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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
(AM2014/250)
Aboriginal Community Controlled Health Services Award 2010
Sydney
10.15 AM, TUESDAY, 28 MARCH 2017
Continued from 8/02/2017
PN568
THE COMMISSIONER: Good morning, I ll take appearances please.
PN569
MS STEELE: Good morning, Ms Steele and Ms Forster for NAT SIHWA.
PN570
THE COMMISSIONER: Thank you, Ms Steele.
PN571
MS R LIEBHABER: Liebhaber, R, for Health Services Union.
PN572
THE COMMISSIONER: Thank you Ms Liebhaber.
PN573
MR BULL: Bull for United Voice and I apologise for being a little bit late, Commissioner.
PN574
THE COMMISSIONER: Not a problem, Mr Bull. Thank you.
PN575
MS E SLAYTOR: Emily Slaytor for New South Wales Business Chamber and Australian Business Industrial.
PN576
THE COMMISSIONER: Thank you Ms Slaytor.
PN577
MR MILJAK: Jakov Miljak for the Australian Federation of Employers & Industries.
PN578
THE COMMISSIONER: Thank you Mr Jakov, and the two people in the back of the room, just for the record?
PN579
MR K BRISCOE: Karl Briscoe, CEO of NAT SIHWA.
PN580
THE COMMISSIONER: Thank you Mr Briscoe.
PN581
MS J TOMIC: Jocelyn Tomic, Chair of NAT SIHWA.
PN582
THE COMMISSIONER: Thank you. Thank you Ms Tomic.
PN583
Now Ms Steele, from my recollection and my notes, permission was granted at the last conference before me in February, was it?
PN584
MS STEELE: Yes.
PN585
THE COMMISSIONER: 10 February.
PN586
MS STEELE: Yes, your recollection is correct.
PN587
THE COMMISSIONER: 8 February, apologies.
PN588
MS STEELE: Yes.
PN589
THE COMMISSIONER: Thank you.
PN590
Ms Liebhaber and Mr Bull, no need to consider permission.
PN591
MR BULL: Thank you.
PN592
THE COMMISSIONER: Ms Slaytor, you're?
PN593
MS SLAYTOR: My colleague, Sina Mostafavi, would normally be here and he's in a mediation today so he has asked me to come along in his place.
PN594
THE COMMISSIONER: Was permission sought and granted or is it not necessary?
PN595
MS SLAYTOR: I would have to double-check that. I don't have the - - -
PN596
THE COMMISSIONER: Are you a paid agent?
PN597
MS SLAYTOR: Yes, I am a paid agent.
PN598
THE COMMISSIONER: And permission was granted to your colleague on the last occasion, is that correct?
PN599
SPEAKER: Yes.
PN600
MS SLAYTOR: It was? Okay.
PN601
THE COMMISSIONER: Yes, in that case unless there's an objection, permission extends to Ms Slaytor.
PN602
MS SLAYTOR: Thank you.
PN603
THE COMMISSIONER: All right, thank you, and Mr Jakov, there's no need to consider the matter in your case.
PN604
All right, at the last conference before me, post the last conference before me on 8 February there has been a draft report that has been published that I presume the parties have. That's dated 20 February and a summary of the proposed substantive variations and a revised summary of technical and drafting. Now the revised summary of technical and drafting was published yesterday. Now do the parties have a copy of that, given that it was published so late in the - - -
PN605
MS STEELE: I don't.
PN606
THE COMMISSIONER: My associate will provide you with a copy now I hope because it is that summary that we'll be going through today, and I appreciate Ms Steele, if there's some - if you need a moment or two to consider, or some time to consider or some time to consider any aspect of it then that will be certainly granted in that time.
PN607
MS STEELE: Thank you, Commissioner.
PN608
THE COMMISSIONER: Given that it was published yesterday.
PN609
MS STEELE: Yes.
PN610
THE COMMISSIONER: In terms of process I'll go through each item on the revised summary of submissions technical drafting and I note that this matter is listed for a consideration of the substantive matters at 2.00 pm before me as well. Now in anticipation of that conference, do all the parties have the summary of proposed substantive variations document that was published yesterday?
PN611
SPEAKER: No, I don't.
PN612
THE COMMISSIONER: No? All right so we'll make sure that by 2.00 pm that is provided. While we're waiting do any of the parties have any views as to the process that we're adopting, in the sense is there anything by way of housekeeping or the like that needs to be dealt with before we start? No?
PN613
MR BULL: No.
PN614
THE COMMISSIONER: Okay.
PN615
MR MILJAK: Just one thing, Commissioner, I note you say Mr Jakov. Jakov is my first name.
PN616
THE COMMISSIONER: Apologies.
PN617
MR MILJAK: Yes.
PN618
THE COMMISSIONER: It's on my appearance sheet.
PN619
MR MILJAK: No that's all right. That's okay, it's just - - -
PN620
THE COMMISSIONER: So it's Mr?
PN621
MR MILJAK: Miljak, yes.
PN622
THE COMMISSIONER: Miljak. I do apologise.
PN623
MR MILJAK: No, that's all right. It's just - - -
PN624
THE COMMISSIONER: Not it is a - - -
PN625
MR MILJAK: Yes.
PN626
THE COMMISSIONER: My appearance sheet has it the wrong way around, Mr Miljak.
PN627
MR MILJAK: No worries. There you go.
PN628
MR BULL: I don't know whether we want to talk about this review has got a work value claim in it. I don't know whether, Commissioner, you've turned your mind in this four yearly review we're going to deal with a work value claim?
PN629
THE COMMISSIONER: That's something that's out of my hands and it will be put into a basket of matters along with the substantive matters and then will be determined by the AMOD team and given to other Full Benches, single members or the like, in terms of process. So it's not something that I can - - -
PN630
MR BULL: I think a Full Bench needs to deal with it.
PN631
THE COMMISSIONER: Well, that's something that - - -
PN632
MR BULL: Within the four yearly review.
PN633
THE COMMISSIONER: Yes, and it's certainly something that if that's the view of the parties it will be noted in terms of this award and this conference, then that's referred on to the team and decisions - allocations are made to Full Benches and - - -
PN634
MR BULL: Yes, I suppose I'm just curious because it s one of the - probably the first one in relation to a modern award under the current Act.
PN635
THE COMMISSIONER: Yes.
PN636
MR BULL: So I assume that there's likely to be no opposition to it but I assume that there still has to be some process.
PN637
THE COMMISSIONER: There will have to be a process.
PN638
MR BULL: Which involves some evidence.
PN639
THE COMMISSIONER: Yes.
PN640
MR BULL: Before it's made.
PN641
THE COMMISSIONER: Yes.
PN642
MR BULL: That the Commission is not just going to wave it through, so to speak.
PN643
THE COMMISSIONER: No, and by all indications in those types of matters what is required at this level within these conferences is to identify those matters that do require, you know, either further hearing and/or evidence. They are then allocated to members according to some method that - - -
PN644
MR BULL: It's a structured process.
PN645
THE COMMISSIONER: It's a process, yes. But it certainly will be a matter that's recorded in the way you suggest.
PN646
MR BULL: I've got a mention at one. I'll try and get back but it's the (indistinct) penalty rates mention, so.
PN647
THE COMMISSIONER: Are you foreshadowing then that at 2 o'clock you might be - - -
PN648
MR BULL: Well, I might be - I'm just saying - - -
PN649
THE COMMISSIONER: Not a problem.
PN650
MR BULL: I'm just going to try and - you know, I've got that other commitment which might go a bit after - it shouldn't go more than an hour frankly, but.
PN651
THE COMMISSIONER: If need be if the parties are amenable, I'm not sure if there's any video link appearances for the substantive matters and my - there appears not to be. If the parties are amenable then I'm happy to start at 2.30 today if that would suit you.
PN652
MR BULL: I'll try and make it.
PN653
THE COMMISSIONER: It's up to you.
PN654
MR BULL: But I'm just saying the thing is starting at one. I can probably leave. We've got counsel in Melbourne, so I'm just indicating that there's something at one.
PN655
THE COMMISSIONER: Well, it's in your hands. All right. Thank you. Thank you, now that document has been provided to you, Ms Steele?
PN656
MS STEELE: Yes, Commissioner.
PN657
THE COMMISSIONER: Do you need a moment to just consider that?
PN658
MS STEELE: Yes, we might just compare it to the earlier one to see if there's any changes.
PN659
MR BULL: The beauty of looking at things at the last minute is you don't have this problem. The dangers of over‑preparation.
PN660
MR MILJAK: It may just be that the only additional issue is just that which was around yesterday.
PN661
THE COMMISSIONER: The conference?
PN662
MR MILJAK: I think that might be the only change.
PN663
THE COMMISSIONER: Ms Steele, do you have the correspondence sent by Mr Miljak yesterday?
PN664
MS STEELE: Yes. Yes we do, Commissioner. We're ready to proceed.
PN665
THE COMMISSIONER: Thank you. All right, on that basis we'll continue then with going through the items in the 27 March 2017 document headed "Revised summary of submissions technical and drafting". I will go through each item. If the parties would not mind when they do address me on each item would they mind starting with their name, only because for ease of reference in the transcript not because I don't know who you are, even though Mr Miljak you needed to remind me. It just will be easier for the transcript record. Item 1 then has been moved to the substantive claims matters. I presume there's no objection to that. Item 2 has been agreed. Item 3 to be discussed at this conference. Mr Bull?
PN666
MR BULL: We were asking for - sorry - - -
PN667
MR MILJAK: Maybe if I could just?
PN668
MR BULL: Yes, go for it. No, that's fine.
PN669
MR MILJAK: Yes, Miljak, Jakov Miljak here.
PN670
THE COMMISSIONER: Thank you.
PN671
MR MILJAK: Just I think we were talking about just the use of - at the last conference the use of the word "ordinary hourly rate" and AFEI's position was that we noted that United Voice wanted to include a definition of ordinary hourly rate which meant a minimum rate of pay plus any allowances specified as being included in the employee's ordinary hourly rate.
PN672
MR BULL: Yes. Thanks for that.
PN673
MR MILJAK: Yes, that was that one - - -
PN674
MR BULL: So it includes any allowances for all purposes.
PN675
MR MILJAK: If the - - -
PN676
THE COMMISSIONER: Is that not already been - that sort of consideration not been caught by the September - - -
PN677
MR BULL: I thought it had so it was just a clarification of what is - - -
PN678
THE COMMISSIONER: Apologies. By the September Full Bench though, is that not something that has been determined already?
PN679
MR MILJAK: No, it is just our understanding that it was not necessary because there's no allowances that would fall - that would be added to that. You know, that that would - to which that would be applied as an all-purpose allowance in the award as it stands - - -
PN680
THE COMMISSIONER: So there are no - as far as your position is in this award - - -
PN681
MR MILJAK: Yes.
PN682
THE COMMISSIONER: - - - there are no allowances that could fall in the all-purpose allowance?
PN683
MR MILJAK: At the ordinary hour - yes, that's so. We just considered it might be irrelevant. It might have no work to do, that's all.
PN684
MR BULL: Well, I suppose the issue is if at some stage there becomes, you know, allowances for all purposes it's useful to have a broader definition. But I don't really have anything more to say.
PN685
THE COMMISSIONER: Are you pressing the point?
PN686
MR BULL: I won't press it.
PN687
THE COMMISSIONER: The document will be amended to reflect that. Does anyone else have an issue with item 3?
PN688
MS STEELE: Ms Steele. No issue.
PN689
THE COMMISSIONER: Thank you. Item 4 is agreed, is that?
PN690
MS STEELE: Ms Steele. Yes.
PN691
THE COMMISSIONER: Thank you. Item 5 has been moved to the substantive claims document.
PN692
MS STEELE: Yes.
PN693
THE COMMISSIONER: Item 6 has been moved to the substantive claims document. Item 7 has been moved to the substantive claim document. Item 8 has been moved to substantive claims. Item 9 has been moved to substantive claims. Item 10 has been agreed, is that correct?
PN694
MR MILJAK: Yes.
PN695
THE COMMISSIONER: Who was that? Mr? Was that?
PN696
MR MILJAK: I think that was agreed. I think that was agreed.
PN697
THE COMMISSIONER: Mr Miljak it's you, okay.
PN698
MR MILJAK: I think that was - from my notes, that we had agreed with the HSU on that one.
PN699
THE COMMISSIONER: All right.
PN700
MR MILJAK: We did not oppose the removal of the definition.
PN701
THE COMMISSIONER: Thank you. Item 11?
PN702
MR MILJAK: Commissioner, I think this relates to the correspondence.
PN703
THE COMMISSIONER: Just Mr Miljak - - -
PN704
MR MILJAK: Jakov. Sorry, my apologies.
PN705
THE COMMISSIONER: Apologies, just - - -
PN706
MR MILJAK: Yes. No, that's fine.
PN707
THE COMMISSIONER: Thank you.
PN708
MR MILJAK: Jakov Miljak here from AFEI. Just Commissioner, I think this relates to the correspondence that I set out yesterday.
PN709
THE COMMISSIONER: Yes.
PN710
MR MILJAK: And I think that all of the parties have it.
PN711
THE COMMISSIONER: Just bear with me a moment.
PN712
MS LIEBHABER: Commissioner, there are some copies here.
PN713
THE COMMISSIONER: All right, thank you. Go on.
PN714
MR MILJAK: Yes, thank you Commissioner. So at the last conference as per the transcript there was - I believe you'd asked, Commissioner, for me to just put it in writing.
PN715
THE COMMISSIONER: What you - - -
PN716
MR MILJAK: What was the reasoning behind our disagreement with the addition of the words "whichever makes them more accessible". I believe at the time I referenced a Full Bench decision but I didn't quite have it on hand, and so I've just for the benefit of all the parties and the Commission, I've just found the extract there and the Full Bench decision on which we base our position in relation to those words, Commissioner.
PN717
THE COMMISSIONER: Yes, all right. Thank you Mr Miljak.
PN718
MR BULL: Bull, United Voice.
PN719
THE COMMISSIONER: Yes?
PN720
MR BULL: We'd press our claim. There's a reasonable reason to depart from what the Full Bench has said. You're dealing in workplaces that may be remote where the workers may not have access to computers and so forth, or may be moving around so there's a legitimate reason to retain this formulation which makes the award, we say, likely to be more accessible than using the formulation the Full Bench has said is preferable.
PN721
THE COMMISSIONER: So you d press the claim and in doing so as a matter of practicality would you be suggesting that this is a matter for further submission or are you suggesting a hearing or it's - - -
PN722
MR BULL: I don't think it's necessary. Look, it's a matter where I think a decision can be made. We press the claim in that it's not a huge matter.
PN723
THE COMMISSIONER: It would not require evidence or - - -
PN724
MR BULL: Well, I'm happy to make a submission if you want but I'm just saying there's aspects of this work which we say make it reasonable to depart from the position that the Full Bench has articulated, simply because of the remote and isolate nature of these workplaces.
PN725
THE COMMISSIONER: That may then require submissions.
PN726
MR BULL: As I said it's a matter - if you want further material - - -
PN727
THE COMMISSIONER: Yes.
PN728
MR BULL: - - - I'm happy to make a submission.
PN729
THE COMMISSIONER: Yes, that's a matter that will require - if what you're putting to me is that in this instance there should be a departure from the Full Bench decision certainly that's - - -
PN730
MR BULL: A minor departure, but yes a departure in essence. I don't know whether my friend from the HSU wants to say anything.
PN731
MS LIEBHABER: Rachel Liebhaber from the HSU. Likewise we'd also be pressing this point. You know, we think every modern award needs to be reviewed in its own right and we also agree that there are reasons, there are particular circumstances under this award which would make it important to retain that wording. So I would agree with my colleague, Stephen Bull, about that point.
PN732
THE COMMISSIONER: Thank you.
PN733
Do you have - yes?
PN734
MS STEELE: Ms Steele. We reserve our position. Mr Miljak's submissions appear to have merit but we'd like the opportunity to consider our position further in light of the submissions to be made by the other parties.
PN735
THE COMMISSIONER: All right. This is a matter then that will require further submission by the parties and then will be the subject either of a further conference or will ultimately be determined by a hearing. All right?
PN736
MR MILJAK: I mean just to - I mean if we're looking at the wording clause just as it was stated by the Full Bench it does still - I mean if access is a legitimate concern, which I understand it would be, but I don't see how just the present wording of the clause would prevent access to anyone who wants it, who requires to see a copy. It just seems - you know, they're more than welcome to press it and depart from the Full Bench if they wish but I would struggle to see how that clause would impede access. I just, while we're at conference, just thought I'd throw that out there.
PN737
THE COMMISSIONER: Yes. Thanks Mr Miljak. Well, ultimately it's going to require a submission.
PN738
MR MILJAK: Yes, that's fine.
PN739
THE COMMISSIONER: Whether it's a minor departure or not, it's certainly a departure from a general approach so to the extent that that's being pressed that will require submission and ultimately may need evidence. We can leave that for the time being.
PN740
MR MILJAK: Thank you, Commissioner.
PN741
THE COMMISSIONER: All right, item 12 has been moved to substantive claims. Item 13.
PN742
MS STEELE: Ms Steele. We don't press that. We'd suggested that for the benefit of the other parties on the last occasion.
PN743
THE COMMISSIONER: Thank you. Item 14, agreed. Item 15, agreed. Item 16, agreed. Item 17 has been moved to the substantive claims as has item 18 as has 19. Item 20.
PN744
MR MILJAK: Yes, we're not pressing it, so.
PN745
THE COMMISSIONER: Thank you Mr Miljak.
PN746
I'm in the parties' hands here, so.
PN747
MS SPEAKER: Commissioner, just so I understand, does the not pressing mean that the wording is going to stay the same as it is and that there won't be any requirement of bilingual proficiency?
PN748
THE COMMISSIONER: Yes.
PN749
MS SPEAKER: In that case we have nothing to say. We're happy with that.
PN750
MS LIEBHABER: Commissioner, Rachel Liebhaber from the HSU.
PN751
THE COMMISSIONER: Yes.
PN752
MS LIEBHABER: We're also happy for the wording to stay the same.
PN753
MR BULL: We're happy for the words to stay the same.
PN754
THE COMMISSIONER: All right. Thank you.
PN755
Item 21 has been agreed. Item 22 has been agreed. Item 23 has been agreed. Item 24 has been moved to substantive claims. Item 25 has been agreed. Item 26 has been withdrawn. Item 27 has been agreed. Item 28 has been agreed. Item 29? Has that been - - -
PN756
MR MILJAK: No, Commissioner if I may?
PN757
THE COMMISSIONER: Mr Miljak?
PN758
MR MILJAK: Yes, that was I believe dealing with the moving part of the allowance, the on call allowance at 19.6 under the heading of the allowances section, and I believe at the last conference I stated that we just had concerns that at 19.6 only 19.6(a)(i) and (a)(ii) were actually allowances.
PN759
THE COMMISSIONER: 19.6.
PN760
MR MILJAK: That could potentially go under an allowance heading.
PN761
THE COMMISSIONER: So 19.6 of the exposure draft?
PN762
MR MILJAK: Correct, Commissioner.
PN763
THE COMMISSIONER: On call and recall.
PN764
MR MILJAK: Yes, I'm not sure which party pressed the claim. We were responding to it.
PN765
THE COMMISSIONER: Yes.
PN766
MR MILJAK: And that concern just still remains and it may not be appropriate to move the entire 19.6 clause, you know, to the allowance section if only one part of the clause actually deals with an allowance.
PN767
THE COMMISSIONER: All right, so are you suggesting then that there's an identification as to which part of the clause relates to an allowance, and if that's done then that's the one that should be moved to the allowance section in clause 17?
PN768
MR MILJAK: Look, Commissioner, I'm not suggesting any move. We were responding based on what the other parties had suggested. I'm not suggesting a change to the exposure draft but we were - if that was the case then it would seem that that might be a solution. But as I said I'm not pressing anything, so.
PN769
THE COMMISSIONER: Okay so perhaps then if it could be expressed this way. If a move is to happen then only that part of the clause that relates to an allowance should be moved, if I can paraphrase your submission to that extent.
PN770
MR MILJAK: Basically, Commissioner. It's just it might be misleading and, you know, people putting it under an allowance heading, if it's not an allowance it might be misleading.
PN771
THE COMMISSIONER: All right.
PN772
Do the other parties have?
PN773
MS LIEBHABER: Commissioner, it's Rachel Liebhaber.
PN774
THE COMMISSIONER: If you could just identify yourselves, I'm sorry, and speak up.
PN775
MS LIEBHABER: Rachel Liebhaber from the HSU.
PN776
THE COMMISSIONER: Yes, thank you.
PN777
MS LIEBHABER: This is our claim and I mean I think at the moment the on call and recall provision is under the overtime clause and we thought it would be more fitting to include it under the allowances. I'm not sure whether breaking the clause up though would be more confusing. To have half of it in allowances and half of it under overtime might - - -
PN778
THE COMMISSIONER: Yes, does much hinge to you on whether it stays where it is or not though?
PN779
MS LIEBHABER: No, I think if there's going to be opposition to the move then we'd rather the clause stays together I think.
PN780
THE COMMISSIONER: All right in that case can I record that you're not pressing this point?
PN781
MS LIEBHABER: Sure. Yes.
PN782
THE COMMISSIONER: So there's agreement then by all parties that clause 19.6 remains as is. Is that correct?
PN783
MR MILJAK: That's fine, Commissioner.
PN784
THE COMMISSIONER: Thank you. Item 30 has been agreed. Item 31 has been moved to substantive issues, as has item 32, as has item 33. Just going back for a moment to item 13.
PN785
MR MILJAK: Yes, 13?
PN786
THE COMMISSIONER: Yes.
PN787
Ms Liebhaber, you originally proposed this change or the HSU did. Are you still proposing for the wording to be altered? I've recorded Ms Steele as having been - recording not pressing the objection. That's all I've recorded, but I haven't taken it to the next step so I'm not sure whether or not?
PN788
MS LIEBHABER: I think we would press. I think we would press this point. Sorry, I think I missed it when we were going through earlier. But I think we would maintain that there is a slight alteration to the meaning with the change in wording in the exposure draft and so we would press our changes.
PN789
THE COMMISSIONER: Right, so you're pressing that change, Ms Liebhaber.
PN790
Ms Steele you're not opposing?
PN791
MS STEELE: No, we reserve our position on that change.
PN792
THE COMMISSIONER: You reserve your position, and no one else? Are you providing an alternative wording, Ms Steele?
PN793
MS FORSTER: Ms Forster. We had proposed the inclusion of the words "without the payment of overtime" in the last conference as a way to I guess discover or reach some middle ground between the HSU's concerns, and as I recall, AFEI's opposition to there being a change in the meaning in the terms of the exposure draft. We don't press that middle ground. It was just proffered as a, yes, way to reach agreement.
PN794
THE COMMISSIONER: All right.
PN795
Ms Liebhaber, have you proposed the wording that you seek? Has there been an alternative wording?
PN796
MS LIEBHABER: I'm just - - -
PN797
THE COMMISSIONER: Because I can't seem to locate it in my material.
PN798
MS LIEBHABER: Sure. I think in our submission we stated the clause should say:
PN799
No more than 10 ordinary hours of work exclusive of meal breaks can be worked in any one day.
PN800
Instead of - - -
PN801
THE COMMISSIONER: In that case if I could ask then that you provide the proposed altered wording to the parties?
PN802
MS LIEBHABER: Yes.
PN803
THE COMMISSIONER: The parties then can respond to that and then we can deal with that issue in that way.
PN804
All right, are there any other - - -
PN805
MR MILJAK: Sorry, Commissioner, just before - - -
PN806
THE COMMISSIONER: Yes?
PN807
MR MILJAK: Was that the only difference, "can" and "may" to the clause? Because I'm just looking at the exposure draft now and it says:
PN808
No more than 10 ordinary hours of work exclusive of meal breaks may be worked in any one day.
PN809
And just to clarify is the change from "may" to "can"?
PN810
THE COMMISSIONER: I'm actually not sure what the change is.
PN811
MR MILJAK: Okay.
PN812
THE COMMISSIONER: That's what I'm asking for.
PN813
MR MILJAK: Yes.
PN814
THE COMMISSIONER: I'm asking for a proposed - - -
PN815
MS LIEBHABER: Yes.
PN816
THE COMMISSIONER: All I can see in my material is that the HSU is proposing an alteration to the words.
PN817
MR MILJAK: Yes.
PN818
THE COMMISSIONER: And I'm asking for that to be provided.
PN819
MR MILJAK: Yes.
PN820
THE COMMISSIONER: To the parties for consideration.
PN821
MS LIEBHABER: I think our submission was that the previous wording was "are to be worked" and that was changed in the exposure draft to "may be worked" and we submitted that it should say "can be worked", so.
PN822
THE COMMISSIONER: I think at this stage the best thing would be if you could provide the proposed altered wording.
PN823
MS LIEBHABER: Sure.
PN824
THE COMMISSIONER: And then we can get everyone's opinion on that.
PN825
MR MILJAK: That's fine, Commissioner.
PN826
THE COMMISSIONER: All right.
PN827
MR MILJAK: I think I remember that exchange where we were - we had a bit of an exchange last time about can and are and may, and maybe as you said it might be just be to - - -
PN828
THE COMMISSIONER: Just - - -
PN829
MR MILJAK: Yes.
PN830
THE COMMISSIONER: I think get the alternative wording to the parties and then you can all comment.
PN831
All right, is there anything else that the parties need to raise?
PN832
MS STEELE: Ms Steele. No, Commissioner.
PN833
THE COMMISSIONER: Thank you.
PN834
MR BULL: Bull. No, Commissioner.
PN835
THE COMMISSIONER: Yes.
PN836
MS SLAYTOR: Ms Slaytor. No, Commissioner.
PN837
MR MILJAK: Miljak. No, Commissioner.
PN838
THE COMMISSIONER: All right. Thank you, in that case I'll adjourn and I'll reconvene at 2.00 pm for the substantive part of the material. Mr Bull and if you're late - - -
PN839
MR BULL: I'll try to be here at two.
PN840
THE COMMISSIONER: If not, just arrive when you can.
PN841
MR BULL: Yes, it shouldn't take an hour.
PN842
THE COMMISSIONER: Thank you. All right.
LUNCHEON ADJOURNMENT [10.53 AM]
RESUMED [2.04 PM]
PN843
THE COMMISSIONER: Good afternoon, this is a continuation of this morning's conference dealing this time with substantive issues on the summary of proposed substantive variations document dated 27 March 2017. There are no additional parties that need to deal with permission.
PN844
MS ISHO: No, I was just going to give an appearance because I wasn't here this morning.
PN845
THE COMMISSIONER: All right. Thank you.
PN846
MS L ISHO: Yes, so it's just Isho, initial L, for AFEI.
PN847
THE COMMISSIONER: Thank you Ms Isho.
PN848
MS ISHO: Thank you.
PN849
THE COMMISSIONER: All right, no one else that needs to - - -
PN850
MS STEELE: Mr Le Blond is in the viewing gallery.
PN851
THE COMMISSIONER: As an observer I take it?
PN852
MS STEELE: Yes.
PN853
THE COMMISSIONER: All right. Thank you. All right, now we'll go through item by item if that's how the parties are happy to proceed.
PN854
MS STEELE: Yes.
PN855
THE COMMISSIONER: All right, and everyone has the document. Item 1.
PN856
MS STEELE: Ms Steele. All of the parties have identified that there's issues with the current definitions and classifications in the current award, and this is the first example of such a definition issue.
PN857
THE COMMISSIONER: So to understand you, everyone agrees that there's a problem with the definition.
PN858
MS STEELE: Yes.
PN859
THE COMMISSIONER: The disagreement, to the extent that there is one, is around what it should be, is it?
PN860
MS STEELE: Yes, that's correct, and the most comprehensive changes to all of the definitions are set out in NAT SIHWA's draft determination. In terms of this specific item NAT SIHWA's position is that the words should be "and/or Torres Strait Islander", should be added after the word "Aboriginal" throughout the award except in respect of the title of the award.
PN861
THE COMMISSIONER: Okay, so "and/or" should be added in clause 1 is it, except the title?
PN862
MS STEELE: Wherever the word "Aboriginal" appears throughout the award we would adopt the submission of United Voice except that we would say that it should be "and/or Torres Strait Islander" as opposed to "and Torres Strait Islander" for the reason that some people may be Aboriginal, some people may be Torres Strait Islanders and some people may be both.
PN863
THE COMMISSIONER: All right. Thank you.
PN864
MR BULL: Well, we've just used what's the - Bull, United Voice.
PN865
THE COMMISSIONER: Yes.
PN866
MR BULL: We have used what is the normal usage. It's a conjunction. I think it's a little bit too technical to have the disjunction. There's a common understanding that that essentially is the way to describe Indigenous people in Australia, so just Aboriginal and Torres Strait Islanders. We think, you know, there's not that much difference between my view and the view of NAT SIHWA.
PN867
THE COMMISSIONER: So what I'm hearing really there's not - it's not such a difference that you would press an objection to - - -
PN868
MR BULL: We have just said that the "or" is probably not necessary because the "and" is the - it can be the conjunction and that's the customary usage, you know, Aboriginal and Torres Strait Islanders. I think it's a bit neater.
PN869
THE COMMISSIONER: Does anyone else have a view?
PN870
MS SLAYTOR: Emily Slaytor for the New South Wales Business Chamber and ABI. We've proposed in submissions that were filed last year that the definition "Aboriginal" when referring to a person will be taken to include a Torres Strait Islander person.
PN871
THE COMMISSIONER: So to that extent in terms of what's being proposed by Ms Steele, the words "and/or" would give you that - - -
PN872
MS SLAYTOR: It would - - -
PN873
THE COMMISSIONER: - - - that meaning in a sense.
PN874
MS SLAYTOR: It would give that meaning just with the addition of that throughout the - - -
PN875
THE COMMISSIONER: So do I take it then that you would support what has been put by Ms Steele?
PN876
MS SLAYTOR: I don't have instructions to support that approach.
PN877
THE COMMISSIONER: But you're not pressing an objection?
PN878
MS SLAYTOR: I won't press an objection, no.
PN879
MR MILJAK: Miljak for AFEI. No, we wouldn't press any objection either way. We wouldn't have a position.
PN880
THE COMMISSIONER: All right. Well, in that case it seems to me, Mr Bull, if you wish to press an objection to that then that's - - -
PN881
MR BULL: We don't want to press the objection on this point.
PN882
THE COMMISSIONER: All right, in that case the summary will record that what has been put by Ms Steele, the addition of the words "and/or" after wherever the word "Aboriginal" appears in the award and that there's no objection that's being pressed. Is there anything else in relation to that item?
PN883
MS STEELE: Ms Steele. No there isn't, Commissioner.
PN884
THE COMMISSIONER: Thank you. All right, item 2.
PN885
MS STEELE: Ms Steele. We don't press this particular item in the sense that the draft determination sets out the changes in the award that we seek towards incentivising ongoing training. Commissioner, I can give you an example. For instance in the draft determination at paragraph A.1.1 clause 19 on page 10 the draft determination provides that:
PN886
The employer will actively assist the employee to pursue an entry into an approved course of study to gain a Certificate II -
PN887
et cetera, et cetera. So there are provisions within the draft determination that deal with this, with incentivising ongoing participation and further education.
PN888
THE COMMISSIONER: So in terms of your position now you're not pressing a change?
PN889
MS STEELE: We're pressing the changes that are in the draft determination. We're pressing the draft determination to the extent that that incentivises ongoing participation in further education and I've taken you, Commissioner, to one example of that. But all of the changes that we seek are set out in the draft determination.
PN890
MS FORSTER: Ms Forster, Commissioner. There's no discrete inclusion of a new provision.
PN891
THE COMMISSIONER: Yes.
PN892
MS FORSTER: That goes specifically to education or training.
PN893
THE COMMISSIONER: All right, and the other parties? Is there - - -
PN894
MR BULL: No view.
PN895
THE COMMISSIONER: No view? All right, the summary then will record that position Ms Steele - - -
PN896
MR MILJAK: Commissioner, just in relation to those, we're just clarifying at this point in time that that is what is being pressed by NAT SIHWA.
PN897
THE COMMISSIONER: Correct. Correct.
PN898
MR MILJAK: And there will be some opportunity for some further comments down the track?
PN899
THE COMMISSIONER: Correct.
PN900
MR MILJAK: Okay, Commissioner.
PN901
THE COMMISSIONER: There's no - this is a conference.
PN902
MR MILJAK: Yes.
PN903
THE COMMISSIONER: Another conference to see if the positions between the parties can be even further narrowed.
PN904
MR MILJAK: Yes.
PN905
THE COMMISSIONER: I'll be making no decisions certainly on the basis of what's being put today.
PN906
MR MILJAK: Thank you, Commissioner.
PN907
THE COMMISSIONER: Ms Steele are you happy to proceed on that basis, that that's - - -
PN908
MS STEELE: Yes, Commissioner, that will be the subject of a further conference I'm assuming.
PN909
THE COMMISSIONER: Yes. All right, item 2A.
PN910
MS STEELE: Ms Steele.
PN911
THE COMMISSIONER: Yes?
PN912
MS STEELE: At this stage my client doesn t seek any amendment to - or seeks an initial amendment as set out in the very first - - -
PN913
THE COMMISSIONER: Item?
PN914
MS STEELE: In the very first item that the award be amended to:
PN915
Aboriginal and Torres Strait Islander Community Controlled Health Services Award.
PN916
This particular - the name of the award is something that is currently under consultation and it may be appropriate at some later point if there's any change to coverage to amend it. But at this particular point that's what NAT SIHWA - - -
PN917
THE COMMISSIONER: It's too early.
PN918
MS STEELE: It is too early.
PN919
THE COMMISSIONER: It's pre-emptive.
PN920
MS STEELE: Yes.
PN921
THE COMMISSIONER: Given that there are other issues that might impact on that.
PN922
MS STEELE: Yes.
PN923
THE COMMISSIONER: All right. Do the parties, any other parties, have a contrary view?
PN924
MR BULL: No.
PN925
MS SLAYTOR: No, Commissioner.
PN926
MR MILJAK: We would agree with it.
PN927
THE COMMISSIONER: All right, that will be recorded in the summary. Item 2B.
PN928
MS STEELE: Ms Steele. My client has a difficulty with ATSI in that it's a term that isn't used any more. The proposals, the definitions that NAT SIHWA seeks are set out in the draft determination and each of the definitions reflects the names of the actual - - -
PN929
THE COMMISSIONER: Type of - - -
PN930
MS STEELE: - - - titles and courses that each person has attained within that definition, and so the changes that are sought are those that are set out in the draft determination and there's a definition that's set out there for health worker care, practice, community controlled health service employees. They're all set out in that paragraph dealing with the new definitions that are sought and these definitions reflect the work that's actually being carried out by the health workers and practitioners in practice and reflect their current qualifications.
PN931
THE COMMISSIONER: And these definitions are different to the ones in the exposure draft?
PN932
MS STEELE: Yes. Yes they are. They're very different.
PN933
THE COMMISSIONER: They certainly do appear so on the first - all right, and what about the other parties?
PN934
MS LIEBHABER: Commissioner, we would support NAT SIHWA's proposal. We wouldn't press our submission on this point.
PN935
THE COMMISSIONER: Ms Liebhaber, are you supporting the proposal for a change of the definitions that are currently in the exposure draft or are you supporting the actual proposed changes put forward by Ms Steele, just so I'm clear?
PN936
MS LIEBHABER: In terms of this - - -
PN937
THE COMMISSIONER: This part of - - -
PN938
MS LIEBHABER: - - - issue about the definitions we would support that.
PN939
THE COMMISSIONER: The actual changes that have been identified?
PN940
MS LIEBHABER: Yes. Yes.
PN941
THE COMMISSIONER: Anyone else?
PN942
MR BULL: We support the proposed changes.
PN943
THE COMMISSIONER: Thank you. That was Mr Bull.
PN944
MR MILJAK: Miljak. Yes, AFEI will just reserve our right to make further comments about that. They're quite substantive changes so, you know, we'll certainly just seek to reserve our position on those changes.
PN945
THE COMMISSIONER: All right, so the summary will identify that the proposed changes put forward by Ms Steele to this definitions section have been supported by the HSU and United Voice with Mr Miljak reserving - - -
PN946
MR MILJAK: AFEI's position.
PN947
THE COMMISSIONER: - - - the position. All right. Item 2C.
PN948
MR BULL: This seems to be a subsection of the earlier issue about the "and/or". In light of what I've said earlier I've got no problem with what NAT SIHWA is proposing. Unless I've misread it, a lot of these items are essentially a subsection of that issue.
PN949
THE COMMISSIONER: Okay, so that is a subset of item 1 and is not - the proposal put forward by Ms Steele is not objected to by any of the parties?
PN950
MR BULL: Bull, United Voice. We don't object to it.
PN951
THE COMMISSIONER: All right. Thank you. Item 2D.
PN952
MR BULL: That seems to be about - there's some note where it's talking about a national registration system to be implemented.
PN953
THE COMMISSIONER: It's in clause 2 and it seems - is it the sentence:
PN954
It is intended that a national registration system will be implemented - - -
PN955
MR BULL: And that seems redundant.
PN956
SPEAKER: Yes, it is.
PN957
MR BULL: Because the national registration system has been implemented so it should be deleted.
PN958
MS STEELE: Ms Steele. NAT SIHWA agrees that it should be deleted.
PN959
THE COMMISSIONER: The sentence or the note?
PN960
MS STEELE: The note.
PN961
MR BULL: The whole note.
PN962
THE COMMISSIONER: The whole note.
PN963
MR BULL: Because there's a national registration system. That's the whole - you know, the whole APRA thing.
PN964
THE COMMISSIONER: So it's no longer intended?
PN965
MR BULL: It's happened.
PN966
THE COMMISSIONER: It has happened, all right. Anyone else?
PN967
MR MILJAK: Miljak. We wouldn't oppose.
PN968
THE COMMISSIONER: All right. Thank you, that will be recorded. Item 2E.
PN969
MS STEELE: Ms Steele. Item 2E appears to have been resolved by the adoption of the NAT SIHWA classification system at item 2B.
PN970
THE COMMISSIONER: In item 2B? Do the parties - - -
PN971
MS STEELE: Or is a subset of that.
PN972
THE COMMISSIONER: - - - agree with that?
PN973
MS LIEBHABER: Yes, Commissioner.
PN974
THE COMMISSIONER: Yes? That was Ms Liebhaber.
PN975
MS LIEBHABER: Ms Liebhaber, sorry.
PN976
THE COMMISSIONER: Thank you.
PN977
MR BULL: You could just call everyone Indigenous but that's probably - that's not on?
PN978
MS STEELE: No.
PN979
MR BULL: No? I'm sorry.
PN980
THE COMMISSIONER: Mr Bull, you're with us; you're agreeing still?
PN981
MR BULL: I agree with it, yes.
PN982
THE COMMISSIONER: All right.
PN983
MR MILJAK: Sorry, just to clarify, that was - - -
PN984
THE COMMISSIONER: Yes.
PN985
MR MILJAK: So that was a subset of 2B?
PN986
THE COMMISSIONER: It's been put that item 2E is a subset of 2B in essence.
PN987
MR MILJAK: Yes.
PN988
THE COMMISSIONER: And that a resolution along the lines, or a recording along the lines of the notation in 2B will resolve 2E at the same time in essence.
PN989
MR MILJAK: That's fine, Commissioner.
PN990
MS SLAYTOR: Thank you. Yes, that's fine.
PN991
THE COMMISSIONER: That's Mr Miljak and?
PN992
MS SLAYTOR: Slaytor.
PN993
THE COMMISSIONER: All right. Thank you. 2F, item 2F.
PN994
MS STEELE: Ms Steele.
PN995
THE COMMISSIONER: Thank you.
PN996
MS STEELE: Item 2F is similarly a subset of the definitional issues that were dealt with.
PN997
THE COMMISSIONER: In 2B?
PN998
MS STEELE: In 2B.
PN999
MR BULL: And Bull, United Voice, in light of what we've said earlier we withdraw any opposition to it.
PN1000
THE COMMISSIONER: Thank you.
PN1001
Mr Miljak?
PN1002
MR MILJAK: Our position would remain the same.
PN1003
THE COMMISSIONER: Thank you.
PN1004
MR MILJAK: In that we reserve our position.
PN1005
THE COMMISSIONER: Thank you.
PN1006
Ms Slaytor?
PN1007
MS SLAYTOR: The same.
PN1008
THE COMMISSIONER: Thank you.
PN1009
Item 3.
PN1010
MS STEELE: Ms Steele. This is a new item. NAT SIHWA seeks to extend the scope of the award coverage to extend beyond health workers in community controlled health services to health workers in private practice, to reflect the fact that there are now a number of health workers and practitioners that are in private practice who aren't currently covered by any award.
PN1011
THE COMMISSIONER: All right, so that's quite clearly a coverage extension.
PN1012
MS STEELE: Yes.
PN1013
THE COMMISSIONER: A substantive matter unless it's - - -
PN1014
MR BULL: Bull, United Voice. It makes it a hybrid coverage clause.
PN1015
THE COMMISSIONER: Yes.
PN1016
MR BULL: We don't have any objection to what the NAT SIHWA is proposing.
PN1017
THE COMMISSIONER: Thank you.
PN1018
MS LIEBHABER: Commissioner, Liebhaber Rachel. We don't have any objection either. We'd support that coverage change.
PN1019
THE COMMISSIONER: All right. Thank you.
PN1020
MR MILJAK: Miljak, AFEI. You know, as was said by the other parties it is a substantive change so at present we will probably reserve our position, make some comments at a later date. It's expanding the scope and the coverage of it which obviously will have a wide effect, so we would obviously reserve our position before making any further comment.
PN1021
THE COMMISSIONER: Is there anything further you would like to hear from any of the parties to assist?
PN1022
MR MILJAK: Well, just the implications in terms of coverage. So you know, in terms of extending it how exactly that would go, who would be - - -
PN1023
THE COMMISSIONER: You need to consider the implications.
PN1024
MR MILJAK: The implications.
PN1025
THE COMMISSIONER: You're saying if it does happen, how it will affect, potentially?
PN1026
MR MILJAK: Yes, because it will provide a cover - maybe potentially coverage to people who weren't covered before, and what might be the implications of that coverage. So as I said we're not here to - you know, we just want to know more about that and the potential implications of that expansion in coverage. It's obviously a really substantive matter, so.
PN1027
MR BULL: Well, it means - Bull, United Voice - it means people who would fall within the classifications of the award who work in general practice clinics and so non‑Aboriginal controlled organisations would fall under the award.
PN1028
MR MILJAK: Yes, so we would - our understanding is - - -
PN1029
THE COMMISSIONER: You'd like to reserve your position.
PN1030
MR MILJAK: It would expand it to private practices as well, I'm guessing, and - - -
PN1031
THE COMMISSIONER: No, that has been put fairly and squarely I think as - - -
PN1032
MR BULL: There's nothing mysterious about it.
PN1033
THE COMMISSIONER: Yes.
PN1034
MR BULL: It just means that people doing this work who are working - - -
PN1035
MR MILJAK: Yes.
PN1036
MR BULL: - - - for GPS are covered by the award and have the benefit of the award, because currently they're awardless, so.
PN1037
MR MILJAK: That's fine. We will reserve our position.
PN1038
THE COMMISSIONER: All right. Thank you.
PN1039
MS SLAYTOR: Slaytor from New South Wales Business Chamber and ABI say we would like to reserve our position in relation to this matter with the opportunity to make further comment perhaps later down the track.
PN1040
THE COMMISSIONER: All right. Thank you.
PN1041
Is there something you'd like to add, Ms Steele?
PN1042
MS STEELE: Ms Steele. Is it the appropriate course that the parties who have reserved their position put on some short submissions as to what their position is before the next conference? We're happy to put some short submissions on, because in effect these people - the extension of coverage is in effect to Aboriginal and/or Torres Strait Islander health workers and practitioners in private practice who are currently awardless, and we're happy to put on submissions to that effect.
PN1043
THE COMMISSIONER: If the parties think that would assist in attempting to resolve the matter then certainly further submissions would - - -
PN1044
MR MILJAK: Commissioner, we would you know urge - we understand the purpose of this conference today is just to clarify also what is being pressed what isn't being pressed.
PN1045
THE COMMISSIONER: And why.
PN1046
MR MILJAK: And why and, you know, this is our first conference on substantive matters in this award so - - -
PN1047
THE COMMISSIONER: Certainly. I understand what - - -
PN1048
MR MILJAK: So basically we're not signalling anything. We're just - you know, if we need further submissions, if that may assist we'll certainly be happy to provide those if we have concerns.
PN1049
THE COMMISSIONER: Well, Ms Steele is offering to provide those, as I understood.
PN1050
MR MILJAK: Yes, and that would assist.
PN1051
MR BULL: Maybe though we're jumping ahead. We don't even know if this is in contention so those with reservations could maybe clarify within a week or so, you know, whether they - what they want to do, and if they can agree to it they can agree to it, then it's a matter which is not contentious.
PN1052
MR MILJAK: We're not pushing the claim.
PN1053
MR BULL: No, but we're asking whether you agree with it or disagree with it and that's a fairly clear choice. So if you agree with it, can you tell us; if you disagree with it, tell us and we'll do what needs to be done in order to progress it.
PN1054
MS FORSTER: Ms Forster. This matter, the coverage issue, has been known to the parties for well over I think a year now.
PN1055
MR BULL: Yes I've known about it.
PN1056
MS FORSTER: It's a very significant issue for our client and it's an expanding workforce and we will continue to be an expanding workforce. Coupled with the coverage issue is including a classification structure that provides proper career progression and recognition for a workforce that at the moment there's very little even lip service to in the award. So it is a very important matter and it will be pressed and we're keen to know whether the parties are with us or against us, so to speak.
PN1057
THE COMMISSIONER: Certainly, and I think whilst Mr Miljak has said that he wishes to reserve his position he's certainly not flagging that he will necessarily object. I understand your position as well, Mr Bull. It's quite clear that there has got to be a yes or no at some point.
PN1058
Perhaps moving forward then, Mr Miljak, if you take say seven days or however long you need to consider what your position is, you can then write to the AMOD team briefly as to whether or not you have a position and what it is, and then the remaining parties can provide submissions accordingly before the next conference.
PN1059
MS FORSTER: That would greatly assist.
PN1060
MR MILJAK: Yes, I know that that's something we can have a look at. I can take some instruction and if it does assist perhaps within maybe a fortnight or so, you know, something like that, we're happy to make sure that we've got a position and we can put up some submissions. If we do have concerns we can put that in writing.
PN1061
THE COMMISSIONER: Yes.
PN1062
MR MILJAK: And the other parties can respond if required, if at all required.
PN1063
THE COMMISSIONER: And the same applies to you, Ms Slaytor. You can do the same.
PN1064
MS SLAYTOR: Thank you. We'd like the opportunity to do that as well.
PN1065
THE COMMISSIONER: And let's say then a fortnight. Would that give you sufficient time?
PN1066
MR MILJAK: That would be fine, Commissioner, thank you.
PN1067
THE COMMISSIONER: So a fortnight to put in submissions if you think you need to put them in and - - -
PN1068
MR MILJAK: Or alternatively, Commissioner - sorry to interrupt but if there is no objection we can clarify that as well.
PN1069
THE COMMISSIONER: That could be clarified in writing as well and then the remaining parties know where they stand and they can either put in submissions in response or not before the next conference.
PN1070
MS FORSTER: Ms Forster. If there are concerns with particular parts of what s proposed, NAT SIHWA will take those onboard and we'll see to address them because our idea is the best way forward is that all the parties are onboard.
PN1071
THE COMMISSIONER: Yes, it makes sense that that's - all right.
PN1072
MR MILJAK: Thank you.
PN1073
THE COMMISSIONER: All right.
PN1074
MR MILJAK: Thank you.
PN1075
THE COMMISSIONER: All right, item 4.
PN1076
MS LIEBHABER: Commissioner, Liebhaber Rachel. It's our understanding that this matter has actually been referred to the casuals and part‑time Full Bench, the minimum engagement question. But number 5 hasn't.
PN1077
THE COMMISSIONER: So four has been referred on?
PN1078
MS LIEBHABER: Yes, but number 5 which says here it has, actually hasn't. So I think that is just an error there.
PN1079
THE COMMISSIONER: So the recording that notes that number 5 has been referred on, that should appear at number 4?
PN1080
MS LIEBHABER: Yes.
PN1081
THE COMMISSIONER: All right, that will be amended then. The document will be amended to reflect that, and then item 5?
PN1082
MS LIEBHABER: Yes, Commissioner, we would be pressing this matter however we wouldn't be pressing the shift allowances part at this stage, only the weekend and public holiday rates.
PN1083
THE COMMISSIONER: Did you say that they're the only two you'd be pressing?
PN1084
MS LIEBHABER: So that casual loading should be paid in addition to weekend and public holiday rates.
PN1085
THE COMMISSIONER: Not "Other shift allowances"?
PN1086
MS LIEBHABER: Not other shift allowances.
PN1087
THE COMMISSIONER: Okay.
PN1088
MR BULL: I've sort of - Bull, United Voice. The penalty rates review Full Bench seems to have said that you should differentiate the casual loading from penalty rates. They've followed what the Productivity Commission says so there's recent relevant authority on that issue. They say that they should be different, there should be an increment to recognise that casual employees are different.
PN1089
THE COMMISSIONER: All right. Thank you.
PN1090
MR MILJAK: Commissioner, our understanding is obviously that that is not the way the award operates at the moment. We're happy to hear if they wish to make maybe some submissions as to why that should be the case. We'd be happy to see that.
PN1091
THE COMMISSIONER: Would a reference to the Full Bench decision that - - -
PN1092
MR BULL: I can fish it out and send it to the parties.
PN1093
THE COMMISSIONER: - - - that Mr Bull is referring to, would that assist?
PN1094
MR MILJAK: Well, potentially. Potentially it might. I don't have it on hand. The last time I, you know - - -
PN1095
THE COMMISSIONER: Certainly, I understand and I'm not being in any way critical of anyone for not having anything on hand. But perhaps if that could be provided to you, you can then consider that. Any departure from that type of though it - as Mr Bull has put it, any departure from that sort of general approach articulated by the Full Bench would need to be dealt with separately.
PN1096
MR MILJAK: Yes, and even just something short in writing to - in terms of I think I had a similar thing with the Full Bench, just it might be convenient.
PN1097
THE COMMISSIONER: From?
PN1098
MR MILJAK: From Mr Bull.
PN1099
MR BULL: I can send it.
PN1100
THE COMMISSIONER: Are you happy to that, Mr Bull?
PN1101
MR BULL: Yes I can do that. It won't take me very long.
PN1102
THE COMMISSIONER: All right. Thank you.
PN1103
Does anyone else - - -
PN1104
MS STEELE: Ms Steele. In principle we support the HSU.
PN1105
THE COMMISSIONER: All right. Thank you. The document will record then the respective positions of the parties and Mr Bull, if you could provide the short submission and the reference to the Full Bench authority that would be very helpful, before the next conference.
PN1106
Item 5A.
PN1107
MS STEELE: Ms Steele. Commissioner this is a similar question to item 2B.
PN1108
THE COMMISSIONER: 2B.
PN1109
MS STEELE: It's the definitions as per the draft determination. We support that there should be a redrafting of the clause at classifications and we say that that should be as per the draft determination.
PN1110
THE COMMISSIONER: So that will go in the same bundle as the 2B bundle, is that in essence what you're submitting?
PN1111
MS STEELE: Yes.
PN1112
THE COMMISSIONER: Thank you. Does anyone have an objection to that?
PN1113
MS FORSTER: Ms Forster. Perhaps it's best for the issue of definitions and classifications to be bundled together in the future documents. I note there's a further item referring to classifications.
PN1114
THE COMMISSIONER: It's not something I've already dealt with in this part though.
PN1115
MS FORSTER: Sure.
PN1116
THE COMMISSIONER: You're not suggesting I - - -
PN1117
MS FORSTER: No, no.
PN1118
THE COMMISSIONER: - - - go back to one of the items?
PN1119
MS FORSTER: No.
PN1120
THE COMMISSIONER: All right. Terrific.
PN1121
MS FORSTER: Just noting - - -
PN1122
THE COMMISSIONER: If you could then perhaps when we get to the next one that you're referring to.
PN1123
MS FORSTER: Yes.
PN1124
THE COMMISSIONER: If you could tell me then, refer me back to 5A. Thank you.
PN1125
Item 6.
PN1126
MS STEELE: Ms Steele. We have proposed a wage structure in our letter to the Commission dated 9 March. I have a summary document which may be of assistance to the Commission, the summary document setting out the - - -
PN1127
THE COMMISSIONER: Thank you.
PN1128
MS STEELE: We've circulated this document to the other parties. In essence it's a summary of, on the left, the current award and the amounts per week in the second column. Then - - -
PN1129
THE COMMISSIONER: So I'm looking at the summary only, not the actual - not the 9 March letter.
PN1130
MS STEELE: Yes.
PN1131
THE COMMISSIONER: I'm looking at the summary you just handed up, yes?
PN1132
MS STEELE: Yes it's - - -
PN1133
THE COMMISSIONER: So the per week column is taken from where?
PN1134
MS STEELE: The per week column is taken from the current award.
PN1135
THE COMMISSIONER: Award.
PN1136
MS STEELE: The new structure is the new grading structure that's proposed by NAT SIHWA and the classification structure, and then there's the proposed weekly wages that are being sought which is what is being sought in item S6.
PN1137
THE COMMISSIONER: Right.
PN1138
MS STEELE: The only reason why I take you in such detail to this, Commissioner, is that there is a work value argument which will arise with respect to grades - the new proposed grade 4, 5 and 6. But grades 1, 2 and 3 are effectively taken from the current award. Under the current award grade 1 is presently made up of three levels which are meant to be progressed through in one year. What NAT SIHWA has proposed doing under the new structure - - -
PN1139
THE COMMISSIONER: Is this for me? My apologies. I can write on it?
PN1140
MS STEELE: Yes it is.
PN1141
THE COMMISSIONER: Thank you.
PN1142
MS STEELE: Yes it is. Please.
PN1143
THE COMMISSIONER: All right. I'm sorry, the grade 1 is?
PN1144
MS STEELE: Grade 1 - - -
PN1145
THE COMMISSIONER: Is currently the three structures, yes.
PN1146
MS STEELE: Is currently under - has three levels which have to be progressed through in one year under the current award. The new structure splits the current grade 1 into two grades but keeps the same pay points so that - - -
PN1147
THE COMMISSIONER: I see.
PN1148
MS STEELE: Yes, so that in effect whilst there are two grades there is - effectively it's splitting the current grade 1.
PN1149
THE COMMISSIONER: Split into two, split into half or whatever.
PN1150
MS STEELE: Yes.
PN1151
THE COMMISSIONER: However way you want to frame it.
PN1152
MS STEELE: Yes.
PN1153
THE COMMISSIONER: They're grade 1, grade 2, with two different rates.
PN1154
MS STEELE: Yes.
PN1155
THE COMMISSIONER: The two different rates coincide with the level 2 and 3 in the award.
PN1156
MS STEELE: Yes.
PN1157
THE COMMISSIONER: Is the point there?
PN1158
MS STEELE: Yes that's correct, Commissioner, and the other point being that that is potentially something that could be the subject of agreement between the parties because there's no work value argument with respect to that grade. The same with the next grade 3, the generalist health worker which is a health worker who has a Certificate III, and that is the same pay point and the same qualifications as the current grade 2 in the award. Grade - - -
PN1159
THE COMMISSIONER: I'm sorry, you said grade 3 and then I went down the bottom. So it's grade 3 - - -
PN1160
MS STEELE: It's a little confusing.
PN1161
THE COMMISSIONER: - - - in the new structure.
PN1162
MS STEELE: Yes.
PN1163
THE COMMISSIONER: Grade 2 in the award.
PN1164
MS STEELE: Yes and they are the same.
PN1165
THE COMMISSIONER: I went further down so it didn't - so that's the same in a sense.
PN1166
MS STEELE: No change.
PN1167
THE COMMISSIONER: No change.
PN1168
MS STEELE: To the grade 1s. Where the change comes in is with respect to the grade 3 under the current award, which we propose to be the grade 4.
PN1169
THE COMMISSIONER: Four, yes.
PN1170
MS STEELE: And the change is that currently under the current award the old grade 3 and the proposed grade 4 would include an advanced health worker/care, an advanced health worker/practice who both have a Certificate IV qualification. What NAT SIHWA is proposing is that because the health workers in practice have a greater responsibility, that they would move into the grade 5, the new grade 5 which was the old grade 4 under the award.
PN1171
THE COMMISSIONER: So you're drawing a distinction between the advanced health worker care?
PN1172
MS STEELE: Yes, and advanced health worker - - -
PN1173
THE COMMISSIONER: And the advanced health worker practice.
PN1174
MS STEELE: - - - practice, yes.
PN1175
THE COMMISSIONER: And you're suggesting that the advanced health worker practice should in fact be a higher grade?
PN1176
MS STEELE: Yes, and so therefore there would be a change. They are currently - so they would have a - the health worker in practice under the proposed new structure would have a slightly increased rate of pay than they would had they been in the lower grade, and so that is one change in work value.
PN1177
THE COMMISSIONER: Yes.
PN1178
MS STEELE: In the grade - the other person or the other group in the grade 5, new structure grade 5, are the senior health workers and they - - -
PN1179
THE COMMISSIONER: Who've moved to a grade 6.
PN1180
MS STEELE: They are currently in that grade so there's no change.
PN1181
THE COMMISSIONER: I see.
PN1182
MS STEELE: There's no change to them.
PN1183
THE COMMISSIONER: I see. So senior health practitioner coordinator care - - -
PN1184
MS STEELE: Yes, the grade 6 - - -
PN1185
THE COMMISSIONER: - - - they're already - - -
PN1186
MS STEELE: Grade - sorry, my apologies, Commissioner. I was still talking about grade 5.
PN1187
THE COMMISSIONER: I'm sorry.
PN1188
MS STEELE: Within the proposed grade 5 the health worker practice has moved up a grade so to speak.
PN1189
THE COMMISSIONER: Yes.
PN1190
MS STEELE: But the senior health worker/care hasn't changed so there's no work value argument there. With respect to grade 6 - - -
PN1191
THE COMMISSIONER: So why is there a heading for the senior health worker care in grade 5 at all?
PN1192
MS STEELE: What do you mean by a heading?
PN1193
THE COMMISSIONER: In your new structure, if I've understood you correctly, in your summary.
PN1194
MS STEELE: Yes.
PN1195
THE COMMISSIONER: If you've moved the advanced health worker practice health practitioner from grade 4 to grade 5 that's clear. And if the senior health - there's a distinction between the senior health care worker and senior health practitioner coordinator care. Apologies.
PN1196
MS STEELE: Yes. Yes.
PN1197
THE COMMISSIONER: They're two different - - -
PN1198
MS STEELE: Yes.
PN1199
THE COMMISSIONER: So that the advanced health worker practice health practitioner and the senior health care worker care, they're a grade 5.
PN1200
MS STEELE: Yes.
PN1201
THE COMMISSIONER: Whereas the senior health practitioner coordinator care was always a grade 6.
PN1202
MS STEELE: Well, there was never a grade - - -
PN1203
THE COMMISSIONER: Or the - - -
PN1204
MS STEELE: The grade 6, the proposed grade 6, is a completely new category.
PN1205
THE COMMISSIONER: Six is new. That's a new category.
PN1206
MS STEELE: There are people practising at that level where currently there wasn't any award for that level of practice.
PN1207
THE COMMISSIONER: Award free so to speak.
PN1208
MS STEELE: Yes, it's award free.
PN1209
THE COMMISSIONER: So that's a new category and that's a new grade, all right.
PN1210
MS FORSTER: Ms Forster. I might just clarify that grade 5 has three distinct roles under the new classification structure, three distinct roles within it.
PN1211
THE COMMISSIONER: Level 1, level 2, level 3?
PN1212
MS FORSTER: They're the levels within the grade.
PN1213
THE COMMISSIONER: Yes.
PN1214
MS FORSTER: But the roles covered by the grade 5 are one, advanced health worker practice. Two, health practitioner and three, senior health care worker care.
PN1215
THE COMMISSIONER: I see. I read them as two - - -
PN1216
MS FORSTER: As three.
PN1217
THE COMMISSIONER: They're three, okay.
PN1218
MS FORSTER: So with respect to - - -
PN1219
THE COMMISSIONER: Apologies. I understand that, yes.
PN1220
MS FORSTER: - - - the bump up, it's concerning both advanced health worker practice and secondly, health practitioner.
PN1221
THE COMMISSIONER: Health practitioner and thirdly.
PN1222
MS FORSTER: And thirdly.
PN1223
THE COMMISSIONER: Thank you. All right, to the extent that that's clear is there anything else that - - -
PN1224
MS FORSTER: Ms Forster. I might just add it is slightly clearer when read with the proposed classification structure which sets out the work performed by each of the roles at each grade. So this document supplements that new classification structure and the definitions proposed facilitate both. Read together it makes sense.
PN1225
THE COMMISSIONER: Yes, so to the extent that this - and I haven't sort of asked you about the exposure draft and I haven't looked at that in terms of what has been put but to the extent then there's aspects of this proposal that don't have any change attached to them so I suspect they would be in a sense controversy free, and then there are these other changes that are proposed that have a work value argument attached to them potentially. Is that sort of - - -
PN1226
MS FORSTER: Yes.
PN1227
THE COMMISSIONER: - - - holistically how they can be considered?
PN1228
MS FORSTER: Yes.
PN1229
THE COMMISSIONER: Yes. All right.
PN1230
MS FORSTER: There may be aspects of the proposal that are more controversial than others but we're interested certainly in the parties' input as to what is controversial and what is not, to narrow some of the issues.
PN1231
THE COMMISSIONER: All right. Okay well, I'll hear from the other parties then now to the extent that they are in a position to.
PN1232
MR MILJAK: Miljak from AFEI. Thank you, Commissioner. I think that probably, you know, where it's more of just a restructuring and there's not actual change to - you know, I understand the current working in the grade 1 for example that might - you know, there may be some - that may not be contentious at all. There may be a little bit more contention involved where there is a work value argument to be made and I note earlier we had that AFEI - and all parties were given a chance to maybe put something in writing. So if there are - if our position in relation to that could be expressed by those submissions and we could, you know, if there is something to agree that we don't find contentious we could certainly put that then.
PN1233
THE COMMISSIONER: From your perspective, Mr Miljak, if I can try and put it in my words perhaps.
PN1234
MR MILJAK: Yes. Yes, sure.
PN1235
THE COMMISSIONER: Would it satisfy you - you've got this summary document prepared by Ms Steele now. I don't know if you had it before but you've certainly got it now in addition to the earlier submissions. Would the appropriate course be for you to consider this document and consider which parts of the document you consider non‑controversial, which parts you do consider controversial and why, and perhaps put that in a form of a submission for consideration by the parties, and that then will - - -
PN1236
MR MILJAK: That's correct, Commissioner. That's correct.
PN1237
THE COMMISSIONER: Yes.
PN1238
MR MILJAK: As I said, upon further inspection there may be no opposition.
PN1239
THE COMMISSIONER: Certainly.
PN1240
MR MILJAK: But that is a correct summary of what - - -
PN1241
THE COMMISSIONER: And that can happen prior to the next conference.
PN1242
MR MILJAK: Certainly, Commissioner.
PN1243
THE COMMISSIONER: All right.
PN1244
MS FORSTER: Ms Forster. I might just note that the proposed wage increases are really necessitated by the new classification structure, which we say reflects the work actually performed by workers at the various levels and with increasing the degree of complexity and responsibility. So the main proposal is to facilitate the inclusion of that classification structure and second to that comes the introduction of some new levels and having to put new numbers, wages, to align to that responsibility. So if it can be read in that light rather than this is a work value case. It's a proposal to include a classification structure that recognises a workforce and - - -
PN1245
THE COMMISSIONER: What's actually happening.
PN1246
MS FORSTER: - - - a professional group. If I can ask the parties to keep that in mind.
PN1247
MR MILJAK: We certainly will.
PN1248
THE COMMISSIONER: Thank you.
PN1249
MS FORSTER: Thank you.
PN1250
THE COMMISSIONER: Any other comments by anybody? The summary will be reflected to - - -
PN1251
MR BULL: Bull, United Voice.
PN1252
THE COMMISSIONER: Yes.
PN1253
MR BULL: We support what the NAT SIHWA are proposing. It seems an appropriate and modest response to significant change in the nature and the regulation of the work, and the significance is that there was a change in 2012 in that this work came under APRA registration and that obviously came after the award was made. We support it. We think it's a modest response to what has occurred. The only issue we have is that it sort of would appear to potentially be something which is a work value matter in terms of - - -
PN1254
THE COMMISSIONER: The legislation.
PN1255
MR BULL: The legislation in terms of because you're changing the minimum rates.
PN1256
THE COMMISSIONER: Yes.
PN1257
MR BULL: So the legislation says that it's a different standard, you've got to be satisfied of work value reasons. We are highly supportive of what they're proposing. It's just a practical issue of what level of material the Full Bench dealing with this matter requires.
PN1258
THE COMMISSIONER: Yes.
PN1259
MR BULL: Before we say it can hopefully give the sanction to what is proposed.
PN1260
THE COMMISSIONER: Yes.
PN1261
MR BULL: It does seem there's a greater - - -
PN1262
THE COMMISSIONER: And that's something - - -
PN1263
MR BULL: There's a greater burden required.
PN1264
THE COMMISSIONER: No, and that's something that will certainly be dealt with at some point during this process but really the first step is ensuring that the parties actually have a position to the extent that they can because - - -
PN1265
MR BULL: Well, we support it. We say it's a good proposal.
PN1266
THE COMMISSIONER: I understand.
PN1267
MR BULL: And we're I suppose interested in the next question is what needs to be done in order to facilitate that it becomes a part of the award, and we're quite prepared to provide evidence in support of it in relation to - - -
PN1268
THE COMMISSIONER: It might - - -
PN1269
MR BULL: - - - people working in these jobs - - -
PN1270
THE COMMISSIONER: You might well need to - yes.
PN1271
MR BULL: We will if we have to.
PN1272
THE COMMISSIONER: Certainly.
PN1273
MR BULL: But we want to know whether we have to because it's, you know, not a minor thing to get evidence of a work value claim. We've done it but - and we're happy to do it for this.
PN1274
THE COMMISSIONER: Yes, I understand. As a first step the summary will be amended to record the position of the respective parties and Mr Miljak, you will provide a submission on your position.
PN1275
MR MILJAK: Yes Commissioner.
PN1276
THE COMMISSIONER: To the parties, and then the matter can be discussed at a further conference.
PN1277
Ms Slaytor you're in the same position I take it?
PN1278
MS SLAYTOR: Yes we are.
PN1279
THE COMMISSIONER: Thank you.
PN1280
MS LIEBHABER: Commissioner, Ms Liebhaber for HSU.
PN1281
THE COMMISSIONER: Apologies.
PN1282
MS LIEBHABER: Sorry, we would also support the proposal and we've consistently said that the classifications need to be changed in line with the APRA registration regulations. So we support the proposal.
PN1283
THE COMMISSIONER: Thank you. All right, thank you.
PN1284
Item 7.
PN1285
MS STEELE: Ms Steele. The next item concerns allowances and NAT SIHWA has proposed variations to allowances in its draft determination which are from page 7 onwards. NAT SIHWA seeks inclusion of allowances for occasional interpreting allowance, damaged clothing allowance, blood check allowance, telephone allowance, nauseous work allowance, heat allowance, medication administrative allowance and some other allowances moving on to the next items, and at this point we seek to know the parties' views as to what the other parties' positions would be with respect to the allowances that we've set out in the draft determination.
PN1286
MS LIEBHABER: Ms Liebhaber. We would support the allowances proposed by NAT SIHWA.
PN1287
THE COMMISSIONER: Thank you.
PN1288
MR BULL: Bull, United Voice. We support them too. They seem a reasonably modest expansion of the system of allowances within the award.
PN1289
THE COMMISSIONER: Thank you.
PN1290
MR MILJAK: Miljak, AFEI. Look, similarly to before that, you know, there are a number of allowances there that are, you know, obviously significant changes to the award and again I suppose it would be - you know, it's to be read in conjunction with that whole suite of changes as part of that draft determination.
PN1291
THE COMMISSIONER: So what would you like to - - -
PN1292
MR MILJAK: I would probably - AFEI would probably reserve its position for now and just have the opportunity to - you know, with the knowledge of everything that's come to light today in this conference just to digest that and to have the opportunity to I suppose clarify our positions within a fortnight.
PN1293
THE COMMISSIONER: So you'll let the parties know within a fortnight?
PN1294
MR MILJAK: Yes.
PN1295
THE COMMISSIONER: As to your position.
PN1296
MR MILJAK: Correct.
PN1297
THE COMMISSIONER: And why.
PN1298
MR MILJAK: Yes.
PN1299
THE COMMISSIONER: And then that could be the subject of further conference or not, at the next conference.
PN1300
MR MILJAK: Thank you, Commissioner.
PN1301
THE COMMISSIONER: Thank you.
PN1302
Ms Slaytor are you?
PN1303
MS SLAYTOR: Slaytor, ABI and New South Wales Business Chamber. I'm not in a position to make any substantive comment in relation to the new allowances so I would be in the same boat as my friend, and if we can make comments in a fortnight that would be great.
PN1304
THE COMMISSIONER: Thank you. All right. Thank you, is there any other?
PN1305
MS STEELE: No. Ms Steele. No.
PN1306
THE COMMISSIONER: Thank you.
PN1307
Item 8.
PN1308
MS STEELE: Ms Steele. Item 8 is part of item 7.
PN1309
THE COMMISSIONER: Yes.
PN1310
MS STEELE: Or is in other allowances.
PN1311
THE COMMISSIONER: As is item 9, is it?
PN1312
MS STEELE: Yes.
PN1313
THE COMMISSIONER: Is it appropriate, Mr Miljak, that we include items 8 and 9 in the same bundle?
PN1314
MR MILJAK: Yes, Commissioner.
PN1315
THE COMMISSIONER: Yes. Thank you.
PN1316
Ms Slaytor are you happy to proceed on that basis?
PN1317
MS SLAYTOR: Yes. Thank you.
PN1318
THE COMMISSIONER: Thank you, no other position in relation to those matters.
PN1319
Then item 9A.
PN1320
MS FORSTER: Ms Forster. My recollection is that this was an item proposed by the HSU to include some parameters around the taking or timing of meal breaks. Is that correct?
PN1321
MS LIEBHABER: Yes, I'm just trying to find where it was.
PN1322
MS FORSTER: Ms Forster. NAT SIHWA doesn't support that sort of more rigid framework. We don't think that any amendment is necessary.
PN1323
THE COMMISSIONER: Sorry, your position is that no changes?
PN1324
MS FORSTER: No changes.
PN1325
THE COMMISSIONER: To the exposure draft?
PN1326
MS FORSTER: To the exposure draft.
PN1327
THE COMMISSIONER: In 15 or 15.2?
PN1328
MS FORSTER: 15.2.
PN1329
MS STEELE: 15.2.
PN1330
MS LIEBHABER: Ms Liebhaber. My understanding is that this was in response to a question raised by the Commission about the timing of meal breaks and so I think at the moment we would be pressing our interpretation. But yes, I suppose I could have a closer look at that and see. Yes.
PN1331
THE COMMISSIONER: Would you perhaps rather than - - -
PN1332
MS LIEBHABER: Yes.
PN1333
THE COMMISSIONER: - - - delay matters today, is it something that you could have a closer look at, and you've heard Ms Steele's position that she is of the view that the clause shouldn't be altered at all as per the exposure draft. Bearing in mind then the question from the Commission, perhaps if you could advise by way of submission as to how you say the alteration should be expressed and why and circulate that to the other parties for comment, and if that could be done within 14 days. Is that suitable?
PN1334
MS LIEBHABER: Yes, Commissioner, I can do that.
PN1335
THE COMMISSIONER: And then the parties can comment to that before the next conference.
PN1336
MR MILJAK: That would be good, Commissioner.
PN1337
THE COMMISSIONER: All right, item 9A. - no, I'm sorry, that was item 10.
PN1338
MS STEELE: Ms Steele. This item has been sought under item S7. NAT SIHWA has also sought a clothing allowance, a damaged clothing allowance and so S10 is really one of the allowances sought by NAT SIHWA under item S7.
PN1339
THE COMMISSIONER: So does that form - should that be referred on to the item 7 bundle, added on to that? Is that - - -
PN1340
MS STEELE: Yes, so long as the HSU agrees.
PN1341
MS LIEBHABER: Sorry, the?
PN1342
THE COMMISSIONER: It's being put that the item 10 dealing with 15.3 in the exposure draft, the clothing allowance, be bundled with the matters in item 7 dealing with allowances.
PN1343
MS LIEBHABER: Yes. Sorry, Commissioner, we'd agree with that.
PN1344
THE COMMISSIONER: You agree with that? All right.
PN1345
MR MILJAK: Noted, Commissioner.
PN1346
THE COMMISSIONER: Thank you.
PN1347
Item 11. Does that fall into the same category?
PN1348
MS LIEBHABER: That might be slightly different as that deals with on call allowances. I'm not sure - - -
PN1349
THE COMMISSIONER: Okay, that's 15.4 of the exposure draft, is it, or 15.4 of the award? Okay, 15.4 is it of the award and 19.6 of the exposure draft I think?
PN1350
MS LIEBHABER: Sorry, Commissioner.
PN1351
THE COMMISSIONER: That's okay.
PN1352
MS LIEBHABER: We - - -
PN1353
THE COMMISSIONER: Do you need to consider that further, or?
PN1354
MS LIEBHABER: I think so. I haven't - - -
PN1355
THE COMMISSIONER: Is it something - - -
PN1356
MS LIEBHABER: Yes, if that's all right.
PN1357
THE COMMISSIONER: All right. Do any of the other parties have a view on this matter?
PN1358
MR MILJAK: AFEI would - we wouldn't support any change, so it s up to the - you know, we're happy to see what they put in submissions.
PN1359
THE COMMISSIONER: All right. All right, well Ms Steele I don't know that we can take then this one much further.
PN1360
MS STEELE: Yes.
PN1361
THE COMMISSIONER: If Ms Liebhaber wishes to consider this matter further and provide the parties with some indication as to the HSU's position. Would 14 days be sufficient?
PN1362
MS LIEBHABER: Yes, that would be sufficient thank you.
PN1363
THE COMMISSIONER: All right, so perhaps 14 days and that could be done by way of either correspondence and/or submissions.
PN1364
MS LIEBHABER: Yes, Commissioner.
PN1365
THE COMMISSIONER: All right, item 11A.
PN1366
MS STEELE: NAT SIHWA. Ms Steele.
PN1367
THE COMMISSIONER: Yes?
PN1368
MS STEELE: We've dealt with progression and recognition of previous service in the draft determination in clause 5 on page 3 where we've included provision for progression to be time based as well as recognition of previous service. That is currently set out in item S24 however S11A and S24 are in effect the same issue of - cover the same topic of progression and so NAT SIHWA's position with respect to item S11A is as set out in item S24 and as set out in item 13.3 and 13.4 of the draft determination.
PN1369
THE COMMISSIONER: So 13.3, not of the summary of proposed substantive variation. 11A - - -
PN1370
MS STEELE: Yes.
PN1371
THE COMMISSIONER: Your position is that 11A is the same as 24A in the summary.
PN1372
MS STEELE: As S24, yes
PN1373
THE COMMISSIONER: Sorry, item S24 in the summary.
PN1374
MS STEELE: Yes.
PN1375
THE COMMISSIONER: And where does 13.2 come into it? 13.2 is?
PN1376
MS STEELE: Ms Steele. It's in our amended draft determination where we set out the specific provisions that we seek to include with respect to progression and a new clause 13.3 which deals with progression that's time based after 12 months continuous employment, and a new clause 13.4 which deals with recognition of previous service, because currently there isn't any provision for progression within the current award.
PN1377
THE COMMISSIONER: All right. All right, thank you.
PN1378
Do the other parties have a position?
PN1379
MR BULL: I think we're agreeing with them in the next item talks about progression is time based and that's a fairly - - -
PN1380
THE COMMISSIONER: 11B?
PN1381
MR BULL: 11B. We say that in one of our response submissions, so.
PN1382
THE COMMISSIONER: So United Voice is agreeing.
PN1383
MR BULL: With NAT SIHWA that progression should be time based insofar as it can be. Where do they deal with this in their draft determination? I'm just trying to find the page.
PN1384
MS FORSTER: Ms Forster. I recall that the parties were asked to confirm by the Commission how progression would occur because there was no guidance in the award at all on the point and so our submission proposes to include a term that's taken from the Social Community Home Care and Disability Services Award which says how that would - - -
PN1385
THE COMMISSIONER: And that's in the draft determination?
PN1386
MS FORSTER: And that's in the draft determination at page 3.
PN1387
THE COMMISSIONER: Page?
PN1388
MS FORSTER: Page 3 of the draft determination, and below that there's the clause dealing with recognition of prior service.
PN1389
THE COMMISSIONER: Could you just speak up and say that again, that bit? Below?
PN1390
MS FORSTER: The clause below 13.3, 13.4 is an additional clause dealing with recognition of prior service. So what would happen if an employee were to change employers but had a certain amount of experience in the industry where they would enter a - - -
PN1391
THE COMMISSIONER: Right, so that's 13.3.
PN1392
MS FORSTER: Those references to 13 are references to the current award clause.
PN1393
THE COMMISSIONER: Yes.
PN1394
MS FORSTER: Not the exposure draft, and we're certainly interested in the parties' views on whether clauses like that are supported or if changes are required to (indistinct) appropriate.
PN1395
THE COMMISSIONER: Just I've been asked by the monitor people if you could just all speak up for the purposes of the transcript, if you don't mind? Thank you. That might be a better way, thanks. All right.
PN1396
MR BULL: Anyway I'm looking at their proposed clause in relation to progression. That's 13.3. That seems - - -
PN1397
THE COMMISSIONER: Mr Bull.
PN1398
MR BULL: It's Bull, United Voice. That seems fine. We're happy to agree with that. It would still obviously need quite a lot of employer discretion as to whether they fitted with the classifications at the higher position, but yes we're happy to support that.
PN1399
THE COMMISSIONER: All right. Thank you.
PN1400
MR MILJAK: Commissioner, we will consider that and our view will be made known in the next fortnight.
PN1401
THE COMMISSIONER: Thank you Mr Miljak.
PN1402
Ms Slaytor are you in the same position?
PN1403
MS SLAYTOR: We will be in the same position. I can't at this stage, just looking at the clause in the draft determination, I can't see that there would be too much objection to it. But I'll have to take that on notice and come back.
PN1404
THE COMMISSIONER: Thank you, so that will be another matter that's addressed in the fortnight's submission.
PN1405
All right, we move then to 11C.
PN1406
MS LIEBHABER: Commissioner, just looking at - - -
PN1407
THE COMMISSIONER: Thank you, if you could just move the microphone and speak up.
PN1408
MS LIEBHABER: It's Ms Liebhaber. From my notes from the technical and drafting conference I thought this matter was agreed between parties. But that could be incorrect.
PN1409
THE COMMISSIONER: Do any other parties - if it's agreed then I'm happy for the summary to record that.
PN1410
MR MILJAK: We don't oppose.
PN1411
THE COMMISSIONER: All right.
PN1412
Ms Slaytor, don't oppose?
PN1413
MS SLAYTOR: I'm sorry, I was just reading something on the screen so I've missed what that was about.
PN1414
THE COMMISSIONER: It's item 11C and Ms Liebhaber has put the position that she understood that this matter has been agreed.
PN1415
MS SLAYTOR: Sure.
PN1416
MS STEELE: Ms Steele. We accept that that's the position.
PN1417
THE COMMISSIONER: All right.
PN1418
MS STEELE: That is has been agreed.
PN1419
THE COMMISSIONER: Thank you.
PN1420
MS SLAYTOR: We don't oppose.
PN1421
THE COMMISSIONER: All right. Thank you.
PN1422
MR BULL: We agree with it.
PN1423
THE COMMISSIONER: Thank you. The summary will be amended to reflect the positions of the parties.
PN1424
Item 12 has been referred to payment of wages Full Bench, is that?[sic]
PN1425
MS LIEBHABER: Ms Liebhaber. Yes, I believe that this matter has been referred to the Full Bench so we wouldn't be pursuing that here.
PN1426
THE COMMISSIONER: All right.
PN1427
Item 13.
PN1428
MS LIEBHABER: We won't pursue this matter.
PN1429
THE COMMISSIONER: So the HSU are withdrawing that matter?
PN1430
MS LIEBHABER: Yes, we're withdrawing item 13.
PN1431
THE COMMISSIONER: Item 13.
PN1432
Item 14.
PN1433
MS LIEBHABER: We are pursuing this matter, Commissioner. We want a roster provision about - - -
PN1434
THE COMMISSIONER: So Ms Liebhaber.
PN1435
MS LIEBHABER: Ms Liebhaber.
PN1436
THE COMMISSIONER: You're pressing this matter?
PN1437
MS LIEBHABER: Yes, we are pressing this matter.
PN1438
THE COMMISSIONER: Is it in 14.1 of the exposure draft?
PN1439
MR BULL: That's where the rostering clause is.
PN1440
THE COMMISSIONER: Yes. So you're pressing a change from seven to 14 days. That's the essence of it, is that correct?
PN1441
MS LIEBHABER: Yes.
PN1442
THE COMMISSIONER: All right, and the other parties?
PN1443
MR BULL: We don't object. We're happy to support the HSU's claim.
PN1444
MR MILJAK: Miljak, AFEI. We would probably at this point in time probably oppose that. That provision.
PN1445
MS STEELE: Ms Steele. We won't oppose that provision.
PN1446
THE COMMISSIONER: You won't oppose?
PN1447
MS STEELE: We won't oppose. Yes.
PN1448
MS SLAYTOR: I don't have instructions about that.
PN1449
THE COMMISSIONER: Ms Slaytor?
PN1450
MS SLAYTOR: Sorry Ms Slaytor, New South Wales Business Chamber ABI.
PN1451
THE COMMISSIONER: Thank you.
PN1452
MS SLAYTOR: Can't comment.
PN1453
THE COMMISSIONER: Is this, Mr Miljak, a matter then for submissions, further submissions?
PN1454
MR MILJAK: We can raise it in submissions. It's obviously more onerous on an employer so we would probably seek to say that seven days is sufficient. But, you know, we can make a submission to that point.
PN1455
THE COMMISSIONER: All right. All right, the summary will be reflected then to indicate the views of the parties and Mr Miljak, you'll be providing a submission then as to your objection.
PN1456
MR MILJAK: Yes. Yes, Commissioner. That's fine.
PN1457
THE COMMISSIONER: Is a fortnight sufficient?
PN1458
MR MILJAK: Yes, within that same timeline that we've discussed earlier.
PN1459
THE COMMISSIONER: Thank you. Thank you.
PN1460
All right, item 15.
PN1461
MS LIEBHABER: Ms Liebhaber. We are pressing this matter in terms of the broken shifts. We're not pressing sleepover provisions but we would want a minimum four engagement for broken shifts.
PN1462
THE COMMISSIONER: You're pressing it for the broken shifts but not for what?
PN1463
MS LIEBHABER: Not for the sleepovers.
PN1464
THE COMMISSIONER: Not for sleepovers.
PN1465
MS STEELE: Ms Steele. We need to consider our position and we would be able to notify the other parties of that position within the next two weeks.
PN1466
THE COMMISSIONER: Thank you.
PN1467
MR MILJAK: Commissioner, we will probably also comment on that in our submissions.
PN1468
THE COMMISSIONER: Thank you.
PN1469
MS SLAYTOR: Slaytor, New South Wales Business Chamber ABI. We'll comment on that in submissions.
PN1470
THE COMMISSIONER: Thank you.
PN1471
MS SLAYTOR: That we make in the next couple of weeks.
PN1472
THE COMMISSIONER: Thank you.
PN1473
Mr Bull do you have a position?
PN1474
MR BULL: We're happy to support the claim of the HSU.
PN1475
THE COMMISSIONER: Thank you.
PN1476
Item 16.
PN1477
MS LIEBHABER: Commissioner, Ms Liebhaber. We would be pressing this matter for the inclusion of tea breaks.
PN1478
THE COMMISSIONER: Mr Bull are you supporting?
PN1479
MR BULL: We support the position of the ASU.
PN1480
MS STEELE: Ms Steele. Supporting.
PN1481
MR MILJAK: Miljak, AFEI. At this point in time we would probably oppose but we'll deal with that in our submissions.
PN1482
THE COMMISSIONER: In your submissions, all right, and subject to the conference then after we hear from you.
PN1483
MR MILJAK: Correct, Commissioner.
PN1484
THE COMMISSIONER: Yes.
PN1485
Ms Slaytor?
PN1486
MS SLAYTOR: Slaytor, ABI and New South Wales Business Chamber. We'll need to consider our position in relation to this item.
PN1487
THE COMMISSIONER: And deal with that - - -
PN1488
MS SLAYTOR: And we can deal with that in - - -
PN1489
THE COMMISSIONER: - - - in the same submission, in the same timeframe?
PN1490
MS SLAYTOR: Yes. Yes. Thank you.
PN1491
THE COMMISSIONER: Subject to further discussion at the next conference.
PN1492
Item 17.
PN1493
MS LIEBHABER: Ms Liebhaber. Commissioner, the HSU is not pursuing this matter at this stage.
PN1494
THE COMMISSIONER: All right. Thank you, that will be reflected in the summary. There needs to be no consideration of any of the views of the other parties, given that position, I take it?
PN1495
Item 17A.
PN1496
MS STEELE: Ms Steele. Item 17A and item 18.
PN1497
THE COMMISSIONER: Yes?
PN1498
MS STEELE: Are the same. They both relate to a provision that NAT SIHWA seeks to be inserted with respect to ceremonial leave, which is set out in the draft determination at clause 30 on page 8. And the purpose is to take account of the broader Aboriginal and/or Torres Strait Islander concept of family and kinship and to confirm that ceremonial leave may be used for bereavement‑related ceremonies and obligations.
PN1499
MR MILJAK: Commissioner that may not be - - -
PN1500
THE COMMISSIONER: Mr Miljak?
PN1501
MR MILJAK: Yes sorry, Miljak, AFEI. Commissioner, that may not be a contentious position on the part of AFEI but as I said, I will reserve - - -
PN1502
THE COMMISSIONER: Advise within - - -
PN1503
MR MILJAK: I will reserve our position for the present time.
PN1504
THE COMMISSIONER: Thank you.
PN1505
Ms Slaytor are you in the same position?
PN1506
MS SLAYTOR: Yes. Yes, we're in the same boat.
PN1507
MS LIEBHABER: Ms Liebhaber for the HSU. We would support the claim for ceremonial leave.
PN1508
THE COMMISSIONER: You are supporting the position of Ms Steele?
PN1509
MS LIEBHABER: Yes.
PN1510
THE COMMISSIONER: That she has outlined.
PN1511
MR BULL: Bull, United Voice. We've already indicated that we support the NAT SIHWA position. We just think it just clarifies the entitlement and doesn't change it.
PN1512
THE COMMISSIONER: All right. Thank you, so that deals with 17A and 18.
PN1513
18A.
PN1514
MS STEELE: Ms Steele. Item 18A is the same as item 2B and 5A that relates to the classifications. It's the same item. And definitions.
PN1515
THE COMMISSIONER: Thank you. If no one objects it will be dealt with in the same manner as 2B.
PN1516
Item 19.
PN1517
MS STEELE: Ms Steele. Again this is the classification structure, as dealt with in the previous item and items 2A and 5B.
PN1518
THE COMMISSIONER: All right. Thank you. No objection from anyone?
PN1519
We proceed to item 20.
PN1520
MS STEELE: Commissioner, Ms Steele. This again is a classification item as in the previous item and other items.
PN1521
THE COMMISSIONER: Thank you.
PN1522
Item 24.
PN1523
MS STEELE: Ms Steele. We've previously dealt with this item.
PN1524
THE COMMISSIONER: Yes we've dealt with that.
PN1525
MS STEELE: I think from memory, from recollection, at item 11.
PN1526
THE COMMISSIONER: Yes. Thank you.
PN1527
SPEAKER: 11A.
PN1528
MS STEELE: Item 11A.
PN1529
THE COMMISSIONER: Yes. All right, that then leaves us with the question of - we've dealt with the submissions and the timing of those by the respective parties - the next conference date. How does the afternoon of Friday 28 April sound at 2.00 pm?
PN1530
MR BULL: That's fine for me.
PN1531
THE COMMISSIONER: All right.
PN1532
MR MILJAK: AFEI is okay with that one, Commissioner.
PN1533
THE COMMISSIONER: All right.
PN1534
MS STEELE: Ms Steele. NAT SIHWA is content with that date as well.
PN1535
THE COMMISSIONER: All right. Thank you.
PN1536
MS SLAYTOR: Ms Slaytor. That date is fine for us as well.
PN1537
THE COMMISSIONER: Thank you.
PN1538
MS LIEBHABER: Commissioner that should be fine for the HSU as well.
PN1539
THE COMMISSIONER: All right. Thank you. The matter will be relisted for further conference at 2.00 pm on 28 April.
PN1540
All right, thank you, if there's nothing else I'll adjourn. Thank you.
ADJOURNED UNTIL FRIDAY, 28 APRIL 2017 [3.17 PM]