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Fair Work Act 2009����������������������������������������������������






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards





9.00 AM, FRIDAY, 29 OCTOBER 2021


Continued from 08/04/2020



THE VICE PRESIDENT:  I'll take the appearances.  Ms Saastamoinen - I hope I've pronounced that correctly - you appear for the Department of Social Services?


MS T SAASTAMOINEN:  Yes, thank you.  Yes, you did pronounce it correctly.


THE VICE PRESIDENT:  Thank you.  Mr Clarke, you appear for the ACTU?


MR T CLARKE:  Yes, your Honour.


THE VICE PRESIDENT:  Ms Svendsen, you appear for the HSU?


MS L SVENDSEN:  Yes, your Honour.


THE VICE PRESIDENT:  Mr Ward, you appear for Australian Business Industrial and New South Wales Business Council?


MR N WARD:  Yes, your Honour.


THE VICE PRESIDENT:  Ms Langford, you appear for National Disability Services?


MS K LANGFORD:  Yes, your Honour.


THE VICE PRESIDENT:  Mr Christodoulou, you appear for Greenacres?


MR C CHRISTODOULOU:  Yes, your Honour.


THE VICE PRESIDENT:  Ms Walsh, you appear for Our Voice




MS M WALSH:  Yes, your Honour.


THE VICE PRESIDENT:  Ms Boulton, you appear for the Endeavour Foundation?


MS K BOULTON:  Yes, your Honour, along with Carol Dickfos.


THE VICE PRESIDENT:  All right.  Thank you.  Ms Saastamoinen, can you commence by giving a report back as to at what stage we can now expect the report of the trial to be publicly released.


MS SAASTAMOINEN:  Yes, your Honour.  We're expecting the final report to be provided to the Fair Work Commission in mid‑December.  At this stage all mock wage assessments and interviews as part of the trial have now been completed and in total there were 379 supported employees assessed across 28 organisations.


ARTD Consultants, who are helping the Department of Social Services to manage the trial, are currently preparing an evaluation report.  They are planning to present the draft report to the steering committee established by the Fair Work Commission on Friday, 12 November, and following the meeting any feedback from the steering committee members will be included in the draft report.  As I said, we're waiting for mid‑December; the Fair Work Commission will have the report.


THE VICE PRESIDENT:  I take it that it will be publicly released at the same time.


MS SAASTAMOINEN:  I'll just have to confirm that, but, yes, I believe that that's the case.


THE VICE PRESIDENT:  All right.  Unless any party wishes to contradict me, I take it that means the hearing dates which we had reserved for the week beginning 13 December for the finalisation of the matter will not be a viable one.  It's a matter of setting a new program and final hearing dates once the report has been released.  I assume no party wants to contradict that proposition, do they?


SPEAKER:  No, your Honour.




THE VICE PRESIDENT:  All right.  From the point of view of the ADEs - I know we don't have the report yet, but can any of the ADEs, having probably better knowledge than any of us as to what has happened in the trial so far, predict what is the likely attitude they are going to take in terms of whether we are to proceed with the proposals that were the subject of the trial?  Does anyone want to take the lead on that?


MS LANGFORD:  Your Honour, it's Kerrie Langford here from National Disability Services.  The ADEs involved in the trial, they were bound - my understanding - to confidentiality requirements, so there has not been any conversation between the ADEs and National Disability Services in terms of how the trial has been proceeding.


THE VICE PRESIDENT:  Okay.  Does any other ADE representative or employer representative want to say anything about my question?


SPEAKER:  I don't think we're in a position to, your Honour, I'm sorry.


THE VICE PRESIDENT:  All right.  Perhaps I should ask the same question to you, Mr Clarke and Ms Svendsen.  Are you able to say anything about what your position is likely to be in light of the report or are you in a similar position?


MS SVENDSEN:  Your Honour, it's Leigh Svendsen from HSU.  We're in the position of not knowing.




MS SVENDSEN:  We don't know the contents of the report.


THE VICE PRESIDENT:  Yes, all right.  I hadn't predicted that, but having heard that it may be then premature to make any directions until parties know what is in the report.  That is, everybody may love what's in the report and consent to the whole thing going forward or everyone may hate it and want to put on evidence and submissions.  Does anyone want to express a view about that?


MR CHRISTODOULOU:  Your Honour, Mr Christodoulou here.  As I understand it now - because none of us have seen the report - those of us that are on the steering committee will see a draft of the report.  As I understand it, most people here are represented on the steering committee.  Am I to take from that, your Honour, that we would gauge a view after we have seen the draft in the steering committee or would we be given the final report to look at before we can form a view?


THE VICE PRESIDENT:  I think it needs to be the final report.  Firstly, if there is confidentiality attaching to the members of the committee seeing the draft report, well, then that will obviously restrict the parties in what they can do.  There may be other parties out there who wish to say something who are not represented on the steering committee, so I don't think I should give any particular advantage to the steering committee representatives in that respect.


I think, unless anyone has a contrary view, the best course may be to simply vacate the December dates and I will set a further directions hearing before the end of the year once the report has publicly been released.


MR WARD:  Your Honour - it's Mr Ward - I'm very comfortable with that.  The only question I might propose is dates disappear very quickly in the new year and I was just wondering whether or not at the very least we could reserve some dates in the new year so that the matter doesn't sort of drag out into April, May, June.


THE VICE PRESIDENT:  I'm inclined to do that, Mr Ward, but at this stage I've got no idea what time the parties may need to prepare for a hearing.  I mean, if any party wants to put on further evidence about the trial or evidence in opposition to the proposals that went to the trial, then they need the opportunity to do so.


The other matter - I don't know whether anyone can assist with this, but I know that the AED Legal Centre which has played a prominent role in the proceedings and which I anticipated was going to make further jurisdictional submissions, have not appeared today.  Does anyone know why they are not here today?


MR CLARKE:  It's Mr Clarke here from ACTU.  I am assuming the reason is because there was some difficulty or inconvenience associated with Ms Wilson being in the United States at the moment.


THE VICE PRESIDENT:  I see.  All right.


MR CLARKE:  This might not be a good time of the day or night for that - - -


THE VICE PRESIDENT:  I see.  Again, that may be another good reason why we should put off putting anything with the program until they can be present.  All right.  Well, if there is nothing further to be added what I propose to do is vacate the hearing dates reserved from 13 through to 17 December.  I will set another directions hearing which will be before Christmas once the report of the trial has been publicly released and the parties have had at least some opportunity to absorb its contents.  If there is nothing further, I will now adjourn.

ADJOURNED TO A DATE TO BE FIXED���������������������������������������� [9.29 AM]