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Fair Work Act 2009                                                    






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Educational Services (Schools) General Staff Award 2010


(ODN AM2008/33)

[MA000076 Print PR988936]]




9.35 AM, THURSDAY, 30 MARCH 2017


Continued from 29/03/2017





MR PILL:  Thank you, your Honour, good morning.  Your Honour, yesterday we left off talking about discipline  currency, and the claim to increase the amount of money that's paid to a staff member who does – or for every four lectures or tutorials, receives an additional hour's pay.  The Deputy President asked a question about whether such a claim could be included in an award.  We have further considered that overnight.  The NETU submissions indicate that they rely upon it being allowable or permittable under three heads, section 139(1)(a), which is minimum wages, 139(1)(c), which is hours of work, and if formulated differently, an allowance for responsibilities or skills not taken into account in rates of pay under 139(1)(g)(ii).


Having considered the issue we'd submit that it could be considered minimum wages, as it's clearly a mechanism to – well, results in a higher payment for undertaking a series of lectures or tutorials.  One of the difficulties which I'll come to is, if that is the case and that's the basis on which it's permissible, we do say it runs into section 156 and the requirement that the Commission be satisfied that to increase the minimum rate the Commission needs to be satisfied that it's justified on work value grounds.  And there's been no evidence in these proceedings that there's been any increase or change in work value, no particular additional skills or responsibilities which would justify an increase in the payment.


We acknowledge that it could be framed as an allowance.  We would submit, and part of our submission is that the existing rates do take into account that these are skilled casuals, that they're skilled persons with knowledge of the subject matter.   The framing of an allowance also runs into another difficulty which is that under the NETU clause the payment is not dependent on whether you actually do anything.  It's not dependent on whether you do any other activities and indeed the policy allowance claim is the same, whether I actually read any policies or not, and in the context of the so-called discipline currency payment it clearly encompasses the potential for payment to attach to activities that are not undertaken during the employment period or as part of the employment contract, and that runs into sort of a threshold issue which is that the award is a vehicle that applies only in respect of employment and matters between employer and employees.  And that's evident from looking at the provisions of the Act which describe awards and what they do, so at a very basic level, section 5 of the Fair Work Act which describes chapter 2 and the terms and conditions of employment which references that modern awards:


Is made for a particular industry or occupation and provides additional minimum terms and conditions for those national systems employees to whom it applies.  A modern award can have terms that are ancillary or supplementary to the NES.


And that is reinforced at sections 41, 42, 43, that the relevant matters for awards are about terms and conditions of employment.  And so the summary of that submission is we think it could be a permitted matter but to the extent that it is an increase in minimum wages it should not be adopted.  To the extent that it's said to be an allowance it has a number of difficulties, which mean that it's not necessary to achieve a fair and minimum safety net of terms and conditions such that it should be adopted as part of this review.


So just briefly on the section 156 point, as I mentioned there's a further threshold that the Commission needs to be satisfied of to increase minimum rates as part of the award review process.  That's set out at section 156(3):


In a four-yearly review of modern awards the Fair Work Commission may make a determination varying modern award minimum wages only if the Fair Work Commission is satisfied that the variation of modern award minimum wages is justified by work value reasons.


And at section 4 it sets out the meaning of work value reasons:


Are reasons justifying the amount that employees should be paid for doing a particular kind of work by reason related to any of the following:- the nature of the work; the level of the skill or responsibility involved in doing the work; and the conditions under which the work is done.


This payment is a slightly odd beast but the effect of it is to increase payments in relation to lectures and tutorials for the delivery of those lectures or tutorials, up to a 40 hour cap and we accept that.  And I'm short-handing although there's been no clear definition as to what this concept of discipline currency actually is.  It's sort of a badge that seems to be attached to a whole raft of things but on its face it increases the minimum wages payable for undertaking a series of lectures or tutorials.  It's identified by the NTEU as a payment as minimum wages, and the core of their claim is that it's an inherent part of doing the lecturing and doing the tutoring.  And as I say, there's been no attempt by the NTEU to engage with the work value question and there's certainly no evidence of change in work value since the rate for lecturing and tutorials was adopted, and it doesn't disclose any additional skills or responsibilities to the extent that it's work at all, and I'll come to that.  And so for that reason alone we say that it should not, and the Commission can't be satisfied and therefore it cannot be adopted.


The NTEU answer to that in the reply is, no, it's actually just payment for time worked.  But what are we talking about here?  We're talking about here?  We're talking about, either it's inherent as part of the lecturing, or we're talking about other activities that they're not engaged by the university to actually do.  We heard evidence about reading materials, we heard evidence about reading books.  We heard evidence about networking.  We've heard evidence about attending conferences.  We heard evidence about undertaking other research interests and Michael Dix was an example of that.  He was engaged as a casual to deliver certain teaching and critical thinking and he went and did a range of activities that maintained discipline in that area.  He did a whole raft of research, as well, not because it was part of his job but because he wanted to pursue that partly as a passion and partly as a stepping stone to a continuing academic career, which he ultimately achieved.


We had a journalist, a former journalist, former Woman's Day editor, if I recall correctly – I'm not sure she went so far as to say that reading Woman's Day now is part of maintaining a discipline currency but she did say watching Four Corners was part of maintaining her discipline currency.  And we would say that to the extent that it's those things rather than something inherent in the lecturing and the preparation of the materials for which there is already payment, then it's not part of the work that the university is engaging them to do.  And part of the reinforcement of it being an increase in minimum wages is the fact that it's payable whether you undertake any of those other activities or not.  So whether you limit yourself just to reading the materials that are set in the reading guide and delivering your tute, or whether you watch Four Corners or go to a conference and do all those sorts of other things, under the NTEU proposed variation you receive the payment.  And so for all of those reasons we say that it is a claim that will have the effective increase in minimum rates for delivery of lectures and tutorials and can't be adopted.


Moving past that if the Commission is against us on that point, we say that it's not necessary to achieve the modern award's objective and we say that for a number of reasons.  My client's primary position is that these are skilled casual employees.  They're employed and engaged because they have skills and knowledge in the subject area that they're going to teach.  If I'm going to deliver a tute in industrial relations then it's because I know something about industrial relations.  And that's reflected in the rate.  We have set out the rates as part of our submissions and the award rates range $121 to $203 to deliver a one hour lecture, $95 for a tute, $71 for a repeat tute.  These are rates for skilled casual employees.  And it's also the case that they're engaged primarily to do the delivery of the material, not to formulate the material.  That's the role generally of continuing staff, the subject co-ordination, the unit preparation, the course guides, the reading lists, the examination guides.  Some casuals occasionally do do that, and Dr Dann, with respect to her, was atypical and she acknowledged that, for a sessional employee.  She was actually undertaking course co-ordination for two subjects because there were two continuing staff who'd been scheduled to do it who got external fellowships and essentially bought out some of their teaching by engaging her to do it.  And just as an aside, we didn't traverse this when we were talking about academic hours of work, but when we are talking about achievement of academic outcomes we shouldn't lose site of the fact that there are a number of ways in which academics achieve that, whether it's working with PHD students, whether it's buying(?) out some of their teaching, some of that's self-management as well as self-determination and self-direction.


And we say, and this came up yesterday, we say and we've summarised some of this and we reference some of the evidence at paragraph 451 of our final submissions of 8 March, that this is very similar to a range of other skilled casual employees that might be engaged, who yes, have to maintain discipline currency, and that would extend to IT professionals, HR professionals, health workers, nurses, psychologists, early childcare workers, teachers – I can add to the list – casual lawyers.  If we engage a casual lawyer to come in and do some work perhaps on a particular series of matters or on a particular project, it's because they're a qualified lawyer and because they have some skills and knowledge that can be suitable to the task.  We don't engage them and we don't pay them to read more broadly in relation to the law.  We don't pay for their practising certificate.  They are positioning themselves as being able to be a skilled person who's engaged for their discipline.  The same is true of the other sorts of employees that I mentioned.


COMMISSIONER JOHNS:  But surely, Mr Pill, when they start at a firm it gives them a handbook that they have to read so they know the policies about the reasonable use of the IT system and things like that, and they sit there in their office and they get paid their casual rate to read those polices?


MR PILL:  So I'm primarily directing my comments to the discipline currency payment which is separate to the policy payment, but in relation to the policy dimension our primary submission about that is the appropriate mechanism for dealing with that is through policy, through induction.  The NTEU have brought enterprise bargaining claims that provide for induction of four hours and that is paid for.  The question for this Commission is, is it necessary to prepare a minimum safety net for the underlying award to specify a payment of ten hours irrespective of how long the engagement is, at an academic rate of $35 an hour and irrespective of whether you actually do that activity or not.  So we're not suggesting that the academic casual shouldn't be paid for required reading of material.  We just say it's an unnecessary imposition in the award.




MR PILL:  And it doesn't appear in other awards.




MR PILL:  In terms of the discipline current payment, the hospital engaging the RN who comes in and might be there regularly over a long period of time, and that happens, she maintains currency partly by the duties that – or he, partly by the duties that they do, just as an academic delivering and preparing tutorials and lectures does, but the hospital doesn't pay for them to do broader discipline currency in nursing.  We did look briefly at the relevant awards that underpin some of these professionals.  We have not identified any equivalent discipline currency payment.


It was acknowledged by a number of witnesses and in the NTEU submissions, at least, in a qualified way that the preparatory work that is paid for may help in maintaining discipline currency.  And we have set out – it's in the award, obviously, but we have extracted at pages 112 and 113, the casual rates that appear in the award and it's not contentious that they incorporate an amount of associated working time.  The other point that I wish to draw the commission's attention to is the fact that if you compare the basic lecture rate which has got one hour of delivery and two hours of working time is $120.  A tutorial, one hour of delivery, two hours' associated working time, so the same amount of time, both three hours, the lecture attracts a higher rate.  These rates already incorporate an amount to reflect the fact that when you are delivering a lecture you are doing so with a greater degree or depth of knowledge.  And so we say that this supports the view that to the extent that you need discipline knowledge, one, you're engaged because you already have it, and two, you're engaged and paid to do some preparatory work that includes an amount of time that assists in maintaining that currency.  And it's obviously the case that the discipline currency doesn't evaporate over four lectures.  We would also say it doesn't evaporate over a semester.  We acknowledge, although the NTU claim doesn't, that there is a spectrum of discipline, some of which are more changeable than others.  If I'm tutoring in mathematical methods 101, it's unlikely that my need to maintain discipline currency by keeping up to date during the 12 weeks of that semester is going to require me to do anything.  Ancient history, Professor Vann gave evidence about his discipline area which hadn't changed, I think, for hundreds of years.  Conversely, Dr Dann is a journalist, journalism changing every day.  So we acknowledge that the NTU claim does not.


One dimension of that diversity is the question of students which I touched on yesterday.  If I could direct you to paragraph 486 of our submissions, we've extracted some of the evidence about that and we say that the NTU acknowledges that approximately 25 per cent of sessional staff industry professionals and they've excluded those from their allowance, but they don't exclude the very significant portion of casual academic staff who are PHD students or recently completed PHD students who by virtue of their studies would already be maintaining discipline currency.  487 summarises the evidence in the proceedings, a combination of university witnesses and NTU witnesses, approximately 55 per cent of the workforce, and at UNSW in the box there, approximately 54 per cent of the casual academic staff were students and UNSW.  488 then reinforces that with some of the more anecdotal evidence that was given, particularly for things like tutoring, and marking and we accept that there is a proportion of those that would be in the marking space, are students.  It is difficult to see any merit based argument as to why a student who is doing a PHD in the discipline needs to be paid an additional payment in delivering their tutorials.


We accept that there is a stronger argument for non-students, longer term casuals who are successively engaged by the university each semester.  There is evidence about the so-called long term casuals but it was acknowledged in cross-examination that the evidence about those so-called long term casuals did not take into account whether they had been engaged in each semester or whether what was being reported, and it was acknowledged this was likely, was, well when you were first engaged, so I was engaged seven years ago so I've been engaged as a casual, on and off, over the last seven years, and during that time had significant breaks during which they might be maintaining currency, during that time having breaks where they're working for other employers.


There was some discussion yesterday about whether it's modest and the answer to that might in some ways depend upon that diversity.  We have called out an example at paragraph 491 of someone who was engaged to do four tutorials and four repeat tutorials in one subject.  And we've identified that under that arrangement they would currently be paid for 12 hours for the four tutorials, being the four contact hours, the eight hours prep, eight hours for the repeat tutes – now it's important to understand that a repeat tute is not just one that's repeated, it's one that's repeated within seven days, and similarly, a repeat lecture.  And so again I use Dr Dix.  You might recall he gave lectures in critical thinking.  He's given the same lecture multiple times each year over about the last seven years and actually acknowledged that the material hadn't changed.  He receives the non-repeat lecture rate.


The effect of the NTEU claim is in addition to those 20 hours of pay, the university has to pay a further two hours discipline currency allowance which on my basic mathematics is about ten per cent.  It's a little bit lower than that because it's at the other academic activity rate.  And I think the NTEU acknowledge in their submissions that, at least theoretically, and a lot of these proceedings are all about theoretical impacts and theoretical needs and theoretical problems, but the theoretical impact is just eight per cent.  Now a just eight per cent increase on your labour cost bill for all of your academic casual employees or a significant proportion of your academic employees, is not a small number.  Eight per cent is being presented as being a small number.  Anyone who runs a business knows that an eight per cent increase in a significant component of your labour cost is not a small thing.  There was some evidence, Mr Ward and Mr Picouleau gave some evidence about the regulatory burden and costs.  We acknowledge that those cost figure which were in the order of 40 to 50 million dollars in respect of each of these claims, cannot be accepted as a definitive figure.  We acknowledge that.  There are a number of assumptions that would see that figure as being too high.  But even if you take a conservative view and half that figure, that is a very significant additional cost impost.  There was discussion yesterday about some of the regulatory difficulties.  We won't really repeat those but there are obviously questions about determining eligibility, as well as the mechanics of actually monitoring the payments and monitoring of the offsets, the attendance at conferences, that was discussed yesterday.


The last point I wanted to make is about this comparator point.  The NTEU make much of the fact that they say casuals should be paid for maintaining discipline currency because continuing staff are.  That comparison breaks down.  Continuing staff, the NTEU say, are paid to maintain currency through their research.  The university doesn't pay those staff because they're maintaining discipline currency, the university pays those staff for that work because they're doing research, because they're undertaking the research and producing outputs.  It may have the effect of their maintaining their currency but that's not the basis for payment.  And it highlights that really what's sought here is a payment for a range of activities, at least some of which, are not work that the university requires or expects.  And again, those attendances at conferences, the researching, let alone the broader reading, and we can obviously get into a debate about how far does my discipline knowledge need to go to enable me to deliver a tutorial in IR.  Does it mean I need to have knowledge of the safety legislation.  Does it mean that I need to have knowledge of ILO conventions.  Does it mean that I need to have broader knowledge about economic factors that impact on employment policy?  The reality is that these are sessional, casual lecturers being engaged to deliver material that is determined by other staff.  That's not to say they're not involved in the preparation, but they're involved in the preparation within that framework that is prepared.  We have concluded our submissions, our written submissions, at 514 onwards by referencing the elements of the modern – or the factors in the modern award's objective.  So for all of those reasons we respectfully say that the applications from the NTU should not be accepted.


I want to briefly address the NTUC(?) which is essentially a claim to add some qualifying words and we've extracted those words on page 153.  Our position on this is fairly straightforward.  We identify at 530 that there are a number of areas of common ground.  Universities already have in place – well, I'm told bone fide, and the NTU submissions accept this, bone fide academic promotion systems based on academic merit, that academic promotion based on academic merit is the appropriate process for advancement in universities and that's partly because it's not an exercise of looking at, well, what duties are you performing, because you can lecture at level A, level B, level C, level D.  It's got broader issues about academic merit and academic standing and the views of your peers and that's reflected at (c), that's it's not tied to the performance of specific duties in a traditional sense. Academic promotion is not regulated by awards nor has it ever been, nor is it sought to be here, and there's been no dispute brought by the NTU regarding the classification of academics under the Academic Staff Award or its predecessor instruments.


The crux of this issue is that some academic promotion policies have eligibility criteria or exceptions, and we've listed some of the more common ones there and the NTU do the same in their submissions and the AHEIA do the same.  Some of these more common ones are that if you're on probation, employees on fixed term contracts of a short length, and that might be one year, two years; employees who might hold a fellowship that's appointed at a particular level; employees who are subject to an informal disciplinary process or serving a minimum period before commencing eligibility (and a promotion).  And our position overall is, if that's the practical effect of this change there is no compelling reason to include such a change, particularly having regard to the requirements of the Fair Work Act, the existing award provisions and the absence of disputation.  We call out, and this is an important point, we call out not just the history.  This issue is specifically considered in a dispute before Deputy President Duncan and the AHEIA's submissions go into it in more detail and so in one sense, what's sought here is, is a departure from a previously determined arbitral outcome, but out main point is just to look at the current award and this appears at 539 on page 156.


The (indistinct) already require upon engagement, the employer to provide them with an instrument of employment which stipulates their classification level.


And then at 18 it identifies that:


An academic appointed to a particular level may be assigned and may be expected to undertake responsibilities and functions at any level up to and including the level at which the academic is appointed or promoted.


Then in addition to that:


They may undertake elements of work at higher levels if they wish to, to gain experience or expertise consistent with the requirements of an institution's promotion process.


Then over the page we identify that it's not a required term under section 139(1).  This isn't one of those mandatory provisions.  It's not a required term that awards provide a classification structure that also subsequently provides the progression through that classification structure.  Now Mr McAlpine advanced during his submission yesterday, he said that we're not – our change doesn't seek to provide a mechanism to progress through the classification structure.  I didn't quite understand that submission in the sense that, well, if it doesn't do that, what does it do?  If it's an issue that they've incorrectly classified in the first place, that's already dealt with and it's dealt with by section 14 and you could bring a dispute about that.


So we say a combination of those clauses provides an award requirement already that you be classified, 18 provides that whilst you might acquire extra skills or extra standing, you can't be required by the employer to utilise those additional acquired skills unless you are appointed to a higher level.  You can choose to remain at the level to which you are appointed.  The NTU dispute that interpretation.  They say, no, that's not what this clause does.  This is just to provide some flesh and guidance around the classification structure.  We respectfully disagree.  The NTU said yesterday that the employers shouldn't have a problem, and in one sense that's true in relation to the majority of the academic staff who are subject to the promotion process in a practical sense. Although the wording is somewhat unnecessarily long and complicated we don't have a difficulty.  What we do have a difficulty with is the impact that it has on those legitimate and reasonable exceptions to promotion and there was some discussion yesterday about persons tied to particular grants but the more general point is, you're a fixed termer, engaged for two years, contracts to do a particular task at a particular level.  If they get another contract they're required to again be given an instrument of appointment with the correct classification level.  The effect of this claim would be to see those people that are right to dispute their classification are within that fixed term, and we don't think that's a necessary change for the purposes of the BOOT.  Lastly, it's a secondary issue we've called out on page 159 that whilst we accept and appreciate the NTU's acknowledgement that all of our clients have bone fide academic promotion systems based on academic merit, whether that position remains the position of the NTU down the track when there's personnel that have changed or whether there's some minor modification to the promotion system, there are obviously some uncertainties in some of this language that's been used in this clause.


I was going to turn briefly to general staff overtime and this appears at 161 of our submissions.  We make a number of submissions.  The first is to point out that this is a very standard provision that for authorised additional hours outside the span they attract overtime, and attachment 1 to our previous submissions, exhibit 5, identified those provisions.  The NTU says the flaw here is that it has to be authorised.  That's the simple, single flaw, and I'm quoting from their submissions.  What we have done is we have identified a couple of threshold issues which is, and this is at 164 at paragraph 575.  The purpose of the clause is not ensure that authorised work performed additional to or outside hours receives overtime payments.  The existing clause does that and the evidence shows that where authorised work is undertaken that work is paid for, and there's systems in place.  Mr McAlpine was a little dismissive of, at least, the TOIL system yesterday but the evidence was that there were systems, that they were working, and we didn't actually hear evidence from a single witness – sorry, I qualify that, there was one NTU witness who suggested that they had not received a benefit that they had claimed for, but the overwhelming evidence was that wherever the system was applied that the authorised additional hours were paid for or provided in terms of TOIL.


The stated effect of the NTU variation is to compel the employer to take steps to put in place policies, systems or process, but these aren't policies, systems or processes to authorise the work and make overtime payments, these are policies, systems or processes to prevent employees from undertaking work that falls outside that clause, and so the nub of the claim is a claim to take reasonable steps to prevent employees from not complying with the clause.  And I mentioned yesterday the sort of paternalistic approach that sits in this.  With respect as a general proposition an award that imposes an entitlement does not need to be coupled with an obligation on an employer or indeed employees to say you must not comply with this clause, and that's essentially what the NTU clause seeks to do.  There's suggestions that, well, good management practice, there was cross-examination of witnesses about this that would seem the employers taking a proactive approach.  We don't disagree with that.  What we disagree with is, this is a set of minimum conditions in an standard industrial award.  Because that is the effect of the clause, it's not a clause in our view that is a permissible clause under section 139 and we've set out why that is at page 165.  We accept that the existing clause is obviously a clause about overtime rates but the two proposed provisions about reasonable steps and the qualification about receiving phone calls after hours, they're not about overtime rates or arrangements for when workers perform.  They're therefore dependent upon being seen to be incidental and necessary, or sorry, essential, for the purpose of making a particular term operate in a practical way and we say that the evidence falls short.


We have set out, and I don't intend to go to it at all but we've set out at pages 167 onwards, the evidence that goes to the sorts of systems and supports that are in place.  At 599 on page 171 we deal with the evidence about the purported or the fear about actually claiming overtime and TOIL and we've dealt with that.  I didn't intend to take the Commission's time with that today.  The AHEIA's submission extracts some further evidence that we would also support.  What I did want to direct the Commission's attention to is on page 174, the uncertainties about a reasonable steps to ensure formulation.  We say in this context that it is ill suited to industrial regulation.  We accept and acknowledge that reasonable steps can and do appear in industrial regulation and the NTU rightly point to an existing award or obligation that the employer must take reasonable steps from time to time to inform casual employees of the conversion processes of the award.  The difficulty here is that this is not an obligation to take reasonable steps to advice employees of their entitlements to claim overtime and TOIL.  That would be an equivalent obligation and if that was the NTU claim, whilst we probably still say it's unnecessary, we wouldn't be here spending time arguing about that at any great length.


It's not that though, it's not reasonable steps to advise employees of the entitlements and access to overtime and TOIL, it's an obligation to take reasonable steps to ensure that staff are not performing work outside of hours or additional hours without seeking authorisation and my client's concern about that is when you look at the sorts of things that that might encompass and the NTU list and Mr McAlpine took you to it yesterday, some of them are fairly trite, the appropriate policies.  We maintain you don't need a policy from an employer that says, don't work outside our polices.  But it goes broader than that, "Reorganisation at workplace to deal with bottlenecks."  Now does that mean presumably if we don't do that, that we've failed to take that reasonable step and we're exposed, at least, in theory, to breach of an award and a civil penalty provision?  So the last comment we make about that is to the extent that there's additional process, protections or positive steps that the NTU seeks to impose, they're matters for bargaining and indeed, have been matters for bargaining.  The NTU have made similar claims.  They've had some success at one university.  But that's the vehicle that is required.  It's not a minimum condition to add this qualification.  ICT, this is NTU-J, page 181, the submissions there, and I won't go through them but I'll make a couple of extra comments, but the submissions there identify that it is inconsistent with the approach in all other awards, and attachment 3 to our compendium submission, so exhibit 5, identified where ICT allowances are payable historically, at least, in awards and they're call-out situations, on-call situations, and they generally provide for the cost of a telephone or a landline.


There was much evidence about the resources, about the workspaces, about the IT available.  I don't intend to go through that.  I think the evidence about whether hot-desking or libraries or internet, whilst it's useful evidence in a sense, the more fundamental issue here is this is not a necessary provision for a fair and relevant safety net of minimum terms and conditions.  There are policies in place, and that's the right vehicle.  When we start talking about reimbursement for required costs and expenses we're into the realms of, at best, bargaining and otherwise, policy.  There was also much evidence about, well, why are you doing work at home, whether it be the person who lives in the Blue Mountains and didn't want to travel two hours to come into Sydney and basically spent the whole time away from the university because that was her preference other than when delivering lectures, the effect that the NTU clause and essentially, almost a reverse onus provision that if an academic by custom and practice has traditionally worked off site that this allowance is payable, and the allowance is the lowest cost of the internet service connection in your area – now we have difficulties with that, as well, not only just the logistics of that but with respect to Ms Gale, this isn't a motor vehicle where you're putting extra petrol in it and I'm giving anecdotal comments now from the Bench which I'm always critical of but my internet connection is the same cost whether I use it for – I have unlimited data and I pay for that.  Whether I do 600 hours of work on it in preparation for award modernisation hearings or not, it doesn't cost me anymore and I think we heard from Professor Vann that to have IT access, to have a mobile phone that's a Smart phone, particularly in a professional environment, and we are talking about a packed environment, professional admin employees, you need to be a walking, talking human being these days to – or to have such a thing, you almost need to be a walking, talking human being.  Now that might be an indictment on our society but that is the reality, that this is not an additional expense being incurred by employees because of the requirement of their employer.  There was one employee who gave evidence that they had to put the internet connection on because of their work.


We otherwise rely upon our written submissions obviously in relation to all of the other opposition to the NTU claims.  We support the AHEIA's submissions of the 8 March which are also in opposition, and draw the Commission's attention to particularly some of the extracted evidence about the MSALs issue, the classification issue, the general staff issue and the ICT allowance issue, some of which overlaps with the evidence that we have extracted but goes a little further in some areas.  Unless you have any question about that part I just want to briefly address the two common claims, and this is at 197 of our submissions and I'm conscious that certainly some members of the Bench have sat on the other Full Benches that dealt with the common claims that dealt with annual leave and award flexibility.  Dealing with annual leave first, obviously the Full Bench determined that there should be some model annual leave provisions that dealt with excess annual leave, that dealt with cashing out of leave and a couple of other dimensions of leave.  Attachment – our submissions on these issues are predominantly attachments in the original compendium, so attachment 5, so if I could direct your attention to that.  So this is the (indistinct) materials compendium, the submissions of 6 June 2016, and it's attachment 5.


These were submissions that we made to that Full Bench and I'm not sure whether it's because of our submission or otherwise but it led to, in part, that Full Bench referring the question of whether the model term should be adopted in higher ed awards to this Full Bench.  And so some of the subs have therefore been overtaken.  Our primary submission is not to visit the model clause on the higher ed industry and that was because of the cycles in higher education, because of the self-managed, self-directed work.  There has traditionally been real problems in the past with academics accruing significant leave because they just never claimed it.  So whether they were there in January or not, because we don't monitor their work because we don't direct them to do things, historically there was not a lot of annual leave taken and that led to a tighter clause dealing with excess annual leave than appears in the model clause.  So the existing award has an excess annual leave provision in it.  It does kick in at 30 days and it does enable direction down below that in the model term.  I don't intend to spend a lot of time further arguing for that.  I suspect we will be pushing against the tide, given the subsequent decisions that have considered the model clause.


What I did want to push for is a very limited qualification to the model clause and this is addressed at paragraph 10 of those submissions onwards, and it deals with that part of the model clause where the employee can make a binding direction on the employer to take leave.  The minor qualification that we seek appears at paragraph 17, which is that if we reach that point that the binding notice in respect to taking annual leave be limited to periods falling outside the teaching and examination period in respect of which the staff member has already been allocated work.  So bearing in mind that the model clause enables direction by the employee on eight weeks' notice, for the reasons that we have set out at paragraph 10 through 16 we seek that minor qualification.  We don't want a situation where the expert in some particular discipline subject that we've framed a course around could put us in a situation where it has an adverse impact on students because that staff member, as a right, can direct a period of leave.  We accept that in the vast majority of cases that's not going to happen, that sensible discussion and the professionalism of academics would generally not see that happen but to the extent that this model clause is going to be imposed on this sector and in circumstances where these awards weren't part of the original application, there was no material before that Full Bench about these sorts of issues – it has some parallels with the schools except we're not quite in that same rigidity as the schools, but it has some parallels with the schools.  Now I'm not exactly sure where that dimension of the Schools Awards has ended up.  There was a conference conducted by Commissioner Johns.


VICE PRESIDENT CATANZARITI:  It's been resolved.  It has been resolved.


MR PILL:  Okay.  All right, I won't spoil the surprise.  But to the extent that there was perhaps some indication that the schools, because of the circumstances of teaching periods and non-teaching periods, that it was unlikely to achieve an excess annual leave and/or that the clause was unnecessary.  There are circumstances in which that model clause has not been applied, and circumstances in which it's been tailored and I saw last week or it might have been this week, I think the coal industry there's some work going on to try and reconcile an annual shut provision with the annual leave model clause.


VICE PRESIDENT CATANZARITI:  I don't invite further submissions beyond today but there will be a decision coming out in relation to that, and they've taken a particular path of probably issuing an opportunity to reply when that decision is out.  It is my recollection, and Commissioner Johns will correct me, is that they're not incorporating a model clause.


MR PILL:  All right, we thank the Bench for those observations to qualify that.  I think we're all ready to see a conclusion.  But no, I appreciate the insight.  Can I turn to award flexibility and TOIL, and on 197 we have paraphrased the issue but our substantive submissions appear at attachment 6 to the previous submissions and if I can direct you to page 4 of those submissions, paragraph 11, we have a situation in the Higher Education Awards that's well established, it's reflected in the enterprise agreements, it's a reflection of a number of public sector awards, it's a reflection of seniority of certain employees that up to a certain level, which is Q6, there is access to paid overtime.  We then have Q7 and 8, higher education workers, 7 and 8, no entitlement to paid overtime but an entitlement to take time off in lieu of you work additional authorised hours.


The difficulty with looking to the TOIL model provision is – let me go back half a step.  In the TOIL provision the Full Bench accepted an argument that for those employees that had paid overtime there should be a TOIL entitlement, and then there was subsequent debate about, well, should that be at time and a half or should that be at single time.  And that's reflected at paragraph 15 of our submissions where we've extracted part of that decision, that it's intended to provide employees with a means of trading overtime pay for time off at a time which assists them to balance their work and non-work commitments, and it's proposed that all modern awards which provide for overtime be varied to insert the model term.  Now embedded in the model term is an entitlement for the employee to just give notice and no longer get TOIL but to be paid overtime.  The effect of the adoption of that standard TOIL model clause would be to provide an overtime payment benefit to level 7, 8, 9, 10 in the Higher Education Awards that's never existed and in my respectful submission was not encompassed within the TOIL Full Bench decision.  And that's reflected in, for example, a decision not to adopt that TOIL provision in a number of awards, I think it's nine at least, that don't provide for overtime entitlements and that includes the Academic Staff Award.  What we had put in our submissions here was our primary argument that in the context, it's not necessary.  We've set out the history and we say that it's not necessary to include the TOIL modern term.  We've put an alternative position which is at paragraphs 39 and 40.  My apologies to the Bench but 39 may be part of why it's ended up with this Bench, but at 41 we put forward the proposition that if the model clause is to be adopted, it be adopted in respect of those employees that have a paid overtime entitlement.  And what we did was to take the then model TOIL clause and to draft a declaration that had that effect.  I want to hand up to you an updated version of that which is updated only in the sense that there have been subsequent TOIL decisions plain English drafting and an issue around whether the overtime payment would translate into time and a half TOIL or single time TOIL.


And so the work is done by what we've called 26(a)(1):


This clause 26(a) only applies in respect of employees who are eligible to receive paid overtime, being employees referred to in clause 26.1(a).


And then the rest of the clause, other than obviously cross referencing, is the model TOIL term.  So our primary submission is it reaches – the draft determination that was issued by the Commission, we'd say, is actually inconsistent with its own original decision.  It certainly goes beyond it, and goes beyond it in circumstances where there's no merit case that's been made to introduce paid overtime entitlements for a range of employees that have not had it in the past.  That was all I intended to say about the model clauses and common claims.


VICE PRESIDENT CATANZARITI:  I might just mark that for identification to assist us, as 51.


MR PILL:  Thank you, your Honour.  Your Honours, that concluded my oral submissions in relation to the NTU proposed variations and the common claims.  I want to turn briefly, and it will be brief, to the Go8 proposed variations.  These are matters that are dealt with in two submissions, our submissions of 3 February this year, so the group of eight universities' final submissions in support of the proposed variations.  They are dated 3 February.  I should indicate to the Commission that because of the nature of the claims that we sought, they weren't really evidentiary dependent at all.  We therefore attached as an attachment to those submissions, our previous submissions of 11 March 2016, and so you will see that the first six pages are the submissions of 3 February 2017, and the remainder which we have entitled at the top, "Attachment 1 to group of 8 submissions dated 3 February 2017."  They are also exhibit 3 in these proceedings.  And the second submission is our submission in reply after the NTU's opposition to our proposals and that's dated 23 March 2017.


If I can direct you, in short, our proposed variations are to delete from both the General Staff Award and the Academic Staff Award, an entitlement to severance pay upon the expiration of certain fixed term contracts.  And the second change is to vary by deleting part of a clause from the Academic Staff Award which provides for a scale of notice based upon age that ranges from six to twelve months.  Now briefly dealing with those two variations, if I can direct the Commission to our submissions of 3 February, the fixed term severance – sorry, before directing you to this, Commissioner, can I direct you to the award.  It's clause 11 of the General Staff Award and it's clause 12 of the Academic Staff Award.  I'm looking at the General Staff Award.  Clause 11.4:


A fixed term employee whose contract of employment is not renewed in circumstances where the employee seeks to continue the employment will be entitled to a severance payment or retrenchment benefit payment howsoever called in accordance with the NES as it would apply to a full time employee engaged in a (indistinct) classification in the following circumstances.


And then it describes some circumstances where employees have been employed on either a couple of fixed term contracts or employed on a contract for a specific task or project, or for research.  Those provisions were included and we acknowledge that.  They're included in the modern award.  They came from the 1998 Higher Education Contract of Employment Award.  They were included in the award at a time where there was no federal legislative redundancy scheme.  They were included at a time prior to the Fair Work Act introduction of legislative entitlements to redundancy and the provisions which specifically identify redundancy and severance attachment to termination of employment and a specific exclusion for the expiration of contracts for a specified period of time or a specified task.  Provisions which operate to exclude the NES or part of the NES are obviously void and of no effect under the Act, under section 56 and whilst an award can supplement the NES, and that's the NTU's position, in this instance the Higher Education Awards in our submission adopt a position that is inconsistent with the NES, and operates to exclude at least part of the NES.


We have identified in our previous submissions, so the lengthier ones, that a full Bench of this Commission, upon application by the AHEIA previously varied this provision to remove some other provisions that said during the term of employment the contract is not terminable by the employer other than during a probationary period or for a cause based upon serious or wilful misconduct.  So there was additional wording that limited termination of fixed term contracts.  The full Bench accepted an argument that due to movements in the legislation it was appropriate to revisit the provision and to delete that, and we referenced that at paragraph 16 of our previous submissions.  We say that as a general proposition similar considerations apply here, but we now have federal legislative redundancy scheme that identifies who does and who doesn't get notice and the circumstances in which that occurs, and who does and doesn't get redundancy pay and the circumstances in which that occurs.  We say a few further things.  We say it's not a necessary part of a modern award minimum safety net.  We say there is a public interest in ensuring clarity.  The operation and the intersection between the NES and this provision is not clear, and we also say more generally that the awards already significantly limit when fixed term contracts can be used and in those circumstances, accepting that it's a legitimate form of employment engagement, to attach a redundancy payment to the expiration or cessation of employment due to the fluxion of time, we say is not a necessary part of a fair and relevant safety net.  There's no similar provisions attached in severance entitlements or the expiration of fixed term contracts and other modern awards that I am aware of.


Turning to the discrimination issue, so this is in relation to a part of the Academic Staff Award and it's clause 17.6 of the Academic Staff Award and you'll see it deals with – and I should indicate that we've replicated the provision at paragraph 19 of our more substantive submissions so it might be easiest to take you there if you don't have the award to hand.  So I am on page 7 of our previous submissions, so this is the attachment to our 3 Feb submissions.  At 17.6 you'll see that:


Where an employee is not a volunteer for redundancy and the employer terminates the employment of an employer for reasons of redundancy the following benefits will apply:- 1) the greater the period of notice prescribed by the NES or the contract of employment of the employee, plus notice according to the following scale – the age below 46 months –


And you'll see there's a scale there, increasing by a month, up to 12 months for persons aged 45 or over.  In our submission the proposed variation sought to this clause is on the basis that it discriminates on the basis of age and therefore is of no effect under section 136, 137 and 153 of the Fair Work Act.  And secondly, more generally it does not constitute a fair and relevant minimum safety net of terms and conditions in accordance with the modern award's objective.  We have briefly set out at paragraph 22, the history, its original inclusion in the award in 1999.  It was included in the modern award.  Interestingly, it wasn't included in the draft, the exposure draft in respect of which everybody made submissions.  It was dropped into the final version of the award and identified as part of an industry specific redundancy scheme, and we've set out the requirements of section 141 there in relation to industry schemes.  The Commission can vary it by omitting the scheme, by varying the amount of redundancy pay but we go on at 24 to identify to that you are also empowered under other sections of the Act to vary it to achieve the modern award's objective or to remove ambiguity or uncertainty or to correct an error.


The two questions here really for the Commission are, does this provision discriminate against the employee on the basis of age within the meaning of section 156, and secondly, to some extent irrespective of that answer, is this an appropriate provision for part of a modern award minimum safety net.  I intended to speak to the first of those issues.  We have set out at paragraph 28 onwards of ours submissions why we say it clearly discriminates against employees on the basis of age.  Age is the sole determinant.  There's no service to mention here.  If I am 39 years old with 15 years' service I get six months' notice.  If I'm 43 with five years' service I get ten months' notice. If I'm 43 with one years' service I get ten months' notice.  If I'm 45 with one years' service, I get 12 months' notice.  And so we say that the provision is both discriminatory and unfair.  On its face it clearly distinguishes on the basis of age.  We accept that the mere distinguishing on the basis of age is unlikely to constitute, "discriminates against."  "Discriminates against," does carry a connotation of an employee being disadvantaged.  But we say that it clearly does disadvantage.  It disadvantages not only persons below 45, but it disadvantages people as between people above 42 and 43, 41 and 42, 40 and 41, et cetera.  We have cited some support in authorities and that appears at paragraph 35 onwards.  Those authorities dealt with, and I'm sure Commissioner Johns in the Coal Mining Award is acutely familiar with this, but those provisions in different ways dealt with essentially aged based limitations on a redundancy and in each of those cases they were removed and in the case of the coal industry, a service based entitlement included.  We submit that a person - - -


COMMISSIONER JOHNS:  Although that matter is currently on appeal to the Federal Court.


MR PILL:  Yes, thank you.  Yes.


COMMISSIONER JOHNS:  It hasn't been overturned.


MR PILL:  But it is potentially – not to invite further submissions but it is, in the same way as mentioned before, as I'll come to in a moment there is some tensions in the Fair Work Act referencing of, "discriminatory," and "discriminates against," and "discrimination" and it may or may not be the case but that Federal Court decision may shed some further light on that that's relevant to this Bench's determination of the this issue.  Now up until the response submissions from the NTU of March this year, the NTU appeared to accept that it may well be discriminatory.  Their position, unlike – sorry, let me go back half a step – our proposed variation is to remove the notice that exceeds six months.  In one way it'd be easier for us to adopt the submission that you just pay them NES, but we have proposed to vary the clause to maintain an entitlement to six months' notice.  We have also proposed that that's not in addition to the NES and there's a discrete standalone issue.  Whatever else is decided, in our respectful submission that must be a variation that's adopted and the reason for that is that where there is an industry specific redundancy scheme included the NES does not reply and that's by force of section 124 of the Act.  What the effect of this provision is to do is to say, you get NES and you get the six to twelve months, and so in that sense it offends, in our submission, section 124 of the Act.  That's a discrete issue.  The more substantive issue in our submission is that the provision is discriminatory and does offend section 156.  Section 156 states – sorry, 153 – so section 153, sorry, offends section 153, "A modern award must not include terms that discriminate against an employee because of or for reasons including," and there's a list of attributes and one of those is age.  It goes on to have certain specified exceptions.  "The term of the modern award does not discriminate against the employee."  And it cites those exceptions relating to inherent requirements of employment, or because it discriminates on the basis of certain doctrines, (indistinct) beliefs or teachings of a particular religion or creed.  So there's certain specific exceptions that are cited.


In the NTU's response submissions they've adopted an additional position which is that the clause is not relevantly discriminatory, that the clause is permissible and does not offend section 153, and the thrust of that argument is because they submit it would not be unlawfully discriminatory under the Age Discrimination Act because it would fall within an exception to the Age Discrimination Act.  And part of the way they get to that point is to say that "discriminates against" should be interpreted in the same way as section 351 of the Fair Work Act.  I will just step you through that and why we say that that submission should not be accepted.  If I could ask you to look at our submissions in response to the NTU reply submissions, so our submissions of 23 March, and can I start by taking you to page 12 and you'll see, and I'll take you back to this table shortly, as well but for present purposes we've extracted the relevant exception from the Age Discrimination Act, so the federal act of 2004.  It provides that:


Actions that provide a bone fide benefit to persons of a particular age and are intended to do so to meet a need that arises out of the age of the person of a particular age, or intended to reduce a disadvantage experienced by a people of a particular age, is not unlawful discrimination.


And an example given in a note, is additional benefits or notice given to older people in circumstances of redundancy, so in one sense, the situation that we've got before us here.  We say two main things about it and we've dealt with these in our submissions.  One is a question of statutory interpretation.  We say that section 153 does not bring in all of the exceptions that sit in other discrimination legislation, whether that be federal or state.  Part of the reason we say that, and this is dealt in our submissions of 23 March.  We deal with this at part B, so on page 3.  We deal with this at paragraphs 11 onwards.  We have cited a number of authorities for the proposition that in interpreting what "discriminates against," means you have to look primarily to the Fair Work Act and you have to look to the wording in the Fair Work Act, and you have to look to the objects of the Fair Work Act.  It's not the case that you just look to, and indeed you shouldn't as a starting point, be looking to other legislation.  And that comes through, for example, the decision of Justice Tracey dealing with the issue of minimum engagements for younger workers at paragraph 15 of our submissions and you'll see we have cited other authorities that appear there.  At 19 we note that there is some judicial divergence as to whether "discrimination" or "discriminates against," deals with direct discrimination only, or indirect discrimination only.  It's largely not a relevant matter for the purposes of this clause because on its face it's clearly directly discriminatory on the basis of age.  But what it does show is that there's at least an argument that the interpretation of "discriminates against" hasn't been determined and hasn't been substantively guided by the scope of the commonwealth discrimination legislation but has looked at the provisions of the particular act, in this case, the Fair Work Act.


The reason why we say that it doesn't bring in all of the exceptions that might apply in anti-discrimination legislation is a basic statutory construction point and that is, if I take you to paragraph 29 of our submissions - you'll see at the bottom of the page we've extracted part of section 351, so in section 351 which deals with – it's obviously part of the general protections provisions, deals with discrimination on the basis of age.  It has a specific carve-out for conduct that would not be unlawful under anti-discrimination law enforced in the place where the action is taken.  You can compare that over the page with the specific listing of exceptions that appear in 153(2) where we have some of the same exceptions, so an inherent requirements exception, the exception about religious beliefs, but we don't have a general capsule for conduct that may be permissible in – or not unlawful under any anti-discrimination law enforcement in place where the action is taken.  And so we say at (c) on page 10 that the broad based exception or qualification relied upon by the NTEU doesn't appear in section 153, nor in 195.  The related point, we make at (d) which is that "discriminates against" has to be read down to basically exclude any conduct that might fall within an exception and then the legislation wouldn't need to specifically call out things like inherent requirements because it's an exception in every piece of anti-discrimination legislation.


It's acknowledged that at its highest, particularly when we look at section 195 that's in the same terms, does that mean that other provisions that could potentially be discriminatory but fall within an exception couldn't be included – paid maternity leave, so this is a submission against us.  We say a couple of things about that.  One is, we would submit that "discriminates against" does require, and we're ad idem with the NTEU on this, does require there to be a prejudice that would otherwise not be suffered, and in the case of a paid maternity leave entitlement, whilst in one sense it discriminates against males, it does not have that same prejudicial effect as does an age discrimination provision as occurs here.  The other distinguishing point is that unlike paid maternity leave the exceptions in relation to age discrimination are very far from uniform across the different anti-discrimination legislation, and that's important because the Fair Work Act, as your Honours and Commissioner are aware, the Fair Work Act does not exclude or operate to override state anti-discrimination law under section 26 of the Fair Work Act, and that means that if we have a clause that was not offensive to the Age Discrimination Act, the federal Age Discrimination Act, that required as it does here, different notice for people whether they're 42, 43 or 44, that is likely to be a breach of approximately half of the state equal opportunity legislation, and I'll come to that in a moment.


So we do say that's a point of distinction between that and circumstances such as paid maternity leave.  But our primary submission is that even if you accept that reading down of what "discriminates against" means to not prohibit matters if they fall within an exception, the scale in these awards, in the Academic Staff Award, falls beyond the scope of the exception.  It's not proportional and it's not reasonable.  It goes much further than could be defended as reducing the discriminatory impact based upon age.  Now that concept is apparent both in the terms of the exception.  It's more explicit in some of the state legislation where special measures are permitted but only to the extent that they reduce the discrimination remove the discrimination, and only to the extent that they're reasonable.  And I'll hand up, and it will be my last hand up, some extracts of state discrimination law.  What I've provided to you is the actual text of their extracts of each of the state anti-discrimination or equal opportunity legislation.  So for the purposes of the transcript it's a bundle with a single staple, of – perhaps I can do it this way – if I take you back to page 12 of our submissions we have summarised the special measures, or affirmative or positive discrimination exceptions that appear in those pieces of state legislation.  What I have given you here is the cover page and the text of the relevant provision.  I just wanted to highlight a couple of things that we - - -




MR PILL:  Thank you, your Honour.



If I can just step you through a couple of things, and the submission we make is twofold.  One, even if it fell within the federal age discrimination exception it would still offend a number of these pieces of legislation, but secondly we submit that because of the breadth of the benefit that's provided based upon age that it extends beyond what's reasonable or proportional to overcome the alleged discriminatory disadvantage, and so you'll see federal New South Wales Discrimination 49(z)(y)(r), you'll see the language there, "special needs that promote equal or improved access to facilities, services and opportunities."  It is arguable that this sort of provision could be protected by that clause although I think it's equally arguable that it would fall outside it.  If I turn to the Anti-Discrimination Act of Queensland – sorry, mine have handwritten numbers on the bottom right-hand side, page 12:


Equal opportunity measures – a person may do an act to promote equal opportunity to a group of people with an attribute if the purpose of the Act is not inconsistent with this capital A Act.


But it goes on:


It only applies till the purpose of the equal opportunity has been achieved.


The South Australian legislation on my review doesn't include any equivalent exception.  The Tasmanian one does include this at page 19:


A person may discriminate against another person in any area if it is for the purpose of carrying out a scheme for the benefit of a group which is disadvantaged or has a special need because of a prescribed attribute.


It's a stretch but to the extent that this is a scheme, it could possibly fall within that.  Then at 23, page 23, we're into the Victorian Equal Opportunity Act.  Section 12 permits:


The taking of special measures for the purposes of promoting or realising substantive equality for members of a group with a particular attribute.


But over the page at 23 you'll see that, and this is at (3)(C), that:


The special measure must be a proportionate means of achieving the purpose.


And above that, (B):


Be reasonably likely to achieve that purpose.


I won't take you to the other legislation.  We have summarised it.  So that the primary point we make about that is this clause does not just provide an extra week's notice like the Fair Work Act to persons aged over 45, nor does it just provide an additional benefit to over 45 year olds.  It provides substantially different benefits including as between 41 and 42, and 43 and 44 year olds.  I can make the point by taking the extreme.  If we have a provision that says we'll give a million dollars more to someone who's over 45, that clearly discriminates against younger employees, and well beyond a reasonable response to overcome the disadvantage.  If I'm 41 and I'm retrenched, am I a month's notice disadvantaged relative to if I'd had my 42nd birthday, and we say that that dimension coupled with the absence of any service requirement means that it goes well beyond what would be caught by the age discrimination exception in the federal Age Discrimination Act.  So for all of those - - -


VICE PRESIDENT CATANZARITI:  But even assuming you were right on that, your argument is it should be six months, and the scale would probably have no difficulty if it was 12 months for everybody.


MR PILL:  Indeed that is - - -


VICE PRESIDENT CATANZARITI:  That's the problem you face.


MR PILL:  Indeed, that is her position and we've both gone to some of the stats.  The NTEU make, what I think is a very bald and bold submission that the majority of staff who would be retrenched are over 45's, and we've put some submissions in response to that, that the data just doesn't respectfully show that, it shows a median age in the sector somewhere in the order of 41, 42.  We make the alternative submission that to the extent that the Commission considered it appropriate to substitute a service based scale, that's one potential solution and that's the part of the solution that's been adopted in the coal industry, but our primary submission is a six month notice entitlement rather than adding a six month notice entitlement which is so far already above the community standard notice requirements, so remember when we're talking about notice here, not excluding the NES benefit of redundancy, it's so far above the community standard that to level it up to 12 months is inconsistent with the modern award's objective of  a minimum set of terms and conditions.  I'll conclude my submissions there and I'm conscious of the time, and my apologies to Ms Pugsley who does have some things to say.  We rely upon our written submissions.  Unless the Bench has any questions - - -


VICE PRESIDENT CATANZARITI:  We'll take the morning tea adjournment now.

SHORT ADJOURNMENT                                                                  [11.07 AM]

RESUMED                                                                                             [11.36 AM]




MS PUGSLEY:  Thank you, your Honour.  I'm going to briefly address you on the three elements that is our opposition to the NTU claims in relation to the common claims and in support of our claims for variation.  In relation to the NTEU claims, AHEIA is strongly opposed to the significant changes to the two Higher Education Modern Awards sought by the NTEU, those being their claim A, the academic out of work clause; their claim B, the two new payments proposed in respect of casual academics; their claim C, the change to the clause in the Academic Award dealing with the MSALs; their claim D, the general staff overtime proposal; and their claim I, the ICT allowance.  We have field extensive written submissions in opposition to these claims.  We understand that the Bench has those before them and we continue to rely on those submissions.  In addition to our written submissions we've brought evidence to support our opposition from two vice chancellors, from another very senior and experienced academic, and from an HR director with experience at a number of universities and we rely on that evidence.


Given the submissions made by Mr Pill I don't intend to repeat anything that's already been put.  There is a very high degree of commonality amongst the two employer positions.  We don't disagree with anything that's been put by Mr Pill and we endorse what has already been said.  I would like to make a couple of further comments in relation to specific claims.  Firstly, with relation to the academic hours of work claim, as noted in our submissions none of the many variations and amendments made by the NTEU to its original draft clause in relation to the academic hours of work claim has allayed our fears that this clause would be absolutely unworkable.  Yesterday the NTEU referred to the case study that we included with our written submissions.  We included that case study to demonstrate the unworkability and complexity of that cause.  The NTEU, having read our case study has said, well, you've got it wrong, that's not how this would work.  It could not be the case that an agreement would be made between an academic and their supervisor about the estimated hours of work and that the academic could then come back at the end of the year and say, well, their required work has actually taken them 55 hours rather than 48 hours to perform.  That's how we read the clause.  We understood that that would be possible.  The fact that we differ in our interpretation with the NTEU simply demonstrates the unworkability.  It is a confusing and complex clause.  It's not a simple clause.


With relation to the claim about the MSALs, as has already been noted today this is really about the eligibility criteria issue and we say that the NTEU claim and the material that they have put is quite confused and inconsistent.  As we've noted in our submissions Mr McAlpine gave evidence and was questioned about the Bench, about the extent to which this is currently a problem, and he said words to the effect that it is a small problem.  It's a big problem for staff members in a particular category, and that is those who are legitimately, because they are research only externally funded, fixed term staff who have a number of fixed term contracts and don't proceed through the promotion process because they are on those fixed term contracts.  The response in relation to that, as has already been put, is that the award does provide for the right to be properly classified at the commencement of each contract and we say that disposes of that argument.  However it is still unclear to us from the NTEU final submissions as to whether their position remains or this is just a small problem with relation to those people, or whether it's more generally about eligibility criteria given that a number of the other non-eligible staff were in the NTEU's final submissions.  So we don't know, for example, whether the NTEU delivers it to be a problem that at some universities you might have to be on a fixed term contract for up to three years or not less than two years in order to have access to promotion.  Well, we again say that if that is the case the NTEU is looking for a solution in the wrong place.  The NTEU really has an issue with the eligibility criteria that universities have for particular staff to have access to promotion and that's what they should be negotiating with universities about.


With relation to the general staff overtime claim we reiterate that there was a lack of direct evidence put by the NTEU of staff not being granted overtime or time in lieu.  In fact the only direct evidence was from Clark Holloway, no longer employed in the sector, that he did not receive overtime for a weekend that he spent overseas.  Yesterday Mr McAlpine referred to the evidence of Andrew Giles, and NTEU witness, former staff member at Deakin University.  Mr Giles himself was a staff member at Deakin who was not entitled to overtime or time in lieu because he was classified at HUW10, so above both the overtime and time in lieu bar.  To the extent that any evidence given by Mr Giles about more junior staff at Deakin entitled to overtime or time in lieu, that not only is indirect evidence not given by those staff themselves but in any event, is out of date.  Mr Giles departed Deakin in 2013 or 2014 and is not currently employed by a university.  With respect to the ICT allowance reference was made to the witness, Dr Kirkman, for the NTEU who was the only witness who gave direct evidence of having to have the internet put on at her home, at her home in Bendigo for the purposes of doing work and that she would not otherwise have had the internet on.  She also did give evidence that she could have used the library, so it wasn't in that sense, absolutely necessary for her to have the internet put on at home for the purposes of her work.


I'll turn now to talk about the common claims, the annual leave and time in lieu claims.  With relation to the annual leave clause, of course, there's been no application to vary that clause made by the NTEU with in these proceedings.  We have essentially been caught up in the common proceedings because of the way that those common proceedings have unfolded.  We made submissions back in July 2015 and resubmitted as required, that our view is that the industry specific direction to take annual leave provisions which were agreed to by consent and form part of the current award, are appropriate to remain included in those awards.  As Mr Pill referred to earlier today, the way that these proceedings have gone and the common proceedings have unfolded, is we don't have a great sense of certainty about being able to maintain that position.  If it is found against us and we are obliged to accept having the model clause put into the Higher Education Awards then we agree with the submissions put on behalf of the Group of 8 that at least that clause ought to be tailored to the extent necessary to support the particular position of our sector, and that is in relation to the ability of an employee to say that they want to take leave at a particular time, consideration ought to be given to only being able to make that request outside the teaching and exam period where the person has been given specific work to do in those periods.  In relation to the common claim about TOIL, we support what has been put on behalf of the Group of 8 universities.


Turning to the proposed variations that we have sought, we have sought three proposed variations, the addition of a further category of fixed term employment for both of the modern awards; the deletion of severance pay on expiry of fixed term employment; and the removal of the industry specific redundancy provisions in the Academic Staff Award.  In relation to the addition of the further fixed term category both of the Higher Education Modern Awards already provide for circumstances under which it is permitted to employ academic and general staff on a fixed term basis.  Currently there are six circumstances in the modern awards under which you can do so and our proposal is to add one further circumstance to those six.  We say that this is not a significant amendment.  Each of the elements in the proposed clause has already been consented to in enterprise agreements and our proposal represents the real world requirements of universities.  The insertion of the clause would not discourage enterprise bargaining.  In fact, it would encourage enterprise bargaining in that it would still be open to universities to bargain for whatever specific elements in that clause best suited those universities.


In opposing the clause the NETU essentially argues that its insertion would defeat the entire purpose of having fixed term categories, that is that it could be used to justify fixed term employment for each and any position at a university.  We say this is just wrong.  As we've noted in our submissions there are two clauses in the current awards that make it absolutely clear that each fixed term appointment must be referable to one of the permitted circumstances of work activity set out in the award.  So at 11.3 of the Academic Award and 10.3 of the General Staff Award it states that:


The use of fixed term employment must be limited to the employment of an employee engaged on work activity that comes within the description of one or more of the circumstances that are set out.


And then clause 14 of both awards provides that:


Upon engagement the employer must provide an instrument of appointment in relation to a fixed term employee.  This includes the requirement to state the circumstances by reference to which the use of a fixed term contract for that type of employment has been decided for that employment.


So we say the award makes it very clear that each case of fixed term employment must be limited to allow the work activity in respect of the appointment of that employee.  So as we've said in our submissions, we say if a university is reviewing its library services, for example, our proposed new subclause would not permit an employee in HR to be employed on a fixed term contract under that subclause.  We brought evidence from Dianna Chegwidden, the HR Director of Australian Catholic University as to how such a clause operates in practice at one university, and we also brought documentary evidence of clauses applying at other universities around the sector.


The crucial issue which emerged is that which emerged in the cross-examination of Ms Chegwidden.  It was put to her during cross-examination and reiterated by the NETU in its submissions that the existing circumstance of a specified task or project is broad enough to encompass the circumstance of, for example, a dis-established organisational area.  And her response was that the NETU had taken a contradictory view when ACU had attempted to use "specified task or project" for that reason and that there was therefore need for explicit reference to provide for clarity.  We say therefore that it's necessary to include this clause because otherwise the modern award is ambiguous.  It is unclear whether or not "specified task or project" would encompass the circumstances that we've set out in the proposed subclause and the fact that most, if not all, enterprise agreements have had by consent at least some elements of our proposed clause inserted into them is evidence that this is the case across the sector.  Otherwise there would have been no point in agreeing to those in enterprise agreements.


In relation to fixed term severance pay we rely on the submissions that we have made and we particularly reiterate a couple of points made in our submissions referred to by Mr Pill today, that is that there have been legislative changes since the making of the HECE Award back in the late 1990's and that the modern awards already do constrain the circumstances in which we can provide for employment on a fixed term basis.  Therefore it's a double hit, if you like, to employers to have both limitations on when you can employ under fixed term circumstances and the requirement to pay severance on expiry of some of those fixed term contracts.


In relation to our claim with regard to industry specific redundancy provisions, again we rely on our submissions.  These are provisions which are significantly in excess of national standards.  It's not dependent on evidence to demonstrate that they are costly to employers.  On their face, they are.  They impose a significant burden in excess of national standards.  That is our primary position in relation to the issue of redundancy in the Academic Modern Award.  If the Commission is against us on that point we support in the alternative what has been put by Mr Pill on behalf of the Group of 8 that if such provisions are to remain in the Academic Staff Award then it is more appropriate to have severance payments and notice payments based on service rather than on age.  Those are my submissions.


VICE PRESIDENT CATANZARITI:  Thank you, Ms Pugsley.  Yes, Ms Gale?  So we're now into the stage of your submissions in opposition to the employer variations and any limited reply.  I should say we've obviously read all the material so you don't have to (indistinct).  This part shouldn't be that long, particularly matters in reply.


MS GALE:  Indeed, and perhaps I can deal with matters in reply fairly quickly first.  There's been a lot of discussion about the standards in the enterprise agreements and the fact that, for example, few employees in the industry have their conditions directly regulated by the awards, and what the consequences of that should be for this process.  We say that the enterprise agreement provisions as such can have no bearing on the appropriate standard for the safety net.  There is no legislative justification for setting the safety net at a lower level because of the existence of standards in the enterprise agreements or because employees are not award dependent.  The safety net must be determined in its own right in order to meet the modern award objective.  The safety net is a set of combined minimum conditions taken together.  The Commission could not, for example, provide for a lesser entitlement to overtime in the General Staff Award just because all employees covered by it were not award dependent.  That would be a grave error.  The only relevant person for the purpose of assessing the safety net is a person who is on award conditions, even if that is a hypothetical person.


We are not going to respond to every inaccuracy or exaggeration or misrepresentation of the NTEU's position that was made during the employer submissions although there were many.  We'll rely on the written submissions and restrain ourselves to a very few comments.  Specifically Mr Pill said that there's something about academic employment that's unique.  You are an academic, not, you are employed as an academic.  And we say that that mischaracterises the nature of the industry.  You are an academic and you are employed as an academic, and it is the employment as an academic that is the relevant consideration.


It was asked why we're not making the same claims for the post compulsory award and I'll say two things, very briefly.  One is that the concept of the academic teacher in that award is relatively new, and second, that no conclusions can be drawn about what should be done for the higher education awards from whether or not applications have been made in this round in relation to other awards.  Mr Pill invited you to give weight to the opinion evidence of the employer witnesses in relation to, for example, the likely impact of the NTEU claims.  We simply remind the Commission that generally when asked specifics about the likely impact of the NTEU claims those employer witnesses almost uniformly disavowed any detailed knowledge of the claims.  Their opinion evidence about the likely impact appeared to be based on a second-hand or a very general view about how the claims might operate.


It was suggested that the existing enterprise agreements provisions in relation to academic workloads provide that workloads are, by and large, agreed.  We say that is not the case and examination of the clauses shows that the workload models under which workload is allocated are, by and large, agreed or at least negotiated but that the actual workloads may be discussed but in the final analysis the workloads that are allocated to academic staff are workloads that are determined by the employer.  The employer submissions continue to engage in a slide from the fact that much work is self-directed to the conclusion that that work is unknown to anybody else, whereas we say the evidence shows that generally each academic discusses their work plan and their workload for the year, including what they intend to do in the area of research with their supervisor.  They have discretion over many of the aspects of what and how they will do that work but it is not unknown to the employer and it is not something that's not taken into account in determining workload allocations.  At paragraph 283F of the Group of 8 submission, in characterising the character of existing enterprise agreement workload regulation the employers assert that that regulation – they say that the enterprise agreements provisions do not contain the concept of ordinary hours workload, ascertained hours or such constructions on which the NTEU clause is now built.  We say that is wrong, that many of the existing enterprise agreements clauses do contain those concepts.  Whether using those precise words or not they indeed are largely similar and operate in practice and are practical, largely similar to the existing NTEU claim in that regard.


In relation to the discipline currency and policy familiarisation issue, it has been suggested that that work, to the extent that is work and to the extent that it is done, it is encompassed already in the payments that are made for preparation time associated with lectures and tutorials.


We say that is self-evidently not the case, for a lecture or tutorial is an allowance effectively of one hour for preparation, and that includes not only the writing and design of that particular lecture or tutorial, it includes the preparing of the PowerPoint slides or the other presentation materials.  It is specific preparation associated with the delivery of a body of learning; it is not broad preparation in terms of keeping up with the discipline.


And similarly we do not base our claim on work that's done in the course of coordination of subjects or units.  That is identified and paid for under the award as it is currently framed.  The problem in relation to policy and professional - and discipline currency is a problem in the current operation of the award provision for the payment of other required academic activity.


The evidence is clear that that is not being used by employers, it's not being accessed by employees in relation to this work, and the evidence of Mr Picouleau was very clear:  would Monash University pay other academic duties for that sort of work?  "Absolutely not," he said.  Absolutely not.


That is why, given the evidence that the work is done; the effect of the claim the NTEU is proposing is to clarify that payment at that other academic duties rate should be made for these duties.  We've put forward a particular way in which that can happen with a low regulatory burden.  The work is inherent in working as an academic.


It was suggested that Dr Dix agreed that when he did various aspects of discipline currency it was not in the course of his work.  He did agree that he did things he wasn't paid for, and this is typical of the evidence of the other NTEU witnesses as well.  He agreed that there were intrinsic motivations for him to do those things.  It was not put to him, and nor did he agree that it wasn't work.  His evidence was that it was work.


The somewhat dismissive remarks about Dr Nurka reading magazines or watching Four Corners are taken out of the context that Dr Nurka is a journalism academic.  When she's reading those magazines or watching Four Corners, she is doing so for the purpose of critical analysis of the practice of journalism, she's not doing so in the way that you or I might leaf through New Idea in the dentist's waiting room.


The example was given of a casual lawyer who's expected to know their field at the commencement of their engagement as a casual lawyer, do the work on that issue that they're employed to do, and not to do any professional development during the course of that engagement.  And I say that mischaracterises even that instance.


If decisions come down or new commentaries are published on that field that that person is employed to work in relation to, then the law firm will expect them to keep up with those developments, and they will expect that that will be done in the course of the work they are doing on that issue.  If they fail to do so, they would not be doing their job.


We say that the comparison with the way that things are done in other professions also misses the central point, which is that academic professional and discipline currency is, if you like, at a meta level.  These are the people who are teaching the professionals.  The requirement for an academic discipline currency is at a higher and broader level that the requirement of professional currency that applies to a professional.




MS GALE:  Because the academic has to be able to teach the professional, and the job of being an academic is to be at the cutting edge of knowledge, not simply to apply existing knowledge.  There was an argument about the cost of the professional and discipline currency allowance, and it was acknowledged that the cost estimates by Ward and Picouleau overstate the situation by perhaps as much as a half.  We say that if the cost estimate was half of the figures provided by Ward and Picouleau, that would be approximately one 2000th of the revenue of those universities.


It depends how you cut the cake.  Yes, it's an increase in the casual wages budget, but the revenue of those universities is huge and the cost impact on the universities is very marginal.  And the evidence in support of that is in the attachments to Mr McAlpine's statement.


Mr Pill suggests that full-time staff are not paid for discipline currency activities, but only for research; and we say that is simply not true, the evidence does not support that; the evidence of Prof Andrews, for example, and the ACU workload model.


In relation to the promotion claim, I think there was nothing new said it is not covered in our existing submissions.  We say none of the language in the proposed clause is arcane or incapable of construction if disputes arise.


In relation to general staff hours, the argument was put that there was no evidence of people claiming overtime and not being paid it.  That is beside the point.  That would be irrelevant.  That is an issue of enforcement.  We're not here seeking enforcement, we're here seeking a provision which will have the effect of altering the widespread culture in the industry of either not claiming for or not authorising the performance of large amounts of work.


In relation to information technology, it was suggested that it's not an appropriate provision for an award.  We say there is nothing in the Act that suggests that an allowance is not an appropriate provision for an award.  There's nothing intrinsic in this issue which makes it different to other basic award entitlements.


In relation to the common claims, we rest on our written submissions.  We believe that the model term in relation to access annual leave is appropriate.  We oppose the Group of Eight's suggestion that people should be able to access excess leave on notice by the employee only outside allocated teaching times.


However, if the Bench is attracted to that model, we would suggest that a better alternative is to recognise the right of an employee to take excess leave at a time of their choosing, but that instead of eight weeks' notice in this industry for academic staff, it might be a better approach to have six months' notice, that way there is no overriding of the employee's right to determine when the leave is taken, but there is some account given to the cycle of work allocation in the industry.  In relation to award flexibility and TOIL, we rely on our earlier submissions.


Turning to the employer-proposed variations, I will start with the last that was addressed, which is the AHEIA's claim for a new fixed-term category.  The existing regime of the fixed-term employment categories in both the Academic and the General Staff Award, which comes from the HECE Award, is that fixed-term employment in this industry is permissible when there's something either in the character of the job or the character of the employee that justifies the use of a fixed-term contract; and that, we say, is evident from the categories that exist.


The character of the employee arises in relation to pre-retirement contract and student-ship; the character of the job arises where the work itself is of limited duration, where it's a replacement for someone who has gone on leave, where the work is supported by a funding source of limited duration.  Those are the categories that exist.


The proposal that the AHEIA have brought forward is an ambit grab.  They want to open the access to the use of fixed-term contract to circumstances which don't reflect the character of the job, that don't reflect the character of the employee, but reflect the employer's wish to have access to fixed-term contract employment whenever they feel that it's time to have a review or a restructure that might have an impact on the workforce requirements in the future, and it's not even restricted to a negative impact on workforce requirements.


Even if they think their workforce requirements might grow, that would be a basis for the use of fixed-term contract employment under this clause.  The only new argument that has come forward in the final submissions from the AHEIA is the proposition that the introductory words to the fixed-term contract list and the instrument of appointment somehow restrain the operation of - or restrain the breadth of the circumstance described in their draft clause.


The way that those provisions work together is that there has to be a circumstance that justifies the use of fixed - or allows the use of fixed-term contract employment.  If that circumstance exists, then the employer is able to make a fixed-term contract appointment to an employee for work that falls within that circumstance, and they have to give a letter of appointment that says which circumstance this job falls within that justifies it being on fixed-term contract.


So yes, the work has to fall within the circumstance described.  That doesn't cure the problem with the AHEIA's proposal, which is that the circumstance they are describing is extremely broad, and the way that it is broad is set out in our written submissions.


In terms of the example that Ms Pugsley gave today, if there's a review in the library then you couldn't make a job in the HR department fixed-term contract because of that review in the library, and that's probably right if it was the review head within this multi-headed clause that they were relying on; but any job in the library could be appointed on a fixed-term contract, even if under the review that was underway, that particular job had no uncertainty about it whatsoever.  The uncertainty doesn't apply - in this circumstance - doesn't apply to the positions, it applies to the workforce requirements.  The workforce is, by definition, not individual positions.


Ms Pugsley suggested that unless we thought it was appropriate to the sector, there would have been no point in the NTEU agreeing to various provisions in enterprise agreements.  Firstly I need to say those provisions are all very piecemeal.  There is not a standard consensus across the industry of including the sort of breadth that the AHEIA are seeking here; bits and pieces of it have been negotiated at different places, but what we say about the enterprise agreement provisions is that there are many reasons for things to be agreed in enterprise agreements other than that all parties think they're appropriate to the industry.


The NTEU does not think those clauses are appropriate to the industry, but in enterprise bargaining sometimes you have to do horse trading.  It's not evidence of anything in terms of a view as to the appropriateness of the clauses.


In relation to the industry-specific redundancy scheme and the issue of discrimination; the employers, we say, have advanced no merit case in support of this change, and I think Mr Pill conceded that point, saying that it's a question of the construction of the Act.  Some of the witnesses spoke in vague and general terms about the growth of competition from private providers, but there was no actual evidence of the impact of this competition on university budgets or on student numbers, or on the need for redundancy.


There was no data provided by the employers about the number or cost of compulsory redundancies or to what extent the need to retrench is handled through natural attrition, given the very high levels of fixed-term and casual employment in this industry.  There was no evidence from the employers about the age distribution of academics made compulsorily redundant.


It's clear that the AHEIA conduct a benchmarking survey across the industry that tracks exactly this sort of information.  Exhibit H, attachment M is an example of a benchmarking report.  It's clear from that that the AHEIA holds detailed data about the number of redundancies and the age profile of the workforce nationally, yet in support of this application to - in their case, to completely remove the industry-specific redundancy scheme, they have provided no merit case and no evidence as to the actual impact of this scheme on the industry.


Even if they didn't already hold that data, given that the number of redundancies is very low, as reported in the benchmarking data, the number of false redundancies, the employer associations would have been able to inquire of their members the precise cost, the numbers and age distribution over any relevant period of account.


They've chosen to bring no probative evidence in support of this claim, but instead to rely on the technical argument about discrimination in the case of the Group of Eight; and about the alleged comparative disadvantage between themselves - their members and other universities in the case of the AHEIA.


If I can deal with the AHEIA submissions of 24 March very quickly, they basically argue that this industry-specific redundancy scheme, by applying to the institutions that were party to it at the time it was made and not to Bond University and Notre Dame, imposes a cost and regulatory burden on some universities and not others, and therefore is unfair.  We say that they were able to bring evidence about the cost and regulatory burden and failed to do so, they've relied on assumptions and assertions; and that no relevant fact in relation to that has changed since the modern award was made.


The NTEU has never submitted, as suggested by Mr Pill, that the clause is discriminatory.  We did submit that it appeared, prima facie, to be discriminatory.  We say it does not have the character of discriminating against employees.  And we say that this is really the only substantive issue before you in relation to this clause, is whether or not clause 17.6(b) discriminates against employees for reason of age in a manner that offends section 153.


We say on a proper construction of the legislation the Commission should conclude that it does not.  The authorities the employers rely on for their argument do not stand for the propositions they seek to draw from them.


Looking at the Group of Eight submissions of 23 March, at paragraph 6(a) they attempt to characterise the NTEU's submission as saying that the Fair Work Act should be read subject to the Age Discrimination Act, and we do not say that.  That is not what we are arguing, and characterising our argument that way leads the discussion in the wrong direction.


The Group of Eight's submissions that go to knocking over that straw man, we say are misdirected.  The Fair Work Act, in our submission, is not to be read as subject to the Age Discrimination Act, and we do not say that the Age Discrimination Act has primacy over the Fair Work Act.  What we do say is that the Fair Work Act must be read and interpreted in terms of its words and its objects, and that in doing so it is appropriate to look to other legislation where the same or similar language is used for guidance as to the meaning of the language in this legislation.


In support of that we refer to the judgment of Flick J in the ABCC v McConnell Dowell at paragraph 74.  In that paragraph his Honour said - and he was talking about section 45 of the Building and Construction Industry Improvement Act of 2005 - he said:


Ultimately, the construction of section 45(1) and the phrase "discriminate against" is a question to be resolved by reference to the terms of section 45(1) itself and more broadly by reference to that Act.  The interpretation of the same phrase or like phrases in different legislative contexts provides guidance – albeit limited guidance – as to the interpretation of section 45.


That is what we are saying, the interpretation of the same phrase or like phrases in different legislative contexts provides guidance.  Looking first to the Fair Work Act, there are several clauses that refer to discrimination, and those clauses, we say, are different in their purpose and effect.  Section 342(1), for example, speaks of discrimination in the sense of treating employees differently from each other.


It is not talking about discrimination for reason of factors such as age, race, or any of the other grounds commonly found in anti-discrimination legislation, it deals with discrimination between employees for one of the prohibited industrial reasons set out in section 340(1); and we say in that sense it's similar to section 45 of the Building and Construction Industry Improvement Act, which is under consideration in the McConnell Dowell decision.


By comparison, sections 153 and 351, for example, deal with the forms of discrimination which are commonly found - and one presumes most likely drawn up by reference to anti-discrimination legislation.  Those provisions, relevantly, are about discrimination against, not discrimination between.  Should the Tribunal look to anti-discrimination legislation in considering section 153?  Unequivocally, yes.


In McConnell Dowell the court was considering section 45, the relevant terms of which are set out at paragraph 55 of that decision.  Paragraph 55 is focusing on the phrase "discriminate against"; it sets out the clause:


A person must not discriminate against another person on the ground that the employment of the second person's building employees is covered, or is not covered, by an industrial instrument.


It then says:


Unlike other legislative provisions, such as those commonly found in the human rights legislation, the concept of discrimination is not further addressed or defined for the purposes of that Act.


We say that is different from section 153 where the concept of discrimination is further addressed by a list of human rights legislation-style characteristics.  Flick J at paragraph 49 ‑ ‑ ‑


VICE PRESIDENT CATANZARITI:  Ms Gale, we don't live in a world that doesn't change.  These clauses may have been valid once upon a time when we didn't have age discrimination considerations.  Now that we do have age discrimination considerations one has to look at whether - to make this award a necessary clause - whether we need it at all, let alone whether we play with it.  Why can't these be the subject of bargaining in particular agreements as to what sort of redundancy provisions work?


MS GALE:  Well, your Honour, there are two ‑ ‑ ‑


VICE PRESIDENT CATANZARITI:  Which would not be age-based.


MS GALE:   ‑ ‑ ‑ two stages, in our view:  one is that this is an existing clause in the award, it's ‑ ‑ ‑


VICE PRESIDENT CATANZARITI:  That doesn't make it correct.  Clearly that proposition does not make it correct.


MS GALE:  No, it does not make it correct per se.  However, there is a presumption that in the absence of a probative merit case against, it should remain in the award; and we say no such merit case has been run.  The only case that's run is a technical case about whether or not if offends the Act.


VICE PRESIDENT CATANZARITI:  I follow that, Ms Gale.  The question is whether it's a good technical point, and that's what we're really grappling with.


MS GALE:  Indeed.  And I do ask you to bear with me, your Honour.  I'm trying to address that technical point.  I may be labouring some points more than you would prefer, but I am doing my best.


VICE PRESIDENT CATANZARITI:  The case is certainly not going to be decided on one comment by Flick J in that Federal Court decision.  You can use it as an analogy, but that's as far as it's going to go.  There are better cases than his one sentence.


MS GALE:  The point we are making, your Honour, is that that case does not stand for the proposition that the employers have relied upon it for; it actually stands for the proposition that it is appropriate in interpreting a discrimination clause that has the character of being and invoking the human rights characteristics and the anti-discrimination legislation, that it is appropriate to draw on what Flick J calls the considerable learning that's available from that jurisdiction.


Similarly we would point to the comments of Katzmann J at paragraphs 109 to 112 of the decision where there's a distinction between the approach taken to that clause in the Building and Construction Industry Act, and provisions which deal with direct or indirect discrimination on the basis of an attribute.  We say that is the character of section 153, that it deals with direct or indirect discrimination on the basis of an attribute.  And particularly we draw attention to paragraph 111.


We say that the authorities lead to the view that to satisfy the test of "discriminate against" it's not sufficient that there be differential treatment; there must be a burden or adversity suffered, a detriment or disadvantage, or adverse consequences.


It's clear from the decision of Katzmann J at paragraph 111 of McConnell Dowell that discrimination may be positive or negative.  Positive discrimination is common in awards and in the Fair Work Act itself.  There are special provisions to take account of pregnancy, of family responsibilities, cultural and religious obligations, ill health, and age.  The existence of these provisions does not impose any disadvantage or adverse consequences on those who do not benefit from them; it just imposes, we say, differential treatment, and that is the character of positive discrimination.


Similarly the provisions in section 17(6)(b) of the Award do not impose any adverse consequences or disadvantage on younger workers simply because they positively discriminate in favour of older workers.  In relation to all ages of academic staff they provide a higher level of notice than would otherwise be available.


The employers have made unsubstantiated assertions that this makes older employees less likely to be employed.  We say the data simply does not support that contention, that's very clear, that older employees constitute a substantial proportion of this workforce.  In any case, that's, we say, precisely the same argument as saying that maternity leave should not be provided because it makes women of child-bearing age less likely to be employed.


Where there is a positive discrimination provision that provides advantage to employees in a particular category to reflect the disadvantage that those employees would otherwise suffer, it is not a provision which offends the legislation.  At paragraph 15 the Group of Eight rely on the reasoning of Tracy J in the Retail Industry case; and at paragraph 19 they further discuss the question of whether the term "discriminates against" in the Fair Work Act includes indirect discrimination.


They've said that that's an irrelevant question, we say it's not irrelevant.  The Commission should prefer the reasoning of her Honour Gordon J, then of the Federal Court, in Klein, particularly at paragraphs 94 and 95 where she differs from Tracey J.


Relevantly, in construing the meaning of terms in the Fair Work Act both judgments look to the decision of the High Court in Waters v Public Transport Corporation [1991] 173 CLR 349, which is a case dealing with the Equal Opportunity Act 1984 of Victoria, which is a piece of human rights legislation.  So in both the SDA v Retail Industry case and in Klein, two industrial cases considering industrial legislation, it is a human rights legislation case that is seen as relevant.


The second significance of the considerations in National Retail Association No 2 and in Klein is that references in the Fair Work Act to discrimination should, in the absence of any express intention to the contrary, be taken to include both direct and indirect discrimination.  We say that the view of her Honour in Klein is to be preferred in relation to that question.


If that is the case, then it is clear that there are many provisions in awards which indirectly discriminate.  Tracey J in National Retail points, for example, to wage scales which are based on years of service, that that is indirectly discriminating against people on the basis of age, because age is clearly a factor in how easy it is to clock up years of service.  If that is correct and that the reference to discrimination invokes both direct and indirect discrimination, we say then it must be the case that it is not intended to prevent positive discrimination, that ‑ ‑ ‑


VICE PRESIDENT CATANZARITI:  Positive discrimination relates to a 39-year-old compared to a 40-year-old; is that really the proposition?


MS GALE:  It is a sliding scale, your Honour, between 40 and 45 ‑ ‑ ‑


VICE PRESIDENT CATANZARITI:  And a 39-year-old who has one year - a 40-year-old who has one year - the argument Mr Pill raises as length of service becomes an irrelevant consideration, entirely determined on their age.


MS GALE:  Well, there is a separate provision in clause 17 which deals with length of service which brings in the quantums that are available under the NES.  This is simply an additional element of notice, but ‑ ‑ ‑


VICE PRESIDENT CATANZARITI:  I think it's a significant additional element, Ms Gale, compared to the NES.


MS GALE:  It is.  It is.  It is.  We say that it's a question of the purpose of the clause, and the purpose of the clause is one of positive discrimination, and that that is permissible under the legislation.


VICE PRESIDENT CATANZARITI:  I hear you, Ms Gale, but I think that's quite a stretch.  Can we move on to another topic if you've finished in that one, I think, because we've got written submissions of this as well.


MS GALE:  There are just two other things I would like to say in relation to the discrimination arguments put by the employers.  Firstly they point to the exemptions in section 153(2) and 153(3) as a basis for saying that this clause should not be read in light of human rights and anti-discrimination legislation.


We say that that's not the case.  Those exemptions catch conduct which would otherwise be discrimination against those categories of employees.  It is an allowance for negative discrimination.  It does not address the question of positive discrimination.  We say that employees are not disadvantaged by the fact that all of them are advantaged by this clause.


The other point that was raised was whether the references to the NES should be deleted from this clause in any case, regardless of the other question; and we say no, they should not, they're part of the scheme.  The references to the NES are references to quantums that would otherwise be available under the NES, they are not references - they incorporate those quantums into this clause.  And given the relationship between an industry-specific redundancy scheme and the NES in relation to redundancy, it is necessary to do so.  Deleting them here would be cutting the entitlement.


I hand over to Mr McAlpine to speak briefly on the last of the employer's claims.


VICE PRESIDENT CATANZARITI:  Thank you, Ms Gale.  Mr McAlpine.


MR McALPINE:  I will be very brief.  This is about the proposals for the fix-term severance.  There is one matter that I realised that we hadn't properly dealt with, which is the very fact that - and this relates to the provisions in the award that derive from the Higher Education Contract of Employment Award.  The employers - in fact, when the modern awards were made the employers at that point mounted a merit-based case against all the provisions of the Higher Education Contract of Employment Award.


The fixed-term severance, for example, had been included in the Higher Education Contract of Employment Award in 1998.  It wasn't just the fact that it passed across into the modern award without consideration, the employers specifically attacked those provisions in the exposure draft and sought to have them removed, and the Full Bench decided not to do that.  So it wasn't just a technical carry across, the Commission actually considered the merits including, obviously, the fixed-term severance position, and that's in paragraph 173 of [2008] AIRCFB 1000, and that was on 19/12/2008 where the Full Bench considered the form of the Higher Education Award.


VICE PRESIDENT CATANZARITI:  Mr McAlpine, was that - the argument by the employer then was to delete the whole clause?


MR McALPINE:  To delete all the provisions relating to fixed-term employment, fixed-term severance, everything else.


VICE PRESIDENT CATANZARITI:  What Ms Pugsley is putting now is that she wants a variation.


MR McALPINE:  Yes.  She wants the fixed term bit gone, yes, that's right - the fixed-term severance bit gone, and that was one of the bases on which their attack was made in 2008.  The only other thing that I think is worth responding to is the statement that because there are such restrictions on the use of fixed-term contract, that the idea of fixed-term severance going with that is inappropriate.


I just point out that under the award, for example, provided you are on research-only duties, you could be employed in work that is of a continuous character on fixed-term contracts for 25 years; people are; and we think it's appropriate in those circumstances that small severance payments that are made available - the redundancy payments that are made available under the award - should continue.  So the fact that there's a limitation on the use of fixed-term employment of course limits the cost to the employer of that total scheme, but it doesn't mean that people can't be employed for 20, 25 or 30 years on fixed-term contracts.


We say, you know, it just to use that, obviously as an extreme example, but after that sort of period of service the employer says they want to give the job to someone else, we say that the severance payments are appropriate in those circumstances.  I don't have any other submissions.  Thank you.


VICE PRESIDENT CATANZARITI:  Does that then conclude this part of the case?  So we can excuse Mr Pill and Ms Pugsley?  Thank you.  We will now move to the Research Institute matters.  What we might do, Ms Gale, is adjourn at 5 to 1 because there's another matter on, unfortunately.


MS GALE:  5 to 1?


VICE PRESIDENT CATANZARITI:  Yes, we will just have the opening.  Mr McAlpine, you're going to address on this?


MR PILL:  Can I just confirm, Vice President, you don't require us to attend any further today.


VICE PRESIDENT CATANZARITI:  No, not unless you think you want to come back, Mr Pill.


MR PILL:  No, thank you, your Honour.


VICE PRESIDENT CATANZARITI:  I thought we should start, rather than take an adjournment, because the 1 o'clock matter could go too long.


MR McALPINE:  Thank you, Vice President.  I've certainly taken the hint from your Honour that I don't intend to repeat the submissions that we've made.  I do, however, want to highlight a number of critical points.  There are large sections of our submissions that I won't take you to, and that doesn't mean that we don't think they're important.


VICE PRESIDENT CATANZARITI:  We're not determining this case on what is actually given orally, of course.  Rest assured, as in the penalty rates decision, we read everything.


MR McALPINE:  Yes.  Our opening position is the Commission needs to do something.  Certainly none of the parties that have appeared before you have suggested that the Commission doesn't need to do something about the situation of award coverage in medical research institutes.  Just to put it in very brief form by way of introduction, we say the existing arrangement of award coverage doesn't arise from any specific consideration of this industry.


That's not necessarily a criticism of anybody, but it's an indication that I think nobody can really point to the Commission having made a decision where it said something positive about what should happen to this industry or part of an industry.  We acknowledge, in fact, we don't think there's a simple chain of deductive arguments that proves one side of the other correct.  We think there's a series of considerations that mean that the Commission needs to take into account.


We think that having looked through the legislation and all the circumstances of this case, we think the Commission has a pretty wide discretion about what it should do on the merits about this industry, the research institutes industry.  We've set out in some detail the advantages and justifications for our proposals.  I'm not really going to speak to those except in very short form to say we think that the higher education awards have applied to this type of work in medical research institutes in the past.  Our claim is not based upon merely historical coverage, though.


There was no evidence, really, of any problems in the application of those awards.  And the classifications, we say the balance of the evidence is that the classifications from those awards are still of great significance in such enterprise agreements that exist, and in the common parlance of the industry; and that's seven years after we acknowledge those awards really ceased to have much operation, or any operation in the case of - I think the General Staff Awards.


We say the Higher Education Awards apply to the most similar type of work that there is, and that can be considered in two ways:  university research generally; but more specifically, medical research employees who are in universities.


We say that, considered objectively - and it's all set out in our submissions - the descriptors used in the two Higher Education Awards properly encompass, describe and classify this type of work in an internally consistent way as between different occupational streams, whether those the clerical and administrative, technical, or scientific.  That's really all I'm going to say about what we have proposed.


We want to contrast that with the current situation and with what's proposed by our friends from AAMRI and APESMA.  Again, we've raised a whole series of criticisms about the form in which the other parties which wish to amend the Professional Employees Award, the PEA, and the problems with the existing award, and with the problems with what they propose.


I'm not going to take you through all of those.  I think we've pointed out a number of serious inconsistencies in terms of the academic qualifications whereby our friends from Canada and the Republic of Ireland and Germany are excluded on the basis of an undergraduate degree; but if I have a PhD from Gabon or a masters degree by coursework from Chad, I'm covered.  I hope there's nobody from Chad or Gabon in the room.  Those are perhaps fixable problems.


COMMISSIONER JOHNS:  That's the application by APESMA and AAMRI.




COMMISSIONER JOHNS:  Seems like a simple fix, isn't it?


MR McALPINE:  I said those, perhaps, are capable of amendment, yes.  I agree with that.  However, we do raise the question, again set out in detail, about the creation of the new work value level of level 5 and a number of concerns that we have about that, given the principles set out in other decisions.


We certainly defer to Kovacic DP on the issue of the difference between set and vary, and we note that the Commission in the sheep crutching case, I think I can describe it as, came to the view that they didn't need to express a definitive view, but that clearly the work that was proposed to be the subject of a new rate was already encompassed by the award.


We say that that's the case in the current circumstances, and for the reasons we've set out, we think on two grounds:  firstly that there's no proper merit justification for that new classification; and secondly it's hard to see within that award why that work level should exist in one stream of the award but not in others, given the position that was put by APESMA and AAMRI about the similarity between medical research work and scientific work generally covered by the award.


We're happy to obviously - we don't have much choice, but we're happy to leave detailed consideration of that issue to the Full Bench, obviously.  And we note that in that decision I think the Full Bench didn't definitively rule one way or the other on that issue, but we've set out our submissions on that point.


VICE PRESIDENT CATANZARITI:  It might be a convenient time, Mr McAlpine.  The Commission is adjourned.

LUNCHEON ADJOURNMENT                                                         [12.53 PM]

RESUMED                                                                                               [2.05 PM]


VICE PRESIDENT CATANZARITI:  Thank you.  We just want to remind the parties in relation to this part of the case that there have been very extensive written submissions written, and in that environment we wonder whether the oral submissions should be quite brief.  We know advocates like to hear themselves, but in this particular part, which Mr McAlpine has quite rightly pointed out has a fair bit of discretion, it is going to be determined on the written submissions.


MR McALPINE:  Thank you, your Honour.  I'm perfectly capable of taking the hint.  There are just a few things from our submissions that we wish to highlight from our very final submissions.  I won't even necessarily take you through all the logic of it, but simply I think they need to be highlighted.


Prof Hilton's evidence from a survey was that 41 per cent of staff employed by the research institutes he was referring to were not medical researchers, but they were other classes of employees.  We saw a list of occupations that were employed which presumably in part describe those 41 per cent that was provided by AAMRI, and is reproduced in our submissions.


We say that part of the basis of AAMRI and APESMA's submission is that essentially the job was done in 2010 and there's nothing to see here, there's really a little bit of tweaking.  When we actually went to try and make a determination of whether the Health Professional and Support Services Award applied to health professionals employed in medical research institutes, we came to the conclusion that they probably didn't, but we set out the arguments on both sides in that submission.


If the Health Professionals Award doesn't apply, then that whole class of people who are health professionals who are not people who have traditionally not been covered by awards, have essentially no award coverage or no relevant award coverage if they're not covered by the Health Professionals Award.


If, as AAMRI says, they are covered by the Health Professionals Award in using the occupational limb of that award, then we say that who is also covered - if necessarily follows who is also covered includes a category which is listed in that award under the list of profession or professions covered by the award, which is medical scientist.  So we say if their submission on that is correct, then the Health Professionals Award applies to medical scientists working in medical research institutes.  That must be right.


We say there are two ways of arriving at that:  one is just a generic common sense question to say - for example, Prof Hilton - is he and medical scientist?  We think he is a medical scientist; the second way would be to try and unpack what the term means in the award - in the Health Professionals Award - and that would be to look at the predecessor awards that apply to medical scientists to see what sort of person, what sort of occupation was meant by the term medical scientist, because we would say that would be a fairly reliable guide.


We've attached the relevant extracts of the three federal awards that we could find that applied to medical researchers, and we really do ask that the Commission look at those because the suggestion is made in the AAMRI submissions in response that these are diagnostic scientists, simply won't bear any examination.  Those medical scientists awards variously refer to the academic appointments at level D and E, specifically in the award for medical scientists, and where the research function is spread throughout those predecessor awards.


Just to be absolutely clear, they're not medical scientists in the sense that they're doctors; there's a definition of what a medical scientist is, and it's a person with a relevant science degree or various other things.


VICE PRESIDENT CATANZARITI:  And it talks about in those attachments of yours, publications, research grants, et cetera.






MR McALPINE:  Yes, in detail.


VICE PRESIDENT CATANZARITI:  In detail.  A follow that.


MR McALPINE:  So if there's a question about what the Commission did in 2010, if the Health Professionals Award doesn't apply, then all the health professionals have no award coverage; if it does apply, it applies to medical scientists.  So if there's any tweaking to be done, it's to be done to the Health Professionals Award because that's the award which we say applies.


So in terms of the other things we've said, at 10.25 to 10.35 of our submissions we've set out the position of the Miscellaneous Award.  We say the AAMRI application would apply to an industry, that's what they describe the medical research industry as; and the Miscellaneous Award says that if you apply to an industry - if an award applies to an industry and that award doesn't include those classifications, then the Miscellaneous Award doesn't apply.  That seems fairly straightforward to us, and that excludes a whole number of lower-level classifications of the type which AAMRI, in its own submissions, says they employ.


Lastly there is the position of technical staff, people like Mr Trevaks.  In the Higher Education Award there is a, if you like, a cross-comparison of work value at particular levels between, for example, a person who holds a degree and a person who doesn't hold a degree.  If you put that together the Professional Employees Award or the professional engineers aspect of the Professional Employees Award with the Manufacturing Award, as I think it used to be, you could see their a person without a degree could rise to a relativity of 150 per cent and be at the level of a reasonably senior professional.  There was an equivalence across those streams.


We say in the context of an industry that employs both graduates and non-graduates, that's actually an important consideration.  A person like Mr Trevaks, who is employed at the higher education worker level 7 is employed at the same level as a person with a science degree - who doesn't hold an academic qualification - a person with a science degree with considerable experience.  We say that's a good and useful form of safety net.


What do AAMRI and APESMA have to say about technical employees who don't hold degrees?  Well, they say, "Well, they're covered by the Manufacturing Award."  Now, we've put in the relevant terms of the Manufacturing Award, and we think it's reasonable to look at that award and to say some people might be and some people won't be.  We think that's worse, in one sense, then nobody or everybody.


So what it means is you've got to do a careful examination of exactly what sort of duties - not what level of duties, but whether you're engaged in one of the industries listed there, working in a medical research institute or not, to decide whether you've got an award rate, which can actually be up to 150 per cent of the trades rate; or you've got no coverage at all.


So we say that the existing situation and the situation proposed by AAMRI and APESMA is a mess.  It's not appropriate.  Our primary submission is that medical research institutes in universities and medical research institutes outside universities perhaps do different things, but they're pretty close in the context of the overall scheme of modern awards, and that those are the appropriate awards to apply respectively to people with academic appointments and the people without academic appointments, and that that ensures that there is a fair and adequate safety net for everyone who works in the medical research institutes.


We say that's the only proposal before you that has that effect.  I'm not suggesting that that's conclusive, but I do suggest that that's an important consideration.  Those are really the things that have come out of the last two sets of submissions by AAMRI and ours in response, and we think that - we don't put our case on the basis of historic award coverage alone, we say that's a consideration; but we do put it on the basis that those are the most appropriate awards.


They're called Higher Education Awards; in practice they're awards that apply to the diverse range of factors that universities undertake.  They are universities' awards, they are not Higher Education Awards in that process sense.  They are awards for universities, and universities have diverse missions.


We have said - at the end of our submissions we've said - and it's not one we're urging on the Commission, but we have said it could be that the Commission takes the view that there should be an award for this industry.  We think that's a plausible position.  As we said, we think you've got a wide discretion.  And at the end of our submissions we've set out -


VICE PRESIDENT CATANZARITI:  You mean and other modern award?


MR McALPINE:  Well, yes.  Yes.


VICE PRESIDENT CATANZARITI:  This is what you - yes.


MR McALPINE:  And as I said, that's not the position that we support.


VICE PRESIDENT CATANZARITI:  Yes, that's not the position.  The Bench wants to reduce modern awards, not increase the numbers.


MR McALPINE:  Yes, I would imagine so.  But we've said that if the Commission decides that it wants to do something new, then it should look at the various cognate awards that apply.  It's certainly one I know - the only reason it has included it is because we know that's within your jurisdiction to do, and we thought we should close that option - well, not close it off, but we should explain what we thought you should do if you went down that path.  I think that concludes my submissions.


VICE PRESIDENT CATANZARITI:  Thank you, Mr McAlpine.  Yes, Mr Ruskin.


MR RUSKIN:  Thank you, your Honour.  We have prepared a document, which is nine pages and which is a summary of our oral submissions, but I won't read them.  They will help guide you, I think, through them.  I apologise for the further document, but it may be helpful.  But I'm not going to read it, except when I get stuck.


In point 1 we make this rather important point.  It's clear from the submissions from the NTEU that its primary application - its only application is in significant retreat.  These proceedings, as your Honours have said, are not strictly adversarial proceedings, and you are interested to do what is best for the award system.  But what we've heard today, and previously from the NTEU, respectfully, is not a submission in support of the only applications that they have put forward, it is a commentary on the award system, and I think it reflects an aversion, which is not reflected in the system, by the NTEU to occupational awards.


Occupational awards have been considered recently last - mid of 2016 - when there was a proposal for majority clauses in awards.  The joint application of the ACTU, the ACCI and the AiG were to the effect that occupational awards are fine and you do not need majority clauses in awards.  What we've heard today is an analysis from almost an outside consultant, unpaid - Mr McAlpine - commentating on our award system, which is of interest, but it's not about his application.  His applications don't deal with the matters that he deals with; his application is in significant retreat.


The second point I make is that the contest, if there is a contest - and I don't think there is a contest between us, really, any more - it's a contest is no longer about the Higher Education Awards versus our application, but perhaps other combinations that Mr McAlpine has suggested, but which we don't see any application for those to come into effect.


Thirdly we make the point that we've been dealing with the NTEU about medical research institutes - or my client has, AAMRI - for five years; and now, in the very last submission that we got on 24 March, the NTEU now concedes that many employees who do research at medical research institutes are covered by the PEA.  And in the annexure to the document I've handed up to you, your Honours - I won't go through it - but you will see how their submissions have changed over time as to what awards to operate.


They might say that reflects the complexity of our award system, of which only they seem to be violent critics, but it doesn't reflect the views of the other parties about the award system and the mix between industry and occupational awards.


Point 6 I would make is that the PEA - the Professional Employees Award and occupational awards currently cover most employees in medical research institutes.  Our proposed variation will cover almost all employees.  The NTEU's almost abandoned application for MRIs to go into Higher Education Awards do not at the moment, and has not - certainly in the last seven years - covered a single employee in the medical research sector.


The framework and onus, I think you might know a little bit about, so I will leave that and won't say much to it, except at paragraph 13 of our submissions we note this:


The onus is on the NTEU to justify its seismic shift in the award system by providing cogent reasons and probative evidence of why the existing coverage doesn't meet the modern award objective, and showing that it's appropriate for the same terms and conditions to apply to both MRIs and universities.


And the last thing Mr McAlpine said - one of the last things in this missive this afternoon - he said that medical research institutes inside and outside universities are pretty close, but they're not the same, or words - they do different things.  Now, that is why we have opposed the application by the NTEU about Higher Education Awards, because we are not universities.  We don't wish to be subject to the regulation and the award of a higher - of universities.


In terms of the status quo, paragraph 15, most research employees are covered by the PEA, and there's evidence for that.  The fundamentally scientific nature of work done by medical research employees have been evidenced by the witnesses in these proceedings; and opposed to, say, universities, where I think the statistic was about 90 per cent of the academic staff at universities do not do this sort of work.


We mention on page 4 of my submission the survey evidence that of those who do require a degree to perform their research duties, 87 per cent hold degrees in science.  The evidence that employees generally require degrees in science, although some may require a degree - as the evidence has shown - in medical or health-related fields, and that's why we have proposed an application to broaden the award so that it will cover like kind occupations in medical research institutions.


Mr McAlpine produced research advertisements, which we've dealt with, which he says doesn't require a degree, and we've dealt with that.  Mr McAlpine - the NTEU, I should say.  Sorry, Mr McAlpine - at paragraph 16 has a restrictive view about what a degree in science is.  I think initially their argument was that the - which is why we had to bring evidence about research and science - their argument was science is not research, or research is not necessarily science.


In terms of historical coverage, which is paragraph 19, the NTEU's concessions regarding the coverage of the PEA means that it now admits it is significantly disturbing existing coverage.  Its arguments for doing so are premised on the unfounded assertion that the Commission has erred not once, but twice in the award modernisation proceedings:  first by omitting to cover Higher Education Awards; and secondly, accidently bringing them under the PEA.


We say far from being an accident, its existing coverage of independent MRIs by the PEA - the research scientists - arises from their coverage by predecessor awards in the majority of states in which medical research institutes operate.  We say at paragraph 21:


Professional scientists at independent MRIs have been historically covered by various award.


And I might say, too, that these are awards which had terms and conditions in them.  The one award, which the NTEU mentioned, is an award made in 1989 which has a few medical research institutes listed in them.  That award had hardly any terms and conditions in them at all; I don't think it was varied since 1989, except for wage increases up to 2006; and it had no terms and conditions; and there were no classification standards in that award.  We deal with how we say, in the rest of that section, the AIRC absolutely considered Higher Education Awards and made a ruling to that effect.


In terms of the general staff of the HEWs classifications, there were about three medical research institutes which were covered by the higher education work in the Higher Education Workers Award by way of common rule for a period of five years; and they were named respondents.


I might say that in the period where the research institutes - certain research institutes were named in this 1989 award, a few of them were taken - no longer were covered by that award by an application to include them in a science award.  It was no accident that university - my last point is it was no accident, either, that the AIRC in 2009 placed university-controlled entities - who are certainly close to universities - under either a post-secondary education award or an occupation award, not under the General Staff Award.


The next section is about the appropriateness to extend the coverage.  The remaining research employees, those in medical and health-related fields, performed work that is similar to their colleagues.  This doesn't contradict the evidence that their colleagues need a degree in science, it merely acknowledges that the work is similar.  The evidence was that this work relied upon the application of the scientific method.  We say there is a need to cover these employees with the same terms and conditions that currently cover colleagues performing similar work in the same institutions if the Commission thinks so.


Now we come to the variation that we've drafted in relation to our application.  Save for some superfluous wording, the NTEU's criticism of the drafting of our variation, we say is without merit.  However, the drafting proposed is not vital to the question of whether this coverage should be extended.


COMMISSIONER JOHNS:  Mr Ruskin, I don't mean to cut you off, but we can read along with you.


MR RUSKIN:  I do get ahead of myself.  Thank you, Commissioner, I will bear that in mind.  Classification descriptors have been put into the - we have proposed to go into the award because of what a member of the Commission said to us about the awkward fit.  We don't necessarily - that was an obiter dicta comment, but we've tried to address that.


Paragraph 34; we're not intending to affect the coverage of the Miscellaneous Award by our application.  As Johns C said earlier, these sort of things can be fixed if the unintended consequence of our application is for some reason the Miscellaneous Award would cease to apply to people who it does apply to at the moment.  We say, however, that we don't think that we've provided a variation that defines an industry in the sense in which the Miscellaneous Award was talking about.


We have - and we can provide now or at another time if you wish - a simple variation that would, we think, fix any problem that you foresee.  That's a drafting issue which would remove the word "industry" from our application.


COMMISSIONER JOHNS:  Has that been provided to the NTEU?


MR RUSKIN:  No, it hasn't, but we can hand it up now or ‑ ‑ ‑


COMMISSIONER JOHNS:  That might be useful.


MR RUSKIN:  Yes, we will do that.  What we will hand up, Johns C, is the variation to the award dealing with this issue of industry, and another version of the variations to the Professional Employees Award 2010 that includes these, and also deals with a couple of other things about competency standards which probably didn't need to be in the variation.


VICE PRESIDENT CATANZARITI:  I will mark that as MFI 53.  That will be the Professional Employees Award 2010 and proposed amendments to medical research industry stream, both as MFI 53.



VICE PRESIDENT CATANZARITI:  Mr McAlpine, you haven't seen this material before.  I don't want to prejudice you in any way, so when we conclude, what I will do is - regrettably - do a timetable for any written responses that you wish to make in relation to this material.


MR McALPINE:  Thank you.


MR RUSKIN:  So, your Honours, the first document simply removes the definition of medical research industry; and over the page it describes what a medical research institute is, so it's like the rest of the Professional Employees Award, other parts of the Professional Employees Award in terms of defining an Institute, not an industry.


The variation to the other award which we've given you does exactly that, but as well in pay points on page 41 and 42 it removes, in the pay points, some superfluous words about competency standards and in-service training.  I suppose I should also add, your Honours, that it updates the level 5 rate of pay, which we had mentioned on page 23, to 81,920.  Our earlier application was made before July last year and it has 80,000 in it.


The proposed classification of level 5 sets out work which we say is not captured by level 4, and accordingly we see it as setting an award and not varying a rate, as in the Pastoral Award case, that's our paragraph 35.  We say that's appropriate given the lower levels of responsibility in the existing PEA rates.


We say this about what the NTEU says about our application, the Commission only needs to vary the award if it is necessary.  The NTEU have proposed in their latest closing submissions hypothetical problems that arise with the award system; hypothetical problems about the Manufacturing Award.  Now, if there's a problem with the Manufacturing and Related Industries Award, that's not about the medical research sector, that's about the award itself, and I don't think it's appropriate for that to be a matter that is put forward by an applicant who seeks to vary an award.


It raises a hypothetical conflict with the Health Professionals services award and the SCHADS Award, and we don't agree with what they say; and in any event, we have proposed a way of rectifying it if it is a problem.  The NTEU has gone on an episode of discovery, and five years after we have appeared before this Commission it now says, "Hey, there's a medical scientist classification in the Health Professionals Award, and that really is the award that covers medical scientists in the medical research industry."


If that were so, your Honour, we wondered why it hasn't ever been mentioned before.  We wonder why they've made their application.  If that award does apply and it deals with all the sorts of work that medical scientists do, and goes from level 1 to level 4, we wonder why the NTEU have dragged us through these costly proceedings on two occasions if it has taken them till March this year to discover the classification.  There has been no issue about it before.


We have addressed it in our submissions on pages 20 to 21 of our 24 March submissions.  The point we make is, your Honours, that it is not a classification that deals with research scientists, and the history of it deals with diagnostic scientists, and that's why neither we or - until the last few days - the NTEU have ever raised it.  It is not an issue that - and if there is a concern about it, it can easily be extinguished, but it was not an issue that should concern this Commission.  It does not deal with medical research institute-type employees who perform research.


Paragraph 46, towards the end, I make this note about the tenuous nature of their own application to define a research institute, the tenuous nature of academic titles, and of affiliations.  Paragraph 47, we say there their various arguments about the award system and what award might apply and whether this award applies just puts a stake into their own application, we say.


And the last point I would make in terms of our submissions before I address some of the points Mr McAlpine has made is the point I make at paragraph 48.  If you follow their logic that may be independent MRIs should be covered by hospital awards - and I note too that they say in their last submissions, 3 March submissions or their 24 March submissions - they say, "Well, we recognise that medical research scientists are in the private sector; they're in MRIs, they're in universities, they're in hospitals, they're everywhere."


Now, if that is the logic, if they recognise that, we say:  is there any reason why research staff at independent MRIs cannot stay under an award that has covered the same occupation - the same like occupation, and is the award which covers the largest number of such scientists, and has done so under successive awards since 1964?


We've noted that they're critical of our definition of the word research, et cetera.  We say that their own - in the University Academic Award there is a level A definition of people who are research-only employees, and that says that people performing the work would usually have a higher degree.  If you adopted the research-only classifications of that award, that would cut out of coverage many research employees in medical research institutes who are working towards a higher degree but don't have them.


Paragraph 44, I draw your Honours' attention to, and that's this issue of the Bench might ask:  why have we produced evidence about various issues to do with the size, diversity, regulation of MRIs compared to universities?  And we deal with a couple of cases there.


The HEWs classifications, there are 10 levels; at NARI there are 10 non-research employees.  It's hardly a useful award, we say, to cover this sector.  This sector, medical research institutes - you've heard are nimble, need to be nimble; they're not subject to recurrent funding.  One thing you can say about the higher education regulation is that it is not known for its nimbleness.




MR BUTLER:  If the Commission pleases.  Firstly, I'm mindful of the requirement and encouragement not to traverse the written submissions, so my comments will be brief, but I would like to address the Bench on a number of matters pertaining to the operation of the Professional Employees Award, and also to respond to an issue that the NTEU have raised in the submission.


Firstly AAMRI and APESMA have submitted that most medical research employees are covered under the Professional Employees Award on the basis that they are employed as professional scientists, performing professional scientific duties, as defined.  In respect of the overall coverage of professional engineers, it's difficult to be precise, but it would be safe to say that several thousand employers in the non-government sector fall within the coverage of this award, and specifically the professional scientists' stream.


I just refer to the evidence of the extent of this coverage is contained in annexure D to the witness statement of Chris Walton.  This annexure is a copy of the Scientific Services Professional Scientists Award, one of the precursors to the Professional Employees Award, and shows the very diverse range of industries in the non-government sector that fall within the purview of this award.


It has also been submitted in general evidence that professional scientists work in a range of job functions, and evidence on this point also included Mr Walton's witness statement at paragraph 8, which refers to the professional scientists' remuneration survey report.  The professional scientists' remuneration survey report includes information on a range of variables, including qualifications, years of experience, job function.


I just refer to the Bench that table 5.1 on page 16 of the report lists a range of job functions, and these include quality control and production, management, analysis and testing, and research development and quality assurance; again to show the very diverse nature.  AAMRI and APESMA witnesses have given evidence that research is an integral part of science, and that this includes medical science.  I won't traverse that area here.


In these proceedings, and as part of the four-year review, AAMRI and APESMA have gone further than a reliance on the terms of the existing award; and as outlined in various submissions, this is their response to the observations made by Smith DP in that he considered the classifications to be an awkward fit and that they were not in contemplation when consideration was given to the terms of the award.


As a participant in the award modernisation process, the Deputy President was right in that medical research institutes weren't specifically dealt with as part of that award.  The actual areas of work that were dealt with related to coverage of the IT stream, the issue of qualifications under the award; apart from that there's very little consideration of the actual work performed under the award.  And in respect of medical research institutes as a sub-sector of science, this is the first occasion.


The parties took the opportunity to consider the observations made by Smith DP regarding classification structure and to clarify the existing coverage, including to cover those minority of medical research employees who perform similar work to those already covered by the award.  This was done with the involvement of medical research employees and the industry.


In respect of the proposed classification structure as outlined in the proposed schedule C, the AAMRI/APESMA proposal attempts to capture the life cycle of the medical research employee.  I suppose that throughout the submissions this highlights, from our perspective, a fundamental divide to some extent between the NTEU approach and our approach, in that the NTEU have argued on a number of occasions in their submissions that the entry point, effectively, for a medical research employee is at the PhD level.


They dismiss the contribution of an undergraduate employee, and on one occasion in their submissions in reply of 3 June 2016 at paragraph 20 they totally dismiss the contribution by saying that the position of a science degree per se is rarely an occupational requirement for a position as a researcher, and there is little more relevance to the work value of most academic researchers than their year 12 qualification.


That is part of the submissions, and so I won't labour that point, but just to highlight that there is a fundamental divide.  The classification structure which is proposed for the medical research institutes attempt to provide a career pathway for medical research employees from the junior to the senior level.


An additional issue - and again, this has been dealt with in submissions - is that the NTEU tend to merge research as research and don't draw a distinction between scientific research and medical research and humanities research, and the AAMRI/APESMA witnesses certainly rejected that approach in terms of the type of research, in the approach, the content, and the focus of that research.


One issue - Mr Ruskin has dealt with the issue of their proposed level 5, but one of the submissions made by Mr McAlpine was in the form of a question as to why there is only proposed a level 5 in the medical research stream and not in the other streams.  Just by way of background, members of the Bench, the current four-level structure was - and I haven't got the decisions with me, but the current four-level structure was an outcome of the 1989 national wage case, with the implementation of the structural efficiency principle.


There was a consent position had been reached in the Metal Industry Award, which at that time had a professional engineers and professional scientists section.  Application was made by the Association for that to be flowed through to the Professional Engineers General Industries Award and the Professional Scientists Award, and there was an arbitrated case before a Full Bench, and the outcome was the current structure that was placed in the award at that time.


As I said at the beginning of my closing remarks, this award covers several thousand employers and a myriad of industries.  The answer to the question why there is not a level 5 in other streams is that we've had the opportunity in this sub-sector of science to meet with the industry, discuss what happens in the industry, and proposed a level 5 as tendered by the AAMRI/APESMA witnesses.  That actually exists and can be described.  But that's the answer to Mr McAlpine's question.


Another issue that has emerged throughout this case has been the definition of professional scientific duties, and allied to this is the nature of the professional employees as both an industry and an occupational award.


In the AAMRI/APESMA final submissions - this is covered in a table which follows the preamble to paragraph 28 - but I think as part of my closing remarks it's important to state or restate, at the risk of being repetitive, that this approach to defining professional duties has its origins in the first predecessor awards, the Professional Engineers and Professional Scientists, and these were the Professional Engineers Award 1961 and the Professional Scientists Award 1964, and the references to both those awards are in the submissions.


Coverage under both of these awards are based on fulfilment of two criteria:  firstly that the employee holds the qualifications; and secondly is performing any portion of duties.  The qualifications were those approved by the Institution of Engineers Australia, and for professional scientists, a number of designated professional institutes, and the general catch-all provision of a degree in science from an Australian, New Zealand or United Kingdom university, or from an Australian tertiary institution.


The reason why there's one institute for the professional engineers stream and a multiplicity for professional scientists is that the Institution of Engineers have been much better organisers in that they've been able to corral all the disciplines and sub-disciplines into one body, whereas the scientists have a multiplicity of bodies, and in some instances didn't have a professional body at all.  That is why.


So in the application of the award, there was and still is an objective assessment required to determine whether any portion of the duties required the qualifications.  In the closing submissions we refer to the occasional dispute, a matter involving an unfair dismissal matter where his Honour, Lawler VP needed to apply that to an unfair dismissal matter.


But the Commission, from time to time, has indeed - as we are today - has been called upon to determine whether a category of work in an industry should fall within the domain of the award.  In our closing submissions we refer to the making of the first award covering employees in the information technology industry.  There had been a finding in dispute that had been challenged on the basis that information technology work was not part of the industry in engineering.  It was at a different time.


The decision of the Commission was that it fell within the industry of engineering because there's a stereotypical view sometimes that engineering is about building roads and bridges; and on this occasion, as the Commission is today asked to determine on the evidence where work falls within a particular occupation.


The outcome of that particular matter was the making of the first award in the information technology employee for Professional Engineers Award - Professional Engineers, the Information Technology Industry Award of 1999.  The significance of that award is that whilst it was an industry award, it was - in one sense it was an occupational award that limited the occupation - the particular information of an information technology employee - to the particular industry.


In the NTEU submissions there's criticism that AAMRI and APESMA have not put forward a comprehensive definition of science.  I think if anyone could do that it would be an absolutely massive exercise in terms of being able to capture the entire field of scientific endeavour.


But I think the limitation that has been provided - the definition of medical research that has been put forward by AAMRI and APESMA is able to define that reasonably well from an industry perspective; and then once that is defined, in the same way as the information technology industry, the test is then:  do particular positions, occupations in that industry, fall within the definition of the Professional Employees Award.  Whilst the Professional Employees Award is an industry and occupational award, it's, I suppose, a partial industry award in that sense.


Beyond that, if the Commission pleases, that would be my closing remarks.


VICE PRESIDENT CATANZARITI:  Any last commentary, Mr McAlpine?


MR McALPINE:  Extremely brief.  We just say they give no proper account of what happens to the non-medical researchers.  A statement was made that there might be a problem with the Manufacturing Award.  It's their assertion that the Manufacturing Award provides a safety net for a certain class of employees, that's how the Manufacturing Award came into it.  I just wanted to say that.


The other thing was there was a reference to the higher ed classification descriptors.  It's clear from level A in the academic research-only classification structure, the very fact that there are five steps below the PhD point indicates that it covers people without a PhD, it cover people with an undergraduate degree.  The only other thing I was wanting to say was that we certainly wouldn't need anything beyond Monday at the latest for any written response to ‑ ‑ ‑


VICE PRESIDENT CATANZARITI:  I will give you a week.


MR McALPINE:  I'm concerned about any reply given.  I'm leaving the country on the 11th.


COMMISSIONER JOHNS:  I guess for my own part I expect it would be a very short submission in the sense that assuming we're against you and assuming we're minded to make an order that AAMRI or APESMA - if this was what the order looked like, what would be your comments on that?






VICE PRESIDENT CATANZARITI:  Yes, I'm not sure that requires a reply in those circumstances.  It's really just your reply.


MR RUSKIN:  Yes.  I don't think we will need to reply, your Honour.


VICE PRESIDENT CATANZARITI:  All right.  I thank the parties, then.  The decision is reserved.  The Commission is adjourned.

ADJOURNED INDEFINITELY                                                           [3.00 PM]



MFI #52 EXTRACT OF STATE DISCRIMINATION LAW......................... PN582