TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                                    

COMMISSIONER CIRKOVIC

s.156 - 4 yearly review of modern awards

Four yearly review of modern awards

(AM2014/266)

Educational Services (Teachers) Award 2010

(ODN AM2008/33)

[MA000077 Print PR988937]]

Sydney

2.16 PM, THURSDAY, 30 MARCH 2017

Continued from 7/03/2017

PN562      

THE COMMISSIONER:  Good afternoon.  I'll take appearances, please.

PN563      

MR A ODGERS:  If the Commission pleases, my name is Odgers, initial A, and I appear on behalf of the Independent Education Union of Australia.  With me today in Sydney is Ms Heron, initial V.

PN564      

THE COMMISSIONER:  Thank you, Mr Odgers and Ms Heron.  I'll go to Melbourne after all the Sydney appearances are announced.

PN565      

MR M ROBSON:  If it please the Commission, Robson, initial M, for United Voice.

PN566      

THE COMMISSIONER:  Thank you.

PN567      

MS J ZADEL:  If the Commission pleases, Zadel, initial J, for the Australian Federation of Employers and Industries.

PN568      

THE COMMISSIONER:  Thank you.

PN569      

MR M ROUCEK:  If the Commission please, Roucek, initial M, for Australian Business Industrial New South Wales Business Chamber.

PN570      

THE COMMISSIONER:  Thank you, Mr Roucek.

PN571      

MR J GUNN:  If the Commission pleases, Gunn, initial J, for CCSA.

PN572      

THE COMMISSIONER:  Thank you, Mr Gunn.  And in Melbourne.

PN573      

MS K WISCHER:  If the Commission pleases, Wischer, initial K, for the IEU.

PN574      

THE COMMISSIONER:  Thank you, Ms Wischer.

PN575      

MS K KNOPE:  If the Commission please, Knope, initial K, for the Associations of Independent Schools and appearing with me is Ms Gilmour, initial L.

PN576      

THE COMMISSIONER:  Thank you, Ms Knope.  All right, thank you.  This is, I believe, the third conference in relation to this award.  It's technical and drafting and what I intend to do is go through the revised summary of submissions, technical and drafting, dated 29 March with a view to asking the parties to either confirm the position or advise if there is something that they disagree with in relation to the way it's been recorded in the summary and again attempt to narrow the issues in dispute between the parties to the greatest extent possible.  And, of course, if there any matters that need to be moved from this to the substantive matters list then I'd like that to be identified.  Do the parties have the summary of submissions, technical and drafting, of 29 March?  The parties in Melbourne?

PN577      

MS WISCHER:  Yes, we do.

PN578      

THE COMMISSIONER:  Thank you.  Thank you.  Whilst I intend to go through item by item, if I could ask the parties when they are making any sort of submission if they could start by identifying their name first and who they are for.  It's just for the ease of the transcript, not that I don't know who you are, but it's just the proceeding is recorded and it will make it much easier for the report to be prepared if the parties don't mind.  It is tedious, but necessary.  All right, are they any preliminary matters that anyone wishes to raise?  I think there's one thing it looks like I should be raising.  Just bear with me.  Apologies.  Thank you.  I have just been advised, if the Melbourne parties could speak up.  Apparently the monitor - we might have to increase the volume, so that might be done.  But if you could also speak up that would be helpful.  All right, thank you.  I will start with - we will just wait for that to be looked at and hopefully that problem can be rectified.  I think the monitor can't hear the Melbourne parties at all, it seems.

OFF THE RECORD                                                                               [2.20 PM]

ON THE RECORD                                                                                 [2.24 PM]

PN579      

THE COMMISSIONER:  All right, thank you.  We're ready to start.  All right, item 1.  I can confirm that's been withdrawn and that there is nothing further that needs to be - - -

PN580      

MR ROBSON:  Yes, Commissioner.

PN581      

THE COMMISSIONER:  Mr Robson.

PN582      

MR ROBSON:  Robson for United Voice, yes, Commissioner.

PN583      

THE COMMISSIONER:  Thank you.  Item 2, withdrawn.

PN584      

MR ROBSON:  United Voice withdraws that.

PN585      

THE COMMISSIONER:  Thank you.  Item 3, this matter involves a notation that one of the parties asked the AMOD team to make in relation to this issue and since the exposure draft was updated, a decision has been handed down by a Full Bench dated 27 March in the plain language area that may impact on the wording in that clause.  So, it's been noted that the provision - what needs to be noted is that the provision may be subject to review in accordance with that plain language matter and that plain language Full Bench.  So, that's something that the parties need to note.  That is a decision of 27 March.  All right, item 4.

PN586      

MR ROUCEK:  Commissioner, it's Roucek for ABI and the New South Wales Business Chamber.  The parties have probably noticed, we have not put on submissions in respect to this item and I apologise for that.  I'm not sure what the appetite is for a further opportunity for that to occur.  If there is additional time, we'd be very happy to put on submissions in relation to that.  If the process from here forward is to finalise the report, we'd be happy to consider withdrawing it if there is another further opportunity in view of the fact we haven't filed any submissions on that.

PN587      

THE COMMISSIONER:  I was hoping that we were at the stage where we're almost ready to finalise.  I don't, though.  It's not something that I am imposing on the parties, I wish to make that clear.

PN588      

MR ROUCEK:  Sure.  Commissioner, we would be happy to withdraw it in that case.

PN589      

THE COMMISSIONER:  Thank you.

PN590      

MR ROUCEK:  Thank you.

PN591      

THE COMMISSIONER:  Item 5.

PN592      

MR ODGERS:  From the IEU's perspective, we confirm that the note is accurate.

PN593      

THE COMMISSIONER:  Thank you.  Item 6.  Mr Odgers, I take it the same can be said for item 6.

PN594      

MR ODGERS:  Similarly, yes.

PN595      

THE COMMISSIONER:  Thank you.

PN596      

MR ODGERS:  In respect of item 7, Commissioner - - -

PN597      

THE COMMISSIONER:  Seven.

PN598      

MR ODGERS:  We understood that the parties had reached agreement along the lines reflected in the summary on the previous occasion.

PN599      

THE COMMISSIONER:  Thanks, Mr Odgers.  I take it from the silence from the rest of the parties that there is no objection to that.

PN600      

MR ODGERS:  No objection.

PN601      

THE COMMISSIONER:  Thank you.  Item 8.

PN602      

MR ODGERS:  Similarly, we didn't understand that any employer party was opposed to continuing with the existing wording and the same is the case in respect of item 9.  My understanding is that in respect of item 10 - - -

PN603      

THE COMMISSIONER:  Just before you do that, item 8 and 9, do I take it that what that means is that items 8 and 9 are agreed?

PN604      

MR ODGERS:  In our view, yes, Commissioner.

PN605      

MR ROBSON:  United Voice supports retaining the existing wording for clauses 11.5 and 13.1.

PN606      

THE COMMISSIONER:  So, basically all parties support the existing wording.  That's the position?  Volume would - - -

PN607      

MS ZADEL:  AFEI does not oppose retaining the existing wording.

PN608      

THE COMMISSIONER:  Thank you.  Mr Roucek?

PN609      

MR ROUCEK:  Commissioner, from our perspective, there is no opposition to that proposal or those proposals.

PN610      

THE COMMISSIONER:  Thank you.  Mr Gunn?

PN611      

MR GUNN:  Commissioner, no opposition.

PN612      

THE COMMISSIONER:  Thank you.  The parties in Melbourne, no

PN613      

opposition?

PN614      

MS WISCHER:  No opposition, Commissioner.

PN615      

THE COMMISSIONER:  Thank you.  So, that deals with that, items 8 and 9.  Item 10.

PN616      

MR ODGERS:  Commissioner, my understanding in relation to item 10 is that the IEU and the AIES have agreed to withdraw the proposed change, in effect, agreeing with those parties that suggested that any variation was unnecessary.

PN617      

THE COMMISSIONER:  Yes, okay.  I understand.  The other parties?

PN618      

MR ROUCEK:  Commissioner, Roucek, no opposition there.

PN619      

THE COMMISSIONER:  Thank you.

PN620      

MS ZADEL:  AFEI does not oppose.

PN621      

THE COMMISSIONER:  Thank you.

PN622      

MR GUNN:  The CCSA doesn't oppose, Commissioner.

PN623      

THE COMMISSIONER:  Thank you.

PN624      

MR ROBSON:  United Voice doesn't oppose.

PN625      

THE COMMISSIONER:  Thank you.  The parties in Melbourne?

PN626      

MS KNOPE:  Knope.  We support the withdrawal of the claim.

PN627      

THE COMMISSIONER:  Thank you.  Item 11.

PN628      

MR ODGERS:  The summary of the issue - - -

PN629      

THE COMMISSIONER:  That's Mr Odgers.

PN630      

MR ODGERS:  - - - accurately, in the view of our organisation, reflects the fact that there is no support for the inclusion of a definition for years of service by any party.

PN631      

THE COMMISSIONER:  Thank you.  The other parties?

PN632      

MR ROUCEK:  Commissioner, it's Roucek for ABI and United - United Voice - New South Wales Business Chamber.  We do not oppose that.

PN633      

THE COMMISSIONER:  That's quite a skip.

PN634      

MR ROUCEK:  There is no opposition from our perspective or our organisation's perspective, correctly described, thank you, Commissioner.

PN635      

THE COMMISSIONER:  Thank you.  I think I will record that then.

PN636      

MR ROBSON:  United Voice genuinely doesn't have an objection.

PN637      

THE COMMISSIONER:  Are you sure?

PN638      

MR ROBSON:  Yes.

PN639      

THE COMMISSIONER:  Thank you, Mr Robson.

PN640      

MR GUNN:  Commissioner, no objections from CCSA.

PN641      

THE COMMISSIONER:  Thank you.  The parties in Melbourne?

PN642      

MS KNOPE:  No objection, Commissioner.

PN643      

THE COMMISSIONER:  Thank you.  Item 12.

PN644      

MR GUNN:  Commissioner, Gunn for CCSA.  After discussions, we are now comfortable that because of the combined effect of clause 17.3 in the exposure draft which describes how a weekly rate of pay will be determined and the publishing of weekly rates in schedule B that there is actually no requirement for hourly rates to be published in either clause 17 or in schedule B.

PN645      

THE COMMISSIONER:  All right, thank you.  The other parties?

PN646      

MR ODGERS:  Given the fact that CCSA's position now reflects the position that I think all of the other parties had agreed upon on the previous occasion, we reiterate our position and that is that the schema of this particular award is not conducive to hourly rates.  There is nothing to be gained by publishing the schedule of hourly rates in the award and, in fact, it is more likely to lead to confusion.

PN647      

THE COMMISSIONER:  Thank you.

PN648      

MR ROBSON:  Yes, we agree with that.

PN649      

THE COMMISSIONER:  Mr Robson.

PN650      

MS ZADEL:  AFEI does not oppose.

PN651      

THE COMMISSIONER:  Thank you, Ms Zadel.

PN652      

MR ROUCEK:  Australian Business Industrial and New South Wales Business Chamber does not oppose.

PN653      

THE COMMISSIONER:  Thank you, Mr Roucek.  The parties in Melbourne.  Ms Wischer?

PN654      

MS WISCHER:  I would concur with Mr Odgers on that.

PN655      

THE COMMISSIONER:  Yes, thank you.

PN656      

MS KNOPE:  The Associations of Independent Schools do not oppose the change.

PN657      

THE COMMISSIONER:  Thank you, Ms Knope.  Item 13, Mr Odgers, agreed?

PN658      

MR ODGERS:  It is agreed.

PN659      

THE COMMISSIONER:  Item 14?

PN660      

MR ODGERS:  Similarly, it's agreed from the IEU's perspective, Commissioner, as for that matter is item 15.

PN661      

THE COMMISSIONER:  Thank you.  Do any of the other parties have a position in relation to item 14?

PN662      

MR ROUCEK:  No, Commissioner, from ABI and New South Wales Business Chamber's perspective.

PN663      

THE COMMISSIONER:  Thank you.

PN664      

MR ROBSON:  We agree as well, United Voice does.

PN665      

THE COMMISSIONER:  Thank you, Mr Robson.

PN666      

MS ZADEL:  The AFEI does not oppose.

PN667      

THE COMMISSIONER:  Thank you, Ms Zadel.

PN668      

MR GUNN:  The CCSA agrees.

PN669      

THE COMMISSIONER:  Thank you, Mr Gunn.  Ms Wischer, I presume you are agreeing with Mr Odgers?

PN670      

MS WISCHER:  Yes, Commissioner.  I think in all cases, as Mr Odgers has responded, we don't.

PN671      

THE COMMISSIONER:  You don't, thank you.  And Ms Knope?

PN672      

MS KNOPE:  We support the position.

PN673      

THE COMMISSIONER:  Thank you.  Item 15, we have heard from Mr Odgers.

PN674      

MR GUNN:  CCSA, no objection.

PN675      

THE COMMISSIONER:  Thank you.

PN676      

MR ROUCEK:  Australian Business Industrial and New South Wales Business Chamber, there is no objection.

PN677      

MS ZADEL:  AFEI agrees with the IEU.

PN678      

THE COMMISSIONER:  Thank you.

PN679      

MR ROBSON:  United Voice agrees with the IEU.

PN680      

THE COMMISSIONER:  Thank you.  Ms Knope?

PN681      

MS KNOPE:  The Associations of Independent Schools agree.

PN682      

THE COMMISSIONER:  Thank you.  Item 16?

PN683      

MR ODGERS:  Commissioner, this simply concerns updating the names of funds in the award and we don't understand that there is any objection and that the summary of the issue is accurate.

PN684      

THE COMMISSIONER:  Thank you.

PN685      

MR ROBSON:  That's agreed.

PN686      

THE COMMISSIONER:  Mr Robson, thank you.

PN687      

MS ZADEL:  The AFEI does not oppose.

PN688      

THE COMMISSIONER:  Thank you, Ms Zadel.

PN689      

MR ROUCEK:  Australian Business Industrial and New South Wales Business Chamber does not oppose.

PN690      

THE COMMISSIONER:  Thank you, Mr Roucek.

PN691      

MR GUNN:  The CCSA agrees, Commissioner.

PN692      

THE COMMISSIONER:  Mr Gunn, thank you.  Ms Knope?

PN693      

MS KNOPE:  Sorry, the Associations of Independent Schools do not oppose.

PN694      

THE COMMISSIONER:  Thank you.  Item 17?

PN695      

MR ODGERS:  This we do not.  From the IEU's perspective this variation proposed by ourselves and the AIES, we understand that as a result of the last conference, any remaining objection was withdrawn to the proposed variation to the exposure draft and that that's accurately reflected in the summary in the notes.

PN696      

THE COMMISSIONER:  Thank you.

PN697      

MR ROBSON:  United Voice agrees.

PN698      

THE COMMISSIONER:  Thank you.

PN699      

MS ZADEL:  AFEI previously withdrew its opposition in relation to this item.

PN700      

THE COMMISSIONER:  Thank you.

PN701      

MR ROUCEK:  Australian Business Industrial and New South Wales Business Chamber agrees with this.

PN702      

THE COMMISSIONER:  Thank you.  Mr Gunn.

PN703      

MR GUNN:  The CCSA agrees, Commissioner.

PN704      

THE COMMISSIONER:  Thank you.  Ms Knope?

PN705      

MS KNOPE:  Mr Odgers has already indicated our support on the submission, thank you.

PN706      

THE COMMISSIONER:  Thank you.  Item 18?

PN707      

MR ROUCEK:  Commissioner, it's Roucek for ABI New South Wales Business Industrial.  I believe the record - draft correctly records that matter.

PN708      

THE COMMISSIONER:  Records that matter as - - -

PN709      

MR ROUCEK:  And we can probably proceed subject to the other parties.

PN710      

THE COMMISSIONER:  Thank you.

PN711      

MR ROBSON:  United Voice agrees.

PN712      

MR ODGERS:  The IEU agrees.

PN713      

MS ZADEL:  AFEI does not oppose.

PN714      

MR GUNN:  The CCSA agrees.

PN715      

MS KNOPE:  The Association of Independent - - -

PN716      

THE COMMISSIONER:  Go on, thank you.

PN717      

MS KNOPE:  I can't quite work out what order we're in.  The Association of Independent Schools agree.

PN718      

THE COMMISSIONER:  Thank you.  Item 19?

PN719      

MR ODGERS:  From the IEU's perspective, the summary and the notes accurately record the basis of agreement to the proposed change.

PN720      

THE COMMISSIONER:  Thank you.

PN721      

MR ROBSON:  United Voice agrees.

PN722      

MS ZADEL:  AFEI is not opposed.

PN723      

MR ROUCEK:  Australian Business Industrial and New South Wales Business Chamber does not oppose.

PN724      

MR GUNN:  The CCSA agrees.

PN725      

THE COMMISSIONER:  Thank you.  Ms Knope?

PN726      

MS KNOPE:  The Associations of Independent Schools agree.

PN727      

THE COMMISSIONER:  Thank you.  Item 20?

PN728      

MR ODGERS:  In this aspect of the matter, the IEU and the AIES have agreed on a suggested change.  We understand that the summary and the notes reflect that there is no opposition to that suggestion.

PN729      

THE COMMISSIONER:  Thank you.

PN730      

MS ZADEL:  AFEI does not oppose.

PN731      

THE COMMISSIONER:  Thank you.

PN732      

MR ROUCEK:  ABI and New South Wales Business Chamber does not oppose, Commissioner.

PN733      

THE COMMISSIONER:  Thank you, Mr Roucek.

PN734      

MR GUNN:  The CCSA agrees, Commissioner.

PN735      

THE COMMISSIONER:  Thank you, Mr Gunn.

PN736      

MR ROBSON:  United Voice isn't opposed.

PN737      

THE COMMISSIONER:  Thank you, Mr Robson.

PN738      

MS KNOPE:  And Odgers correctly reported the position of the Associations of Independent Schools.

PN739      

THE COMMISSIONER:  Thank you.  Item 21.

PN740      

MR ROUCEK:  Commissioner, it's Roucek for ABI and New South Wales Business Chamber.  I understand that this matter has been resolved and that the transcript and the report correctly reflect the position that's been reached.

PN741      

THE COMMISSIONER:  So, does that mean the exposure draft correctly reflects the position or - - -

PN742      

MR ROUCEK:  I understand that to be the case, Commissioner, yes.

PN743      

THE COMMISSIONER:  All right, thank you.  Do the parties have any view on what's been put?

PN744      

MS ZADEL:  AFEI agrees.

PN745      

THE COMMISSIONER:  Thank you.

PN746      

MR GUNN:  CCSA agrees.

PN747      

THE COMMISSIONER:  Thank you.

PN748      

MR ROBSON:  United Voice isn't opposed.

PN749      

THE COMMISSIONER:  Thank you.

PN750      

MS KNOPE:  The Associations of Independent Schools agree.

PN751      

THE COMMISSIONER:  Thank you.

PN752      

MR ODGERS:  As does the IEU, Commissioner.

PN753      

THE COMMISSIONER:  Thank you.  Item 22, Mr Odgers, is that agreed?

PN754      

MR ODGERS:  It is, Commissioner.

PN755      

THE COMMISSIONER:  Thank you.  Anyone?

PN756      

MS ZADEL:  AFEI is not opposed.

PN757      

THE COMMISSIONER:  Thank you.  Mr Roucek?

PN758      

MR ROUCEK:  Commissioner, Australian Business Industrial and New South Wales Business Chamber is not opposed.

PN759      

THE COMMISSIONER:  Thank you.  Mr Gunn?

PN760      

MR GUNN:  CCSA not opposed, Commissioner.

PN761      

THE COMMISSIONER:  Thank you.  Mr Robson?

PN762      

MR ROBSON:  Yes, we are agreed.

PN763      

THE COMMISSIONER:  Thank you.

PN764      

MS KNOPE:  The Associations of Independent Schools agree.

PN765      

THE COMMISSIONER:  Thank you.  Item 23?

PN766      

MR ODGERS:  Commissioner, the IEU reiterates its position in respect of this matter.  The Commission has produced a paper dealing with the question of how RDOs will apply in respect of the award.  Ms Knope will have something further to say in respect of this matter with which we concur.

PN767      

THE COMMISSIONER:  Could you repeat that last sentence?

PN768      

MR ODGERS:  The AIES and the IEU have agreed further as to a manner of approaching this issue and Ms Knope will detail that agreement.  But suffice to say from our perspective that RDOs only apply in this industry where a 48-hour week is worked.

PN769      

THE COMMISSIONER:  Where a?

PN770      

MR ODGERS:  Where a 48-hour week is worked.

PN771      

SPEAKER:  Do you mean a 38?

PN772      

MR ODGERS:  Sorry, a 38-hour week where 48 weeks a year - where 48 weeks a year apply.  We don't - - -

PN773      

THE COMMISSIONER:  All right.  So, it's a 38-hour week.

PN774      

MR ODGERS:  38-hour week is worked.

PN775      

THE COMMISSIONER:  You are saying in this industry that is the only - - -

PN776      

MR ODGERS:  Or a 40-hour week as the case may be in respect of those who are taking RDOs.

PN777      

THE COMMISSIONER:  Yes, all right, yes.

PN778      

MR ODGERS:  In a context where school holidays do not apply and four weeks annual leave applies and 48 weeks of the year is worked then RDOs have been available to employees.  We simply reiterate our position that we don't see any need to move those provisions from the schedule into the body of the award.

PN779      

MS KNOPE:  Commissioner, if I may add another comment?

PN780      

THE COMMISSIONER:  Yes.

PN781      

MS KNOPE:  Sorry, it's Knope, Association of Independent Schools.  Which is that in the body of the award, there is really only one working option for teachers.  They work during term weeks and they're entitled to not attend for work during non-term weeks.  So, there is no capacity for an RDO system to operate in the body of the award.  This is the reason why it's actually in what is now schedule A of the exposure draft.  But we wonder whether 8.2.12 has possibly always been not quite correct.  It is not really in accordance with the submission that the Independent Education Union of Australia made in March 2009 and even then when we look at that, we wondered whether it might have intended to mean something else.

PN782      

We wondered whether the intention of the clause, not that it says this, was meant for employees working in an early childhood service that is operating for at least 48 weeks a year, but it is the employee that works less than 48 weeks and, therefore, this arrangement was, in fact, intended to apply to employees working less than 48 weeks and where they were provided with more than four weeks of paid leave.  So, we wonder whether the clause as it currently stands has never been particularly useful or operative, but we will perhaps need some guidance from an early childhood centre as to the value of that particular clause, if any, because we see no value for it in the body of the award.

PN783      

THE COMMISSIONER:  So, you're saying, are you - I'm sorry, Ms Knope - that it could have been moved from something somewhere in pre-2009 and made its way here?

PN784      

MS KNOPE:  I think that was the case because what this award was doing in 2009 was, in fact, adding early childhood teachers to an award that covered primary and secondary teachers for the very first time.  So, it was seeking to, as I understand it, it was seeking to accommodate early childhood services employing early childhood teachers where the operation was for 48 weeks or more and in many of those, they did actually work on a 40-hour per week basis hence the need for a rostered day off arrangement.  That's where we think it came from.

PN785      

THE COMMISSIONER:  So, in addition, are you suggesting that in addition to a submission that it's not appropriate for this matter to be dealt with in the body of the award, but rather it should stay in the schedule, you're saying that there is an additional problem perhaps in 8.2.12 in that it may not have a place here at all?  Is that in essence how you - - -

PN786      

MS KNOPE:  I'd be happy to be guided by somebody who has greater familiarity with early childhood services than we do, but I've had some difficulty interpreting what it means and how it might, in fact, operate as it currently is written.

PN787      

MR ROBSON:  Excuse me, Commissioner.

PN788      

THE COMMISSIONER:  Mr Robson.

PN789      

MR ROBSON:  Mr Robson for United Voice.

PN790      

THE COMMISSIONER:  Yes.

PN791      

MR ROBSON:  Apologies for continually forgetting to state my name.  We'd disagree with the AIES.  We think that this clearly applies to a service not to an individual employee.  But the AIES is correct that this award was the first time, I suppose, at least nationally early childhood teachers were grouped in with teachers.  I think if I spoke to my friends from the employer parties, they would agree with me in saying that early childhood education operates in a very different way from schools.  There are some institutions that operate on term-like structures, but for the most part, and especially post-2012, most early childhood education facilities are long day care and they operate, well, they operate 52 weeks of the year usually.  Sometimes there is a shutdown over the Christmas period, but it's a year-round operation where - - -

PN792      

THE COMMISSIONER:  It's unlike the school term, is it?

PN793      

MR ROBSON:  Yes.

PN794      

THE COMMISSIONER:  What I understand you to be suggesting is that it has no correlation in a sense to what we traditionally understand to be a school team.

PN795      

MR ROBSON:  Yes, and employees work a 38-hour week.  There's a large instance of part-time employment and usually that is specified in hours, rather than the system that applies in schools.  My understanding of this clause is that I think it may not fit very well with the rest of the award, but that's for the reason that this schedule doesn't fit very well with the rest of the award.  I think it does have some work to do.  It seems to be where for some reason a centre that would otherwise fit this schedule doesn't operate for the full 48 weeks.  I am not necessarily certain what the reason might be, but it could be that it's an early childhood centre that's attached to say a business that shut downs for a certain period.  That seems to be fairly common and there are slow periods when business may have an annual shut down and they don't need the early childhood centre, but that is speculation.

PN796      

THE COMMISSIONER:  It's certainly not clear.

PN797      

MR ROBSON:  Yes, it's certainly not clear.  Our view is that it shouldn't be replicated into the body of the award.

PN798      

THE COMMISSIONER:  It should not.

PN799      

MR ROBSON:  It should not.  It doesn't fit there and, in any case, United Voice can't really venture an opinion on the conditions of people - of teachers employed outside of early childhood education.  We are unsure about where it came from and I've trying to find the industrial officer who was responsible for modernisation because I think there's something in the award history that is a little different to what was put into the background paper that might give some explanation on that and I would - - -

PN800      

THE COMMISSIONER:  Some historical perspective, yes.

PN801      

MR ROBSON:  Yes, and I've been hoping to put on submissions, but he is overseas.

PN802      

THE COMMISSIONER:  Any indication as to when he will be back?

PN803      

MR ROBSON:  He should be back in the next week or so, I'm told, but I - - -

PN804      

THE COMMISSIONER:  Right.  Could I ask the parties for confirmation for my benefit first up that before dealing with 8.2.12, in terms of the actual schedule A, are the parties all in agreement that the position is that that should remain as a schedule and not in the body of the award?  That's the first - - -

PN805      

MR GUNN:  Commissioner, Gunn for CCSA, yes.

PN806      

MR ROUCEK:  Roucek for ABI and New South Wales Business Chamber, yes, we would agree.

PN807      

MS ZADEL:  Yes, from AFEI.

PN808      

MR ODGERS:  From the IEU's perspective, yes, Commissioner.

PN809      

MR ROBSON:  And, yes, from United Voice.

PN810      

THE COMMISSIONER:  Thank you.  Ms Knope, yes, obviously?

PN811      

MS KNOPE:  From the Associations of Independent Schools, yes, it should not be in the body of the award.

PN812      

THE COMMISSIONER:  Yes, all right.  So, I think as a first step that the summary will be amended to record that as the position of the parties.  So, the remaining issue, as far as that item is concerned, is the issue around 8.2.12, really, and what you have just put, Mr Robson, in response to what Ms Knope as put.  Is that - - -

PN813      

MR ROBSON:  Mm.

PN814      

THE COMMISSIONER:  I will come to perhaps further submissions on this issue if the matter is pressed, but do any of the parties have a view on just that aspect of it?

PN815      

MR GUNN:  Commissioner, Gunn, for CCSA.  In terms of the history, it's derived directly from clause 8.8 dealing with RDOs for services dealing with 41 to 47.  Sorry, that's clause 8.8 of the pre-modern award.

PN816      

THE COMMISSIONER:  Of the exposure or of - - -

PN817      

MR GUNN:  No, no, of the pre-modern award - - -

PN818      

THE COMMISSIONER:  Of the award.

PN819      

MR GUNN:  - - - which was the Teachers (Non-Government Early Childhood Service Centres Other Than Pre-Schools) (State) Award 2006 in New South Wales.  It's a pre-modern award that found its way in.

PN820      

THE COMMISSIONER:  Mr Robson, does that - - -

PN821      

MR ROBSON:  Look, I think that's probably correct, but I'd just like to confirm that.

PN822      

THE COMMISSIONER:  Is perhaps this one, one matter that might be then put to one side for the time being and if the parties wish to press it as an issue then maybe some submissions from you, Mr Robson, as to - - -

PN823      

MR ROBSON:  Of course.  I think our position is we would be content to leave it as it is.

PN824      

THE COMMISSIONER:  But I think the point is that - well, perhaps, Ms Knope, if I could hear from you, what would your position be in relation to 8.2.12?

PN825      

MS KNOPE:  Commissioner, given that the suggested change was suggested by the Commission and we are satisfied that it won't be placed in the body of the award, we are not overly concerned about the wording of 8.2.12 as we don't believe it affects any schools or any early learning services operated by schools that we are aware of.  So, from our perspective, it's a matter for either the Commission or the other parties in terms of whether what is, in fact, there is correct or not correct.  So, if someone else wants to make submissions, we may respond to it, but we don't propose to lead on this particular matter.

PN826      

THE COMMISSIONER:  All right, thank you.

PN827      

MR GUNN:  Commissioner, CCSA.  We don't believe it has - it certainly doesn't belong in the main body of the award and we don't believe it has any utility at all in schedule A dealing with services that operate 48 weeks or more.  It's an archaic remainder.  It serves no good purpose at all.

PN828      

THE COMMISSIONER:  So, are you then actually pressing?

PN829      

MR GUNN:  So, the CCSA would say that clause 8.2.12 should be deleted from the award.

PN830      

THE COMMISSIONER:  Right.

PN831      

MR ROBSON:  United Voice's view would be that if CCSA seeks to change the award, that's a substantive matter and not a matter for the technical and drafting proceedings.  Just because one party thinks that it's archaic doesn't mean it doesn't have an application and I think in a proceeding that is canvassing these matters, the depth that these are, it's probably appropriate to deal with it at a later date and if someone needs to - if someone is proposing this change, like, they need to advance the case and the merit of it.

PN832      

MR GUNN:  CCSA.  Commissioner, we don't disagree with that approach.

PN833      

THE COMMISSIONER:  All right.  So, is the approach then - perhaps the best approach, Mr Gunn, if you put a submission to the parties?

PN834      

MR GUNN:  Commissioner, I'll need to seek a direction as to whether or not we would actually press that matter or not.

PN835      

THE COMMISSIONER:  If you do, then I suggest the submission would be the first step.

PN836      

MR GUNN:  Yes, Commissioner.

PN837      

THE COMMISSIONER:  And the parties can respond to that.  Would seven days be sufficient?

PN838      

MR GUNN:  Yes, Commissioner.

PN839      

THE COMMISSIONER:  All right.  Are the parties happy?

PN840      

MR ROBSON:  Yes, of course, and if we could have seven days after that to respond.

PN841      

THE COMMISSIONER:  All right, so, that matter can be resolved in that way.  If it is and indeed is being pressed then, Mr Gunn, you will put in a submission within seven days as to why and how the background and the parties have seven days to respond.

PN842      

MR GUNN:  Yes, Commissioner.

PN843      

MR ROBSON:  Thank you, Commissioner.

PN844      

THE COMMISSIONER:  All right.  All right.  Item 24, is it, or have I just skipped 23?  Twenty-four.

PN845      

MR ODGERS:  From the IEU's perspective, the notes in relation to this issue are accurate.  This matter will be dealt with when the Commission deals with the substantive matters in relation to the award.

PN846      

THE COMMISSIONER:  All right.  Thank you, Mr Odgers.  The parties, anyone else have a view on that?  Thank you.  Item 25?

PN847      

MR GUNN:  Commissioner, Gunn for CCSA.  This is similar to an earlier item.  Again, we are comfortable with that now that weekly rates are the maximum that needs to be in and in the main body of the award, annual salary is sufficient.

PN848      

THE COMMISSIONER:  So, you no longer - - -

PN849      

MR GUNN:  So, we withdraw our objection.

PN850      

THE COMMISSIONER:  Withdraw the objection.

PN851      

MR ODGERS:  Obviously, from the IEU's perspective, consistent with the position that was reached in relation to item 12, we agree.

PN852      

THE COMMISSIONER:  Thank you.  Nothing else from any other parties, I presume.  Thank you.  Item 26.

PN853      

MR ODGERS:  From the IEU's perspective, the note is accurate and we don't understand that there would be any disagreement from another party.

PN854      

THE COMMISSIONER:  Mr Roucek, you're nodding, does that mean - - -

PN855      

MR ROUCEK:  Yes, Commissioner, I'm nodding in agreement and I think we can note from my organisation and the organisations we represent, we agree with that.

PN856      

THE COMMISSIONER:  Thank you.

PN857      

MS ZADEL:  AFEI does not oppose.

PN858      

THE COMMISSIONER:  Thank you.

PN859      

MR GUNN:  CCSA does not oppose.

PN860      

THE COMMISSIONER:  Thank you.

PN861      

MR ROBSON:  United Voice agrees.

PN862      

THE COMMISSIONER:  Thank you.  Ms Knope?

PN863      

MS KNOPE:  The Associations of Independent Schools, yes, we agree.

PN864      

THE COMMISSIONER:  Thank you.  All right.  Item 27.

PN865      

MR ROUCEK:  Commissioner, it's Roucek from ABI and New South Wales Business Chamber, I think the summary correctly records that the parties are in agreement in relation to item 27.

PN866      

THE COMMISSIONER:  All right.  No one has any other position in relation to that item, I presume.  All right.  Well, that then concludes this matter.  The summary submission document will be amended.  It appears to me that, frankly, we're virtually at an end with this one, save for that one issue that, Mr Gunn, you'll get back to the Commission back.

PN867      

MR GUNN:  We'll get back to the Commission immediately.

PN868      

THE COMMISSIONER:  And then there might be some submissions on that issue.  There are a couple of matters that the parties have all agreed should be part of the substantive matters submissions and that will happen and take its course.  So, I'm not sure that there is really any need for any further conferences in this matter unless the parties advise otherwise.

PN869      

MR ODGERS:  From the IEU's position, we agree, Commissioner, there appears to only be one outstanding matter.

PN870      

THE COMMISSIONER:  Yes, yes.

PN871      

MR ODGERS:  And the Commission suggested a manner of dealing with it.

PN872      

THE COMMISSIONER:  Perhaps let's see what happens.  It may not be a matter that causes any controversy, really.

PN873      

MR ROBSON:  Commissioner, I think with the one outstanding matter, it's really between the CCSA and United Voice.

PN874      

THE COMMISSIONER:  Yes.

PN875      

MR ROBSON:  I don't anticipate needing the Commission's assistance to come to agreement.  If we are genuinely are at odds, I think it can be dealt with on the papers by the Full Bench.

PN876      

THE COMMISSIONER:  Yes, yes.

PN877      

MR GUNN:  CCSA agrees.

PN878      

THE COMMISSIONER:  All right.  Thank you.  I'll adjourn today.  Thank you.

ADJOURNED INDEFINITELY                                                           [3.00 PM]