PN1

THE DEPUTY PRESIDENT: As is usually the practice in relation to award modernisation review conferences, the proceedings are recorded so that a record may be kept. Is there any objection to that course? No? Thank you. Mr Rizzo, good morning, Ms Sweatman, Mr Ruskin. Ms Sweatman, you asked for the conference. Mr Ruskin - who wants to go first?

PN2

MS K SWEATMAN: Thank you, your Honour, for making yourself available.

PN3

THE DEPUTY PRESIDENT: That's all right.

PN4

MS SWEATMAN: We had a discussion - Mr Rizzo, Mr Ruskin and myself - to talk through options of the clause and Mr Rizzo put a clause forward for our consideration. I think we're sort of getting close in terms of just a common understanding as to how the systems work and I think we've just got a few little touch points where we're not quite at agreement on how the special conditions clause should look. We thought that having your assistance in teasing out those issues may assist us getting to a consent position, which I think both parties think is a genuine prospect.

PN5

We filed some submissions on 4 May which go to the reasons why we don't consider it's appropriate for the clause to deal with graduates who are undertaking supervised workplace training or supervised legal training, depending on which state you're in. I think we are open to some discussion with some clauses. We hear what the ASU says around making sure that the clause works so that an employee is able to access an entitlement and is not subject to unreasonable refusal by an employer, by a firm, to access the entitlement and we've just got to find that appropriate middle ground where we can have a clause which operates sensibly.

PN6

Certainly in our view the clause as it found itself in the modern award I don't think has been given proper consideration, as we outlined in the hearing, and it doesn't correspond with the underlying system. We would ideally like to see a clause that goes into the award which makes sense having regard to how graduates become qualified and are admitted to practise.

PN7

Our key considerations are we want to make sure that the clause makes sense and that it reflects the underlying system, that it's only going to provide leave entitlements to employees of law firms covered by the award who have been employed with a view to those employees being admitted to practise and becoming solicitors of the firm. Where we do have some concerns is in respect to people who may have completed a law degree, are working for example as a paralegal in a law firm but have not been employed as a law graduate per se and that person may be putting themselves through law school, may be putting themselves through a PDLP to qualify to practise, but they have not been employed with a view to that person becoming a solicitor.

PN8

We have concerns about that cohort of employee having access to this entitlement and we want to be sure - and we are content to look at the wording of the clause to make sure it's clear that an employee has access to this entitlement, that an employer will not unreasonably refuse. We're happy to talk about some alternate wording which mirrors the Act in respect to the taking of annual leave where an employee has an entitlement and an employer will not unreasonably refuse that entitlement, provided that the employee applies to access the leave in advance of just ringing up one day and saying, "I'm not at work today because I'm going to my PLT."

PN9

THE DEPUTY PRESIDENT: Yes. Do you actually have a proposes set of words, Ms Sweatman?

PN10

MS SWEATMAN: Our starting position is still the set of words in our submissions of 4 May. I can hand up a copy of those submissions - - -

PN11

THE DEPUTY PRESIDENT: I have those. So it's the provision which is set out after paragraph 1?

PN12

MS SWEATMAN: Correct.

PN13

THE DEPUTY PRESIDENT: Mr Rizzo, just in a general way, what alterations to the draft does the ASU envisage?

PN14

MR M RIZZO: Yes, your Honour.

PN15

THE DEPUTY PRESIDENT: Do you have something?

PN16

MR RIZZO: If I can hand up - - -

PN17

THE DEPUTY PRESIDENT: That will be helpful. Thank you.

PN18

MR RIZZO: - - - the draft that we did.

PN19

THE DEPUTY PRESIDENT: Thank you.

PN20

MR RIZZO: Your Honour, you have three documents before you.

PN21

THE DEPUTY PRESIDENT: Yes.

PN22

MR RIZZO: You have the award clause, which is the current clause.

PN23

THE DEPUTY PRESIDENT: Yes.

PN24

MR RIZZO: You have the draft clause that we presented to the other side, which says in handwriting, "ASU draft, April 2018."

PN25

THE DEPUTY PRESIDENT: Yes.

PN26

MR RIZZO: You have what you already had before you, which is the submission from the employer group on 4 May. We have two essential problems, your Honour, with the proposal. One, the current clause in the current award gives our members an entitlement to this leave. Secondly, it gives them an entitlement to this leave without having prior permission from the employer.

PN27

Our concern with the draft clause from the employer's side is that the entitlement is truncated and, as far as I can determine, it is dependent on the discretion or the agreement or the permission of the employer. From our point of view, we believe that we're losing and moving away from an entitlement that is already pre‑existing, but what we've tried to do, your Honour - if you look at the draft that we've proposed, we've taken up your suggestion from the transcript on 26 March. Mr Cooney represented us on that day, because I had another matter on. At paragraph 154 you said:

PN28

One solution to that would be to simply break up the clause to make provision for leave so far as it concerns persons undertaking PLT -

PN29

practical legal training -

PN30

or supervised legal training on the one hand and persons undertaking the graduate diploma on the other.

PN31

That was the sort of compromise you suggested and Mr Cooney says:

PN32

Yes, I would accept that, your Honour.

PN33

The draft clause, if you like, your Honour, takes on that principle of dividing the two sets of training. What we've done if you look at the first paragraph, your Honour, (a), we have essentially replicated the employer's clause at 39.2 about not exceeding 20 days in any 12‑month period, et cetera.

PN34

THE DEPUTY PRESIDENT: Yes.

PN35

MR RIZZO: So we believe we have gone a long way in accepting a whole paragraph from the employer, divvying up the types of training, but we don't want to water down or truncate the entitlement that we have and we don't want a reliance - which it is currently not - on the discretion or the permission of the employer. I had this discussion with the employer groups about whether one needs prior permission. If one looks at 39.2 your Honour, it says:

PN36

Paid study leave should be taken at a time agreed with the employer and may not, unless otherwise agreed between the employer and the law graduate -

PN37

blah blah blah. Now, you could interpret that in two ways. You could say that it's simply a matter of agreement or you could say it's a matter of permission, but if I take you to the end of the submission from the employer group, your Honour, which is paragraph 17, Key Considerations, on page 3 - Key Considerations, paragraph 17(d), it says:

PN38

The employee must have authorisation from the firm in advance of the need to take leave under this clause.

PN39

While you could argue that 39.2 in the draft clause by the employer may be ambiguous, I don't think 17(d) is ambiguous. It says pretty clearly that you need authorisation in advance. Now, that's not consistent with the current clause where it simply says a law graduate is entitled to a leave of absence and it doesn't mention any issue about the employer agreeing or permitting or anything like that.

PN40

I suppose our difficulty, your Honour, is that we find it difficult to water down a provision which gives us an entitlement and it makes it reliant critically - which is not pre‑existing in the clause now - on the discretion or the permission of the employer; but we have compromised to the extent that we have adopted a whole paragraph essentially from the employer group, while at the same time maintaining the entitlement. I think that would be our view, your Honour.

PN41

THE DEPUTY PRESIDENT: Mr Rizzo, what do you say to the suggestion of, as I understood Ms Sweatman, a halfway house, in that - and let's focus on paragraph (a) of your draft for a moment which purports to combine 39.1 and 39.2 with some differential.

PN42

MR RIZZO: Yes.

PN43

THE DEPUTY PRESIDENT: That the provision operate so that the employee is entitled to take - and probably to adopt this sort of framework, one can't use language of "agreed", so it would be something along the lines - and I'm just speaking off the top of my head at the moment, but it would be something along the lines that the graduate can take a period of leave - - -

PN44

MR RUSKIN: We could offer a form of words, if you like.

PN45

THE DEPUTY PRESIDENT: Yes. You have got a form - - -

PN46

MR RUSKIN: Yes, we could say - we do use the word "agreed", but it could say, "Paid study leave may be taken for a period or periods agreed between the employer and employee. The employer will not unreasonably refuse to agree - - -"

PN47

THE DEPUTY PRESIDENT: To agree, yes. I see, yes.

PN48

MR RUSKIN: - - - "to a request by the employee to take paid study leave in accordance with this clause."

PN49

THE DEPUTY PRESIDENT: Then perhaps add some additional criteria which would be used in the assessment of whether or not something is reasonable or not. For example, the - - -

PN50

MR RUSKIN: The Fair Work Act doesn't do that with annual leave, does it?

PN51

MS SWEATMAN: No.

PN52

THE DEPUTY PRESIDENT: No, it doesn't do it.

PN53

MR RUSKIN: But I take your point, it could do that. It doesn't exclude it.

PN54

THE DEPUTY PRESIDENT: But it does it with things like additional hours of work, for example.

PN55

MR RUSKIN: Yes. "Taking into account the following," yes.

PN56

THE DEPUTY PRESIDENT: So it might be, you know, the notice the employee has given. It's one thing to say, "I've got an exam in two weeks' time. I need a day," it's another thing to say, "I've got an exam tomorrow."

PN57

MR RIZZO: Yes, I appreciate that.

PN58

THE DEPUTY PRESIDENT: So those sort of factors. Would the ASU be amenable to something like that?

PN59

MR RIZZO: Yes, your Honour. I appreciate that the current clause doesn't specify that.

PN60

THE DEPUTY PRESIDENT: No, it doesn't, and I accept that.

PN61

MR RIZZO: So you could in a silly situation say, "Oh, I forgot to tell you, but I've got an exam tomorrow," but, yes, that's unacceptable.

PN62

THE DEPUTY PRESIDENT: I think, speaking from some experience, you know, you get an urgent piece of work from a client and you ask a graduate to do some research, and you want the thing turned around tomorrow and they say, "Oh, look, I've got a lecture I've got to go to tomorrow and I'm going," so there is no notice of that.

PN63

MR RIZZO: Yes.

PN64

THE DEPUTY PRESIDENT: And there is no particular requirement in the award to give that sort of notice, so it can have a disruptive effect. Perhaps it's more manageable in a larger practice, but certainly in a smaller practice it can be a significant factor.

PN65

MR RIZZO: It's an issue, yes. We don't oppose a reasonable notice period, your Honour.

PN66

THE DEPUTY PRESIDENT: Well, it's a combination of giving the notice and fitting into the needs of the particular employer. At least in a structured PLT training environment, the timing for both lectures and exams are going to be known well in advance. Those sort of things shouldn't be problematic and indeed again in large firms who manage these sorts of things all the time, the sort of schedule will be known in advance and then these things can be worked around; but in smaller environments it may be difficult.

PN67

I think we need to try and cater for the smaller workplaces, not necessarily the larger ones who, as I say, have mechanisms by which to manage this. They know in advance when the lectures are. They make - at least my firm did and I'm sure Mr Ruskin's firm is no different - it's a high priority to make sure that graduates complete PLT and do so successfully, so they facilitate this thing happening and they're able to plan for it.

PN68

In smaller workplaces that's not necessarily the case. The lawyers who manage those sort of practices aren't necessarily on top of when PLT things are happening and unless there is some level of communication - - -

PN69

MR RIZZO: Yes.

PN70

THE DEPUTY PRESIDENT: - - - and planning, those things can be difficult. The reality is that these awards will have significance in the smaller places, not the larger places.

PN71

MR RIZZO: Your Honour, we accept that there should be reasonable notice to the employer, so we're happy to include that. What we're not wanting to lose is the entitlement, the right, to have that leave as is per the current award.

PN72

MS SWEATMAN: If I may perhaps respond to that. In respect to subclause (b) of the ASU proposed draft, I guess we've got two key things to say - - -

PN73

THE DEPUTY PRESIDENT: Well, let's focus on (a) for a moment. We can come back to (b).

PN74

MS SWEATMAN: Yes. In respect to PLT under subclause (a), we're obviously comfortable with having - we're not unreasonably refusing and I don't think there would be any concern from the firms in having a provision in there about reasonable notice. Where we start to have some difficulty is under the rules there is actually no difference between PLT and graduate diploma of legal practice; so there is no sensible distinction to have PLT being an entitlement for 20 days to 12 months and then maintaining this concept of four days per subject for a graduate diploma of legal practice, because a graduate diploma of legal practice is just PLT by a different form.

PN75

So, in paragraph 9 of our submissions, we correct a concession that I made to you in the hearing that there were three streams by which a word could be admitted and I've made that without properly reflecting on it. The graduate diploma of legal practice is a manner by which a graduate of law can complete their practical legal training if they're not working full‑time in a law firm.

PN76

THE DEPUTY PRESIDENT: Yes.

PN77

MS SWEATMAN: So this is where we have got concerns about maintaining this existing entitlement, because the four days per subject, when we track through the history of awards, related to employees who are studying an undergraduate law degree in respect to the Priestley 11 subjects. This is where we have some difficulty with the ASU draft that has been proposed.

PN78

If we remain focused on paragraph (a), we have got the ongoing difficulty with the reference to supervised legal training because there is no need for a law graduate who is undertaking supervised legal training to be released from their duties, because they do everything in‑house.

PN79

MR RIZZO: Well, that differs from state to state, (1), and (2) yes, it is true that some people do it externally and some people do it internally. There is the problem; the state jurisdictions do differ and the practice differs.

PN80

MS SWEATMAN: I don't think we agree in that regard, yes.

PN81

THE DEPUTY PRESIDENT: This is a generalisation, but generally speaking a law graduate who is undertaking a graduate diploma in legal practice is generally doing so because they have not been able to obtain a place, generally.

PN82

MS SWEATMAN: Yes, that's right, but they're fulfilling the requirements of PLT - - -

PN83

THE DEPUTY PRESIDENT: I know, I accept that. The way in which clause 39 is currently drafted, it is concerned about subjects which are relevant for qualification for admission. For example, a law graduate might graduate and have a law degree but not have completed one of the mandatory subjects; which isn't mandatory for the purposes of obtaining a degree but is mandatory for the purposes of being admitted to practice.

PN84

MS SWEATMAN: But that has not been the way that that clause operated historically.

PN85

THE DEPUTY PRESIDENT: No, I understand that, but that clause is capable of capturing that circumstance.

PN86

MR RUSKIN: We don't know of such people.

PN87

THE DEPUTY PRESIDENT: I'll give you a classic example: Breen Creighton, professor of law, has a law degree and was required to undertake constitutional and administrative law because it's a precondition to admission - - -

PN88

MS SWEATMAN: So that's one of the Priestley subjects.

PN89

THE DEPUTY PRESIDENT: So he was required, whilst doing his then articles, to complete those subjects at Melbourne University and would have been entitled under this provision, if it were operating then, to have been given leave.

PN90

MS SWEATMAN: It would be a highly unusual situation.

PN91

THE DEPUTY PRESIDENT: He was pretty annoyed, I can tell you, having - - -

PN92

MR RUSKIN: You wouldn't want that.

PN93

THE DEPUTY PRESIDENT: But that's just one example of where a person has a law degree but hasn't undertaken all the requisite subjects which are not necessarily a condition for - because they're elective subjects. Unlike contract torts, et cetera, there are a number of elective subjects which are not necessary for the purposes of graduating with a degree, but are necessary for the purposes of being admitted to practice.

PN94

Be that as it may, what we're focused on here is the law graduate who has a degree, assuming that they have completed all the requisite subjects in the degree for the purposes of being admitted to practice, but necessarily has to either undertake PLT, SLT or the graduate diploma.

PN95

MS SWEATMAN: That's where we say the graduate diploma is PLT. There is not a distinction under the admission rules.

PN96

THE DEPUTY PRESIDENT: No, I accept that, although there is a limitation afterwards, is there not, in terms of what they can do? Somebody who completes a graduate diploma who hasn't undertaken the in‑house training, don't they have to undertake a further six months' supervised legal practise?

PN97

MR RUSKIN: Used to.

PN98

THE DEPUTY PRESIDENT: Used to?

PN99

MR RUSKIN: Yes.

PN100

THE DEPUTY PRESIDENT: No longer?

PN101

MR RUSKIN: This was in our submission of 2016, 29 August. Item 5 of schedule 2 of the admission rules sets out practical legal training competencies for entry level lawyers and it says that:

PN102

The practical legal training course must comprise both program training and workplace experience. In the case of a graduate diploma, program training equivalent to a diploma that is equivalent to at least a level 8 qualification under the qualification framework and the equivalent of 15 days' workplace experience.

PN103

THE DEPUTY PRESIDENT: Yes. I suppose that can be done conjointly, can't it?

PN104

MR RUSKIN: Yes.

PN105

THE DEPUTY PRESIDENT: Yes.

PN106

MS SWEATMAN: When I did it, I did an equivalent of the graduate diploma in legal practice at Monash University, who I was doing it with. It was part of our course - - -

PN107

THE DEPUTY PRESIDENT: I did old‑fashioned articles.

PN108

MS SWEATMAN: Yes, well, I did - not articles in the graduate program and so it was a mandatory requirement that I work at Monash Oakleigh Services, so that's how I got - - -

PN109

MR RUSKIN: So you had to get your 15 days that way.

PN110

MS SWEATMAN: Yes.

PN111

MR RUSKIN: The other thing about a law graduate, in relation to Breen, the definition in the award at the moment says:

PN112

A law graduate means a lawyer not admitted to practice but who is undertaking a period of training within a law firm.

PN113

THE DEPUTY PRESIDENT: That is the award definition.

PN114

MR RUSKIN: That is the award definition, so I'm not sure if you're doing a degree subject like constitutional law, that that is a period of training within a law firm.

PN115

THE DEPUTY PRESIDENT: Yes.

PN116

MR RUSKIN: It doesn't cater for that - - -

PN117

MS SWEATMAN: We appreciate the concerns of the ASU in not wanting to give up an entitlement which appears to be provided under the award, but the entitlement does not operate sensibly and so the effect of it is that the law firms do what they need to do to make sure that their graduates meet their admission requirements and attend to all their PLT, and are not acting in a manner that conflicts with the clause but it doesn't accord with the clause - - -

PN118

THE DEPUTY PRESIDENT: How about something like this: noting, Mr Rizzo, your concern about not wanting to lose an entitlement, what if we were to frame an entitlement based on the proposal of 20 days, et cetera, deal with the issue of when leave might been taken, how you accommodate the needs of the firm, the needs of the graduate - you're really concerned about the circumstance where 20 days mightn't be enough?

PN119

MR RIZZO: Yes.

PN120

THE DEPUTY PRESIDENT: We can make provision for that without replicating this clause. For example, one might craft a clause which says that in event that 20 days is inadequate for whatever reason - because, I don't know, somebody wants to - I'm trying to think of a circumstance where the 20 days won't be adequate, but can we not find a way in which to provide a mechanism whereby an additional period of leave can be agreed to cover that circumstance rather than having a four days per subject entitlement whether or not one needs it or not; because the concern will be that some employees might choose to just take that time irrespective of need and no account of the business needs of the law firm in which they are employed.

PN121

MR RIZZO: I appreciate that, your Honour, but that would be a very rare circumstance where someone would be pretending to go to an exam or - - -

PN122

THE DEPUTY PRESIDENT: It's not a question of pretending. Four days in respect of each subject - and I would take that as my entitlement whether I needed it or not. How many subjects are involved in - - -

PN123

MR RUSKIN: Well, they're not subjects. That's the problem.

PN124

MS SWEATMAN: That was the other issue.

PN125

MR RUSKIN: Yes. A subject, because of the undergraduate meaning, is - - -

PN126

MS SWEATMAN: Is the Priestley subjects.

PN127

MR RUSKIN: Yes, yes. These aren't - - -

PN128

THE DEPUTY PRESIDENT: But are they subjects in the graduate diploma sense?

PN129

MR RUSKIN: No, they're not called subjects.

PN130

MS SWEATMAN: No.

PN131

THE DEPUTY PRESIDENT: What, they're called units?

PN132

MS SWEATMAN: They attend and they need to tick off the same competencies - - -

PN133

MR RUSKIN: Competencies.

PN134

THE DEPUTY PRESIDENT: Competencies.

PN135

MR RUSKIN: And the time frame is - - -

PN136

MS SWEATMAN: So at the same time that you might be learning how to prepare a lease, you are also fulfilling the competency of drafting skills. They're intermeshed, which is why the reference to subjects doesn't have - - -

PN137

THE DEPUTY PRESIDENT: Well, no one has yet quite mastered that given the leases that I've seen; drafting skills.

PN138

MR RUSKIN: They haven't.

PN139

THE DEPUTY PRESIDENT: So to assuage the concern about the entitlement, can we not have a mechanism whereby if there is a given circumstance where additional leave is required, how that might be resolved?

PN140

MR RIZZO: I think that would help, your Honour. I think we agreed to two bits already. There should be reasonable notice - - -

PN141

THE DEPUTY PRESIDENT: Yes.

PN142

MR RIZZO: - - - and we can agree on - well, let me put this as a draft - 20 days. I suppose the safety net is that if you need more time, this could be available, but then who then determines if you need more time and then who gives you permission to have more time? For example, I've exhausted my 20 days and I go to my employer and I say, "Look, I need another five days," right, and the employer says, "Well, hang on, I don't think you need five days," so how do I access that extra five days?

PN143

THE DEPUTY PRESIDENT: Well, you might not need five days, that's the first point, but let's assume that is the claim that is made. You would look at things like the nature of the outstanding competencies that need to be completed, within what period do they need to be completed and those sorts of criteria; the amount of leave that had already been taken, the amount of units that have been completed.

PN144

I suppose one of the things also that is assessed in the course of a person undertaking practical legal education, or a graduate diploma if they're also employed, is you're assessing - as a practitioner or a principal in a law firm - their competency. I don't have any objective basis to conclude one way or the other that 20 days is appropriate. Let's assume, for argument's sake, that that is appropriate and the employee needs more. Now, if they need one day, that might be understandable; if they need another 10, that does raise issues about, for me - - -

PN145

MR RUSKIN: Competency.

PN146

THE DEPUTY PRESIDENT: - - - competence, efficiency and so on. I'm not sure whether 20 days is the appropriate amount. As I say, for argument's sake, it is - - -

PN147

MR RUSKIN: It's too much.

PN148

THE DEPUTY PRESIDENT: Well, I would be surprised if you said anything less, Mr Ruskin, than it's too much. I don't know, is really the - I haven't had to grapple with the practicalities of this in a workplace for quite some time. What I did know is when I was practising, the firm generally had a policy that completion of these units was the priority for the graduate. My firm had a policy that that was to be prioritised over work. That was the reality.

PN149

I think most large firms have that capacity if, for no other reason, than a selfish reason that the sooner you can get these people into proper chargeable rates, the better.

PN150

MS SWEATMAN: Productive - - -

PN151

MR RUSKIN: Yes. There is an incentive, yes.

PN152

THE DEPUTY PRESIDENT: Large firms in particular generally do prioritise the learning at this stage over the billable work.

PN153

MR RIZZO: Your Honour, I'm picking up three things which we may be amenable to: (1) that the graduate gives reasonable notice to the employer, right, (2) that there is an entitlement of 20 days, and I stress the word "entitlement", and (3) that if additional days are necessary, there be some sort of reasonableness test and that - how does the expression go? The employer will not reasonably, you know, withhold - - -

PN154

THE DEPUTY PRESIDENT: Unreasonably.

PN155

MR RIZZO: Unreasonably withhold that permission.

PN156

THE DEPUTY PRESIDENT: Yes.

PN157

MR RIZZO: So I think if we build around that, that might work.

PN158

THE DEPUTY PRESIDENT: Yes. Well, I mean, to me that seems a sensible way of assuaging your concern about the existing entitlement and the deletion of that, and the needs of the firms.

PN159

MR RUSKIN: Well, there is an issue about "agreed", I guess. What Mr Rizzo is saying is that you say as the law graduate, "I will be needing four days' leave for this study period in a month's time," or "two weeks' time." That gives them decent leave. If it doesn't suit the employer, there is nothing the employer can do about it because they have been given notice, whereas - which I agree.

PN160

I mean, the current clause says all sorts of things and, you're right, it does mandate it, but we're where to develop something which is more practical - - -

PN161

THE DEPUTY PRESIDENT: I suppose just picking up on the first limb about reasonable notice, maybe it can be a combination of - the notice that is given by the graduate is a factor that is to be determined in circumstances where the employer unreasonably withholds their agreement, so getting back to the words that you initially floated.

PN162

MR RUSKIN: Yes.

PN163

THE DEPUTY PRESIDENT: The paid study time is taken at a time agreed. The employer must not unreasonably refuse to agree taking into account X, Y and Z, whatever those factors might be.

PN164

MS SWEATMAN: Your Honour, would you be envisaging that the additional leave that a graduate could take, if required, would be paid or unpaid? I think the firms are going to have some great difficulty with the notion that there will be 20 days and then possible paid leave - - -

PN165

THE DEPUTY PRESIDENT: But, on your analysis, 20 days is more than enough so the issue will never arise.

PN166

MR RUSKIN: It is.

PN167

MS SWEATMAN: Well, no, but it's - - -

PN168

MR RUSKIN: It is more than enough.

PN169

MS SWEATMAN: It is more than enough, but I think - - -

PN170

MR RUSKIN: And no one does - - -

PN171

MS SWEATMAN: - - - in order to ensure that there is an incentive for efficiency, if that additional leave was unpaid in the same way that if you exhaust your personal leave or you exhaust your carer's leave, the time - unpaid carer's leave - - -

PN172

THE DEPUTY PRESIDENT: No, I get that proposition. I'm not sure that it's something - Mr Rizzo can speak for himself, but I'm not sure it's something that is going to be sufficient to assuage the concern about - - -

PN173

MR RUSKIN: Well, how many subjects do you think, Mr Rizzo, people did under this clause that has been here for eight years? Do you know how many subjects people did, because you've got four days per subject, I think, under the current clause. Yes, four days - how many subjects were done? This is just a reference to something which never applied to - law graduates didn't really do subjects, so do you think they did more than five - we don't want to mix up - the competencies become subjects and then a person says in Mildura, "Well, I've got four days per - - -"

PN174

THE DEPUTY PRESIDENT: I wasn't suggesting that we fix a number of four days per subject in the - - -

PN175

MR RUSKIN: No, but what I was dealing with was Ms Sweatman's point about if it's more than 20 days, why would it be paid if we don't know how many subjects these putative law graduates did, anyway, under the current award. Did they do more than five - if they did only five subjects, they weren't entitled to more than 20 days.

PN176

MR RIZZO: We are already moving away from the concept of four days per subject, right?

PN177

MR RUSKIN: Yes, we are.

PN178

MR RIZZO: Okay, so we're not talking about that any more. We're talking about 20 days.

PN179

MR RUSKIN: Yes.

PN180

MR RIZZO: You said at one stage it would probably be wrapped up in 11 or 12 days. Correct?

PN181

MR RUSKIN: Yes.

PN182

MR RIZZO: Okay. So 20 days should cover it extensively, according to your own calculations.

PN183

MR RUSKIN: Yes.

PN184

MR RIZZO: Therefore, that militates against any excess leave beyond 20 days.

PN185

MR RUSKIN: Yes.

PN186

MR RIZZO: The chance of that happening, your Honour, according to the employers, is next to nothing.

PN187

MR RUSKIN: Zero.

PN188

MR RIZZO: Zero. We're moving away from the four days for every subject.

PN189

THE DEPUTY PRESIDENT: Yes.

PN190

MR RIZZO: We're saying, as you said - I'm the graduate. I give you one month's notice. I've got an exam - or two weeks' notice. We could decide on that. Then I've got this entitlement of 20 days; I can use that as an entitlement without the permission of the employer.

PN191

MR RUSKIN: Without permission of the employer?

PN192

MR RIZZO: Well, this is critical because you don't need permission in the current clause. Then there is provision for additional days which you reckon is zero, anyway, which will not be unreasonably withheld if there are extra competencies to complete.

PN193

THE DEPUTY PRESIDENT: Yes. There are a couple of things I'll say about that one. One is the circumstances in which a graduate will avail themselves of the additional leave or make a request, I would think would be rare for several reasons, the first of which is the issue of the view that an employer might take as to their competency or capacity if they need extra time, but there might be circumstances where that is needed.

PN194

For example, they're on their last lot of leave in relation to the last subject and they have taken a particular amount of leave which has been agreed in advance, et cetera, and something happens in their personal life which has removed their capacity to study or to utilise the full day or two days that they've taken. They've been given it and so they might ask the employer in those circumstances, "Given what has happened to me, can I have a little bit more leave?" for example.

PN195

It might not be sick leave where they're entitled to access their sick leave, it might be something else that has in some way distracted them from properly applying themselves to study at that time. In that circumstance I would envisage that a person might need additional leave much more than - I just don't get this thing of - - -

PN196

MS SWEATMAN: On that though, I think in that scenario there would be a broader issue; like there is a minimum requirement to meet the admission rules.

PN197

THE DEPUTY PRESIDENT: Yes.

PN198

MS SWEATMAN: So they can only have so many days off sick in a year.

PN199

THE DEPUTY PRESIDENT: Yes.

PN200

MS SWEATMAN: It's completely separate from the National Employment Standards. If they're not bum in seat for a certain number of days, they can't be admitted.

PN201

THE DEPUTY PRESIDENT: They have got to do some more.

PN202

MS SWEATMAN: So they would need to sort of continue on.

PN203

THE DEPUTY PRESIDENT: Yes.

PN204

MS SWEATMAN: In that scenario you're talking about, that extra leave wouldn't help them get admitted, because they wouldn't be able to be admitted because they have not met the minimum attendance requirements to sign off their stat dec - - -

PN205

THE DEPUTY PRESIDENT: No, but if they're taking a period of study leave, for example - - -

PN206

MS SWEATMAN: Yes.

PN207

THE DEPUTY PRESIDENT: - - - for a particular examination in relation to a particular competency and they had planned to take that on Wednesday and Thursday of this week, and that has been agreed, then come along Wednesday and something happens to their - I don't know, the Internet goes down and they're not able to access the stuff from home and so they lose a day. In those circumstances I could see the employee saying, "Look, I've lost of a day, but I've only got one day left. I actually do need two days. May I have another day?"

PN208

If that is their 20th day, because there is no mechanism in the award to claim that first day lost as sick leave or - they might be able to claim it as annual leave, I don't know, but sick leave at least - then that might be a circumstance where the employee says, "This is what happened. Here is the evidence of it," or whatever. "I request another day." It's very short notice, but it seems to me we're capable of coming up with a mechanism which deals with the need for additional days.

PN209

We're talking about someone who has bumped up at the 20, so if that happened to somebody who is never going to need the 20, well, then it's not an issue.

PN210

MR RUSKIN: Your Honour, this is an evidence based tribunal and we have produced evidence about this. It may not be the best we have done. We have provided what the system is now; we have had a witness; we have done submissions. The ASU is talking entirely theoretical and I don't think it has any substantive basis for much of, with respect, what it's saying.

PN211

We're arguing about if they need more than 20 - they might need more than 20 days, but there's no basis for thinking, based on the evidence that has been adduced, that they will need more than 20; so why think we better cater for something which - there is no empirical evidence to suggest that it's anything like 20 days. That's my problem with this.

PN212

I understand there is this clause in there at the moment, but it doesn't work and we have to develop awards which are practical, not just to protect what has been in an award for eight years only which wasn't previously in an award, which didn't apply to law graduates. The purpose of this review is to fix up substantive problems and this is one of them. I think the idea of, yes, maybe they need 20 days, there is no rhyme or reason to it.

PN213

MR RIZZO: Hang on. Are you denying that they need 20 days then?

PN214

MR RUSKIN: We're happy to leave it as 20 days, but the idea of then worrying about this theoretical law graduate that might need 20, there is no material basis for thinking anyone would need anything like 20. We have provided evidence about that. We have provided information about how these things are actually run. They're not subjects any more.

PN215

I suppose we are arguing about something that doesn't exist and which the ASU presents no empirical evidence about other than to say they're preserving something which shouldn't really have been in the award, quite frankly. It's certainly not an old provision that we're trying to get rid of. We're just trying to do something that's practical and we're worrying about more than 20 days when - this is just a complete furphy, in my view.

PN216

MR RIZZO: I'm hearing two different things, your Honour. Up until about three minutes ago, I think, we had agreement on 20 days and we were arguing beyond 20 days. Now I'm hearing that we're questioning the 20 days.

PN217

THE DEPUTY PRESIDENT: The point Mr Ruskin is making is that in his view 20 days is sufficient and there is no need for a further provision which caters for a circumstance where 20 days will be insufficient.

PN218

MR RIZZO: Yes, I hear that.

PN219

THE DEPUTY PRESIDENT: He is not quarrelling with the 20 days, as such.

PN220

MR RUSKIN: No.

PN221

THE DEPUTY PRESIDENT: He is saying that is there.

PN222

MR RIZZO: I suppose my problem is this, your Honour - and I'll put it in colloquial terms - I'm walking in here with an ace, which is the current award clause. I'm happy to compromise and have a king, but I don't want to walk out of here with a jack, you know.

PN223

MR RUSKIN: I don't think you have an ace. We don't look at award review on the basis of what is there now - - -

PN224

THE DEPUTY PRESIDENT: He might have an ace. He says it's the trump card, you say it's only worth one.

PN225

MR RUSKIN: Yes. I'm not very good at those games, but I don't think the starting position has to be what is in the award now if no one can even understand how it works and there's no material about how it actually works now. What we have done is said this is how it works now and for three years we have been arguing about this. Very politely and civilly I should add, but it's a furphy.

PN226

I take Mr Rizzo's point about the business of, you know, there is this entitlement and employers could take it away. I understand that point and we're content with 20 days. It should be about practical legal study, because that's what it is now and the only remaining issue is how do you access those 20 days in a reasonable way. That's what I think - reasonable notice or having regard to the circumstances or not unreasonably. That's all, I think.

PN227

I don't think we have to worry about more than 20 days. I don't think we need to worry about anything other than practical legal training.

PN228

THE DEPUTY PRESIDENT: How many competencies are there?

PN229

MS SWEATMAN: Well, there are four broad groups broken down into various things. Sorry, three - - -

PN230

THE DEPUTY PRESIDENT: I do have it somewhere there in my - - -

PN231

MR RUSKIN: Mr Rizzo might not have it with him, but that sort of skills stuff.

PN232

THE DEPUTY PRESIDENT: Yes.

PN233

MR RUSKIN: Here is the model admission rules, if you would like to see them. I think they were attached to our submission.

PN234

THE DEPUTY PRESIDENT: Yes, I've got them in the materials, thanks.

PN235

MR RUSKIN: Which takes you through the competencies.

PN236

THE DEPUTY PRESIDENT: I suppose on one view, Mr Rizzo, if one were to equate each of the four broad areas, bearing in mind there are skills which are, I assume, the practical application of the subject known as - - -

PN237

MR RIZZO: Yes.

PN238

THE DEPUTY PRESIDENT: Well, formerly known as legal practice, which is one of the introductory subjects that one undertakes at law school and then there is the compulsory area as the secondary element, which is essentially an application of how one engages in the practise of civil and commercial litigation. The third area allows one to choose as between a number of practise areas. The subjects which underpin them are also optional subjects at university, such as employment, family law, et cetera.

PN239

MR RIZZO: Yes.

PN240

THE DEPUTY PRESIDENT: One selects two of those and then the ethics and professional responsibility, which also is a freestanding subject at university. This is presumably as a practical application in legal practice. You've got four sort of core areas of competency. If one were to equate that as to the four subject areas, that would give you 16 days; so the 20 is an additional four.

PN241

MR RIZZO: Yes.

PN242

THE DEPUTY PRESIDENT: It would seem to me, at least at first blush, that the 20 is an adequate amount which would be catered for if one were to translate subjects to competency areas; bearing in mind that a subject will run either the full year or a half year at university as compared to all of this being done in 12 months.

PN243

MR RIZZO: Your Honour, for the sake of trying to get some resolution here, we will drop the extra leave beyond the 20 days. I think we all agree that the 20 days seems to be sufficient, so what we're proposing is - and we're compromising here. I think the ASU already has compromised in the draft that we put forward, but let's compromise further. We're saying the graduate gives reasonable notice to the employer, one. The graduate has an entitlement of 20 days and employer permission for the graduate to access those days would not be unreasonably withheld. I can't see that we can be more fair or compromising than that.

PN244

THE DEPUTY PRESIDENT: Are you happy to combine PLT, SLT and the grad diploma?

PN245

MR RIZZO: Yes.

PN246

MR RUSKIN: That works for us, with one exception. In the current award it talks about not exceeding four days. We talk about up to 20 days. I don't know it's sensible to say that it is 20 days. It shouldn't exceed - well, maybe that's the same thing. Yes, that's all right.

PN247

THE DEPUTY PRESIDENT: The current draft that Mr Rizzo proposes, he uses the words "not exceeding a total of 20".

PN248

MR RUSKIN: Yes, we can live with that.

PN249

THE DEPUTY PRESIDENT: Why don't we do this: perhaps, Mr Ruskin, you could draft something.

PN250

MR RUSKIN: Yes.

PN251

THE DEPUTY PRESIDENT: Send it to Mr Rizzo for his consideration.

PN252

MR RUSKIN: Yes.

PN253

THE DEPUTY PRESIDENT: Hopefully arrive at an agreed position, if that's possible, then you can file the document as an agreed position. If you're able to come to that point, we'll publish it on the web site and obviously give any other interested party an opportunity to comment. If you're not able to reach an agreement on the precise words, I'm happy to reconvene to try and wordsmith the thing with you.

PN254

MR RUSKIN: Yes.

PN255

MR RIZZO: I note the AiG sent an email, your Honour, saying that they still had some interest in this issue.

PN256

THE DEPUTY PRESIDENT: Yes, but not enough interest to come along this morning.

PN257

MR RIZZO: No.

PN258

MS SWEATMAN: I have spoken with Mr Ferguson from AiG and we can - - -

PN259

THE DEPUTY PRESIDENT: I mean, if you want to have a chat to them as part of your consultation, that's fine also.

PN260

MR RIZZO: Your Honour, can I try and repeat for all our sakes what I understand, so hopefully everyone understands it?

PN261

THE DEPUTY PRESIDENT: Yes.

PN262

MR RIZZO: If we go to the ASU draft, your Honour, it says:

PN263

A law graduate is entitled to a period of leave of absence with pay for study and attendance at examinations for which they present themselves for examination which is necessary to enable the employee to qualify for admission.

PN264

Okay?

PN265

THE DEPUTY PRESIDENT: Yes.

PN266

MR RIZZO: Then we say - well, I suppose we need to go the other way around. The graduate has an entitlement of 20 days, right?

PN267

THE DEPUTY PRESIDENT: Yes.

PN268

MR RIZZO: The employer permission to access these days would not be unreasonably withheld.

PN269

THE DEPUTY PRESIDENT: Yes.

PN270

MR RIZZO: Then the next part will talk about how the graduate needs to give reasonable notice to the employer in order to access these days. We are collapsing the distinction between PLT, SLT and graduate diploma of legal practice, so we're talking about training, per se. Is that right? Is that the right term?

PN271

MR RUSKIN: Practical legal training.

PN272

MR RIZZO: Practical legal training; PLT.

PN273

MR RUSKIN: Yes.

PN274

MR RIZZO: Okay. That's my understanding, your Honour.

PN275

MR RUSKIN: We have got such a draft which covers almost everything you have said, bar I think the point about the graduate giving notice. Ms Sweatman is working on something now, but what if I hand up this document. I think it's the basis for what we've just talked about.

PN276

MR RIZZO: You could have saved us a lot of time there, Nick. You could have given this to us an hour ago.

PN277

MR RUSKIN: We charge by the hour.

PN278

THE DEPUTY PRESIDENT: He wanted you to make concessions first.

PN279

MS SWEATMAN: Perhaps once we've had a moment to read it, I think what - - -

PN280

MR RUSKIN: Yes, let's let them read it.

PN281

MS SWEATMAN: The additional words can be dealt with with a comma and some additional words at the end of 39.2.

PN282

MR RIZZO: You're a mind reader, mate.

PN283

MR RUSKIN: Yes.

PN284

MR RIZZO: That's what we've come to.

PN285

THE DEPUTY PRESIDENT: All right.

PN286

MR RUSKIN: I don't think we need - - -

PN287

MS SWEATMAN: We can always have, comma, "having regard to the notice given by the employee," but - - -

PN288

MR RUSKIN: I don't think we need - if you're not - - -

PN289

THE DEPUTY PRESIDENT: You probably don't need it.

PN290

MR RUSKIN: We don't need that.

PN291

THE DEPUTY PRESIDENT: The way in which that clause is structured.

PN292

MR RUSKIN: Yes.

PN293

MR RIZZO: I'm just reading it again, your Honour.

PN294

MR RUSKIN: Yes, sure.

PN295

THE DEPUTY PRESIDENT: Because the question of unreasonably refusal will raise the issue of how much notice was given.

PN296

MR RUSKIN: Yes. We are comfortable not to, but if you want things in there - - -

PN297

THE DEPUTY PRESIDENT: And reasonableness also takes into account the fact that there is an entitlement.

PN298

MR RUSKIN: Yes.

PN299

THE DEPUTY PRESIDENT: And that the training is geared to admission, and so on. It probably is unnecessary to add an additional requirement that the employee give particular notice.

PN300

MR RIZZO: Your Honour, we may be able to work with that.

PN301

THE DEPUTY PRESIDENT: Yes.

PN302

MR RIZZO: I mean, I'll have to look at it - - -

PN303

THE DEPUTY PRESIDENT: I didn't expect you to sign up right away.

PN304

MR RUSKIN: Yes, of course.

PN305

MR RIZZO: We'll have to look at it properly.

PN306

THE DEPUTY PRESIDENT: Yes.

PN307

MR RIZZO: But I think it has probably encapsulated what I just said a few minutes ago.

PN308

THE DEPUTY PRESIDENT: I'm going to mark this as, "Almost agreed." All right. Mr Rizzo, perhaps if you can have some consultation with your colleagues and advise the ASU's position or any alterations that you propose by the end of the week. Is that unreasonable?

PN309

MR RIZZO: Yes.

PN310

THE DEPUTY PRESIDENT: Yes, it is unreasonable or, yes, you can do that?

PN311

MR RIZZO: Yes, I can do it.

PN312

THE DEPUTY PRESIDENT: All right. Excellent.

PN313

MR RUSKIN: Do we need to do anything in respect to the AiG?

PN314

THE DEPUTY PRESIDENT: You can liaise with them.

PN315

MR RUSKIN: Yes, we will liaise with them.

PN316

THE DEPUTY PRESIDENT: Perhaps you might wait until Mr Rizzo has responded.

PN317

MR RUSKIN: Yes, exactly.

PN318

THE DEPUTY PRESIDENT: And then you can engage with them.

PN319

MR RUSKIN: Yes, we'll do that.

PN320

THE DEPUTY PRESIDENT: Hopefully with an agreed position. Once all of those things are sorted out, assuming we have an agreed document, then you can send it to my chambers and we'll post it on the web site and deal with that issue.

PN321

MR RIZZO: I might just ask the employer groups to stay behind a few minutes, your Honour, just to go over it again so I'm clear about it.

PN322

MR RUSKIN: Yes, sure.

PN323

MS SWEATMAN: Yes.

PN324

THE DEPUTY PRESIDENT: All right. Thank you for your attendance.

PN325

MR RUSKIN: Thank you, your Honour.

ADJOURNED INDEFINITELY [11.03 AM]