TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1049205-1

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
VICE PRESIDENT CATANZARITI
SENIOR DEPUTY PRESIDENT HARRISON
COMMISSIONER CARGILL

C2013/5139 and C2013/6333

s.302 - Application for an equal remuneration order

United Voice; Australian Education Union
(C2013/5139)

and

Independent Education Union of Australia
(C2013/6333)





Sydney

1.06PM, TUESDAY, 19 NOVEMBER 2013

Continued from 24/09/2013

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN SYDNEY

PN455

JUSTICE ROSS: Could I have the appearances, please, firstly in Sydney.

PN456

MS C. HOWE: May it please the commission, I continue my appearance for United Voice and the Australian Education Union.

PN457

JUSTICE ROSS: Yes.

PN458

MR I. TAYLOR: If it please the commission I am here for the Independent Education Union with MR L. ANDELMAN.

PN459

MR L. ANDELMAN: I appear for the Commonwealth and (indistinct)

PN460

MR N. WARD: Your Honour, I continue my appearance for the Australian Chamber of Commerce and Industry, ABI and CCCA.

PN461

MS G. VACCARO: Your Honour, I continue my appearance for the Australian Industry Group, Vaccaro, initial G.

PN462

MR S. FORSTER: Your Honour, my name is Forster, initial S., for the Australian Federation of Employers and Industries continuing my appearance.

PN463

JUSTICE ROSS: Yes, Mr Forster.

PN464

MR A. DANSIE: If it please the commission, Dansie, initial A., from the Local Government Shires Association of New South Wales and State and Territory Local Government Associations.

PN465

JUSTICE ROSS: Thanks, Mr Dansie.

PN466

MR J. GUNN: Your Honour, Gunn, initial J., for Community Connections Solutions Australia.

PN467

JUSTICE ROSS: Thank you.

PN468

MR L. BURKE: Your Honour, Burke, L. appearing for AIS New South Wales, AIS WA, AIS Tasmania, AIS South Australia.

PN469

JUSTICE ROSS: Thank you. Anyone else from Sydney? In Brisbane?

PN470

MR C. HARDY: If it please the commission, I continue my appearance, Hardy, initial C., and with me is our representative MR M. COONAN.

PN471

JUSTICE ROSS: Thanks.

PN472

MR A. SHINGLES: And Shingles, initial J. of Livingstones and (indistinct) initial L appearing today on behalf of the Australian Child Care Centres Association, Industrial Organisation (indistinct) Good Start Early Learning and the Creche and Kindergarten Association Ltd.

PN473

JUSTICE ROSS: Thank you. And anyone else in Brisbane, no? In Melbourne?

PN474

MR M. RIZZO: Yes, your Honour, Rizzo M. continuing my appearance on behalf of the ASU.

PN475

JUSTICE ROSS: Anyone else in Melbourne? Anyone in Perth?

PN476

MS J. MURPHY: Yes, your Honour, Murphy initial J. on behalf of the Chamber of Commerce and Industry of Western Australia.

PN477

JUSTICE ROSS: Thanks, Ms Murphy. And in Adelaide?

PN478

MR H. WALLGREN: Your Honour, Wallgren, initial H. for Business Sa.

PN479

JUSTICE ROSS: Okay, thank you, Mr Wallgren. Now, we distributed draft directions and a timetable on 8 October and indicated that the matter would be listed for further mention and direction today. The purpose of today is to provide parties with an opportunity to address the list of issues in attachment A and to finalise the timetable in relation to - that’s set out in attachment B and to deal with any interlocutory issues. We’ve received some correspondence which has been posted on the web site from the Australian Government Solicitor on behalf of the Commonwealth, the Independent Education Union and the Australian Community Services Employers Association.

PN480

In the Independent Education Union’s submission they raise one interlocutory matter and that seems to be the only interlocutory matter and that is seeking a direction that the IEU’s application be joined and heard together with the application of United Voice and the Australian Education Union. They go on to say that to the best of their knowledge no party in the proceedings is opposed to the joinder of applications. Can I just test that proposition: is anyone opposed to the joinder of the IEU’s application with the other two matters before us?

PN481

MS HOWE: I do need to say something about that, if it please the commission. I must say I’m not sure exactly what joinder means in this context.

PN482

JUSTICE ROSS: Look, I think we don’t need to get into a debate about what the legal consequences of joinder are. It’s really whether the application will be heard together with the others.

PN483

MS HOWE: Yes, we have no objection to that, if it please the commission. We just think joinder is a different issue.

PN484

JUSTICE ROSS: Sure, if it was in a court proceeding, joinder might have a consequence as to costs. It might also have a consequence as to the evidence in respect of one of the applications being the evidence in respect of the other but I think we can safely put that matter aside for the moment and we can deal with it on the basis of what’s sort is that that application be heard with the other.

PN485

MS HOWE: We have no difficulty with that, if it pleases.

PN486

JUSTICE ROSS: Okay.

PN487

MR BURKE: Your Honour, I have not seen the draft orders of 8 October but I am happy to proceed on the basis that hopefully there won’t be any prejudice to the AIS as they’ve only been joined by the IEU application.

PN488

JUSTICE ROSS: The draft directions were on the web site. There was a process outlined before - perhaps if we deal with it this way - if you can raise it with my associate once we adjourn and we’ll just make sure that, if for some reason you don’t have access to the web site, we’ll deal with that.

PN489

MR BURKE: Yes, your Honour, I’d actually gained access to the web site and I couldn’t actually see the orders but perhaps I may have missed them.

PN490

JUSTICE ROSS: Okay, all right, we’ll, we’ll come to it but your position won’t be prejudiced. If anyone needs more time you’ll be given more time.

PN491

MR BURKE: Thank you, your Honour.

PN492

JUSTICE ROSS: So is there anyone else in any of the states - you don’t need to say that you agree but I’m really interested in whether anyone is opposed to the IEU’s application being heard with the others? Okay, no? Was there anything you wanted to say about that, Mr Taylor?

PN493

MR TAYLOR: Just one thing, as a matter of correction I don’t think anything arises from it but in our submission we indicated the ambit of our application lay wholly within the scope of the terms of the original application; that is it lays wholly within the terms of the original application but, as Mr Burke has effectively foreshadowed, the amended application was made by United Voice and the AEU and seeks to not extend so far as long day care centres operated by independent schools. Our application does extend to long day care centres run by independent schools.

PN494

The only other thing I’d say is at an appropriate time, I don’t seek to do it now, I anticipate that we will seek direction with evidence in one matter, the evidence in the other, but I don’t seek that direction at this stage.

PN495

JUSTICE ROSS: Okay, all right, then the IEU’s application will be heard with the other applications. Can we now turn to the draft directions and timetable and here from any party who wishes to say anything about those. We’ve heard from the Commonwealth in relation to the two weeks being too short. Can we indicate, or give an indication, that we’d be inclined to extend the time and I think it’s suggested four or six but if we start with four and see where we go from there, so if that was a concern to other parties you can take it that we’d be amenable to address it that way. We can start in Sydney. Who would like to go first?

PN496

MR FORSTER: I’m happy to go first, your Honour. I note what you’ve just said a moment ago about four weeks being a more appropriate time for employer parties or parties responding to the application to file their materials following on from the applicant’s early next year. I just wanted to say that was the primary submission that I intended to make today that that was appropriate. These proceedings, although they relate to the long day care industry, a subsector of the early childhood education and care sector, the way that the proceedings are shaping thus far it does appear as though there could perhaps be broader implications based on what comes out of the determination of the legislative framework.

PN497

There are some conceptual framework issues early next year too and so the point we wanted to raise there, based on our experience from the last ERO application that AFEI were heavily involved in and, also bearing in mind some of the items that are likely to come up next year for our organisation, the four-yearly review, and participation in the pay equity inquiry into this particular sector, there will be a lot on our plates as I’m sure there will be on everybody else’s and so it is appropriate that that time be taken and, in addition to that, we note because of the breadth of the issues to be discussed or considered in the first tranche, it is likely to require consultation between AFEI and its members across a much broader spectrum than just the sector that is the subject of the two application by the applicant unions concerned.

PN498

Perhaps I’m pre-empting the unions. It was mentioned by Ms Howe on the last occasion that we were before the full bench that if the employers were to respond to issues concerning the conceptual and legislative framework that the applicant unions might themselves seek an opportunity to reply to that. If that matter is raised today I can indicate that AFEI don’t have any objection to that provided that those materials are provided with sufficient time for us to consider them before any hearing that is conducted.

PN499

JUSTICE ROSS: I mean, the alternative might be that all parties file by the first date their view and then all parties reply four weeks later. Rather than one, the other and then a reply to that and then you might want to reply to the reply, bearing in mind the nature of the issues, it might be a more appropriate process to say all parties can say whatever they wish to say about the issues from the first date and then they’ve got an opportunity to reply to whatever anyone else says on the second.

PN500

It occurs to me, for example, that you may want to reply to what some employer organisation is saying, so can I raise that for all the parties to consider and we’ll work our way through it during the course of the directions hearing. Ultimately we want to be in a position where you know what everyone else has said. You’ve had an opportunity to say something about it and then we’ll have an oral hearing which gives us an opportunity to test with you what your submissions are and it gives you an opportunity to refine what you want to say.

PN501

MR FORSTER: I can indicate that the preference of the Australian Federation of Employers and Industries is to follow a set of directions akin to those already available and that we’re here to discuss. Even though we’ve discussed the broader implications of what will be considered, they don’t arise in a vacuum. They occur as a consequence of two applications that are before this commission that are being determined by these proceedings. We don’t know exactly what it is that the unions will say and I take your point that employers might like to respond to other issues raised by employer parties but it is still our preference that it be conducted in a way where employers have the right to reply to what has been put on by applicant unions first.

PN502

JUSTICE ROSS: Why?

PN503

MR FORSTER: Well - - -

PN504

JUSTICE ROSS: I mean, there’s no issue of onus or anything like that. The fact that everyone puts it in doesn’t mean there’s still sort of a burden of persuasion, if you like. You could choose from your organisation’s perspective to make no submissions on the first date and just reply to the other submissions, if you wish.

PN505

MR FORSTER: Yes, I think the primary concern for AFEI has arisen out of what we construe to be the fairly speculative nature of the applications. At this point in time we haven’t seen comparators identified by the United Voice and the Australian Education - - -

PN506

JUSTICE ROSS: That’s a common thing in some of the correspondence but, bearing in mind, there’s a live debate about whether you need a male comparator at all and that’s put by one of the parties and that’s put in contest.

PN507

MR FORSTER: Yes.

PN508

JUSTICE ROSS: Well, don’t you need to determine that issue before you identify what they are?

PN509

MR FORSTER: Certainly - - -

PN510

JUSTICE ROSS: Can I also say there’s some correspondence saying, “We’re being denied procedural fairness in relation to some of these,” and I’m struggling to see how that’s the case. Well, certainly from the bench’s point of view we’ve made no decision about any of it. We’re just trying to in this early state identify what seem to be some of the matters and there’s no question that the applicants are going to have to put their case. They’re going to have to put their evidence and they’re going to have to address all of the issues.

PN511

If the bench makes the finding in relation to the requirement for a comparator, whether it be a male or a female comparator, and no comparators are identified, well, that might be the end of the applications but we’ve got to decide the first point first.

PN512

MR FORSTER: I think to the extent that the issues have been separated in the way that they have we take no issue with that. For us, what we want to see is an application that discloses the reasonable course for this particular application. We feel as though if the comparators aren’t presented prior to the determination of whether indeed one is required, then the first stage could become something like the blueprint for the applicants in terms of how to run a second stage of the proceedings and that would be of concern to us.

PN513

JUSTICE ROSS: How would it become a blueprint - by telling them what the Act means?

PN514

MR FORSTER: Well, your Honour, the applicants have told us that they have comparators, that they are aware of them, and they are considering a range. We don’t see any reason why that shouldn’t be disclosed to us as early as possible and before the determination of those first matters so that all of us are aware of what it is that we’re going to be responding to.

PN515

JUSTICE ROSS: But you’ll have a reasonable opportunity to respond to the case that’s put on comparators and evidence but you don’t know the extent of that at the moment and, until you know that, how can you say that you’re not going to have an opportunity?

PN516

MR FORSTER: We appreciate that we will have an opportunity beyond at the very least that second stage - the first stage as part of that second stage - but in the absence of disclosing that now should the commission or the full bench ultimately determine that a male comparator is required, well, it might be that that becomes the opportunity for the applicants to develop that further and to actually decide upon what that is so in a sense the application is made now without that in mind and we’d like to know if they have it in mind and what it is.

PN517

JUSTICE ROSS: Anything else?

PN518

MR FORSTER: Just very quickly on - I don’t know if other parties plan to address you on the draft timetable that was filed by them I think on 15 November.

PN519

JUSTICE ROSS: This is for the second stage?

PN520

MR FORSTER: Yes, just a - - -

PN521

………..: No, I think that’s a bit premature.

PN522

JUSTICE ROSS: Well, I think we’ll probably deal with that in a conference before a single member and see how that goes.

PN523

MR FORSTER: Thank you, if it pleases.

PN524

MS HOWE: Your Honour, could I just say something about the timetable that deals with legal issues? In general we have no difficulty with that timetable but we will submit that the variation which your Honour proposed is more appropriate than attachment B, that is all parties have the opportunity to put submissions on the legal issues and then all parties have the opportunity to reply. The reason I make that submission is that, whilst we have no difficulty with the issues identified, a lot of those were not identified by us because we may well have nothing to say about some of those issues until we know what’s really advanced by those who want the commission to deal with those issues. So from our perspective it makes sense that everyone has the opportunity to put what they wish to and everyone has the opportunity to reply at the same time.

PN525

JUSTICE ROSS: Okay.

PN526

MR C. MASSY: On behalf of the IEU can I just echo what Ms Howe has just said. I think there’s a lot of sense in the first stage which does not require in a sense any particular bodies, being the applicants, and for all the parties to put submissions and any opposed to respond. The suggestion that’s been made that it’s important for respondents to see what the applicants have said before they respond seems to be one that has a lot, of course, when it comes to the stage when we’re dealing with the evidence and submissions in support of a particular application and it doesn’t seem to be an appropriate method to proceed to what seems to be the first stage.

PN527

As for the need for a second stage, I hear what your Honour has said about that perhaps being done by a single member - - -

PN528

JUSTICE ROSS: No, I didn’t mean the second stage to be done by a single member.

PN529

MR MASSY: No.

PN530

JUSTICE ROSS: I meant that the timetabling issues can best be done in a conference setting to have further discussions around that issue.

PN531

MR MASSY: Sorry, your Honour, that’s what I meant to say. That seems a sensible approach. You have seen why my client is concerned that if at all final dates can at the very least be preserved for the second half of the case. My client certainly has a strong desire to have the case heard and determined if at all possible during the course of next year and we are concerned that if dates aren’t preserved, if we only come to consider dates next year, that might then - - -

PN532

JUSTICE ROSS: Okay. Mr Ward.

PN533

MR WARD: Your Honour, if the commission pleases, can I just make this observation firstly about the issues in attachment A? We’re very content with the scope of the issues. We believe they’re good enough to allow any party to agitate largely whatever they want to agitate. If any party wanted to add an issue to that because they felt it was too narrow, we wouldn’t oppose that, but we don’t see any benefit in debating some tactical refinements of those issues. We think they’re broad enough to comprehend what most people want to argue.

PN534

The question of the timetable for us is simply a matter of fairness. Perhaps the learnings from the Sachs case are that you can’t presume that unions are on one side and the employers are on the other.

PN535

JUSTICE ROSS: Yes, that’s already becoming apparent.

PN536

MR WARD: I always thought it was that side that fragmented, not ours, but it might be the case. We have no difficulty with what the bench has proposed as an alternative in the sense that it preserves fairness to all parties, that is everybody sees the submissions in chief at the same time and everybody will have an opportunity to reply to everybody should they choose to and, on that basis, if some people come out of the woodwork for or against a particular interest, it allows us to dispose of that in an orderly way rather than coming back and saying, “Well, we actually need to reply to these people. We didn’t think we had to.”

PN537

The only thing we would say about that though is that we support the Commonwealth desire for more time which your Honour has already addressed. We might simply question whether or not the 14 February date might be nudged out a little bit for the first submissions to be filed. I simply say it for this reason. It’s possible that the unions might have already commenced getting ready for that date. We ourselves only started last week so we might be a little bit behind the eight ball for meeting on 14 February, so if the 14 February date could move a little bit and, as your Honour suggested, you move the second date as well, that might just be a little helpful. A couple of weeks would make probably a world of difference given the Christmas break and the January shutdown that most people go for.

PN538

JUSTICE ROSS: Yes.

PN539

MR WARD: Can I raise one issue just by way of clarification to avoid anybody being ambushed in February? We have taken direction to - 8 October directions - which referred the filing of submissions to mean exactly that: submissions. We had assumed that didn’t mean that we would be beset by 20 academic reports or materials of that nature. We assumed it was simply submissions. To the extent that those submissions need to refer to relevant authorities we presume they will do, but we didn’t see it was submissions and other materials.

PN540

JUSTICE ROSS: Yes.

PN541

MR WARD: I just think that that would be useful to ensure that no particular party tries to bring to the table a very large volume of what might be described as evidentiary-style materials to support their submissions. I think some clarity on that is required.

PN542

JUSTICE ROSS: The nature of the issues are legal.

PN543

MR WARD: That’s how we take it, your Honour.

PN544

JUSTICE ROSS: Well, speaking for myself that was the basis on which I was proceeding as well and there would be, as you say, submissions about each of those issues. They might draw on other material in argument but ultimately they’re legal questions and you develop the argument and my own preference would be for it to be a fairly focused argument.

PN545

MR WARD: If your Honour pleases. Can I just take up this question of comparator and I say this with some care. The unions plead their case how they see fit. The unions have obviously pleaded in their case specifically or by inference some consideration of a comparator. For our part, and we said to this his Honour the vice-president in the conferences, the question of the comparator is both a fairness question and an efficiency question. As to the fairness question, in our view at the very least the comparators, if they’re to be relied upon, will need to be made known to respondent parties before we set the timetable for the evidentiary hearing so we understand the case to be answered how.

PN546

As to the efficiency issue, that seems to be more about the objective data research undertaken by the Pay Equity Unit which comes out of the round table. I think the directions have already covered that issue in that there is potentially some fluidity in those directions pending on what is volunteered or not volunteered at various times but we tend to see the comparator issue in that. We’re curious to see what they are. We would have loved to have seen them. I’m not sure we might have been able to plead our case that way but we need to make sure that then this issue is properly addressed and at this stage in the directions in our view it is addressed.

PN547

JUSTICE ROSS: I think it’s a reasonable proposition to advance it on the basis of both fairness and efficiency and, bearing in mind the observations by the IEU and their desire to have it dealt with next year, I think that objective is more likely to be realised if the matter is resolved at an earlier stage.

PN548

MR WARD: Yes.

PN549

JUSTICE ROSS: And you can have that discussions when you’re discussing the directions in relation to the second part but I don’t think it would be an unreasonable proposition for the employers to put, well, “How do we lock in dates when we don’t yet know - and how can we estimate how long we’re going to be when we don’t yet know what you’re going to be doing,” so the union parties will need to consider those issues. For our part, we’ll be focused on the fairness aspect of it and the efficiency questions we dealt with on the last occasion around if we don’t know - or if the Pay Equity Research round table isn’t informed by comparators how can they get the date and all of that is logical so I think they’re heard what you’ve said and they’ll need to have some discussions amongst themselves as well in an endeavour to accommodate your position.

PN550

MR WARD: And it probably goes without saying that we adopt your Honour’s view that until we know how the case is probably pleading we can’t really respond to the possibility of setting or reserving dates.

PN551

JUSTICE ROSS: Yes - no, I follow that, yes.

PN552

MR WARD: If the commission pleases.

PN553

JUSTICE ROSS: Anyone else in Sydney.

PN554

MR DANSIE: Just very quickly, your Honours and Commissioner, I had originally planned on having a slightly different position but having now heard from all the parties we are attracted to the idea of having common dates for all parties to put in in relation to what they would like to say on the legislative contextual framework and then the parties having to reply.

PN555

In terms of comparators, again just reinforcing what Mr Ward said first, we feel that it is again important for comparators to be laid out fairly long. In terms of the role of the Pay Equity Unit we would suggest that it’s not necessary to make any directions in relation to the Pay Equity Unit perhaps with the exception of having a round table where the parties can get a better understanding of what is capable of being achieved by the Pay Equity Unit.

PN556

JUSTICE ROSS: And I suppose, look, subject to the observation I made on the last occasion that if matters emerge in practice that create an apprehension or a concern in any party about the work the unit is undertaking, then there’s liberty to apply to bring the matter back in the event that a direction is needed but let’s see how we go.

PN557

MR DANSIE: Yes, thank you.

PN558

MR GUNN: Your Honour, if it please the commission, I’d just like to make a few comments in response to the IEU’s correspondence of last week.

PN559

JUSTICE ROSS: Yes.

PN560

MR GUNN: Your Honour, it’s CCSA’s view firstly to the conceptual framework it does need to be sufficiently broad-ranging to ensure that we avoid any relevant issues not being considered prior to the evidentiary case. We’d also note that so far today most parties have supported the statement of issues as they stand. The IEU, however, has suggested that any issues that turn on matters specific to the current applications should by the outcome at the first stage of proceedings to then further it by two specific questions that turn on these matters, question 16 and question 23.

PN561

It’s our position that those questions are actually related questions, that is if the applications are meant to be restricted to a certain class of female bodies can the commission only apply the ERO to that class or not?

PN562

JUSTICE ROSS: Yes.

PN563

MR GUNN: The IEU have managed to broaden question 16 in a way that we would support by proposing (indistinct) in this case. We would (indistinct) question 23 by rewording it to avoid specific reference to this case, words to the effect of, “Does the legislative intent of Part 2-7 of the Act contemplate that the making of the equal remuneration order should be made out if it will be an unequal remuneration between an enterprise or industry between the employees of the same classification under the same award performing the same duties.”

PN564

JUSTICE ROSS: Can I just get you to go over that again?

PN565

MR GUNN: Yes, your Honour, “Does the legislative intent - - -“

PN566

JUSTICE ROSS: Question which - 23, yes. That’s the legislative intent.

PN567

MR GUNN: “ - - - of Part 2-7 of the Act contemplate that the making of an equal remuneration order should be allowed if it will create unequal remuneration within an enterprise or industry between employees of the same classification under the same award performing the same duties” - or similar words to that effect, your Honour, attempting to take that question out of the specifics of
the - - -

PN568

JUSTICE ROSS: Yes, I follow, and you achieve the same objective by removing in this case from 16?

PN569

MR GUNN: Yes, we would say, your Honour.

PN570

JUSTICE ROSS: Yes, all right, I’ve got it.

PN571

MR GUNN: And thirdly, your Honour, that question 16 and 23 aren’t being created because the particular way in which the applicants are framing the case I would say, for example, a whole issue of comparators for the union to … and all of the questions and all of the issues that we have had to look at in this first phase are related to comparators. Finally, your Honour, in regards to timetabling CCSA would support the full bench in alternative approach. They would also support Mr Ward’s request for a slight moving out of 14 February date, if it please the commission.

PN572

JUSTICE ROSS: Thanks.

PN573

MS VACCARO: Your Honour, just finally I don’t have much to say other than we support or we don’t oppose the alternative approach that you’ve put and support the submissions put by my friend Mr Ward particularly in the nudging out of that 14 February date.

PN574

JUSTICE ROSS: Okay, thank you.

PN575

MR BURKE: Your Honour, I don’t have anything further to add to what Mr Ward said about extending the time line out at all.

PN576

JUSTICE ROSS: Okay, thank you. Anyone else from Sydney, no?

PN577

MS HOWE: Your Honour, if it please the commission, could I just say something briefly about comparators and it has been raised on a couple of occasions and maybe some of the other subjects since they may be raising it too. On the last occasion we did foreshadow that prior to the round-table meetings we would identify on a provisional basis the comparators we would seek to rely on. We also indicated that we wouldn’t be in a position to finalise them at that stage because the ultimate choice as to which comparators we rely on may be governed by some degree by the outcome of the legal issues but noting of course that the equal remuneration report suggests that you might not need any comparators at all. There’s an intermediate position that you don’t necessarily need male comparators and then there’s the position advanced by other parties that you do need a male comparator so we anticipate that we will be relying on comparators and we anticipate we will be identifying those prior to the round-table discussions and no-one has indicated to us that that would prejudice them in any way.

PN578

JUSTICE ROSS: Right, anyone else in Sydney, no? In Perth, Ms Murphy?

PN579

MS MURPHY: Your Honour, we would simply just endorse the comments made by Mr Ward.

PN580

JUSTICE ROSS: Fine. Thank you. In Adelaide? Mr Wallgren?

PN581

MR WALLGREN: Nothing further, except that we support the submissions by Mr Ward.

PN582

JUSTICE ROSS: Okay. In Brisbane?

PN583

MR SHINGLES: Thank you. I suppose from my members' perspective, we're still struggling to see how we can address the legislative framework in a vacuum without knowing what the case is about and what case is being put, otherwise we're dealing with hypotheticals. We would support an extension for five to six weeks for the report back. The only other observation that I'd make to the full bench is that if we've got to trawl through items 1 to 15 inclusive and the union don't deem that some of those aspects are relevant, then from our perspective it's not a very efficient use of our time as far as the respondents are concerned.

PN584

JUSTICE ROSS: Well, it will be a matter for you as to whether you want to make any submissions and it will then be a matter for you as to whether you want to reply to any of the submissions. You can either do it in the first tranche or you can wait and see what comes in, and respond to it. The main thing is that you'll be given an opportunity to address what is said by any party about these issues.

PN585

MR SHINGLES: How long would we have?

PN586

JUSTICE ROSS: That's what we're here for. The indication has been that there will be, you know, a period of four weeks between when the parties say what they wish to say about the issues and when responses are filed. We've heard what Mr Ward has said about some slippage with the first of those dates, perhaps by a week, and we'll give some though to that; but what we want to know is what are you saying. That's the purpose of today, to give you an opportunity to comment on how much time you need and those sorts of issues.

PN587

MR HARDY: Your Honour, we think at least the four weeks would be appropriate.

PN588

JUSTICE ROSS: Okay.

PN589

MR HAYES: One point I did wish to raise with your Honour is in relation to the Pay Equity Unit. I noted the comments that your Honour mentioned before that if something arises, then a party is at liberty to apply.

PN590

JUSTICE ROSS: Yes.

PN591

MR HAYES: Well, our submission - and I've come in late on this, on instructions - the issue that arises for me is that that might deal with questions of actual bias, but your Honour's comments don't address the issue of apprehended bias. I just would like to, for the record, on behalf of ACSEA, reserve that point in relation to apprehended bias.

PN592

JUSTICE ROSS: Sure, but the Pay Equity Unit has taken no action. Are you wanting to run a point now? It's not directed at the Pay Equity Unit. It would have to be directed at us.

PN593

MR HAYES: That's correct, your Honour.

PN594

JUSTICE ROSS: Good.

PN595

MR HAYES: I don't have - it was raised in my client's submissions in writing some weeks ago. I'd just like to make it clear for the record that whilst your Honour is dealing with the question of actual bias, we're reserving the position in the case of apprehended bias.

PN596

JUSTICE ROSS: Reserving what position?

PN597

MR HAYES: To make submissions about apprehended bias, not just actual bias.

PN598

JUSTICE ROSS: Okay. Well, do you want to paint them now? What are you talking about?

PN599

MR HAYES: I don't have instructions, your Honour. I've come in late to the matter, so I will need instructions.

PN600

JUSTICE ROSS: But what does your submission then amount to now? You're just saying that at some stage in the future you might want to run a point?

PN601

MR HAYES: Correct. Just reserving the point, your Honour, yes.

PN602

JUSTICE ROSS: Okay.

PN603

MR HAYES: I didn't want any silence on the actual bias to be accepted as or taken as acceptance of any - on apprehended bias.

PN604

JUSTICE ROSS: You understand that you would be making that submission in relation to the bench, not the Pay Equity Unit?

PN605

MR HAYES: I understand, your Honour, yes.

PN606

JUSTICE ROSS: Okay. Anything else?

PN607

MR HAYES: That's it.

PN608

JUSTICE ROSS: Melbourne?

PN609

MR ……….: Sorry, your Honour. If I may speak on behalf of ACCIA and Goodstart - - -

PN610

JUSTICE ROSS: Yes, sure.

PN611

MR ……….: I just wanted to mention, first of all, in relation to the proposed alternative directions. We wouldn't oppose that common filing date in relation to the conceptual legislative framework and your Honour mentioned that that wouldn't be the same approach taken in terms of the evidentiary matters.

PN612

JUSTICE ROSS: Yes.

PN613

MR ……….: If that's appropriate.

PN614

JUSTICE ROSS: Yes.

PN615

MR ……….: We would support the submission made earlier in relation to a delay in the first date that that alternative direction was to be taken; to delay the 14 Feb date by some time.

PN616

JUSTICE ROSS: Sure.

PN617

MR ……….: I do have submissions to make in relation to the list of issues. Your Honour, would it be appropriate to make those submissions at this stage?

PN618

JUSTICE ROSS: Certainly.

PN619

MR ……….: We do believe that there is a further issue to be addressed in relation to the conceptual framework and it is the issue of what consideration ought be given to previous adjustments to minimum award rates that were intended to address undervaluation either on the basis of a genuine evaluation or work value. There are some references to the considerations for adjustments in award rates in the existing list of issues, but we consider that it's inadequate to deal with that particular matter. In relation to item 11(i), it refers to:

PN620

The history of the award, including whether there have been any assessments of the work in the past and whether remuneration has been affected by the gender of the workers.

PN621

That particular item would address the matter of whether any undervaluation of work can be identified through those previous assessments of work. It doesn't deal with the import of any previous adjustments to rates of pay that have already attempted to address any such undervaluation. If we were to refer to the statement of principles of the Australian Industrial Relations Commission, the work value principles inserted in that statement of principles explicitly dealt with the issue and provided guidance on how to treat previous adjustments that had sought to account for work value changes in the past when making future determinations.

PN622

We consider that that is the principle that ought be addressed in terms of the conceptual framework for the current matter, both because of the circumstances of the current matter dealing with an industry that has had such previous cases and determinations, but also in terms of a standing principle for any future matters that might deal with applications for any directions order. So whilst there is not time in this hearing to press our views in terms of the relevance of those previous pay equity cases, we do put that there should be included in the list of issues the matter of to what extent changes and undervaluation addressed in prior adjustments to award rates should be taken into account.

PN623

JUSTICE ROSS: Can you just read how you would frame the issue? What consideration?

PN624

MR ……….: I would frame it as this, your Honour: to what extent should changes and undervaluation addressed in adjustments to award rates in previous determinations be taken into account.

PN625

JUSTICE ROSS: Okay. Was there anything else you wanted to say?

PN626

MR ……….: No, that's all, if it please the commission.

PN627

JUSTICE ROSS: All right. Thank you. Anything else from Queensland?

PN628

MR COONAN: Just before proceeding to another state, your Honour, items 11(i) through to (iv) were discussed at some length during the 2006 child care case in Queensland here, which fell on the back of the dental assistants case, if it please your Honour.

PN629

JUSTICE ROSS: Okay. Thank you. Can we go to Melbourne?

PN630

MR RIZZO: Yes, your Honour. Just very briefly, we support the timetable as has been - by your Honour and others in discussion. We attended the (indistinct) conference last week. The week before (indistinct) still thinking about that one and we look forward to (indistinct) be clear about what our plans would be, your Honour.

PN631

JUSTICE ROSS: Okay. Thank you. Is there anyone else that I've missed that wishes to say anything?

PN632

MR ANDELMAN: Your Honour, can I just say one thing? On the last occasion I noted that there was a plan to (indistinct) child care centre. That referral has - copies of the terms of reference have been - if the commission wants copies.

PN633

JUSTICE ROSS: Yes. Look, perhaps if you can provide them electronically and what we'll do is put them on the web site.

PN634

MR ANDELMAN: Yes.

PN635

JUSTICE ROSS: What is the report date?

PN636

MR ANDELMAN: 31 October 2014.

PN637

JUSTICE ROSS: Okay.

PN638

MR ANDELMAN: I'll send out to the - - -

PN639

JUSTICE ROSS: Yes, and we will put it on the web site and it will be distributed to everyone with an interest in the proceedings.

PN640

MR ANDELMAN: Thank you.

PN641

JUSTICE ROSS: Okay. If there's nothing further - - -

PN642

MS HOWE: Your Honour, I'm sorry. There is one further issue which I probably should raise and that goes to the issue of the scope of the application. In the last private conference with the Vice President, there was further discussion about the issue of preschools as opposed to long day care centres, and we had hoped to be able to give the commission a definite answer as to whether the scope would be extended to preschools. Because of various issues, we're not in a position to that today, but we would undertake that we can file and serve any amended application insofar as it would extend to preschools, in particular, by 10 December. That gives us a couple of weeks to continue our discussions.

PN643

JUSTICE ROSS: Okay. Are there any employer interests that are not represented here that are going to be interested if it's extended to preschools?

PN644

MS HOWE: I think in fairness there would be, your Honour. Particularly, possibly, state governments.

PN645

MR BURKE: Your Honour, that might also include - if it's not on the application by the IEU - the Independent Schools of Queensland. I think they are named as an additional respondent.

PN646

JUSTICE ROSS: Yes. Why wouldn't those parties be given an opportunity to comment on the issues and the timing? Why has it taken you so long to work out whether it's going to be extended or not?

PN647

MS HOWE: Well, your Honour, part of it has arisen because the IEU application has changed the scope of the global application and we then have to consider what flows from that in terms of there is a narrower group which has been excluded, so it's really - I'm instructed, your Honour, that we could do that within a week, so that might be better.

PN648

JUSTICE ROSS: I'm just concerned to ensure that if you do extend it and there are other interests involved in it, that they have an opportunity to say something about what we've been discussing today and subsequently. Perhaps a way of dealing with that is this: you'll have a week to file any amended document. You should also provide a list of those you believe would have an interest. They would be notified. We will, from today, put together in a draft form directions and issues, and provide a period of time for any party who wishes to say anything finally in relation to that, and that period would overlap - would give at least a week to any new party or organisation that comes into the proceedings to say whatever they wish to say about those matters and then we would finalise it.

PN649

It will elongate the process slightly, but I don't want to not give them an opportunity to say what they wish and if there's a need for a further hearing like this, then we'd consider doing that, as well; but at the moment let's just see what transpires both in relation to your amendment application and let's see what those who have not yet had an opportunity to say anything, wish to say about it, and then we'll see where we go from there.

PN650

MR TAYLOR: Your Honour, can I just indicate in light of what my friend just said, that my client will seek internally to discuss the issue of an expanded application in the hope that if the application is amended in a week's time, we can act precipitously if we decide to extend our application the same terms such that there would be a minimal delay in us filing an amended application - also extend in the same matter.

PN651

JUSTICE ROSS: Yes.

PN652

MR TAYLOR: We can't be categoric about this, but we'd like to think that within three or four working days we'd be in a position to file any further application.

PN653

JUSTICE ROSS: And in relation to any application you might file, is that going to broaden the list of employer interests beyond that which would be attracted by an amended application?

PN654

MR TAYLOR: I'm told not.

PN655

JUSTICE ROSS: Okay. All right.

PN656

MR WARD: The extent to which the scope of the application might be about to change based on our knowledge of the various sectors - the size of the employers involved might almost double straightaway. There could be very substantial changes to the scope of the claim.

PN657

JUSTICE ROSS: Yes.

PN658

MR WARD: Your Honour has expressed a desire to move carefully.

PN659

JUSTICE ROSS: Yes.

PN660

MR WARD: We think it's an entirely appropriate thing to do.

PN661

JUSTICE ROSS: And where do you see the scope - what do the employer interests look like if the application was amended - - -

PN662

MR WARD: I must say I haven't turned my mind to it. Those behind me have quickly, but one thing we'll do after this proceeding is make contact with those who we think might be interested - - -

PN663

JUSTICE ROSS: Yes.

PN664

MR WARD: - - - and make sure that they're alerted to the possibility that this is coming.

PN665

JUSTICE ROSS: Yes. To the extent that they need to access the site and all of those issues, contact my associate to facilitate those steps before they become involved in it - they should get access to the material as quickly as possible.

PN666

MR WARD: If the commission pleases.

PN667

JUSTICE ROSS: Look, ultimately if any party that hasn't been involved to date feels they haven't had an opportunity, then we'll obviously address that if and when it arises. Okay. Nothing further?

PN668

MR GUNN: Your Honour, if I may.

PN669

JUSTICE ROSS: Yes.

PN670

MR GUNN: The number of employers are liable to roughly double. The number of employer bodies will be largely similar to what we've already seen at the moment. They will, however, need to (indistinct) a broader range of - - -

PN671

JUSTICE ROSS: I see, yes. Well, let's see how we - yes. All right. If there's nothing further, we'll adjourn.

<ADJOURNED INDEFINITELY [1.58PM]