABARERA: And they're related to the additional responsibility as a result of the national quality framework.
JUSTICE ROSS: So they're work value allowances rather than reimbursement allowances.
MS DABARERA: Yes, your Honour.
JUSTICE ROSS: Yes. Well - - -
MR BULL: Well, I suppose, look, frankly we should just push ahead with the review of this award and the claims that have been made by the parties.
JUSTICE ROSS: When though? You see let me put it to you this way. You're saying it should happen after the other two awards.
MR BULL: Yes.
JUSTICE ROSS: So look that puts probably a decision in relation to those two awards sometime in April. Then we're into the annual wage review in May/June, and you sort of - dates in June, July are likely to run over the ERO dates.
MR BULL: Well, I'm not suggesting it should be June or July.
JUSTICE ROSS: Well, when should it be?
MR BULL: In terms of Aged Care and the Social Services Award, are be looking at dates in April?
JUSTICE ROSS: No, we're looking at dates in March for the hearing of those awards.
MR BULL: Right, that's what I - - -
JUSTICE ROSS: But I'm just saying they won't be finalised, you won't get a decision until April.
MR BULL: That's fine, but I'm just talking about hearing the evidence. In relation to this, something in late April, May, it just gives - look, and I'll be perfectly - - -
JUSTICE ROSS: Yes, but we can't do - my point is we can't do late April or May because I've got the annual wage review on then.
MR BULL: Right, well - - -
JUSTICE ROSS: We can do February.
MR BULL: We're going to be very pressed. You know, obviously this process is not run for our convenience - - -
JUSTICE ROSS: No, I'm just trying to give you the - - -
MR BULL: - - - but I'm just telling you - - -
JUSTICE ROSS: No, it's your claim so I'm, you know, it's - and I accept what you say, it's going to involve more evidence so hence more time.
MR BULL: If you want good evidence, you know.
JUSTICE ROSS: Yes, I'm just a little apprehensive about if you're seeking a claim in essentially the same terms, in this award, before a different Bench to the ERO Bench, one option is to take those common claims and send it to that Bench. Leave the other claims out because I don't want to load up the ERO Bench with all the substantive claims in this award. But to the extent there's an overlap, why not do that and you can run your evidence together.
MR BULL: It appears what remains of the ERO might well be a value claim. Our ERO claim, as you know, has been dismissed by this Commission.
JUSTICE ROSS: Yes.
MR BULL: So, we probably should get some instructions on this.
JUSTICE ROSS: No, I agree with that. I'm not expecting you to answer this today.
MR BULL: It's a complex, legal issues associated with that.
JUSTICE ROSS: Yes, yes, that's fine.
MR BULL: We can do it by correspondence.
JUSTICE ROSS: Yes, well we'll be back on the 9th in any event, so that will give you a chance to discuss it, work out if there's a joint course. My apprehension is this.
MR BULL: Well, there's significant utility in what you're proposing because that particular Full Bench will be seized with a lot of, if you like, the background material which we would be compelled to present in relation to these claims. It frankly makes the case easier. But we need to get instructions.
JUSTICE ROSS: No, no, that's fine Mr Bull. I'm not - to be clear, my apprehension is to the extent that the allowance claims in this award are based on work value and agitate similar issues to those that are before the other Full Bench, then it would see, at least worth considering referring those claims to that Full Bench. I do not want to refer the whole list of claims to that Full Bench because I don't want to delay those proceedings unnecessarily and create a burden for the other parties in that matter.
There are two things that are exercising my mind about it. One is, it's more efficient both for the parties and the Commission to deal with what are claims in the same terms, albeit in different contexts, by the same Bench. The second point is, I want to avoid inconsistent decisions because there will be different pensions dealing with essentially the same allowance claims.
I think yes, give some thought to that; have a discussion between - and I'm not seeking to exclude anyone else from the discussions. But certainly, between the moving parties about that proposition, which particular claims and it should be referred if that's the view that you land on. Then what we do with the balance and when you would propose when we hear that and what the directions look like.
Have a think about all of that. It will give you an opportunity to get some instructions about it, discuss it between the relevant parties and we'll come back on the 9th and we'll sort out where we go with this award.
MS SHAW: I just want to confirm that AFEI is withdrawing their two submissions that were confirmed in the statement.
JUSTICE ROSS: So, you're withdrawing your two claims?
MS SHAW: We're withdrawing our two claims.
JUSTICE ROSS: Well, that will make it slightly simpler, all right.
MS WHISH: Your Honour, might I just explore whether there is any appetite, if the matters aren't referred, if there's any appetite after June for a hearing, or is that just too late for - - -
JUSTICE ROSS: No, I think - I would probably want to see where you go on the referral first. I'm still a bit concerned about the prospect of sort of two similar cases running before different Benches. But we may be able to deal with that by at least two options. Either it's referred or alternatively this Bench, that is the one dealing with the substantive issues in this award, deals with everything but those allowance matters and deals with that in March or April and then deals with the allowance matters after the other Bench has heard and determined those in the other award or the other proceedings. That's another option for you to think about as well.
I don't have a fixed view about it, I'm just a bit troubled about well one, the comment about the complexity of the case, the need for time, so I want to take that into account. The fact that we'll have other proceedings running, I need to take that into account. The fact that there are similar claims pressed before another Bench. So, I want to try and weigh all those things up, but that's another option. We could get all the evidence in about all the other claims pre-June and then deal with the allowance claims after the other Bench has dealt with theirs.
Alternatively, we can refer the allowance claims to the other Bench. Further alternative, we just press ahead and deal with everything in this award, in whatever time frame we can. So, there are at least three and whatever else you two can come up with, really.
MS DABARERA: Your Honour, I should mention as well, just briefly, about with the Educational Services Teachers Award, we have those allowance claims in respect of that award, but that's not being pressed in the ERO. That's awaiting being listed for a substantive direction and hearing itself.
JUSTICE ROSS: All right, whatever the timing is, it seems to make sense that if you're going to be advancing those claims in a couple of different places, from my perspective I'd rather it was the one Bench dealing with them.
MS DABARERA: Thanks your Honour.
JUSTICE ROSS: Secondly, I'd rather that the proceedings were organised in a way that reduces the time and cost to the parties involved. So, whatever's the most efficient way of doing that is what I think we need to think about. So, I'll leave it to you to give some thought to it, because I don't know it with the level of detail that you do, where the ERO matter is up to or what it's dealing with or the time frames. So, give some thought to that and have some discussions.
MS DABARERA: Your Honour, I think we can come to some kind of agreement on directions by correspondence. The reality is with ERO, there's a directions on 4 December, which may be a deciding factor in where things go and I think we just have to press forward in coming up with a plan for this award.
JUSTICE ROSS: Yes, I think we should - look, come up with a plan, bearing in mind what the ERO Bench is dealing with and then work out what you think is the most efficient outcome for the parties. Bring it back on the 9th. I can always raise it then with Hatcher VP and try and get a coordinated response.
MS ARRABALDE: Your Honour, excuse me, I don't know if this is appropriate or not, but we are ready to go and to proceed, I'd just like to mention that.
JUSTICE ROSS: What's your claim specifically?
MS ARRABALDE: We've got two substantive claims. The first claim is in regards to an allowance for an educational leader and the second claim is in regards to an allowance for the responsible person. Both of those claims we proposed and then similar claims were made by United Voice after our submissions.
JUSTICE ROSS: Then I'll get United Voice to discuss with you what the extent is. I'm just going to want to know in more detail what the extent of the overlap is between your claim and their claim.
MS ARRABALDE: Thank you.
JUSTICE ROSS: If they're in the same terms, and if they're caught up in the ERO proceedings, then I'll need to know that as well.
MS ARRABALDE: Thank you.
JUSTICE ROSS: But we'll be back on the 9th and we'll try and sort out then where we do with all of these. If your claim is for example, in the same terms as a claim that's before this other Bench, the same sort of issues arise and I want to avoid two Full Benches dealing with really the same issue, running separate proceedings involving similar parties and there's always a risk with these things that you take a different view of the evidence and I might have two different Benches going in different directions.
MS ARRABALDE: Yes, absolutely.
JUSTICE ROSS: So yes, we just need to explore how we can avoid that.
MS ARRABALDE: I fully understand that. We're just so pleased that we as individuals are able to come to this court and present our views.
JUSTICE ROSS: Yes, of course you can.
MS ARRABALDE: So yes, that's from my perspective.
JUSTICE ROSS: You need to give some thought to - well, let's wait until you've had the discussions and we'll see where we go on the 9th. But on the 9th I'll be asking everyone again, what sort of evidence they're going to bring. Are they proposing to file witness statements, et cetera?
MS ARRABALDE: Thank you, your Honour.
JUSTICE ROSS: All right, anyone else? Mr Ferguson?
Well, I'll see you on the 9th and hopefully we can sort it out then. Thanks, I'll adjourn.
ADJOURNED UNTIL FRIDAY, 09 NOVEMBER 2018 [10.19 AM]