PN1

DEPUTY PRESIDENT GOSTENCNIK: Good morning. Ms Devasia, you're appearing for the AMWU?

PN2

MS A DEVASIA: Yes, Deputy President.

PN3

DEPUTY PRESIDENT GOSTENCNIK: Mr Smith for the Ai Group.

PN4

MR S SMITH: Yes, your Honour, with Mr Harrison.

PN5

DEPUTY PRESIDENT GOSTENCNIK: Yes, thank you, good morning. Ms Devasia, do you require Mr Murray for cross-examination?

PN6

MS DEVASIA: Yes, we do.

PN7

DEPUTY PRESIDENT GOSTENCNIK: Right, well is Mr Murray here?

PN8

MR SMITH: He is, yes.

PN9

DEPUTY PRESIDENT GOSTENCNIK: Is it convenient that we deal with his evidence at the outset?

PN10

MR SMITH: That's certainly from - - -

PN11

DEPUTY PRESIDENT GOSTENCNIK: I don't require any opening statements. We've read the material, so - - -

PN12

MR SMITH: That's fine with us, your Honour.

PN13

MS DEVASIA: Yes, that's fine.

PN14

DEPUTY PRESIDENT GOSTENCNIK: Yes, all right. Well we might get Mr Murray in then.

PN15

THE ASSOCIATE: Can you just state your full name and address for me please.

PN16

MR SMITH: My full name is Daniel Alan Murray, (address supplied).

<DANIEL ALAN MURRAY, AFFIRMED [10.02 AM]

EXAMINATION-IN-CHIEF BY MR SMITH [10.02 AM]

PN17

DEPUTY PRESIDENT GOSTENCNIK: Yes, thank you Mr Murray. Take a seat. Mr Smith.

PN18

MR SMITH: Good morning, Mr Murray. Would you please state your name for the record?‑‑‑Daniel Alan Murray.

PN19

What is your current position?‑‑‑I'm principal advisor, workplace relations with Australian Industry Group.

PN20

Do you have a copy of your statement in front of you?‑‑‑Yes, I do.

PN21

Do you wish to make any amendments?‑‑‑No, thank you.

PN22

Is the statement true and correct to the best of your knowledge?‑‑‑Yes.

PN23

No further questions, thank you.

PN24

DEPUTY PRESIDENT GOSTENCNIK: Any objection to the tender of the statement?

PN25

MS DEVASIA: No, Deputy President.

PN26

DEPUTY PRESIDENT GOSTENCNIK: Yes, very well. We'll mark the witness statement of Mr Daniel Murray comprising 26 paragraphs dated 15 October 2018, together with the annexures thereto as exhibit 1.

EXHIBIT #1 WITNESS STATEMENT BY DANIEL ALAN MURRAY DATED 15/10/2018

PN27

*** DANIEL ALAN MURRAY XN MR SMITH

*** DANIEL ALAN MURRAY XXN MS DEVASIA

Yes, Ms Devasia.

CROSS-EXAMINATION BY MS DEVASIA [10.03 AM]

PN28

MS DEVASIA: Thank you, your Honour. Mr Murray, I'm just going to ask you a very brief set of questions?‑‑‑Yes.

PN29

Do you have a copy of your statement there with you?‑‑‑Yes, I do.

PN30

If I could just take you to paragraph 6 of your statement?‑‑‑Yes.

PN31

You've said there that you've been involved in the developing of competencies and classification construction of the awards. Is that correct?‑‑‑Paragraph 6 talks about the advice that I've given.

PN32

Further on you talk about being involved in assisting with competencies and classification structures in the award. Is that right?‑‑‑Yes.

PN33

Have you been involved in the Graphic Arts Award in particular?‑‑‑I have assisted companies in the printing industry but none has wished to pursue the competency standards with respect to their printing employees.

PN34

So it's just been a matter of assisting in what manner?‑‑‑In terms of the classification under other parts of the award, the other schedules of the award.

PN35

Thank you. If I may just take you to paragraph 10?‑‑‑Yes.

PN36

You say that you have participated in the development process for the National Metal and Engineering Competency Standards. Is that correct?‑‑‑Yes.

PN37

Can you please elaborate on what that means?‑‑‑At that particular time the Metal and Engineering Competency Standards had already had quite a degree of development in respect of those applicable to - up to trades level. My involvement at that time was in the latter stages of what ultimately didn't really come to a conclusion but that was with respect to those levels above C7.

PN38

Above C7?‑‑‑Yes.

PN39

In paragraph 16 of your statement when you talk about units of competency being put to use to analyse the skill requirements of the job?‑‑‑Yes.

*** DANIEL ALAN MURRAY XXN MS DEVASIA

PN40

The skills that would be used would be those that the worker uses on a job. Would that be right?‑‑‑Those that the worker is holding and required to use. There's the two questions; held and used.

PN41

Could you explain that?‑‑‑Okay. An employee may well hold competencies that aren't required by the employer, they won't count. It's only if they both have the competency, in other words they meet the requirements of that unit of competency, and they're required to use that competency in the performance of their work.

PN42

So it would be right to say then that a skilled profile cannot really be developed absent the work that is required to be done at the employer's site?‑‑‑Where we would always start from is the work that's required before we actually look at the individual employees. So we look at the competencies required of the job and then we assess the employees against those requirements.

PN43

So it's a two way street. You basically look at the work that needs to be done and then look at the employee and what they're doing?‑‑‑Yes, but it proceeds in that direct.

PN44

So it's a systematic approach?‑‑‑Yes.

PN45

You would agree that the process is not dissimilar to what they call the five step process in metals and manufacturing?‑‑‑Yes, the principles would be the same.

PN46

If I could take you to paragraph 18 of your statement?‑‑‑Yes.

PN47

The classification table that's been extracted from the award?‑‑‑Yes.

PN48

The Level 4 there you've referred to is fixed at - is there a fixed number of 28 points. Is that correct?‑‑‑That's what it says in the award, yes.

PN49

The points are allocated in total to the units of competency and must constitute for (indistinct) 28 for it to reach that relevant classification level. Would that be right?‑‑‑That would be the end game of the process which would start from looking at what the job requires. So we would look at what the job would require in terms of the competencies applicable. We would look at whether the employee both holds and is required to use those units of competency, and under the graphic cards we would then assess well how many points does that account for.

*** DANIEL ALAN MURRAY XXN MS DEVASIA

PN50

But that threshold remains at 28?‑‑‑That's the threshold that's provided for.

PN51

In the example that we're using?‑‑‑Yes.

PN52

So whatever the weighting of the unit of competency the worker must be using the skill to be credited the relevant points. Would that sound right?‑‑‑Yes.

PN53

Once identified the points are tallied?‑‑‑Yes.

PN54

The classification's determined based on where the points land?‑‑‑Yes. That's one way of doing it. Of course the alternative is you look at whether they meet the requirements of the Cert II.

PN55

In the event that they don't have a qualification formally - - -?‑‑‑Yes.

PN56

- - - that would be the way that you would do it?‑‑‑Well under this award, yes. Under other awards, you would look whether they meet the equivalent in terms of skills of the qualification.

PN57

Right, but under this award it'd be based on those competencies. So if I were to put it to you that there was no watering down of classifications. Would that be right?‑‑‑Watering down of classifications by what?

PN58

By the addition or subtraction of any points because that threshold remains the same?‑‑‑Well the issue I referred to when I mentioned watering down is if you change the points weighting or if the points weighting doesn't have validity, then there can be a watering down. If you alter the points weighting of individual minutes of competency, it may well be that the competency profile is exactly the same. The points tally differs because you've changed the points weighting.

PN59

I understand. At paragraph 19?‑‑‑Yes.

PN60

You've actually answered the question that I was going to ask about what you meant by the watering down - - -?‑‑‑That's what I thought you were leading towards.

PN61

If I could take you to paragraph 19(f) of your statement?‑‑‑Yes.

*** DANIEL ALAN MURRAY XXN MS DEVASIA

PN62

You've talked about there about the IRCs?‑‑‑Yes.

PN63

You're aware there are about 69 IRCs?‑‑‑I'm not aware of the exact number but I am aware that there's a large number in respect of each of the training packages.

PN64

If I may just show you a listing of some of the IRCs that we have in printing?‑‑‑Yes.

PN65

Excuse me?‑‑‑Yes.

PN66

In that listing there, to your knowledge are you aware of any of the members of the IRC there may be training specialists?‑‑‑In this particular list, no, I don't know these people personally.

PN67

So members of the IRC are typically appointed to be a consultative body for the needs of the industry. Would that be right?‑‑‑That's been my experience, yes. For the industry but also for the training side of the industry, the IRC on which I serve for example, they have representation from the training side, as well as the industry side. So from employer's themselves, from unions and from employer associations. That's the typical sort of mix.

PN68

So it's a mix, it's not predominantly staffed by training specialists. Would that be right?‑‑‑It's certainly not predominantly staff by IR specialist either, it's a mix of people.

PN69

Because the nature of the industry is complex so you have to have all these different bodies that are feeding in?‑‑‑It's also the nature of the task that IRCs have and that is to develop training and training packages. So the focus is on having that mix of representatives for that purpose.

PN70

Just taking you down to paragraph 26?‑‑‑Yes.

PN71

You've talked about how the competency package lives in the award?‑‑‑Yes.

*** DANIEL ALAN MURRAY XXN MS DEVASIA

PN72

Are you aware that the proposed schedule that the AMWU is proposing is not the full training package of graphics and art - print and graphic?‑‑‑What I was referring to there was principally the points system. That doesn't have any life outside the award. There's no weightings in the training package itself or the implementation guide. That's a system which lives only in the award, that weighting.

PN73

Yes, right. Thank you. That's all.

PN74

DEPUTY PRESIDENT GOSTENCNIK: Thank you. Any re-examination, Mr Smith?

RE-EXAMINATION BY MR SMITH [10.11 AM]

PN75

MR SMITH: Yes, just a couple of questions if I may. Mr Murray, you were asked some questions about the table that is reproduced in your statement at paragraph 18?‑‑‑Yes.

PN76

In particular Level 4, which relates to 28 points?‑‑‑Yes.

PN77

I think the question was put is 28 points and the achievement of 28 points the method of classification under this award? Are there any other classification methods under the award other than the points method?‑‑‑Well as I said, Level 4 could equally be classified on the basis of the holding of a Cert II in Printing. So that would be in fact, in my experience, by far the more common way of doing it.

PN78

Given that there are a couple of different ways then, the Certificate II that you mentioned and the 28 points?‑‑‑Yes.

PN79

If you were to apply the formal qualification - - -?‑‑‑Yes.

PN80

- - - would the 28 points necessarily line up with the qualification in this system?‑‑‑Not at all, no. In order to have a Cert II there are what are called packaging rules. There are packaging rules for all of these qualifications and they specify what you need to meet. So they specify a number of mandatory or core units of competence that you must have and then they'll specify a list of electives from which you must draw a minimum number. There is no reference in that packaging rule to points, so there's no alignment at all. Essentially, under the schedule C approach to acquire those points, it's essentially just a matter of putting together enough units from wherever in that list to make up 28 points. There's nothing about them being mandatory or core units, or electives that meet the packaging rules of a Cert II.

*** DANIEL ALAN MURRAY RXN MR SMITH

PN81

So would it be the case that if you had two employees who were classified in accordance with the two different approaches, could there be a different outcome? Different wage rate, for example?‑‑‑Well there could well be. You could well have employees who one meets the mark for a Cert II and one meets the mark for 28 points but they have a different set of competencies that need not match up at all, and need not even meet the requirements, one against the other. They're different criteria.

PN82

Thank you. No further questions.

PN83

DEPUTY PRESIDENT GOSTENCNIK: Mr Murray, thank you for your evidence. You're excused.

<THE WITNESS WITHDREW [10.14 AM]

PN84

Ms Devasia.

PN85

MS DEVASIA: Thank you, your Honours. The AMWU relies primarily on its written submissions and I'll speak briefly to those, and I will just add just some further points in respect of the submissions. I won't go through the entire process of the modern award review suffice to say that we seek the variation to the Graphic Arts Award in the context of the operation of the Four Yearly Awards.

PN86

The Commission is not required by the statutory framework to assess fairness by undertaking a comparative exercise of hypotheticals but a review at large with the fulfilment of the modern award objectives. The task of the Commission in this instance is to balance the various considerations.

PN87

DEPUTY PRESIDENT GOSTENCNIK: Ms Devasia, are you able to tell me what proportion of the workforce that's covered by this award has a relevant certificate of qualification and what doesn't? I'm trying to understand what proportion of the workforce is actually affected by schedule C.

PN88

MS DEVASIA: I'm sorry, I can't hear you.

PN89

DEPUTY PRESIDENT GOSTENCNIK: Are you able to tell me what proportion of the workforce that is covered by this award in relation to classifications possess a certificate qualification, and what proportion does not?

PN90

MS DEVASIA: I don't have precise figures on that, Commissioner.

PN91

DEPUTY PRESIDENT GOSTENCNIK: Do you have any figures?

*** DANIEL ALAN MURRAY RXN MR SMITH

PN92

MS DEVASIA: If you will just give me a moment.

PN93

DEPUTY PRESIDENT GOSTENCNIK: Sure.

PN94

MS DEVASIA: Commissioner, I don't have precise figures. We have about - we have an industrial officer here who covers the print division, but I can get the precise figures to you from our membership base, but approximately two thirds of that particular industry is covered by the award.

PN95

DEPUTY PRESIDENT GOSTENCNIK: Sorry, perhaps you're missing my question. Schedule C is only relevant for the purposes of resolving disputed classification issues in circumstances where the person does not possess a certificate.

PN96

MS DEVASIA: Yes.

PN97

DEPUTY PRESIDENT GOSTENCNIK: I'm trying to understand what proportion of the workforce covered by the award has a certificate and what proportion does not.

PN98

MS DEVASIA: I understand. As I understand there is about 45 per cent of those workers don't have a formal certification, but I don't have any evidence right in front of me on that but I can provide that to the Commission on notice.

PN99

DEPUTY PRESIDENT GOSTENCNIK: Right. Yes, sorry, continue.

PN100

MS DEVASIA: The question before the Commission here is whether the Graphic Arts Award as a whole is required to have the proposed update to the schedule as proposed by the AMWU. We say that following an evaluate process and judgement required by the Commission, the answer is clearly yes. It is our position that the proposed amendments would enable the award to provide a fair and relevant minimum safety net, an outdated schedule in the award is not compatible with the requirement of the relevant safety net.

PN101

DEPUTY PRESIDENT GOSTENCNIK: Well both you and Mr Smith agree on that point.

PN102

MS DEVASIA: Yes. We say that the inclusion of the updated competency package would ensure that the structure remains relevant to employers and employees. It provides certainty as to the - - -

PN103

DEPUTY PRESIDENT GOSTENCNIK: How were the allocation of points to particular competency items determined?

PN104

MS DEVASIA: That was an exercise that was undertaken during the initial 2005 decision, when the points were allocated based - - -

PN105

DEPUTY PRESIDENT GOSTENCNIK: No, I understand - sorry, again perhaps I'm being imprecise. As I understand the AMWU's proposal, it proposes to include a number of - apart from deleting obsolete items including a number of new items/

PN106

MS DEVASIA: Yes.

PN107

DEPUTY PRESIDENT GOSTENCNIK: Attached to each of those items is a weighting.

PN108

MS DEVASIA: Yes.

PN109

DEPUTY PRESIDENT GOSTENCNIK: How is that weighting arrived at?

PN110

MS DEVASIA: The weighting is taken from the hours of training required for that particular competency. That was the process that was undertaken initially at one point. The points that we took were from - within the code we were aligning it to the initial number that reflects either the complexity or the hours of training undertaken.

PN111

DEPUTY PRESIDENT GOSTENCNIK: Well how does that align with the points rating set out in 23.6(a) of the award?

PN112

MS DEVASIA: That was how we have - that's how the initial points were allocated, yes, in the - - -

PN113

DEPUTY PRESIDENT GOSTENCNIK: Well whether that's the case or not, how does that align with - you suggest that determining the value of the points is made by reference to the hours of study or construction in relation to a particular competency. The evaluation of points in 23.6(a) seems to be assigned to the level of skill that is whether the competency is a basic production skill, whether the competency is a basic trade level skill and so forth.

PN114

MS DEVASIA: That's correct.

PN115

DEPUTY PRESIDENT GOSTENCNIK: It's a skill based assessment not an hours of study based assessment.

PN116

MS DEVASIA: No, it's not an hours of study based and in fact I was talking about the value that was placed on the competency within the training package. That's how those numbers were allocated in the training package. For each training package there's a particular number. When we assigned we looked - we mirrored - we basically sat down and we mirrored each competency that was put into the 2005 and assigned a point - used 23.6, and what was reflected in the current training package.

PN117

For example, there are certain units that are about setting up a basic print lithograph. The points that were assigned in 2005 was done using 23.6. That same rationale was used if the existing competency in the new package was of the same type of competency we kept the same points, and for those that may have changed a little bit we used the same points that were allocated in the 2005 package was transplanted to the new package. So there hasn't been a massive variance of points that have been allocated. It's a mirroring exercise. We haven't reinvented the wheel.

PN118

DEPUTY PRESIDENT GOSTENCNIK: Well accepting for a moment a mirroring exercise vis-a-vis comparable competencies, you are proposing to insert some additional or new competencies.

PN119

MS DEVASIA: Only three.

PN120

DEPUTY PRESIDENT GOSTENCNIK: You are re-evaluating a number?

PN121

MS DEVASIA: Yes.

PN122

DEPUTY PRESIDENT GOSTENCNIK: It seems to me that that's a work value exercise. That is, you are making an assessment as to the value of that competency vis a vis the work, for the purposes of then determining whether or not a person is appropriately classified. My question is what's the evidentiary basis upon which we can be satisfied that the number that you assign each competency is in fact justified?

PN123

MS DEVASIA: I don't have that evidence before you, Commissioner.

PN124

DEPUTY PRESIDENT GOSTENCNIK: Well isn't that a difficulty for you?

PN125

MS DEVASIA: Yes, it would be. It would be because we don't consider it to be a work value exercise. It was basically - this was started off as a technical update that became an exercise of this sort.

PN126

DEPUTY PRESIDENT GOSTENCNIK: Well that might be satisfactory in circumstances where there's agreement.

PN127

MS DEVASIA: I agree.

PN128

DEPUTY PRESIDENT GOSTENCNIK: But there's not. So we have to then make a judgment about whether or not the assessment or the assignment of a value is appropriate. That is usually done on an evidentiary basis. In any event, and perhaps I'll go to what might be the logical conclusion is then you start with proposition that schedule C is outdated and no longer meets the modern award objective, arguably it didn't meet the modern award objective when it was inserted in 2010, given by that stage it was likely to have been out of date also.

PN129

But put that to one side, so if it doesn't meet the modern award objective then it shouldn't be there, which is Mr Smith's point. You seek to replace it with an updated model and as I say to the extent that you propose changes to the value in methodology or the value in ratings in respect of particular competencies, there needs to be some evidentiary basis upon which we could be satisfied that it's appropriate to assign the value that you say ought be assigned.

PN130

MS DEVASIA: In the event that although there are some values that have been assigned for the new competencies, overall because of the deletions to certain competencies that were within the schedule, such as those that were a myriad of five or six that have become condensed into one, we have essentially a - it's not swings and roundabouts but there's been a transference of those points. So in our view it doesn't necessarily detract from the utility of the schedule being in the award for the purpose of the conflict resolution, or the issues as to classifications that may be a problem for those who don't have formal qualifications.

PN131

DEPUTY PRESIDENT GOSTENCNIK: Yes, but in order for it to be an appropriate tool, again we need to be satisfied that the points valuation is appropriate. Do we not?

PN132

MS DEVASIA: Yes, that's correct.

PN133

DEPUTY PRESIDENT GOSTENCNIK: There needs to be some evidentiary basis upon which such a decision can be made, both in respect of the existing and in respect of the - looking at your draft determination, for example, I take it that anything that's in yellow is new?

PN134

MS DEVASIA: Yes.

PN135

DEPUTY PRESIDENT GOSTENCNIK: There's quite a significant number particularly at 3 and above that are said to be new.

PN136

MS DEVASIA: Yes.

PN137

DEPUTY PRESIDENT GOSTENCNIK: The weighting that has been assigned to those new matters, accepting that they are in the - derived from the relevant competency document and are relevant to classifications in this award, let's take that as accepted for argument's sake. The weighting is a product of presumably discussions between you and the Printing Industry Employer Association. Is that right?

PN138

MS DEVASIA: Yes, that's right.

PN139

DEPUTY PRESIDENT GOSTENCNIK: There's no evidentiary basis upon which we can be satisfied that, for example, research and apply graphic design techniques is appropriately weighted at 4.

PN140

MS DEVASIA: I understand.

PN141

DEPUTY PRESIDENT GOSTENCNIK: Yes. That's a difficulty that I'm raising with you that you'll need to overcome, and whether that requires - you know, whether it's necessary for you to seek leave to lead that evidence then you ought to make that application. I apprehend that there's a bit of a difficulty for you.

PN142

MS DEVASIA: I understand that, your Honours. I think that would probably - if I could just seek some instructions.

PN143

DEPUTY PRESIDENT GOSTENCNIK: Right. Well look, do you want a 15 minute adjournment or so?

PN144

MS DEVASIA: Yes, please.

PN145

DEPUTY PRESIDENT GOSTENCNIK: Any objection to that course, Mr Smith?

PN146

MR SMITH: Not the adjournment, your Honour, but we would strongly object to additional evidence.

PN147

DEPUTY PRESIDENT GOSTENCNIK: No, I understand. I understand the point.

PN148

MR SMITH: Thank you.

PN149

DEPUTY PRESIDENT GOSTENCNIK: Well look, we'll stand the matter down for 15 minutes.

SHORT ADJOURNMENT [10.27 AM]

RESUMED [11.00 AM]

PN150

DEPUTY PRESIDENT GOSTENCNIK: Yes, Ms Devasia.

PN151

MS DEVASIA: Thank you, your Honours. I've obtained some further instructions and I would - basically what we would be submitting is that there is no application at the moment before the Commission to increase any points. The work value has not changed. The points that are aligned - that are presented in the schedule are aligned with the AQF qualification in which the first appear. So the unit of competency has been assessed by the developer of the training package, whether it's Ipsum or PwC as it currently stands. Then aligned to the particular value according to the certificate value where they first appear. That is where the points arise from.

PN152

DEPUTY PRESIDENT GOSTENCNIK: Sorry, you might want to just take me to the original source document for that proposition.

PN153

MS DEVASIA: I can't do that right now, Commissioner, obviously but - excuse me, your Honour, so we would be asking for an opportunity to present that evidence in the shortest time possible, by way of a witness statement from the developer of the particular package.

PN154

DEPUTY PRESIDENT GOSTENCNIK: Yes, all right.

PN155

MS DEVASIA: There is no formal document or any source material that I can point to directly that has these points aligned. What happens when the points are created is that it's done at the developer stage, so at this instance, at the moment it's PwC's skills that makes those decisions about what those points are aligned - what those points are created for.

PN156

DEPUTY PRESIDENT GOSTENCNIK: You say that was the method adopted in 2005. Is that essentially your proposition?

PN157

MS DEVASIA: Yes. It was a negotiated outcome as I understand it over eight years of negotiations that they went through where there were - initially when points were first created in addition to negotiations between the PIA and AGI when those points were put into the schedule.

PN158

DEPUTY PRESIDENT GOSTENCNIK: In any event, you're making an application effectively that the proceedings be adjourned, that you be allowed to re-open your case and file some evidence?

PN159

MS DEVASIA: That's correct.

PN160

DEPUTY PRESIDENT GOSTENCNIK: Mr Smith, would you like to be heard on that proposition?

PN161

MR SMITH: If the Bench pleases, we very strongly oppose that course of action. We filed a detailed written submission and a witness statement on 15 October. That as the Bench is aware was after about two years when this issue was floating around. We've had numerous discussions with the AMWU, we've asked for clarity. We finally after a length period got the draft determination that the AMWU ended up submitting. But just in terms of the formal part of the proceedings, we filed extensive materials on 15 October. The AMWU had a period to present their evidence and submissions in reply. They asked for an extension. We agreed to an additional five days and all of these issues - there's a whole chapter of our submission on work value where we make the point that the Commission has no jurisdiction to grant this amendment because of work value considerations.

PN162

Now in the written submissions that were filed in reply, you know, a little bit later than 5 pm on that day but on that same day, there wasn't even any mention of work value. When we'd set out in a whole chapter the work value issues. We've highlighted in great detail all of the issues, we've called Mr Murray to give evidence about all of those issues surrounding the problems with what is being proposed. We even filed a document back in June which analysed that draft determination, identified the additional units and so on. Now for the AMWU to come along after filing a couple of pages in their reply submission that really didn't go to any of the issues that we raised in our extensive materials, and now asking for an opportunity to present further evidence, that would be extremely unfair in our submission to grant that application. If the Commission pleases.

PN163

DEPUTY PRESIDENT GOSTENCNIK: Yes. Ms Devasia.

PN164

MS DEVASIA: If I may, your Honours. We reject the idea that this is actually a work value case. When we look at 17.3 in table A of the award, those entry level points don't alter. The points that we are proposing - - -

PN165

DEPUTY PRESIDENT GOSTENCNIK: Sorry, which clause?

PN166

MS DEVASIA: 17.3.

PN167

DEPUTY PRESIDENT GOSTENCNIK: No, but the proposition that's being advanced and this was the gist of Mr Murray's evidence is that when you alter the value assigned to a particular matter from a 4 to a 5, for example or from a 4 to a 3, that effects in a cumulative sense the value of that vis a vis assigning particular points to determine what classification a person should be at. That's an alteration, whether it's described as work value or otherwise. It's nonetheless an alteration that impacts upon someone's entitlement to a particular classification. Presumably, there is a differential work value between Grade 1 and Grade 2 and Grade 2 and Grade 3 and so on. So when the accumulation of the points affects that adjustment, what would be 27 points becomes 28 points, for example, because of an alteration of a particular items that affects the value of that particular skill. That's the point that Mr Murray made. I think that's the point that Mr Smith makes.

PN168

MS DEVASIA: Yes, I understand, Commissioner.

PN169

DEPUTY PRESIDENT GOSTENCNIK: I suppose, Ms Devasia, that various Full Benches in dealing with modern award review matters have made the point that where a party advocates a change, it's incumbent on them to bring forth some evidence to support the change. Our directions expressly contemplated you filing, not only submissions but witness statements and any other documents on which you intend to rely.

PN170

MS DEVASIA: Yes, Commissioner.

PN171

DEPUTY PRESIDENT GOSTENCNIK: Perhaps you misunderstood the case you were trying to advance but it's - for my own part, I'm not unsympathetic to the proposition that Mr Smith has been advancing opposing the grant of an adjournment, but in any event is there anything else you want to say about that issue?

PN172

MS DEVASIA: No.

PN173

DEPUTY PRESIDENT GOSTENCNIK: Yes, all right. We might just adjourn for five minutes to consider your application.

PN174

MS DEVASIA: Thank you.

SHORT ADJOURNMENT [11.09 AM]

RESUMED [11.24 AM]

PN175

DEPUTY PRESIDENT GOSTENCNIK: Yes, very well. Look we have had an opportunity to consider the application. Very reluctantly we are inclined to grant the application. We propose to sit further on 10 December in Sydney, commencing at 12 noon and on that basis we will make directions that the AMWU file any witness statements and evidentiary material on which it intends to rely by Thursday - 5 pm Thursday, 15 November. Any other party opposing - sorry, any other party opposing the AMWU's application to file any further material by 29 November and the AMWU file any reply material by 6 December.

PN176

Mr Smith, can I just raise one matter with you and that concerns the way in which the Ai Group propose the award be varied, and neither party should take this as a concluded view as to the merits of the proposal. But I should indicate, Mr Smith, our preliminary view is that if one is to assign classification values absent schedule C, we would be reluctant to have a classification definitional structure in schedule B, which is based solely on - at the relevant classification levels a QF certificate or equivalent training. We would want there to be some consistency with the approach adopted in other awards where equivalent industry experience, knowledge et cetera are taken into account in assessing.

PN177

MR SMITH: Your Honour, could I just check that the Bench understands what we're putting in that regard. Because there's actually three pathways to classification under this award.

PN178

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN179

MR SMITH: There's the indicative tasks - - -

PN180

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN181

MR SMITH: - - - which virtually every award has got and it's by far the main method of classification under the modern award system. There's formal qualifications which a bit like quite a few awards but certainly not the majority have where the formal qualification is a pathway to classification automatically, as long as - as Mr Murray was saying, the person that holds that qualification is using the qualification in the job.

PN182

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN183

MR SMITH: Then there is the convoluted unused system in schedule C. So what we are proposing is not that - you know, if the AMWU is right then there's 40 something per cent of people who don't have a formal qualification. That's not going to make any difference at all to classification, because all of the evidence and submissions point to the fact no one's using schedule C, and that the indicative tasks in schedule B are the main way that people are being classified. So it wouldn't leave anymore work to be done by the formal qualifications than what is being done now.

PN184

DEPUTY PRESIDENT GOSTENCNIK: I do understand that. It's just that by eliminating the schedule C and accepting for a moment that it hasn't served any particular function as a dispute resolution mechanism, it nonetheless is as things presently stand intrinsically linked to the salary classification structure, because it's there.

PN185

MR SMITH: Yes.

PN186

DEPUTY PRESIDENT GOSTENCNIK: Removing that will just leave the certificate qualification and indicative task to assess, which appears to be inconsistent with the approach adopted in other awards which have a three layered approach that is indicative task - sorry, relevant certificate qualification or equivalency in industrial experience et cetera.

PN187

MR SMITH: So is the point, your Honour, that where it talks about the qualification - - -

PN188

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN189

MR SMITH: - - - it may need the words "or equivalent" on the end, which is, you know, I take the point that is in a number of other awards.

PN190

DEPUTY PRESIDENT GOSTENCNIK: At the moment it's equivalent training qualification, which is a confined species, whereas the approach adopted in most awards is equivalence relative to not only equivalent training but also equivalent industry experience. Equivalent in value to the qualification.

PN191

MR SMITH: We'll certainly have a think about that issue, your Honour.

PN192

DEPUTY PRESIDENT GOSTENCNIK: Yes, have a think about it.

PN193

MR SMITH: There's actually a definition of or equivalent in the Manufacturing Award that's been contested over the years.

PN194

DEPUTY PRESIDENT GOSTENCNIK: I understand. Yes, I understand.

PN195

MR SMITH: But we understand the point, thank you.

PN196

DEPUTY PRESIDENT GOSTENCNIK: Right. Ms Devasia, we will also be assisted in the AMWU providing us with a more firm number of employees in the industry who are covered by the award who don't have a formal qualification.

PN197

MS DEVASIA: Understood, Commissioner.

PN198

DEPUTY PRESIDENT GOSTENCNIK: Rather than the - and I'm not being critical of this, but rather than the guesstimate that you gave earlier.

PN199

MS DEVASIA: Yes.

PN200

DEPUTY PRESIDENT GOSTENCNIK: We'll adjourn on that basis. We'll publish some directions shortly as I have indicated. Thank you.

ADJOURNED INDEFINITELY [11.31 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

DANIEL ALAN MURRAY, AFFIRMED........................................................... PN16

EXAMINATION-IN-CHIEF BY MR SMITH..................................................... PN16

EXHIBIT #1 WITNESS STATEMENT BY DANIEL ALAN MURRAY DATED 15/10/2018................................................................................................................................... PN26

CROSS-EXAMINATION BY MS DEVASIA..................................................... PN27

RE-EXAMINATION BY MR SMITH................................................................. PN74

THE WITNESS WITHDREW.............................................................................. PN83