PN510

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

PN511

MS M CHAN: May it please the Commission, Chan, initial M, for the Australian Business Lawyers and Advisers on behalf of ABI and the NSW Business Chamber.

PN512

THE COMMISSIONER: Thank you, Ms Chan.

PN513

MR K JACK: May it please, Jack, initial K, from the Australian Federation of Employers and Industries.

PN514

MR S SMITH: Yes, if it pleases the Commission, Smith, initial S, of the Australian Industry Group.

PN515

MR M BUTLER: If the Commission pleases, Butler, initial M, appearing for the Association of Professional Engineers, Scientists and Managers, Australia.

PN516

THE COMMISSIONER: Thank you, Mr Butler. There appears to be no one in South Australia. I thank you, this is a follow up conference, following the last conference before me on 7th or 4th April – just can't – 7 April. The focus is on the summary of submissions that have been provided to the parties since that time together with the report that was circulated to parties on 3 May.

PN517

I also have before me, Mr Smith from Ai Group. It is in fact from Ms Bhatt and I presume you're here in her stead.

PN518

MR SMITH: Yes, Commissioner. Ms Bhatt is not available today so I'm aware of the issue.

PN519

THE COMMISSIONER: You're aware of the issues and you're aware, I presume, the correspondence that has been forwarded on.

PN520

MR SMITH: Yes.

PN521

THE COMMISSIONER: The parties have a copy of that correspondence dated 30 May?

PN522

MR SMITH: Yes, Commissioner.

PN523

THE COMMISSIONER: Mr Butler, you have a copy of that correspondence?

PN524

MR BUTLER: Yes, Commissioner, and I agree with the contents of the correspondence.

PN525

THE COMMISSIONER: Thank you. It's agreed then, that the correspondence as reflected identifies the interested parties, to the extent that it can, as the Ai Group, NSW Business Chamber, AFEI and APESMA, to the extent that the parties here agree with that. Could I just confirm that for the record?

PN526

MR JACK: Yes, Commissioner.

PN527

MS CHAN: Yes, Commissioner.

PN528

THE COMMISSIONER: Mr Butler's already – thank you. The items that are referred to, are related back to the summary of submissions, published on 15 May. To the extent that that's the case, what I will do then, is use both the summary of submissions and that document and we can tick off each item as we go unless someone else has a preferred suggested way of moving forward.

PN529

MR JACK: No, that's fine, Commissioner.

PN530

THE COMMISSIONER: All right, thank you. Item 1 of the summary of submissions, it's a matter that's been referred to the group three Full Bench, so that's it as far as the technical and drafting matter is concerned.

PN531

Item 2, AFEI is content to withdraw its submission, so that matter is resolved. Thank you, Mr Jack.

PN532

Item 3, that's been agreed. I think it would be best for the sake of the transcript if each of the parties would just confirm with a yes or no.

PN533

MS CHAN: Ms Chan, yes.

PN534

MR BUTLER: Yes, Commissioner. APESMA agrees.

PN535

THE COMMISSIONER: Thank you Mr Butler.

PN536

MR SMITH: Yes, that's my understanding that we agree.

PN537

MR JACK: Yes, Commissioner.

PN538

THE COMMISSIONER: Item 4 is agreed.

PN539

COUNSEL: Yes, Commissioner.

PN540

THE COMMISSIONER: Thank you. Item 5 has been agreed.

PN541

COUNSEL: Yes, Commissioner.

PN542

THE COMMISSIONER: Mr Jack, it's agreed?

PN543

MR JACK: Yes, Commissioner.

PN544

THE COMMISSIONER: Item 6 has been agreed.

PN545

COUNSEL: Yes, Commissioner.

PN546

THE COMMISSIONER: Item 7 has been agreed.

PN547

COUNSEL: Yes, Commissioner.

PN548

THE COMMISSIONER: Item 8 has been agreed.

PN549

COUNSEL: Yes, Commissioner.

PN550

THE COMMISSIONER: Item 9 has been agreed.

PN551

COUNSEL: Yes, Commissioner.

PN552

THE COMMISSIONER: Item 10 - - -

PN553

MR BUTLER: Perhaps Commissioner, if I could report on Item 10.

PN554

THE COMMISSIONER: Please.

PN555

MR BUTLER: That was discussed in the telephone conference that we had on 23 May. Previously APESMA had provided some information to elaborate on our position. The parties have requested additional information. Just by way of recapping on this issue, Commissioner, it's to do with the updating of the membership grades of learned societies in the application of experienced scientist stream.

PN556

There's a further request from the employers for some more clarity in terms of dates and information as to when the membership grades were altered. We need more time to be able to do that. We're happy to do so, but it will take some digging.

PN557

THE COMMISSIONER: I take it then, that assuming the other parties agree with you, Mr Butler, the report would be updated to confirm that the employer parties had requested further information from APESMA as to the qualification background of some of the professors.

PN558

MR BUTLER: Of the scientists' stream.

PN559

THE COMMISSIONER: Of the scientists.

PN560

MR SMITH: Commissioner, perhaps I can shed a little more light on this, because from what I understand, Mr Butler is planning on doing, is getting some dates as to when the qualifications change, which is not the issue that we're interested in. The issue is, that the current schedule talks about member of these various societies, and it seems that the various societies have changed their grades of membership.

PN561

For example, there's a graduate member and a chartered member, and in reviewing the issue with the information provided by APESMA, it seemed to us that the member grade should be aligned with the chartered member grade, yet Mr Butler's aligning it with the graduate member grade. We may have misunderstood, but we've asked for more information about whether apples are being compared with apples rather than watering down the qualifications. Because they are important aspects of award coverage.

PN562

THE COMMISSIONER: Just for my benefit, is that – are we talking about 2.4 of the exposure draft?

PN563

MR BUTLER: Yes, Commissioner.

PN564

THE COMMISSIONER: The qualifications that you're referring to, are in 2.4G(b), is that - - -

PN565

MS CHAN: Yes, Commissioner.

PN566

MR BUTLER: 2.4(b), the academic schedule, (b), (t), (e) and (f).

PN567

THE COMMISSIONER: Mr Smith, I take it you wish then – you're seeking clarification, but you're not certain that Mr Butler actually has encapsulated what information you're actually seeking.

PN568

MR SMITH: I think Mr Butler's right in that we are happy to give APESMA more time to provide the information, but these provisions are very longstanding, been around for many many years and they're an important part of award coverage. If people don't have the qualifications, then the award doesn't apply to them, and obviously the wage rates in the award don't apply.

PN569

We want to be sure that the proposed updating of the phrase 'member' to what APESMA is proposing is actually not bringing in a lot of lower level people at that higher wage rate, so it is an important issue. But Mr Butler is saying that he's faithfully reproduced the new titles, and we're happy to await that information to see whether we agree with that assessment, or whether there is an issue of substance.

PN570

MR BUTLER: Can I just say, Commissioner, that on the issue of preserving the integrity of qualifications under this award, the Ai Group and ourselves are in the same position, so we are not in any way interested in watering down or attempting to water down the qualifications in the award.

PN571

THE COMMISSIONER: You're both – are you suggesting that everyone's interests are the same. You wish to keep the – no one is seeking to water down the qualifications.

PN572

MR BUTLER: Certainly not us.

PN573

MS CHAN: I don't think I would agree that – we all agree in principle about updating the membership titles to the appropriate membership, but I think we're all just trying to be cautious at this point, that in doing so, we don't sort of unnecessarily bring in somebody who shouldn't be there.

PN574

THE COMMISSIONER: To the extent that that's how you all feel, what is it then that you – what further information is needed from APESMA?

PN575

MS CHAN: I think maybe a translation table so as the exposure draft currently expresses membership qualifications for say the Royal Australian Chemical Institute, that currently talks about an associate member. We understanding that that - - -

PN576

THE COMMISSIONER: Ms Chan, tell me where exactly you're reading from, because I'm having difficulty.

PN577

MS CHAN: Sorry, yes, 2.4G(b)(i).

PN578

THE COMMISSIONER: Is this in the exposure draft? 2.4G yes, 'academic qualification acceptable to pharmacy board of council'.

PN579

MS CHAN: Yes, but then under that it talks about an experience to scientists. It doesn't seem to have a letter.

PN580

THE COMMISSIONER: Yes, 'means a professional scientist possessing the following qualifications' etc.

PN581

MS CHAN: Correct. Then (b)(i) underneath that.

PN582

THE COMMISSIONER: The Royal Australian Chemical - - -

PN583

MS CHAN: Yes, so that line. That talks about somebody who's been admitted to the degree of Associate Member. Now the grade of Associate Member, on my understanding and as I understand Mr Butler, has pointed out, doesn't exist at the Royal Australian Chemical Institute anymore. I understand that there is a grade of Graduate Chemist, another one being member, and I think there might also be another grade which was Fellow, if my memory serves me correctly.

PN584

In terms of updating the reference to Associate where not potentially wanting to capture graduates, if their qualifications were not equivalent to what an Associate Member might have been required to hold, at the time the award was first compiled. But by the same token, if an Associate Member would have captured somebody who might otherwise be a Fellow now, well then that would need updating.

PN585

THE COMMISSIONER: I see the importance.

PN586

MS CHAN: That's the kind of exercise that I think we'll just try and go through at the moment, just dotting our I's and crossing our T's in that respect.

PN587

THE COMMISSIONER: Mr Butler, does that assist you in terms of what employers are actually seeking?

PN588

MR BUTLER: Yes, it does, thank you.

PN589

THE COMMISSIONER: Mr Smith, is that sufficient?

PN590

MR SMITH: Yes, that's exactly right. A table that identified the old grade and the qualifications and experience requirements for the old grade versus what is proposed for it to be replaced by, so that we can check they're equivalent.

PN591

THE COMMISSIONER: The report would update that APESMA is to provide the parties with a table identifying the old grade versus what it is that's being proposed in the new grade.

PN592

MR SMITH: Yes.

PN593

THE COMMISSIONER: Mr Butler, do you have a time within which you think you can provide that table?

PN594

MR BUTLER: Commissioner, I think I'd need a couple of weeks. It's a bit of a research project there, that I'll need to get someone to do.

PN595

THE COMMISSIONER: Thank you. So, 14 days? If there's an issue, you can notify either my chamber or the AMOD team.

PN596

MR BUTLER: Thank you, Commissioner.

PN597

THE COMMISSIONER: Thank you. Then the parties will then either register a response to that.

PN598

MS CHAN: We can reconvene and maybe put together a joint response.

PN599

THE COMMISSIONER: Ms Chan?

PN600

MS CHAN: We can certainly reconvene, potentially, maybe privately and then gather a report for the Commission.

PN601

THE COMMISSIONER: Yes, so say another 14 days for that to happen.

PN602

MS CHAN: Certainly.

PN603

THE COMMISSIONER: All right, that deals with Item 10. Moving now to Item 11, that's been agreed.

PN604

COUNSEL: Yes, Commissioner.

PN605

THE COMMISSIONER: Thank you. Item 12 has been agreed.

PN606

COUNSEL: Yes, Commissioner.

PN607

THE COMMISSIONER: Item 13.

PN608

MR BUTLER: Commissioner, APESMA did circulate a proposed redraft and item 13 is referred to on page 2 of the correspondence from the Ai Group and there's a proposed clause there that has been agreed so far between the parties, and subject of course to the Commission's position in due course.

PN609

THE COMMISSIONER: In terms of the report and the summary of submissions, both documents can reflect that the parties have agreed to the position as outlined in the correspondence of the Ai Group dated 30 May 2017 at Item 13.

PN610

COUNSEL: Yes, Commissioner.

PN611

THE COMMISSIONER: Right, thank you. Item 14.

PN612

MS CHAN: That was withdrawn, Commissioner.

PN613

THE COMMISSIONER: Withdrawn?

PN614

MS CHAN: Yes.

PN615

THE COMMISSIONER: Yes, that's true, I didn't see that there. Item 15 is agreed.

PN616

COUNSEL: Yes, Commissioner.

PN617

THE COMMISSIONER: Item 16.

PN618

MR BUTLER: Commissioner, this item remains in contention and it's probably a substantive change.

PN619

THE COMMISSIONER: So, it should be moved, would you say, Mr Butler, to the substantive issues?

PN620

MR BUTLER: Yes, Commissioner.

PN621

THE COMMISSIONER: How do the other parties feel?

PN622

MR SMITH: We'd agree with that, Commissioner, because it would impose a requirement to record agreement in writing and there isn't one at the moment which would impose a regulatory burden on the parties. So, it's a substantive claim.

PN623

MR JACK: Yes, Commissioner, we agree as well.

PN624

MS CHAN: Yes, we would agree with Ai Group.

PN625

THE COMMISSIONER: Thank you, that will then be moved to the substantive issues. Item 17.

PN626

MR BUTLER: Commissioner, items 17 and 18 are the issues raised by APESMA and we withdraw our concern. Items 17 and 18 are agreed.

PN627

THE COMMISSIONER: Thank you Mr Butler. The parties are happy with that?

PN628

COUNSEL: Yes, Commissioner.

PN629

THE COMMISSIONER: Item 19. This appears to be a matter involving Business SA. Now, no one being here from Business SA makes it a bit difficult, but Mr Smith, do you maintain your objection to this proposal?

PN630

MR SMITH: We do, Commissioner.

PN631

THE COMMISSIONER: You do. Mr Butler, do you have a position?

PN632

MR BUTLER: Commissioner, on the last occasion of this conference, I undertook to look at this further, and - - -

PN633

THE COMMISSIONER: Sorry, Mr Butler, just apologies for interrupting you. If you could perhaps turn the microphone as close as possible to where you're speaking. We're having some difficulty – you're breaking up occasionally.

PN634

MR BUTLER: Is that better?

PN635

THE COMMISSIONER: Much better, much better, thank you.

PN636

MR BUTLER: On the last occasion, Commissioner, we undertook to review our position on this issue and in the light of the Full Bench decision 9412 of 2014, on that basis, we agree, sorry, we don't agree with the Business SA proposal.

PN637

THE COMMISSIONER: The document then will be updated as will the report to reflect that position, to reflect AiG retaining their objection and perhaps I'll have my associate or the AMOD team contact Business SA to confirm what their position is, given that they weren't here I don't think, on the last occasion either.

PN638

Are you happy to proceed on that basis Mr Jack?

PN639

MR JACK: Yes, we agree with that, Commissioner.

PN640

MS CHAN: Just for the record, Commissioner, ABI would also agree with AiG and APESMA in terms of not agreeing with what Business SA has actually proposed.

PN641

MR JACK: AFEI, I think has made a submission agreeing with AiG as well.

PN642

THE COMMISSIONER: Thank you. So, basically everyone opposes.

PN643

COUNSEL: Yes, Commissioner.

PN644

THE COMMISSIONER: Item 20 is agreed.

PN645

COUNSEL: Yes, Commissioner.

PN646

THE COMMISSIONER: Item 21.

PN647

MR BUTLER: Commissioner, there's been some discussion between the parties on this issue and on page 3 of the Ai Group correspondence, it says that the matter remains in contention, but the parties request that we be afforded a further opportunity to continue discussions in relation to it.

PN648

THE COMMISSIONER: What do you – what specifically do you intend to do in terms of the process of holding those discussions? Are there any suggestions from anybody?

PN649

MS CHAN: Commissioner, I believe we are just still tinkering with the wording a little bit in relation to item 21. Perhaps if I might suggest that when we provide a report back in relation to item 10 in 28 days, that we might also just address item 21 and any proposals that we might have at that point.

PN650

THE COMMISSIONER: That was item 10, wasn't it, Ms Chan?

PN651

MS CHAN: That was item 10, so we can add 21 to it.

PN652

THE COMMISSIONER: Add 21 to item 10, and report back on that.

PN653

MR SMITH: Yes, we'd agree with that, Commissioner. But there are a number of these issues in the same category, like item 22 for example. So, the parties would ideally have a discussion about all these.

PN654

THE COMMISSIONER: The reason, Mr Smith, I know it might be a – the reason I'm going through this methodically in the way that I am, it is laborious I appreciate. It's just that it's for the same of the transcript, it makes it much easier to update these reports and summary submissions. So, I'll no doubt hear from everyone in the same way, each item.

PN655

MR SMITH: Yes, thank you, Commissioner. My point was that in respect of Item 21, with respect to your question about process, that item and a number of the other items the parties will need to have some discussions before they report back to you.

PN656

THE COMMISSIONER: As we go, what I'm intending to do is identify each one of those items, have you identify them for me on the record and then the report will be updated and you will be left in no doubt as to which items you are going to be discussing outside the scope of this conference, before the next conference.

PN657

MR SMITH: Thank you.

PN658

THE COMMISSIONER: That was item 21. Do you agree with that Mr Butler? Are you happy to proceed on that basis?

PN659

MR BUTLER: Yes, Commissioner.

PN660

THE COMMISSIONER: The report will reflect that the parties will report back their progress as to their discussions at the same time that they report back the result of discussions in relation to Item 10.

PN661

Item 22 then, is the same I take it, that the parties can add that to that bundle. Is that correct?

PN662

MR BUTLER: Yes, Commissioner, yes.

PN663

MS CHAN: Commissioner, I might have to beg to differ. With that Item 22 I believe, was in relation to the fact that the term 'cycle' doesn't really have a definition in relation to the period over which ordinary hours can actually be averaged.

PN664

In ABI's view, that's really a substantive issue, as opposed to just a technical and drafting issue. I'm not sure - - -

PN665

THE COMMISSIONER: You'd like Item 33 then maybe referred to the substantive.

PN666

MS CHAN: Yes, I believe that would be appropriate.

PN667

MR SMITH: We think that might be where it ends up, but that perhaps that decision should be left until we see whether the parties could resolve the issue. The hours of work provisions in this award, Mr Butler and I negotiated about 20 years ago and they have a particular history to them and we would be very concerned about imposing a requirement that the hours be squared off every four weeks.

PN668

From what I understand Ms Bhatt said, that perhaps isn't what Mr Butler's concern is, and if it's really not that, and it's just a matter of really coming up with some practical wording or accepting that there isn't an issue, then we're happy to have further discussions rather than dealing with a substantive claim at this stage. Because to us, it's not an issue, and one version of words that Mr Butler put up, we didn't see a great concern with, but it may be that, as I understand it, Mr Butler's position may have changed a bit. So, the discussions are continuing, in short.

PN669

THE COMMISSIONER: Are you saying perhaps then, that's it's premature to put it in the substantive matters basket, at this stage? Is that the point?

PN670

MR SMITH: Yes, it may end up there, but it's premature.

PN671

MS CHAN: We would be content to continue having discussions before we do it to the substantive list, Commissioner.

PN672

THE COMMISSIONER: Thank you. Item 22 then I'll move to the basket of those matters that will be reported back.

PN673

MR JACK: Yes, Commissioner. 28 days.

PN674

THE COMMISSIONER: Item 23, is agreed?

PN675

COUNSEL: Yes, Commissioner.

PN676

THE COMMISSIONER: Item 24 has been withdrawn.

PN677

MR BUTLER: Yes, Commissioner.

PN678

THE COMMISSIONER: Item 25 is agreed.

PN679

COUNSEL: Yes, Commissioner.

PN680

THE COMMISSIONER: Item 26.

PN681

MR BUTLER: Commissioner, APESMA was to consider our position and subsequently we've had discussions and if I can refer the Commission again to the Ai Group. All the parties agreed that column titled 'Casual Minimum Hourly Rate' should be deleted from the exposure draft. APESMA seeks the insertion of a new schedule that contains a casual hourly rate and the employers, I understand, do not oppose this proposal, subject to having an opportunity to review the rates and provide any comment.

PN682

THE COMMISSIONER: I take it then that APESMA would insert a new schedule.

PN683

MR BUTLER: A new schedule.

PN684

THE COMMISSIONER: Of only casual hourly rates.

PN685

MR BUTLER: Yes, Commissioner.

PN686

THE COMMISSIONER: For circulation and comment? Is that how it would work?

PN687

MR BUTLER: No, sorry. I could be corrected if I'm wrong, but I understood that the drafting would probably be done by the Commission and the parties would check the rates. If I'm wrong on that – I mean – I can prepare a proposed schedule.

PN688

THE COMMISSIONER: I'm just trying to – certainly not suggesting you're wrong, just attempting to clarify what you're actually proposing.

PN689

MR JACK: I think my understanding, Commissioner, was that it would be similar to other awards that have exposure drafts which contain summaries of pay rates in the schedule. For that reason, and for it to be consistent with other awards, I think ABI would agree that it might be good if the Commission could do that.

PN690

THE COMMISSIONER: Certainly.

PN691

MS CHAN: ABI would agree with what AFEI just said.

PN692

MR SMITH: Yes, we agree with that.

PN693

THE COMMISSIONER: Certainly, then that could be circulated to the parties for comment.

PN694

MR JACK: Yes, thank you, Commissioner.

PN695

MS CHAN: Thank you, Commissioner.

PN696

THE COMMISSIONER: Item 27 has been withdrawn?

PN697

MR BUTLER: Yes, Commissioner.

PN698

THE COMMISSIONER: I notice that there was a position being put on that item from Business SA. I think before – well what will happy is, I will have my associate and/or the AMOD team to write to Business SA and confirm their position in relation to that item, but certainly be recorded as having been withdrawn from the APESMA side. Item 28.

PN699

MR BUTLER: Commissioner, this item deals with clause 15.3 of the exposure draft in connection with the vehicle allowance. My understanding now was that the parties request further opportunity to continue discussions.

PN700

MR SMITH: We agree with that, Commissioner.

PN701

MS CHAN: We would agree with that, Commissioner.

PN702

MR JACK: We agree as well, Commissioner.

PN703

THE COMMISSIONER: The parties will hold further discussions in relation to Item 28, the timing of which could be with – yes, 28 days again.

PN704

Item 29. Is there something that was withdrawn, Mr Butler?

PN705

MR BUTLER: It's not withdrawn, it was a question posed in the exposure draft, but I think the parties have agreed that no variation is proposed by any of us. So, it's redundant, I think.

PN706

THE COMMISSIONER: The parties don't – to the extent that the report can reflect what the parties have to say about it, they're not proposing any changes to item 29, is that correct?

PN707

COUNSEL: Yes, Commissioner.

PN708

THE COMMISSIONER: Items 31 – well, before I get to that, I'm sorry, I've skipped Item 30, that's agreed. Is that correct?

PN709

COUNSEL: Yes, Commissioner.

PN710

THE COMMISSIONER: Thank you. Items 31 and through to 35 appear to have been grouped together. It's noted in the Ai Group's correspondence that they remain in contention to parties request further opportunity to continue discussions. Do I take it from that, that they would form part of the bundle of clauses that the parties could undertake discussions about and report back after the 28-day period?

PN711

COUNSEL: Yes, Commissioner.

PN712

THE COMMISSIONER: Item 36 has been withdrawn. Is that correct?

PN713

COUNSEL: Yes, Commissioner.

PN714

THE COMMISSIONER: Item 37 has been agreed.

PN715

COUNSEL: Yes, Commissioner.

PN716

THE COMMISSIONER: Well that concludes that then. There are a number of items that the parties will have discussions about over the course of the next 28 days. This was the second conference. It's been my practice to have perhaps three conferences if necessary, and usually I have found that by that stage, the parties have either exhausted themselves, or the Commission will – a bit of both and the matters have fallen into either a substantive group or been agreed or withdrawn.

PN717

To the extent that the parties might require a further conference, it would be my intention to list then this matter for after the 28-day period. That would take us through to July, end of June. Just one moment, I'll just flag with the parties what I'm considering and then – 28 days would take us to 28 June. We then would have – I could list the matter say for Wednesday morning on 28 June at 9.30, if it suited the parties.

PN718

MR JACK: Commissioner, I'll have to check my availability, but I imagine a colleague could make it, if I couldn't.

PN719

MS CHAN: 28 June is fine for ABI.

PN720

MR SMITH: It's fine for me, Commissioner.

PN721

MR BUTLER: And for APESMA as well.

PN722

THE COMMISSIONER: Thank you. Unless there's anything else, I'll adjourn this conference until 9.30 am on 28 June. Thank you.

ADJOURNED UNTIL WEDNESDAY, 28 JUNE 2017 [1.49 PM]