TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1056639
JUSTICE ROSS, PRESIDENT
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards
Children’s Services Award 2010
9.32 AM, WEDNESDAY, 28 NOVEMBER 2018
JUSTICE ROSS: I'll take the appearances please, firstly in Sydney.
MS N DABERARA: If the Commission pleases, Dabarera, initial N, appearing for United Voice.
MS S WHISH: If the Commission pleases, Whish, initial S, on behalf of ACA, ABI, and NSWBC.
MR N WRIGHT: If the Commission pleases, Wright, initial N, on behalf of the Independent Education Union of Australia. With me I have Ms Matthew, initial C and we're appearing with Mr Odgers in Melbourne.
JUSTICE ROSS: Thank you.
MS I ARABALDE: If the Commission pleases, Arrabalde, initial I, appearing as an individual.
JUSTICE ROSS: Thank you.
MR J GUNN: If the Commission pleases, Gunn, initial J, appearing for CCSA.
JUSTICE ROSS: Thank you.
I've read the submissions that have come in in response to the statement. Just bear with me for a moment.
MR ODGERS: I'm sorry your Honour, I'm having some considerable difficulty hearing what you're saying.
JUSTICE ROSS: That's okay. If I can summarise it this way, you all agree that there's an overlap between the two proceedings. That is, substantive claims in teachers and in this matter. You all agree that the equal rem proceedings are separate and don't have any overlap. There's at least a measure of agreement between United Voice, the IEU and ABI that the allowance claims, if I can characterise them that way, should be dealt with by one bench, that is the allowance claims in both matters.
ABI takes the view that all claims in both matters should be dealt with together. United Voice - there's a slight equivocation; I'm not sure where you stand on that. IEU make the point that well, there are some claims in the Teacher's Award that really don't bear any relationship to the Children's Award and on the face of it, they should be dealt with separately.
Is that roughly your respective positions?
MS DABERARA: Your Honour, just in relation to United Voice, in terms of the claims in the Teacher's Award that are not related to the early education sector, when we don't have an interest in those claims, so we don't take a position. We believe it's appropriate for the parties who do have those claims to make submissions on that.
JUSTICE ROSS: All right, how strongly does ABI feel about those claims, that is that don't have the direct overlap being dealt with in the same proceedings?
MS WHISH: Just so we're all clear, this is specifically I think the IEU's three claims that we're talking about.
JUSTICE ROSS: I think that's right, yes.
MS WHISH: We would say that certainly the claim about directors and teachers and that definition, that certainly has an interest for the child care industry. There's a claim about a quarter day rate being paid. That interests the child care industry. It's just their last claim about distance education; I'm not so sure that that's relevant to the child care industry.
JUSTICE ROSS: All right, can I go to the IEU. Look, your choices are really going to be this. Are you represented here or there?
MS MATTHEW: I think if Mr Odgers can hear, we'll do it through Melbourne.
MR ODGERS: Yes, I can. Your Honour - - -
JUSTICE ROSS: No, no, let me just outline your choices. All of the claims in the Teacher's Award can be dealt with at the same time as the Children's Award.
MS MATTHEW: Well, actually, I don't think that is - we have reviewed our position. Perhaps if Mr Odgers can - - -
JUSTICE ROSS: No, sure, okay.
MR ODGERS: Yes, your Honour, I wanted to indicate that our position as outlined in the brief submissions that we made has changed as a result of internal discussions and discussions with United Voice. If it's convenient your Honour, I'll just outline those changes now.
JUSTICE ROSS: Sure.
MR ODGERS: Firstly, in relation to the claims made by the employers that relate to both awards in respect of rosters and span of hours, our position is unchanged. We do believe there's a confluence of interest between the two awards, but the matters should be heard together and we're happy to have those matters programmed today, if necessary.
Secondly, in relation to the claims that we say relate just to the Teacher's Award, that is to say, the quarter day and half day matters, we cannot see where the intersection lies with the child care industry and we don't see why it shouldn't be heard in the context of the Teacher's Award. Of course we say the same thing for distance education.
But most importantly in respect of the coverage of directors and in respect of the two allowances that are sought by United Voice, we believe at this stage that the best course of action for the Commission to take, and we are very mindful of the amount of time this process has taken, would be for there to be some further short deferral to enable the parties to have further discussions. We say so because we want to have those discussions in the context of the influence that those two changes sought may have in the ERO matter and as to whether there's a necessity for them to be heard at this time at all.
JUSTICE ROSS: With the claims that you all agree are overlapping claims and are the allowances claims in both awards. So let's go to the area where you agree that those matters should be heard together, okay?
MR ODGERS: Rosters and the span of hours applications by the employer, your Honour.
JUSTICE ROSS: Yes. Well, is there anything else in that basket?
MR ODGERS: No.
MS WHISH: Not from ABI, but are we saying that the allowance matters would be heard together as well?
JUSTICE ROSS: Yes, I'm just trying to find where the level of agreement is and it's just a bit of a moving feast. So, look the observations I make would be this, that I want to program the bits that you agree on as soon as possible and get them down for hearing. Where you land on the rest of it, is a matter that you can continue to have discussions about, but if it's not heard at the same time as children's, your teacher claim won't be heard until the second half of next year, just with - I've gone through all of the substantive benches, there are about 15, we're working out a calendar now. It's just not going to - and you need to understand that because it might influence your position about whether they're heard together or not.
The question then becomes, my inclination would be to leave it to the parties to sort out the minimum they can agree on, or the most they can agree on to be heard concurrently in teachers and childrens in the one set of proceedings. So have a discussion, get some clarity about that and let me know precisely what claims you all agree should be heard together by the one bench that affect both awards. That's the first step.
The second step is the programming and I think the only one that's commented on that is ABI and they've put forward a set of draft directions. So does anyone object to those directions for dealing with those matters?
MS WHISH: Your Honour, our comment on those directions would be we would prefer - we note that the draft directions have the hearing set down in late April. Given that we do have the Aged Care and SHADS Award in mid-April, our preference would be for it to be in May, but we do understand the Commission may have other commitments.
JUSTICE ROSS: Yes, look, I'll try and do it while I can, but it's almost fully listed now for the first half of next year. So, and look - - -
MR ODGERS: I'd like to respond to what your Honour's just said.
JUSTICE ROSS: Yes, just before you do, look the other uncertainty is the annual wage review timing, given the election likely timing and caretaker modes and those sorts of issues. The hearing date itself won't be any earlier than the dates that ABI has indicated and I understand why you would want them later and if we can accommodate that we will. But it may be a week or so before we're able to give you any clarity around that issue.
All right, yes, IEU?
MR ODGERS: Your Honour, as I said a few moments ago, the one aspect of these applications that I think all the parties agree upon are the applications made by the employers in respect of rosters and span of hours. There's no reason why they can't be programmed. We have no intrinsic objection to the schedule outlined by ABI which I think suggests that as the applicant, they would lodge their submissions and materials in support on 15 February.
That doesn't bring in the annual close-down in our industry into play since we're in reply. As to when that matter's heard, at the earliest convenience of the Commission, it's no problem.
On the other point that your Honour made in respect of the half day and quarter day matters and the distance education issues, we were always presuming that they would be heard in the back half of next year. We have no difficulty with delay in respect of those things.
JUSTICE ROSS: The other way through this Ms Whish for you to think about is, if you're ready then we can deal with your matters. The same bench to avoid the overlap issue, we could defer the question of whether the IEU claims are dealt with by the same bench that deals with the Children's Award and your claims in respect of both.
MS WHISH: The concern for my clients in having two proceedings or three proceedings where we deal with the claim separately, is it's our intention and I had understood several other parties' intention to use a single witness to respond to the array of claims. So I would be asking that same witness to appear at three different proceedings if we separate the employer claims.
JUSTICE ROSS: I follow, yes, yes, yes.
MS WHISH: Your Honour, can I also make a comment, with our allowance claims, we would have real concerns about those being pushed back to see what - to be linked in any way to the ERO proceedings, or to be pushed back so to wait upon a decision from the ERO proceedings. We think there is value in having those claims in the Teacher's Award - the allowance claims in the Teacher's Award, heard with the claims for the Children's Services Award.
JUSTICE ROSS: Well, I'm still not clear what you all agree can be dealt with now and what can be dealt with later. You seem to be suggesting that your claims in the Teacher's Award can be dealt with, with the Children's Awards matter, can be dealt with ABI's matter and we can deal with that on ABI's timetable.
MS WHISH: That would be about right. Yes, your Honour. Then the IEU's claims and the Teacher's Award can be dealt with separately.
JUSTICE ROSS: Well, let's grab what that looks like and have a discussion about a report that sets out exactly what that would do and then ABI can consider its position about the witnesses in relation to the balance of convenience point for you about whether that means you'd have a witness that would be able to at least address United Voice's claims and your claims, if not the IEU's claims. I want to get through this as quickly as possible, so I'd look to list it for a further mention in a week or so.
It would be Wednesday of next week at the same time. Anyone have a difficulty with that? You can come in by phone if you like. Do you think it will take you longer?
MS WHISH: No, I think that would be fine.
JUSTICE ROSS: Look, if it does, you know, it will. But let's see at least if we can get United Voice, ABI on the same page with respect to their claims. I'll hear what you say about the IEU claims. If the IEU can confirm in writing precisely what its current position is, and then that can be provided to the parties.
MS ARABALDE: Excuse me, your Honour.
JUSTICE ROSS: Yes.
MS ARABALDE: Can I please say, with the overlap in the claims, the reason that we were happy for them to be heard together, was that the two allowances, one is worth calling it the responsible person, the other one is educational leader. When it is in practice in a workplace, it doesn't matter the qualification of the person doing the job. So, it could be - that's why the coverage is under both awards. So the same evidence would apply to both awards.
JUSTICE ROSS: Look, you can run your case, whatever you like. It's your application, you're not dependent on what IEU is doing. You can run it with the Teacher's and Children's Award in the time frame that ABI has indicated and that's fine.
Now it might give rise to an issue to the extent there's an overlap and I haven't looked at it, where there's an overlap between your claim and the IEU's that may create an issue for ABI not wanting to respond to one and then having to respond to the other, but I don't know whether that's the case. They can think about that.
MR GUNN: Your Honour, just to put CCSA's position on the record. We would agree that both the rostering and the allowance claims could be heard together.
JUSTICE ROSS: Yes, nobody seems to be taking any issue with that.
MR GUNN: In regards to the IEU's claims, I simply note that two of those three, there will be one regarding directors. It will have a flow-in impact to the Children's Services Award even if we now say that that award didn't cover those people.
JUSTICE ROSS: Sure, but really the point isn't whether it has a flow-on effect or not. I understand the implications and the same bench is going to deal with those claims anyway. The only question here is when. No, I understand the desire to avoid different outcomes by different benches and I share that. So, one way or another the same bench will be dealing with the IEU claims; it's just a question of when.
MR GUNN: We would support that your Honour, thank you.
JUSTICE ROSS: Ms Whish, what is the position with the individual claims; where do they fit?
MS WHISH: I understood that the individual claims are very similar to the United Voice claims in the sense that they're both for an allowance for an educational leader or a responsible person.
JUSTICE ROSS: That's fine, yes.
MS WHISH: So, it would make - at the moment it appears that we could hear all of the overlapping claims which is ABI's claims, United Voice's claims, the individuals' claims as well as the additional claims from United Voice that don't overlap, but just relate to the Children's Services Award. We could hear all of that at once. That's carving out the three claims that the IEU has.
JUSTICE ROSS: Yes.
MS WHISH: That's where I think the debate is, because two of those claims are.
JUSTICE ROSS: Really, look, it will come down to bearing in mind the same bench would deal later with the IEU claims, that's one option. It's unlikely I'm going to compel the IEU to run their case when they don't want to run it. So the practical effect is, that the whole thing gets shifted to later in the year, or we run what we can on your timetable. I think that's where it's probably going to come down to.
MS WHISH: We would be in agreement to leave the IEU's claims, those three claims to be run under the Teacher's Award at a later date, whatever that date may be and press forward - - -
JUSTICE ROSS: By the same bench that's done the earlier?
MS WHISH: Ideally.
JUSTICE ROSS: No, no, I'll certainly - if it's not the same, it will be substantially the same.
MS WHISH: But have every other claim, because we see that they all relate, whether they're overlapping or it's just United Voice's claims and Children's Services, it seems appropriate that all of those could press forward on the draft directions that we put forward.
JUSTICE ROSS: Well, I'd encourage you to have a conversation with - I mean the IEU's interests are protected in that scenario in any event because their claims will be dealt with later, which is what their current position. Have the discussion with United Voice in Particular. See if you can get a joint position about precisely.
MS WHISH: I believe everybody does agree on that. Am I - - -
JUSTICE ROSS: Yes, I still want something in writing to get on the website so everyone understands what we're doing and what the directions are. So if everyone's - because presumably they'll have to file at a particular time in support of their applications and you filing likewise and then replies.
Let's look at a set of draft directions and identify with precision the claims and then we'll just provide a final opportunity 9.30 next Wednesday to close it off and then I'll issue the directions. In your joint report it should indicate that the three IEU claims will be dealt with later in the year and if practical by the same bench that is dealing with the other ones, just so everybody knows what's happening with each of the claims.
Look, I agree. Normally if it was an inter parties' case, we'd do it now, but I don't know who else might have an interest. That's why I want to make sure it's transparent on the website. They know when the next mention is. So if we do have someone jumping up, they'll jump up early and we can address their concerns then.
Anything else? No. All right, thanks very much.
ADJOURNED INDEFINITELY [9.52 AM]