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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
COMMISSIONER CIRKOVIC
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards
(AM2014/263)
Children's Services Award 2010
Sydney
10.20 AM, MONDAY, 27 MARCH 2017
Continued from 7/02/2017
PN235
THE COMMISSIONER: Good morning. I will take appearances please.
PN236
MR M ROBSON: If it pleases the Commission, Robson, initial M, United Voice.
PN237
THE COMMISSIONER: Thank you, Mr Robson.
PN238
MR M ROUCEK: If it pleases the Commission, Roucek, initial M, for Australian Child Care Alliance Australian Business Industrial New South Wales Business Chamber.
PN239
THE COMMISSIONER: Thank you, Mr Roucek.
PN240
MS J ZADEL: If the Commission pleases, Zadel, initial J, for the Australian Federation of Employees and Industries.
PN241
THE COMMISSIONER: How do you pronounce your surname, I'm sorry?
PN242
MS ZADEL: Zadel.
PN243
THE COMMISSIONER: Zadel. Thank you.
PN244
MR J GUNN: If the Commission, pleases, Gunn, initial J, for CCSA.
PN245
THE COMMISSIONER: Thank you. And in Adelaide?
PN246
MR W TURNER: If it pleases the Commission, Turner, initial W, for the Department of Education, and Child Development in South Australia and with me Mr Rumpe, initial A, and Ms Haynes, initial R.
PN247
THE COMMISSIONER: Mr Turner, I should just - if I could ask you to perhaps adjust the microphone closer perhaps to where you're speaking. Try again.
PN248
MR TURNER: Is that better?
PN249
THE COMMISSIONER: Much better. I don't mind if you're seated as well. So perhaps if you could adjust the microphone so you're comfortable and then we can go from there.
PN250
MR TURNER: Thank you, Commissioner.
PN251
THE COMMISSIONER: I think that's better. Do the parties in Sydney can you hear Mr Turner? All right, thank you, Mr Turner. And if you could just repeat you're appearing with Mr Haynes and somebody else is it?
PN252
MR A RUMPE: Thank you, Commissioner, initial A.
PN253
THE COMMISSIONER: All right, thank you.
PN254
MR TURNER: And Ms Haynes.
PN255
THE COMMISSIONER: Ms Haynes, apologies.
PN256
MR TURNER: Initial R.
PN257
THE COMMISSIONER: But you'll be conducting the conference, I take it.
PN258
MR TURNER: Yes, Commissioner.
PN259
THE COMMISSIONER: Thank you, Mr Turner. Yes?
PN260
MS K VAN GORP: Thank you. Van Gorp, initial K, for Business SA and with me is - - -
PN261
THE COMMISSIONER: And if you could pronounce your surname again? Van Gor is it?
PN262
MS VAN GORP: Van Gorp. Yes. G-o-r-p.
PN263
THE COMMISSIONER: G-o-r-p.
PN264
MS VAN GORP: And with me - - -
PN265
THE COMMISSIONER: Van Gorp, thank you.
PN266
MS VAN GORP: Thank you, from Business SA - - -
PN267
THE COMMISSIONER: Yes.
PN268
MS VAN GORP: And with me is Mr Klepper, C, also from Business SA.
PN269
THE COMMISSIONER: Mr Klepper. All right, thank you. Ms Van Gorp, if you wouldn't mind adjusting the microphone as well as close to where you're speaking as possible and if the parties in SA could just perhaps speak up a bit. It's not that easy to hear this end. All right. Thank you. Well, there are no issues of permission that need to be dealt with this morning given that - - -
PN270
MR ROUCEK: Commissioner, I continue my appearance with permission if that's - - -
PN271
THE COMMISSIONER: Yes.
PN272
MR ROUCEK: I think that's the only issue.
PN273
THE COMMISSIONER: On the last occasion that was granted from my recollection.
PN274
MR ROUCEK: Thank you.
PN275
THE COMMISSIONER: No issues in Adelaide with permission, are there?
PN276
MR TURNER: No, Commissioner. We're all employees.
PN277
THE COMMISSIONER: Thank you. All right, thank you. This is the second conference in this award and dealing with this award. I take it the parties all have a copy of the revised summary of submissions of the 17 February, together with the draft decision that reflected, I hope, what to place a the conference on the 7 February.
PN278
So what I'd like to do this morning is take the parties item by item through the revised summary of submissions document dated 17 February and where necessary reference will be made to the exposure draft of the same date and then that should, I hope, narrow the issues in dispute between the parties any further and I'll issue a decision along the lines of the 17 February ones post this conference.
PN279
So if it turns out that the parties require another conference after this one that's something that I'll be more than happy to facilitate given that there are other conferences taking place in other awards along the same lines. I understand that there's also, in the case of this award like many of the others, substantive matters that are still being looked at. So if we need to add some of the matters in the technical drafting to that then that will happen as well.
PN280
I'll start - is there anything anyone wishes to raise at this point before I commence? Everyone in Adelaide happy with that procedure?
PN281
MR TURNER: Yes, thank you, Commissioner.
PN282
THE COMMISSIONER: All right, thank you.
PN283
MS HAYNES: Thank you, Commissioner.
PN284
THE COMMISSIONER: Thank you. Right, I'll start with item one. Can I confirm that that's agreed?
PN285
MR KLEPPER: Yes, Commissioner.
PN286
THE COMMISSIONER: So I can confirm item one is agreed and be taken as agreed by all. Item two? Is that agreed? Does anyone wish to - - -
PN287
MR ROBSON: Commissioner, that's - item 2, 3 and 4 relate to I suppose competing submissions by the AiG and United Voice. It might be better to deal with them at the same time because we've held discussions and we were directed to between the conferences and we've put in for submissions that deal with the results of those discussions.
PN288
THE COMMISSIONER: Yes.
PN289
MR ROBSON: I don't know if the - - -
PN290
THE COMMISSIONER: How do you wish to proceed in relation to them? Would you like - should they be the subject of further discussion? Do you need further time to - - -
PN291
MR ROBSON: Well, I suppose there are the matters that deal with the definition of the ordinary hourly rate. That is agreed.
PN292
THE COMMISSIONER: Yes.
PN293
MR ROBSON: The matter that's outstanding is the issue of the qualifications allowance which is currently defined in the award as an all-purposes allowance. The issue there is whether that is applied to the base rate of pay before the calculation of casual loading or afterwards. AiG - - -
PN294
THE COMMISSIONER: This is not a consideration of whether the casual loading should be applied to the ordinary rate or the minimum. You're saying whether the qualification allowance should be added to come first.
PN295
MR ROBSON: Yes.
PN296
THE COMMISSIONER: Is that correct? It's a matter of timing.
PN297
MR ROBSON: Exactly. Now, AiG's position is that it's added afterwards - our position is that it is genuinely an all-purposes allowance and that it's been the position under the award that it's added before. We've each, I think, put in submissions on it. Regrettably AiG isn't here today but in their submission of the 24 March they indicated that they're content for the matter to be determined on the papers before the Commission at present. United Voice is not the same position. I don't think we're going to reach agreement on that one but I suppose we'd be in your hands if you wanted more material, United Voice, certainly would have to provide it. But I do think that, really, it's a matter of the history of the award is the allowance - an all purpose allowance - within the new, I suppose, standardised definition or is it actually an allowance that is like an all purposes allowance but isn't applied at the casual rate.
PN298
And there was a decision, and I apologise, I have to read this from my phone because I was revising and reviewing my submission this morning.
PN299
THE COMMISSIONER: That's all right.
PN300
MR ROBSON: There was a decision in September 2015.
PN301
THE COMMISSIONER: Yes.
PN302
MR ROBSON: Of the Full Bench that dealt with this matter and in that it confirmed that the definition issued in the July decision would stand, the way of being incorporated into exposure drafts. So defining the ordinary hourly rate and all purposes. What was left open was really rather than have different definitions of ordinary hourly rate and all-purposes in each award.
PN303
If there was some debate about whether an allowance was applied for all-purposes in that award, it's really an issue about whether this is an all-purposes allowance and if it isn't, you know, the allowance should specify for what purposes it is applied.
PN304
THE COMMISSIONER: As I haven't looked at that decision for some time now but my recollection is that it also suggested that in cases such as the one you're raising it's more appropriate it's dealt with as a case by case analysis on an award by award analysis.
PN305
MR ROBSON: Of course.
PN306
THE COMMISSIONER: Rather than being - - -
PN307
MR ROBSON: Yes, that's true.
PN308
THE COMMISSIONER: - - - put into the one basket and dealt with in that way. So the question really is whether or not that you're putting before me at this stage, whether or not, this particular allowance has been described as the qualification allowance is an all-purpose allowance.
PN309
MR ROBSON: Yes.
PN310
THE COMMISSIONER: And what flows from that that's not the issue because we're content that that's being dealt with.
PN311
MR ROBSON: Well, I suppose - yes. We understand. I think we're in agreement as to what an all-purpose allowance should be, what the definition of ordinary hourly rate is. The question is simply - and I think I've reframed - I think the way United Voice has framed this is slightly different from the AiG. We say the issue in this case is is the qualifications allowance genuinely for all-purposes given the new definition of the term and we say, "Yes", AiG says, "No."
PN312
THE COMMISSIONER: Yes. And do any of the other parties have a view on this matter? Or have an interest in it formally?
PN313
MR GUNN: Commissioner, from the CCSA's perspective - - -
PN314
THE COMMISSIONER: Mr Gunn, apologies. If you wouldn't mind, for the transcript, recording where you're from at the start and who you are.
PN315
MR GUNN: Sorry, Commissioner.
PN316
THE COMMISSIONER: No, I don't mean it critically.
PN317
MR GUNN: Yes.
PN318
THE COMMISSIONER: Just for this.
PN319
MR GUNN: Commissioner - Gunn, for CCSA.
PN320
THE COMMISSIONER: Thank you.
PN321
MR GUNN: From a practical perspective the likelihood that you're actually going to come across a casual director or assistant director with a graduate certificate in childcare management I have never come across that particular set of circumstances. I understand the other parties' interest in it in the broader range but in its actual application in this sector I suspect if it's going to affect anyone it may be a maximum of one of two people across all of Australia. I've never come across that circumstance.
PN322
THE COMMISSIONER: All right. Thank you. Does anyone else have a - - -
PN323
MR ROUCEK: We don't have any. Commissioner, it's Roucek - initial "M".
PN324
THE COMMISSIONER: Yes.
PN325
MR ROUCEK: We don't have anything to add. We would support the AiG's submission on this particular point.
PN326
MR TURNER: Thank you, Commissioner. Turner from Adelaide.
PN327
THE COMMISSIONER: Yes, Mr Turner.
PN328
MR TURNER: Although we don't have - we're not concerned as to whether that allowance applies for all-purposes or not. We do have a submission - just to note that we have a submission in relation to that allowance.
PN329
THE COMMISSIONER: Mr Turner, in terms of the specific question, though, that's being raised as in whether or not the qualification allowance, in this case, should genuinely form part of the all-purpose allowance do you have a formal position in relation - - -
PN330
MR TURNER: No, we have - - -
PN331
THE COMMISSIONER: - - - to that question itself?
PN332
MR TURNER: No, we don't, have a position - no, thank you, Commissioner
PN333
THE COMMISSIONER: All right. Thank you. So I think these are items 2, 3 and 4 then.
PN334
MR ROBSON: And item 9.
PN335
THE COMMISSIONER: And 9. So, 2, 3, 4 and 9, Mr Robson, we can record that they are matters that interest United Voice and AiG. It can best be described as whether or not the qualification allowance genuinely fits the all-purpose allowance and what flows from there is another question that is not being questioned at this stage. And it will be something then that will be either looked at upon the papers by the Commission.
PN336
MR ROBSON: Mm-hm.
PN337
THE COMMISSIONER: By me or some other appropriately constituted - - -
PN338
MR ROBSON: Of course. May it please but also I think it might be important to add that items 2, 3, and 4 are partially settled in that AiG and United Voice have agreed a definition of ordinary hourly rate. We've also agreed a definition of the minimum hourly rate which we believe reflects the decision the July and September decisions of the Full Bench from 2015.
PN339
THE COMMISSIONER: Yes.
PN340
MR ROBSON: And then there are consequential amendments from that that we propose. And I suppose because they relate to this it's worth bringing up now because it relates to the schedule B and AiG has claimed their 17. And also United Voice's submission on that point.
PN341
THE COMMISSIONER: Just bear with me. Where is that?
PN342
MR ROBSON: Schedule "B". Right up the back of the award where it sets out the summary of hourly rates of pay. The issue here is that there's a definition of ordinary hourly rate at the 1.1.
PN343
THE COMMISSIONER: Where is that, Mr Robson? At where?
PN344
MR ROBSON: Page 46 (b)1.1.
PN345
THE COMMISSIONER: Yes.
PN346
MR ROBSON: Now, that's a definition of ordinary hourly rate that United Voice and the AiG have agreed doesn't need to be in there if we're defining ordinary hourly rate earlier in the award. And, additionally, it doesn't reflect the decision of the Commission in July 2015. We also believe and so we've - - -
PN347
THE COMMISSIONER: Is this a joint AiG and United Voice submission? Or is it your - - -
PN348
MR ROBSON: It is at this point because it reflects the outcomes of our discussion.
PN349
THE COMMISSIONER: And AiG are not here.
PN350
MR ROBSON: No, unfortunately. They filed a submission on the 24 March which confirms that they agree with United Voice that the definition set out at paragraph five of its submission which deals with the ordinary hourly rate should replace the definition presently found at clause 2 of the exposed draft. They do not oppose our proposal that the definition set out at paragraph six of its submission which is the definition of the minimum hourly rate should be inserted.
PN351
THE COMMISSIONER: Right. So if I can just make sure I'm clear. Are you suggesting that AiG and United Voice are in agreement that the definitions provided for in paragraph five and paragraph six of the AiG submission on the 24 March re ordinary hourly rate and minimum rate ought be reflected in the exposure draft. Is that in essence what you're saying?
PN352
MR ROBSON: In essence.
PN353
THE COMMISSIONER: If I've muddled that tell me but - - -
PN354
MR ROBSON: But I might say it was - they've agreed that the definitions at paragraph five and paragraph six, the United Voice submission.
PN355
THE COMMISSIONER: Apologies. So it's the United Voice submissions on the 24 March?
PN356
MR ROBSON: On the 13 March and - sorry, I apologise, for this again and then they confirm this in their submission of the 24 March.
PN357
THE COMMISSIONER: All right. So we started with the United Voice submissions on the 13 March regarding the definition of ordinary hourly rate and minimum rate.
PN358
MR ROBSON: Yes.
PN359
THE COMMISSIONER: Okay.
PN360
MR ROBSON: And that would be items 2, 3, and 4.
PN361
THE COMMISSIONER: And items 2, 3, and 4 of the exposure draft.
PN362
MR ROBSON: Of the summary of the revised summary of submissions.
PN363
THE COMMISSIONER: The revised summary of submissions. Yes, okay. And you're saying that AiG confirmed their agreement of those definitions in paragraph five and six of their submission of the 24 March.
PN364
MR ROBSON: Their submission - of United Voice's submission.
PN365
THE COMMISSIONER: I see. Of the United Voice's submission.
PN366
MR ROBSON: It's very difficult communicating this when the other party isn't in the room.
PN367
MR ROUCEK: I think, if I may? Items 2, and 3 and 4 are agreed.
PN368
THE COMMISSIONER: Yes.
PN369
MR ROUCEK: I don't want to misrepresent anybody, Commissioner.
PN370
THE COMMISSIONER: No. If you could help though.
PN371
MR ROUCEK: Nine appears to be still in dispute.
PN372
MR ROBSON: Yes.
PN373
MR ROUCEK: And 17 I'm not sure what's happening with 17.
PN374
THE COMMISSIONER: So if you can go back to 9 there? So I've understood, 2, 3 and 4 are agreed.
PN375
MR ROBSON: Yes.
PN376
THE COMMISSIONER: Nine is still in dispute and the dispute is that - - -
PN377
MR ROBSON: The casual rate of pay that we discussed.
PN378
THE COMMISSIONER: The qualification issue - - -
PN379
MR ROBSON: Yes.
PN380
THE COMMISSIONER: - - - that I've articulated. All right. That's clear.
PN381
MR ROBSON: Excellent.
PN382
THE COMMISSIONER: Thank you for that, Mr Roucek. And then?
PN383
MR ROBSON: And then - - -
PN384
THE COMMISSIONER: Item 17.
PN385
MR ROBSON: Item 17, which deals with Schedule B.
PN386
THE COMMISSIONER: I see.
PN387
MR ROBSON: Yes. And that, again, the AiG in its submission of the 24 March confirms in response to our submission of the 13 March that they do not oppose the deletion of clause B.1.1.
PN388
THE COMMISSIONER: So is that then agreed?
PN389
MR ROBSON: Yes.
PN390
THE COMMISSIONER: Item 17 is agreed?
PN391
MR ROBSON: Yes. And they do not oppose the amendment that we've proposed to clause B.1.2. Or, rather, they do not oppose the amendment we propose to clause B.1.2 at paragraph 8 of our submission of the 13 March.
PN392
THE COMMISSIONER: Mr Robson, do I take it then items 2, 3, and 4 and 17 are agreed?
PN393
MR ROBSON: Yes.
PN394
THE COMMISSIONER: Item 9 is still in dispute.
PN395
MR ROBSON: Mm-hm.
PN396
THE COMMISSIONER: And we've dealt with that earlier?
PN397
MR ROBSON: Yes.
PN398
THE COMMISSIONER: And how that will be dealt with.
PN399
MR ROUCEK: Commissioner, if I may? It's Roucek, initial "M".
PN400
THE COMMISSIONER: Yes.
PN401
MR ROUCEK: I note that on page two in the Ai Group's submissions it doesn't have numbered paragraphs but on page two, below the two dot points it says, "We continue to press our submission." This is on item 17. "We continue to press our submission that the reference to ordinary hourly rate in the tables contained in B.2 and B.3 should be replaced with the reference to the minimum hourly rate for the reasons articulated at paragraphs 244 or 248 - 2248 of our submission dated 30 June 2016."
PN402
THE COMMISSIONER: So item 17 is not agreed?
PN403
MR ROUCEK: Is that correct? That part of item 17 may not be agreed.
PN404
MR ROBSON: No. That is agreed.
PN405
MR ROUCEK: That's agreed.
PN406
MR ROBSON: Because the issue there is that - look Schedule B provides a summary of the hourly rates of pay but it calculates it from the minimum hourly rate, rather than an ordinary hourly rate. Obviously that reflects the issue between United Voice and AiG at item 9. But it would be more accurate to describe the tables as calculating from the minimum hourly rate, especially given the Commission's note at the top of page 46 that "Employers who meet their obligations under this schedule are meeting their obligations under the award pending the outcome of the dispute."
PN407
Item 9 that may or may not be the case. And it would be misleading to someone reading that if the amounts in the tables were calculated from what's the minimum hourly rate and then they'd be a different amount that might need to be paid if someone has paid the qualifications allowance. You wouldn't be - well, we say that you wouldn't be satisfied in your obligation under the award if you simply paid those rates.
PN408
THE COMMISSIONER: The question though remains is the position as Mr Roucek just articulated based on the earlier submission of AiG, which is that part of item 17 is not agreed? Or is it as you've just put and that is that it is agreed?
PN409
MR ROBSON: Well, they - - -
PN410
THE COMMISSIONER: I understand the reasoning of - - -
PN411
MR ROBSON: Yes, of course.
PN412
THE COMMISSIONER: I'm following what you're saying about reasoning and the like but really that's in a nutshell my question to you.
PN413
MR ROBSON: My understanding is that we're in agreement on 17.
PN414
THE COMMISSIONER: On 17 in totality.
PN415
MR ROBSON: In totality.
PN416
THE COMMISSIONER: Well, look, I think that given that they're not here what will happen is that I will record this - I'll record the resolution of that item as agreed. And, of course, if then AiG dispute that it's open to them to raise that issue.
PN417
MR ROBSON: Thank you.
PN418
THE COMMISSIONER: All right. Thank you. Is there anyone else that wishes to say something in relation to those items that we've just discussed there now - 2, 3, 4, 9 and 17.
PN419
MR GUNN: Commissioner, Gunn for the CCSA. Just in regards to 17 I'm just wondering if there would be utility then once the role the qualifications allowance has determined to actually include those combinations specifically in the table so that for small employers, they can either see they're looking at a 6.3 or they're looking at 6.3 plus qualifications allowance and what the rate is its payable.
PN420
MR ROBSON: We're not opposed to that. It seems sensible.
PN421
THE COMMISSIONER: Yes. So that would be reflected once the qualification issue is determined.
PN422
MR GUNN: In our opinion - yes, Commissioner.
PN423
THE COMMISSIONER: Yes, that sounds sensible. Does anyone have a view on that - any of this from Adelaide?
PN424
MR TURNER: No, Commissioner.
PN425
THE COMMISSIONER: Hello?
PN426
MR KLEPPER: No, Commissioner.
PN427
THE COMMISSIONER: All right. Thank you. All right. That's those items then. Item 5, 2, 3, 4 - that's agreed?
PN428
MR ROBSON: Yes, that's agreed.
PN429
THE COMMISSIONER: Okay, item 6 not being pressed? Correct?
PN430
MR ROBSON: Yes, that's correct.
PN431
THE COMMISSIONER: Item 7 appears to be a substantive issue and we'll move over to the substantive issues table. Is that correct?
PN432
MR ROBSON: Yes, that's correct.
PN433
THE COMMISSIONER: It records what everyone's standing. Item 8?
PN434
MR ROBSON: I believe that's agreed.
PN435
MR ROUCEK: The AiG is not here but I think we can all agree.
PN436
THE COMMISSIONER: Item 9 we have discussed. Item 10?
PN437
MR KLEPPER: I'm sorry, Commissioner. Yes, I understand that was in relation to the Commission's query at clause 13 9(g).
PN438
THE COMMISSIONER: Apologies. Would you mind just identifying who you are and where you're from.
PN439
MR KLEPPER: Apologies.
PN440
THE COMMISSIONER: Who is it?
PN441
MR KLEPPER: Yes, it's Klepper from Business SA: .
PN442
THE COMMISSIONER: Thank you, Mr Klepper. Yes?
PN443
MR KLEPPER: Yes. So this was in relation to the query raised by the Commission (indistinct) stage questioning whether the reference to the awards may - - -
PN444
THE COMMISSIONER: Just a moment, Mr Klepper. You're breaking up. There's a slight problem with the - something - I'm not quite sure what.
PN445
MR KLEPPER: I'll try speaking a little bit slower.
PN446
THE COMMISSIONER: I'm not sure it's the problem with not speaking. Just bear with us for one moment. He's gone. Was that a delete?
PN447
MR KLEPPER: Is that any better now?
PN448
THE COMMISSIONER: Terrific. You're back.
PN449
MR KLEPPER: Okay.
PN450
THE COMMISSIONER: All right. If you could start again please?
PN451
MR KLEPPER: Yes, no problem. Yes, Klepper, Business SA. Item 10 relates to 13 (9)(g) of the exposure draft. The Commission had queries whether reference to award based transitional instruments and Division 2B State Awards were still necessary. Business SA was of the position that they are not necessary and at the previous conference United Voice indicated that it is still believed that the references were necessary.
PN452
At this stage we were wondering if United Voice will be able to speak to that a little further to just detail why these references are still necessary?
PN453
THE COMMISSIONER: Yes, in the draft report it's reported as that the United Voice submits this is a substantive issue and needs to be referred back to the Full Bench. Is that still the case? Or have it got the wrong item?
PN454
MR KLEPPER: No, no. That's correct, Commissioner.
PN455
THE COMMISSIONER: No, that item 10(a) I believe I just read out. Item 10, United Voice submits the provision is not a transitional provision. Perhaps I'll ask you to. Over to you, Mr Robson.
PN456
MR ROBSON: Thank you, Commissioner. Sorry, I was just taking a moment to gather my thoughts.
PN457
THE COMMISSIONER: Not a problem.
PN458
MR ROBSON: I suppose our issue here is that the deletion of this clause would create significant hardship for our members - for certain areas of our membership. We don't say that this is a transitional provision and, in fact, the reference to an award-based transitional instrument ought to be in to the State award is in reference to this for transitional purposes would simply identify in the group of people who are covered by the clause. It's important to note that the clause refers to "Where a person employed as at the date of making this award is employed on a contract." And I think that's the significant term here which "provides for a payment of salary during non-term times or is employed under an award based transitional instrument or to Division 2B State Awards which provides for such payments the provisions on this clause will not have the effect that their contract of employment has changed as a result of this award coming into operation."
PN459
I think that this is not intended to change the transitional provision but in fact a statement that it was existing contractual arrangements aren't altered by the change in the award or the transfer from a pre-existing State Award or - - -
PN460
THE COMMISSIONER: It's a preservation isn't it of existing rights - - -
PN461
MR ROBSON: Yes.
PN462
THE COMMISSIONER: - - - of some sort.
PN463
MR ROBSON: Exactly.
PN464
THE COMMISSIONER: Is that what you're - - -
PN465
MR ROBSON: That's exactly what we're saying, Commissioner. And we think that there ought to be further ventilation of this issue if it is to be removed, especially considering the hardship that would be put on the people covered by these provisions. There is a transition in the industry in many cases from pre-school, but there are still many pre-school employees out there who are employed on a work - something more akin to a school year than the 48 weeks of operation that you find in long day care.
PN466
It's been in the practise in many pre-Modern Awards, State Awards, and indeed in contractual arrangements that employees have been paid a special - like, special leave arrangements for these periods, so that they're not left out of pocket. If this provision was deleted I think there's a risk that there would be some employers who would take that as an opportunity or who would take that as a variation of an employee's contract of employment and I think - and that would, I believe, cause a lot of hardship and I think that's where we stand.
PN467
THE COMMISSIONER: Yes. And Mr Klepper does that assist you in terms of the position of United Voice on this issue?
PN468
MS VAN GORP: It's Ms Van Gorp here from Business SA. Business SA certainly didn't intend - does not intend for there to be any reduction in the provisions of people employed where this is part of their contract and we won't press our position. And - no, we won't press our position on that matter.
PN469
THE COMMISSIONER: All right. Anyone else on that position?
PN470
MR ROBSON: Thank you, Commissioner.
PN471
MS ZADEL: Commissioner, AFEI originally made a submission agreeing with Business SA. We didn't propose to revoke that position.
PN472
MR KLEPPER: Apologies. In Sydney, we can't quite hear what's being said.
PN473
MS ZADEL: Apologies. Ms Zadel, from AFEI. We originally made a submission agreeing with Business SA. We didn't propose to remove the provision but we wouldn't be pressing our submission any longer.
PN474
THE COMMISSIONER: Well, the noted conference will record then the positions of the parties as they have been expressed today and given AiG's non-attendance today, the only thing I could imagine is that there might be some position that arises from AiG on this. If not, then it might be something that will be fairly simply resolved.
PN475
MR ROBSON: May it please.
PN476
THE COMMISSIONER: All right. Just bear with me one moment. Just what I'd like to do before we go much further and I don't think it will change what we've done so far. It appears that the Ai Group forwarded a letter to my Chambers on Friday some time, advising that they won't be at today's hearing and confirming their position in relation to two or three matters. That on my quick reading of it now it's just been provided to me during the course of the hearing. So I have not had an opportunity to review it carefully but it appears to accord with what's being put. What I'd like to do is to circulate that to the Sydney parties now and somehow to - it will be circulated to the parties in Adelaide as well. Thank you. But I don't foresee that that should impact on anything that we've - - -
PN477
MR ROUCEK: Commissioner, it's Roucek, initial "M". The only point I would make and I don't know what the subject of discussions were and I don't want to misrepresent anybody's position but I think that the AiG's point which I underlined underneath the two dot points, on page two, under item 17, Schedule B, I'm not sure whether that changes what was said when we dealt with item 17. So I mean - - -
PN478
THE COMMISSIONER: I'll note that, Mr Roucek.
PN479
MR ROUCEK: Yes.
PN480
THE COMMISSIONER: I think that's the most prudent course. I'll note that now for the record and then AiG will have an opportunity to - - -
PN481
MR ROBSON: Yes, and certainly I'm aware of those submissions - - -
PN482
THE COMMISSIONER: Yes.
PN483
MR ROBSON: - - - and I believe that's agreed. I think - - -
PN484
THE COMMISSIONER: Mr Robson, there will be no suggestion that you've in any way - - -
PN485
MR ROBSON: Yes, of course.
PN486
THE COMMISSIONER: - - - deliberately attempted to misconstrue - or mislead or whatever. All right. The joys of video links. The next item. 10(a) has been moved to the substantive list, is that correct?
PN487
MR GUNN: Yes, Commissioner.
PN488
THE COMMISSIONER: Item 11 Business SA.
PN489
MR KLEPPER: Yes, it's Klepper from Business SA. That item was withdrawn.
PN490
THE COMMISSIONER: That's you, Mr Klepper, is it?
PN491
MR KLEPPER: Yes.
PN492
THE COMMISSIONER: Thank you. Item 12?
PN493
MR TURNER: Thank you, Commissioner, Turner from the DCED, in SA.
PN494
THE COMMISSIONER: Thank you, Mr Turner.
PN495
MR TURNER: As per that submission we submit that the term "graduate certificate" in clause 14.6 which is now 17.2(b) in the exposure draft, that term is ill-defined as to exactly what the AQF applies to the term "graduate certificate". We submit that that could really mean anything and could be interpreted as anything from Certificate 1 to a Master's degree. And it's also not clear as to when or whether that qualification actually applies is a trigger - is allowance triggered in addition to the minimum qualifications that you would require to be classified at Level 5 and 6 as per Schedule B.
PN496
I have done some limited research on this and it appears that clause was lifted from the Western Australian pre-Modern Award and that award doesn't either provide an express definition. However, if you look at the classifications in Schedule A of that pre-Modern Award and particularly at Level 5 and 6 it does strongly suggest that graduate certificate does actually refer to a degree qualification.
PN497
So the DCED submits that the clause really should be amended so that the term "graduate - - -
PN498
THE COMMISSIONER: Which one? Could you just tell me what should be amended? Which clause?
PN499
MR TURNER: 15.6 or 17.2(b).
PN500
THE COMMISSIONER: 15.6.
PN501
MR TURNER: Yes, that's old award clause. It's now 17.2(b) in the exposure draft.
PN502
THE COMMISSIONER: Could you just put that microphone perhaps a bit closer to you and speak up. I'm sorry. I'm having trouble hearing you Mr Turner.
PN503
MR TURNER: Thank you, Commissioner. It's clause 15.6 in the old award.
PN504
THE COMMISSIONER: 15.6 in the exposure draft.
PN505
MR TURNER: No. In the exposure draft it's 17.2(b) - for "bravo".
PN506
THE COMMISSIONER: Just bear with me. 17.2(b).
PN507
MR TURNER: Yes, Commissioner.
PN508
THE COMMISSIONER: Have we not talked about 17 earlier? Or is this - - -
PN509
MR TURNER: In terms of its application as whether it's an all-purpose allowance or not.
PN510
THE COMMISSIONER: I see. This is a different question. You're talking about the qualifications allowance.
PN511
MR TURNER: But this is a different submission.
PN512
THE COMMISSIONER: In 17.2(b).
PN513
MR TURNER: Yes.
PN514
THE COMMISSIONER: And how does 15.6 come into it?
PN515
MR TURNER: That's the clause in the - - -
PN516
THE COMMISSIONER: Where was that?
PN517
MR TURNER: In the 15.6 - - -
PN518
THE COMMISSIONER: 15.6 of the award is it?
PN519
MR TURNER: Of the old - the current award.
PN520
MR ROBSON: If it assists 17.2(b) of the exposure draft.
PN521
THE COMMISSIONER: Yes.
PN522
MR ROBSON: Commissioner.
PN523
THE COMMISSIONER: Yes, I've got that. But my copy of 17.2(b) of the exposure draft has in it "A director or assistant director who holds a graduate certificate in child care management or equivalent will be paid an all-purpose allowance of $48.64 per week." Is that what you have?
PN524
MR TURNER: That's right, Commissioner. Yes, that's what I have.
PN525
THE COMMISSIONER: Okay.
PN526
MR TURNER: Our submission - - -
PN527
THE COMMISSIONER: So how are you saying that should be amended?
PN528
MR TURNER: Well, graduate certificate is not defined. A graduate certificate could be interpreted in different ways and that's the question that we get from our child care centres here. They often call and ask what that means.
PN529
THE COMMISSIONER: So it's the definition of "graduate certificate" that you're - - -
PN530
MR TURNER: Yes, Commissioner. Yes. It's the definition of that.
PN531
THE COMMISSIONER: - - - seeking to include?
PN532
MR TURNER: Yes. An inclusion of a definition would be acceptable.
PN533
THE COMMISSIONER: Okay. And would you be proposing to make a submission as to that? What you think the definition should be and circulating that?
PN534
MR TURNER: Thank you, Commissioner. We can. We'll draft that up and circulate. Although, quite simply, we would say that graduate certificate should be replaced with the term "degree" and also I should say in addition to qualifications require to be classified at that level because - - -
PN535
THE COMMISSIONER: I think given that the sort of proposals you're suggesting that a submission as to what - how you propose to define the graduate certificate should be prepared and then circulated to all parties.
PN536
MR TURNER: Thank you, Commissioner. We can do that.
PN537
THE COMMISSIONER: Does anyone else have a view?
PN538
MR ROBSON: Yes, Commissioner. We think that the Department of Education and Childhood Development's submission on this issue is a substantive matter. We think they're seeking to - you know - change in a significant way how the award operates and it's not merely a matter of. I don't think it's - you know - immediately clear that their proposal wouldn't change the operation of the clause and really just deals with technical or drafting issues. We think this would be better referred to the substantive Bench and pursued as a claim.
PN539
THE COMMISSIONER: Sure. Is it perhaps appropriate to wait and see what the actual amendment looks like - the proposed amendment - you might be surprised and find that it's not as substantive as you think. If it is, then you're more than - - -
PN540
MR ROBSON: Of course.
PN541
THE COMMISSIONER: - - - it's open to you then to say - make that submission and we can refer it on to the substantive - - -
PN542
MR ROBSON: We're happy to take that course, thank you, Commissioner.
PN543
THE COMMISSIONER: All right. Is everyone else happy for that course?
PN544
MR KLEPPER: Yes, thank you, Commissioner.
PN545
THE COMMISSIONER: All right. So that is item 12 then we'll record that a definition to the graduate certificate will be provided by you, Mr Turner, isn't it?
PN546
MR TURNER: Thank you, Commissioner. Yes, that would be fine.
PN547
THE COMMISSIONER: To the parties. And then, Mr Robson, you'll advise of - - -
PN548
MR ROBSON: Of course.
PN549
THE COMMISSIONER: - - - or consider whether it should be referred on to the substantive - - -
PN550
MR ROBSON: Thank you, Commissioner.
PN551
THE COMMISSIONER: All right. Item 13, agreed? Yes?
PN552
MS ZADEL: Yes, Commissioner.
PN553
THE COMMISSIONER: Item 14 withdrawn.
PN554
MR KLEPPER: Yes, Commissioner.
PN555
THE COMMISSIONER: Item 15?
PN556
MR TURNER: Thank you, Commissioner, for DECD in Adelaide.
PN557
THE COMMISSIONER: Who was that, I'm sorry?
PN558
MR TURNER: Thank you, Commissioner.
PN559
THE COMMISSIONER: Mr Turner, is that you?
PN560
MR TURNER: Yes, it is, thank you, Commissioner.
PN561
THE COMMISSIONER: Thank you.
PN562
MR TURNER: The DECD has reviewed that submission and we've come to the position that's probably not the appropriate forum to address that particular issue so we seek to withdraw the submission.
PN563
THE COMMISSIONER: So item 15 is withdrawn?
PN564
MR TURNER: Yes. No longer an issue. Thank you, Commissioner.
PN565
THE COMMISSIONER: Thank you. Item 16?
PN566
MR TURNER: Thank you, Commissioner. Turner from Adelaide again. Commissioner, the DECD submits that some of the terms in the award don't reflect the new terminology that's used nationwide in terms of child care, particularly, the term "licensed" is no longer used in the industry and it should be replaced with the term "approved places". And we do get questions about that term because it's not used. So it should be replaced with the term "approved places".
PN567
And furthermore, qualifications relate to children services. That qualification - which is found in Schedule B clauses B 1.4 to B 1.10 relating to levels 3 to 6 that certificate of Primary and Children Services is no longer applicable. That should be replaced with the term "A qualification approved by the Australian and Children's Education and Care Quality Authority." That's the authority that advises child care centre what qualifications are relevant. So those are the terms that should be used. That term should be used so that it reflects what the current system and terminology has adapted.
PN568
THE COMMISSIONER: All right. Mr Robson?
PN569
MR ROBSON: Thank you, Commissioner. Look we're not opposed to revisiting the classifications in light of the recent changes to the legislative structure governing child care. We do, as we have said, with the previous Business SA submission think that this might be more appropriately dealt with further down the line and the substantive issues and would probably benefit from - you know - more detailed submission plus even conferences, I think, would be the better way to deal with this than trying to resolve it through technical and drafting.
PN570
THE COMMISSIONER: So if it was moved - if there were some submissions put in and it was moved to the substantive part of the award consideration you would not be adverse to conferences in that area?
PN571
MR ROBSON: No. We think that would probably be the best way to deal with any changes to the classification structure.
PN572
THE COMMISSIONER: Right. Are you happy with that process, Mr Turner?
PN573
MR TURNER: Turner, yes. Thank you, Commissioner. That's fine. With respect we're not proposing changes to the classifications as such - dispute the terminology - but we're happy with that.
PN574
THE COMMISSIONER: So put in perhaps some submissions.
PN575
MR TURNER: Yes.
PN576
THE COMMISSIONER: Mr Robson can review them - - -
PN577
MR TURNER: Yes.
PN578
THE COMMISSIONER: - - - and consider whether or not they're part of the conferences in this forum or the other.
PN579
MR ROBSON: Yes, I acknowledge what my friend says about the change in terminology but unfortunately this is - with the change - like the changes to child care over the last say, five years, or certainly the period since modernisation have been fairly substantial. The classifications should be reviewed. I think that's perfectly clear but I believe that there is - it's not simply a matter of changing terminology because the change in terminology is substantively different. It does require a level of consideration from the Commission that is broader than I think is - you know - available in the technical and drafting stage. We're really trying to fix drafting errors and - you know - smaller technical matters that we can go into the substantive phase with an exposure draft that we can make. You know, we can be sure that we can make changes to knowing that that reflects that the old award - look, I can - - -
PN580
THE COMMISSIONER: Mr Robson, that's fine.
PN581
MR ROBSON: Yes.
PN582
THE COMMISSIONER: I appreciate what you've put. Would you - would it satisfy you and I think the appropriate course would be along the lines of one of the earlier items and that is that Mr Turner puts in some submissions, the parties consider them, if after considering them the matter isn't as - I'm using the word "substantive" - as it appears on first blush then we can have them resolved in this forum whether by another conference or some other means.
PN583
If not, and it really is a matter that you wish to pursue down the substantive line then you'll identify that and that will lead to the conference down that track.
PN584
MR ROBSON: Of course.
PN585
THE COMMISSIONER: Are you happy to proceed on that basis?
PN586
MR ROBSON: Yes, Commissioner.
PN587
THE COMMISSIONER: Thank you.
PN588
MR ROUCEK: Thank you, Commissioner.
PN589
THE COMMISSIONER: Thank you. All right. Item 17 is agreed?
PN590
MR ROUCEK: I understand - sorry, Roucek - - -
PN591
THE COMMISSIONER: Yes.
PN592
MR ROUCEK: - - - for ABI and the New South Wales Business Chamber and the Australian Child Care Alliance. Yes, it's agreed, I think, subject to AiG potentially having some sort of issue or comment to make - - -
PN593
THE COMMISSIONER: Telling us it's not agreed.
PN594
MR ROUCEK: - - - in relation to that. Thank you.
PN595
THE COMMISSIONER: Thank you.
PN596
MR ROBSON: Their position is set out on page two of their submission from last Friday.
PN597
THE COMMISSIONER: Item 18?
PN598
MR ROUCEK: Thank you, Commissioner, it's Roucek from Australian Business Industrial New South Wales Business Chamber. This matter has been - it's not a major issue but it is a change that we see the word "increased" should be replaced with the word "adjusted". In Schedule C.2.1(a) United Voice have made a submission on this on the 13 March under heading item 18 and paragraphs 28 and 29. They now oppose this submission that we've made and state that the exposure draft is consistent with the current clause 15.8.
PN599
We would just simply say that - you know - we still press that it should be "adjusted". Adjusted appears throughout that provision and we feel that "adjusted" is a more accurate way of describing it. We're happy for it to be considered on the papers and for the item to be dealt with today.
PN600
MR ROBSON: The current clause of the award which is 15.8(a) uses the word "increased". I understand that ABLI is seeking the change to "adjusted" and the possibility of that allowances may decrease in value in the case of a reduction of the relevant CPI going backwards. This would be a substantive change to the way allowances are adjusted each year. The current award used is increased. Again, I think, that there's a broader claim being made here that goes beyond the technical drafting.
PN601
THE COMMISSIONER: So you see this in the substantive matters category as well?
PN602
MR ROBSON: Absolutely.
PN603
THE COMMISSIONER: Have submissions been put in in relation to this one, Mr Roucek? I'm sorry I don't record - - -
PN604
MR ROUCEK: Sorry, Commissioner. I'm not aware and I don't believe that they have been from our organisation. Mr Arndt had carriage of the matter at the time and we'd be happy to put something brief on in relation to that.
PN605
THE COMMISSIONER: Is it perhaps we deal with it in the same way as the other matter is given that that's - or the way the other matters have progressed. All right anyone in Adelaide on any of these matters?
PN606
MR TURNER: No, thank you, Commissioner.
PN607
THE COMMISSIONER: All right, thank you. Well, that concludes the items then. Is there anything the parties wish to raise before we adjourn? The revised summary submissions will be updated together with a report on the matter and that will be circulated to the parties. And assuming that AiG, in fact, don't object to any of the matters that they have been recorded today is not objecting to. I think the parties are fairly close to resolving the technical and drafting issues, leaving aside those matters, but that there will be submissions about. And Mr Robson you'll either say they're substantive matters or not.
PN608
MR ROBSON: Mm.
PN609
THE COMMISSIONER: So to the extent I'm not sure that another conference is necessary. I'm in the parties hands there. Perhaps, if after having received the revised summary and the draft report and the parties feel another conference is useful in any way then perhaps if they could advise and the other team and that can be arranged.
PN610
MR ROUCEK: Commissioner, it's Roucek here. I think that would be the best course save for the DECD submissions.
PN611
THE COMMISSIONER: Yes.
PN612
MR ROUCEK: If they're not as substantive as perhaps we think.
PN613
THE COMMISSIONER: Yes.
PN614
MR ROUCEK: You know we may be able to resolve that but we may also benefit from one more occasion to consider the changes that Mr Turner has proposed.
PN615
THE COMMISSIONER: Yes. Well, given the timing then would it be best then that I list the matter now? I get some times and we talk about a listing for a further conference and then if it turns out that that's not needed then you can advise. Is that perhaps a better way? What sort of timing are people looking at?
PN616
MR TURNER: Commissioner, Turner in Adelaide.
PN617
THE COMMISSIONER: Yes.
PN618
MR TURNER: We'd probably need 14 days to draft and circulate the submissions.
PN619
THE COMMISSIONER: All right.
PN620
MR ROUCEK: Commissioner, it's Roucek. I don't have a problem with that proposal. Fourteen days is enough.
PN621
THE COMMISSIONER: And then when would the parties be envisaging another conference? How long after that 14-days - - -
PN622
MR ROBSON: I think perhaps give us two weeks after that.
PN623
THE COMMISSIONER: After that. So we're now - say the end of April?
PN624
MR ROBSON: Mm-hm.
PN625
THE COMMISSIONER: How is Thursday 27 April?
PN626
MR ROBSON: If possible in the afternoon, Commissioner?
PN627
THE COMMISSIONER: Or Friday 28 April?
PN628
MR ROBSON: That works for me, Commissioner.
PN629
THE COMMISSIONER: Friday 28 April?
PN630
MR ROUCEK: I regretfully say that the 28th is not good for me, Commissioner. I apologise. Is there another date perhaps the following - - -
PN631
THE COMMISSIONER: Wednesday 26 April? Actually, no. I can't do Wednesday the 26th. What about the following week? The Monday, 1 May?
PN632
MR ROUCEK: No problem from my perspective, Commissioner.
PN633
MR ROBSON: Good for United Voice, Commissioner.
PN634
THE COMMISSIONER: All right. In Adelaide?
PN635
MR TURNER: Thank you, Commissioner. That's fine for the DECD.
PN636
THE COMMISSIONER: All right.
PN637
MR KLEPPER: Thank you, Commissioner. That date works for Business SA.
PN638
MS ZADEL: That date's suitable for AFEI.
PN639
THE COMMISSIONER: 10.00 am on Monday 1 May.
PN640
MR ROBSON: Thank you, Commissioner.
PN641
THE COMMISSIONER: All right. Thank you. We will adjourn.
ADJOURNED UNTIL MONDAY, 01 MAY 2017 [11.17 AM]