PN1

JUSTICE ROSS: Could I have the appearances, please, firstly in Melbourne?

PN2

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

PN3

JUSTICE ROSS: Thank you. And in Sydney?

PN4

MR S SMITH: Yes, if the Commission pleases, I appear for the Australian Industry Group, Smith, initial S, with Harrington, initial H.

PN5

JUSTICE ROSS: Thank you. There are two sets of proposed variations before us. One deals with various definitions, and the other with the hours of work clause in the award. The proposed variations as I understand it reflect a consent position between AiGroup and APESMA. The principal submissions of AiGroup, submissions of 30 September 2019, and APESMA's submission of 15 July 2019. As I understand it, Mr Butler, the proposals to vary the award are set out at attachment A to your correspondence to the Commission of 2 October, is that right?

PN6

MR BUTLER: Yes, it is, your Honour.

PN7

JUSTICE ROSS: That attachment A talks about clause 13, ordinary hours of work and rostering, but it's clause 18 of the current award you're proposing to vary, is that right?

PN8

MR BUTLER: Yes, your Honour, in the outline of submission that we lodged on 15 July. I must admit I was a bit uncertain as to whether to use the clause in the exposure draft or the existing award, so - - -

PN9

JUSTICE ROSS: No, I think it's the existing award, yes.

PN10

MR BUTLER: So it's clause 18.

PN11

JUSTICE ROSS: All right, thank you. ABI made a submission on 30 October in which it is broadly supportive of the consent position arrived at between AiGroup and APESMA, based on ABI's understanding that the hours of work clause in the award is not currently, and will not become an annualised salary provision. There are two witness statements that have been filed. One is a statement of Alex Crowther, and the other is a statement of Michelle Maree Anthony. I take it you seek to tender those?

PN12

MR BUTLER: Yes, your Honour.

PN13

JUSTICE ROSS: Just bear with me for a moment. The statement of Mr Crowther, or Alex Crowther, the version I have only has Annexure B, not Annexure A.

PN14

MR BUTLER: Yes, your Honour. Now I was in fact going to - - -

PN15

JUSTICE ROSS: Is that the material you filed in the correspondence to us separately?

PN16

MR BUTLER: Yes, on the - - -

PN17

JUSTICE ROSS: 28 August?

PN18

MR BUTLER: Yes, that's right.

PN19

JUSTICE ROSS: Yes. Yes, all right. So in correspondence of 28 August you've re-sent the relevant document which is attachment A to the witness statement, which is titled, 'Professionals' additional hours and unpaid overtime, time for action'?

PN20

MR BUTLER: Yes.

PN21

JUSTICE ROSS: All right. With the addition of that material you seek to tender the two statements?

PN22

MR BUTLER: Yes, your Honour.

PN23

JUSTICE ROSS: I'll mark the statement of Alex Crowther as exhibit APESMA 1. And the statement of Michelle Anthony as exhibit APESMA 2.

EXHIBIT #APESMA1 STATEMENT OF ALEX CROWTHER

EXHIBIT #APESMA2 STATEMENT OF MICHELLE ANTHONY

PN24

I have conferred with my colleagues and we don't have any questions for the witnesses. But for future reference you should ask us that question before you assume that we don't and don't bring the witnesses. Can we go first to the various amendments to the definitions that are set out at attachment A. And these are amendments to clause 3 of the award, are they?

PN25

MR BUTLER: Yes, they are.

PN26

JUSTICE ROSS: All right. And I understand what's said about why they are being amended, but where were these definitions used in the award?

PN27

MR BUTLER: They're used to - - -

PN28

JUSTICE ROSS: No, no, where? Which clauses?

PN29

MR BUTLER: For the definition of a graduate – if you could just bear with me while I go to the clause.

PN30

JUSTICE ROSS: Sure. Well, perhaps given these are AiGroup's proposals, I might as Mr Smith this. Mr Smith, where are these definitions used in the award.

PN31

MR SMITH: Your Honour, these are definitions that link in with the classification definitions in the award.

PN32

JUSTICE ROSS: Yes. Just take me to those.

PN33

MR SMITH: Yes. So in clause 3 of the current award there are a series of definitions starting with 3.2, which are the engineering stream definitions; 3.2, the IT and telecommunications definitions; and the definition relating to the Australian Computer Society is within there.

PN34

JUSTICE ROSS: Yes.

PN35

MR SMITH: And then the scientist stream definitions are in 3.4, and the definitions relating to the scientists are there. And those definitions link in with the classifications in clause 14.

PN36

JUSTICE ROSS: Well, clause 14 - - -

PN37

MR SMITH: And schedule B.

PN38

JUSTICE ROSS: Yes. Clause 14 just refers to schedule B. Where in Schedule B, for example, is the definition, 'experienced information technology employee,' or 'graduate information technology employee' used?

PN39

MR SMITH: Those definitions, if I can go back to clause 3 again, this defines terms of professional employee duties, professional information technology duties, for example. And that concept, if I could just go to – excuse me one moment, your Honour – it links back in with that concept of an experienced information technology employee.

PN40

JUSTICE ROSS: Can you take me to the clause in schedule B?

PN41

MR SMITH: Yes. For example, in clause B.1.1, in paragraph (b), there are concepts about professional information technology employees. And then when you go up to the higher levels, the concept of experienced professionals comes in.

PN42

JUSTICE ROSS: Where? Take me to the clause. Just B.1.7.

PN43

MR SMITH: One area that this comes up in, is in the issue of evidence of qualifications in clause 11.8. This is about possessing the qualifications of a qualified engineer and experienced engineer, et cetera. And then if you go to those phrases - - -

PN44

JUSTICE ROSS: Sure.

PN45

MR SMITH: That's how it links.

PN46

JUSTICE ROSS: So do you say that the experienced information technology employee, as defined, is a level 2 employee?

PN47

MR SMITH: Yes, that's correct, a level 2 employee, and then obviously with more experience they'd be a level 3 or level 4.

PN48

JUSTICE ROSS: And a graduate information technology employee?

PN49

MR SMITH: They would be level 1. And if they're an inexperienced graduate they'd be at pay point 1.1, and then they'd work their way up through those four levels within grade 1.

PN50

JUSTICE ROSS: So the term, 'experienced professional,' which is the term actually used and the definition isn't defined to include a professional or an experienced information technology professional. That is, it doesn't seem to connect to the definitions.

PN51

MR SMITH: Your Honour, something might have been lost a bit in the translation from the old Information, Technology and Professionals Award that Mr Butler and I negotiated in the late '90's, in transferring it all into the current Professional Employees Award. But that was the intent, that the experienced person would meet those various requirements. So there's nothing substance as I understand it between AiGroup and APESMA. All we were seeking to do was to preserve the arrangements that have been there for 20 years or so. It was just that the Australian Computer Society has changed what they call the 'member' and it's now that other phrase of the 'certified professional.'

PN52

JUSTICE ROSS: No, we're not raising an issue about that change. The issues that's raised is, how do those definitions relate to the rest of the award. And speaking for myself, I'm not sure that's been made any clearer.

PN53

MR BUTLER: Your Honour, perhaps I could – sorry - - -

PN54

JUSTICE ROSS: Sure.

PN55

MR BUTLER: Perhaps if I could assist. When these awards were first made, and I suppose the parent award was the Professional Engineers Award 1961, and they are the two classifications. There was a qualified engineer classification, and an experienced engineer classification. And they were linked on those days to basically different categories of membership of the Institution of Engineers Australia. Following that, the Professional Scientists Award of 1964 was made, and subsequently through to the late '90's, awards for information technology professionals; telecommunications professionals; and during the structural efficiency principle, level 3 and level 4 were added to create the four level classification structure. And so during the award modernisation process, as the Commission would be aware, all these awards were rationalised and the experienced professional, which was traditionally linked to separate someone still in the early stages of their employment but separate someone who was just a graduate who was operating more independently. And that's the sort of origin of that. If there's some words that have been inadvertently left out, but that's a very potted version of this.

PN56

JUSTICE ROSS: All right. Is there anything either of you want to say further about the classification definitions issue before we go to the hours of work clause? We've read the submission and we don't need to hear argument about why the change is desirable. Speaking for myself I still have a query about the relationship between the definition and the rest of the award but that's a separate question to the one that you're advancing, but related to it.

PN57

MR SMITH: Your Honour, just on that second question I think you've very wisely identified a problem that's been in the award since it was made from 1 January 2010. And given that there really isn't any difference between the parties about that issue, or difference about the way it's supplied in practice, I'm sure AiGroup and APESMA could agree to come back to the Commission with some proposed variations to reflect what the intent was. Because I think just looking at it again, something has dropped out when all of those awards were rolled into one.

PN58

JUSTICE ROSS: Yes. So are you content to deal with that element on this basis, that you'll have further discussions and put forward a consent variation determination in respect of the changes to the definition and also that tidies up the question as to how those definitions relate to the classification structure?

PN59

MR SMITH: Yes, your Honour.

PN60

MR BUTLER: Yes. Yes.

PN61

JUSTICE ROSS: And if that issue is missing, Mr Smith, from when the information technology stream came in then you can address that question, as well. We may as well tidy that matter up at the same time. And perhaps the draft variation determination can be accompanied by a short submission. If, for example, as you say, something has been dropped out of the Modern Award in the process of modernisation you can refer to that fact and where it's come from. But I think it'd be useful, if we're dealing with that issue at this stage, we may as well deal with how it integrates into the award and sort out any other anomalies n the way through. All right.

PN62

MR SMITH: Yes. Thank you, your Honour. And we'll also have a look at the other streams to check that the same problem isn't there with those, as well.

PN63

JUSTICE ROSS: Yes. Yes, I think it might be. There doesn't seem to be, on a quick – I only looked at the ones you're seeking to vary, in any detail but on a quick review a similar issue might arise with the others that there doesn't seem to be a connection between the definition section, clause 15 of the award, dealing with the classification structure, and the schedules to the award which deal with the issues in a bit more detail. They do use slightly different language so I think it'd be worthwhile picking that up. It may be that that means that for clarity you actually put the definitions that relate to the structure in that part of the award, but that's a matter of detail that you can discuss and I'm content to leave you to do that.

PN64

MR SMITH: Thank you, your Honour.

PN65

JUSTICE ROSS: All right. Can we go to the second matter, the hours of work clause. We've had the opportunity of reading what you've said about that. Is there anything you wanted to add by way of oral supplementation? And then we can ask you any questions that flow from that.

PN66

MR BUTLER: Your Honour, we've outlined our submission in our opening submission on 15 July.

PN67

JUSTICE ROSS: Yes.

PN68

MR BUTLER: I've provided a reply submission which to some extent was a re-statement of some of the material in the 15 July, when I was sitting down working out what I was going to submit today. I could re-state the main points of the submission. But I'd like to think that the argument we're putting is hopefully clear. And I'd be happy to answer any questions.

PN69

JUSTICE ROSS: All right, thank you.

PN70

MR BUTLER: Yes.

PN71

JUSTICE ROSS: Mr Smith, was there anything you wanted to add by way of oral argument?

PN72

MR SMITH: Yes, if I could just make a few comments to mention - - -

PN73

JUSTICE ROSS: Sure.

PN74

MR SMITH: Some contextual issues about all of these. So as we've said in or written submissions there was quite an extensive negotiation process that went on, and it was a difficult process. Perhaps the most difficult thing about the process, even though it was quite lengthy, was making sure that we brought our members along with any consent position. Because, of course, it is often much easier to oppose union claims for an employer association than try to reach some consent position. But we worked through all of that very carefully over a period of several months. We had two rounds of member meetings in different states to take our members through in detail what was being proposed. And ultimately we got to a consent position.

PN75

It did put us in a bit of a quandary when it came time to file our written submissions because most of APESMA's materials, it appears, had been prepared prior to us finally reaching that consent position. So we then had to make a decision about whether we were going to seek to cross-examine witnesses or challenge evidence that had been produced. Now if the matter had been contested we would, of course, have identified things like that the two witnesses are both APESMA employees, that the hours of work survey was distributed with a note from APESMA saying that the survey was in support of an application to the Commission around hours of work, and son on. But we're not going to seek to challenge the evidence or to cross-examine the witnesses in the context that we've got to a consent position. But it is very tricky for us in that the changes are of significance, of course, and the process of bringing our members along with that was not an easy one.

PN76

So with the greatest of respect the consent position was seen as not consistent with the requirements of the Act, or consistent with the Modern Award's objective. As we've said our submissions we would like the opportunity to see what view the Full Bench had on that and to be allowed to potentially make further submissions, introduce evidence, and even if the Full Bench was planning on going down a different path and relying on APESMA's evidence, to have the opportunity to actually cross-examine those witnesses because there are lots of aspects in that evidence that in contested proceedings we would take exception to. But you know, as you know, AiGroup and APESMA are the two major industrial parties with this award and we have been for many, many decades, with all of the pre modern awards.

PN77

And we have had a very longstanding approach of trying to reach agreement on award variations rather than contesting them if we possibly can. So in good faith, we've put a lot of resources into trying to reach this position, and a position that's fair and reasonable for APESMA's member and AiGroup's members, and is also consistent with the Act and furthers the Modern Award's objective. But I just wanted to make those couple of contextual points about the difficulty of getting where we've got to. But apart from that, everything else is set out in our written submissions.

PN78

JUSTICE ROSS: All right.

PN79

MR SMITH: Thank you.

PN80

MR BUTLER: Perhaps just briefly, your Honour - - -

PN81

JUSTICE ROSS: Yes.

PN82

MR BUTLER: And I take on board what Mr Smith has said. Just for our part, the hours of work issue has quite a few aspects to it in that it's a very broad issue of concern to professionals. For us, we were faced with an award provision that in our view is unenforceable. But in approaching this and in negotiations with the AiGroup we sought to draw a distinction between different categories of professionals between levels 1 and level 2, the more junior professionals; and levels 3 and levels 4. And that's been our approach that instead of treating all professionals the same, to acknowledge the differences. And that was our approach to these proceedings. Now it could be argued, for example, that someone at level 4 who might be a manager, is in a different position from a recent graduate. And so that has underpinned our approach to what is a very important issue for our members.

PN83

JUSTICE ROSS: Are there any questions from my colleagues in Sydney?

PN84

COMMISSIONER JOHNS: Nothing from me.

PN85

VICE PRESIDENT HATCHER: Yes, I have few questions. Firstly, Mr Butler, I'm looking at page 4 of attachment A, and over to page 5. First of all, there appears to be a drafting issue. That is, the cross referencing is, I think, in correct. For example, paragraph (c) on page 4 firstly refers to the matters specified in clause 13.3. I'm not sure what that's referring to. And then it talks about methods in 13.4(b), or 13.4(d), which I think is meant to say, '13.3(b), Roman (ii) and (iv), but I'm not sure. And again, this is to be found in paragraphs little (d), and I think, (g). Can you help us with that?

PN86

MR BUTLER: So the first one - - -

PN87

VICE PRESIDENT HATCHER: And in (b), Roman (iii), there's another one. So I'm a bit confused as to how this all works together.

PN88

MR BUTLER: 13.3(c), reference to 13.3 – well, the matters are specified in 13.3(a), relate to the various options for compensation.

PN89

VICE PRESIDENT HATCHER: I understand that but it doesn't say, '13.3(a),' it just says, '13.3.' Should that say, '13.3(a)'?

PN90

MR BUTLER: On my - - -

PN91

VICE PRESIDENT HATCHER: Or am I looking at a wrong version?

PN92

MR BUTLER: The version I'm looking at is the one dated 1 October.

PN93

VICE PRESIDENT HATCHER: Okay.

PN94

JUSTICE ROSS: No, I've got - - -

PN95

MR BUTLER: And there had been - - -

PN96

JUSTICE ROSS: Well, I've got the one that was filed on 2 October.

PN97

MR BUTLER: Sorry - - -

PN98

JUSTICE ROSS: That one?

PN99

MR BUTLER: Dated 1 October, filed on the 2nd.

PN100

JUSTICE ROSS: Yes, I've got the same issue that the Vice President has though. I'm looking at the attachment to the submission of 15 July. I though that was what we were proceeding on. There's an updated version that was sent by email on 2 October but the same issue arises. I think what you should do in relation to clause 13, is to file a proposed variation determination. It should relate to the current award, so clause 18, I think it is. And check all the cross references. And if you file that in mark up, so that will clearly show the changes you are proposing to make in relation to the current clause. All right?

PN101

MR BUTLER: Yes. Yes.

PN102

VICE PRESIDENT HATCHER: All right, the second matter, perhaps more substantive, and again I've still got this July draft in front of me, so excuse me if there's some reference error. But I'm looking at clause 13.3(b), (e), (f) and (g). So in the AiG submissions it emphasises, and I see this as a condition of its consent, that this is not meant to be a annualised wage arrangement provision pursuant to section 139(1)(f). And AiG also says that even APESMA have agreed that the changes do not regulate common law set-off arrangements. So I'm a bit confused as to what these provisions actually are. That is, they're not annualised wage arrangement provisions under the Act. You say they're not regulating common law arrangements. What are they?

PN103

MR BUTLER: Well, in terms of the existing award provision it's quite common, as the Commission would be aware, for professional employees in the non government sector to have common law contacts of employment. These contracts, of course, have to be read in conjunction with the award. My understanding is that if common law contracts are to set off against the award then there has be a level of specificity regarding that. And so the building in of these provisions into the hours of work clause, I suppose improves the basic protections that then have to be met in a set-off arrangement.

PN104

VICE PRESIDENT HATCHER: But doesn't that mean they do regulate the common law arrangements?

PN105

MR BUTLER: If - - -

PN106

VICE PRESIDENT HATCHER: That is, I assume they must require that where there's a private agreement to pay some annual amount - - -

PN107

MR BUTLER: Yes. Yes.

PN108

JUSTICE ROSS: In 13.3(a), that you've now added these additional requirements for reconciliation and record of hours, but it seems to me that it necessarily does regulate the private common law arrangement, doesn't it?

PN109

MR BUTLER: Yes. Yes, it does.

PN110

VICE PRESIDENT HATCHER: That's what I don't understand, how that relates to paragraph 76 of the - - -

PN111

MR BUTLER: Your Honour, with what we said in paragraph 76, we were mindful of the debate that took place in the context of the annualised salary proceedings and the final decision in those proceedings, which, you know, the wording in that decision as your Honour's aware, is close to what the wording states in that agreed paragraph that's in both of AiGroup and APESMA's submissions. So all we were seeking to do was to say that this does not seek to regulate a common law set off arrangement. The parties have their rights under common law.

PN112

Now those rights will, of course, depend upon the obligations under an award, so under the common law provisions they would need to be paying sufficient in a pay period to make sure that they had met the obligations under the award. So to that extent the provisions of the award, of course, have some relevance to the issue of the common law rights. But it wasn't seeking to directly relate to a set-off provision because as the Full Bench said in the annualised salary case, parties can deal with remuneration arrangements through using those common law rights. And in this particular area, as one of APESMA's witnesses has said, common law set-off clauses are extremely prominent in relation to professional employment. It would be unusual not to have a clause like that in the employment contract. So we just didn't want to disturb that.

PN113

VICE PRESIDENT HATCHER: But it does disturb it to the extent that a person subject to that arrangement, it seems to me, would now be – or the employer would now be required to record the person's hours by virtue of the award, and do an annual reconciliation. Isn't that the effect of what's agreed?

PN114

MR BUTLER: The employer would have to comply with the record keeping requirements of the award, and have to comply with the record keeping requirements of the Fair Work regulations. So we're not saying that because there's a set-off clause in a common law contract, this clause doesn't apply. This clause does apply.

PN115

VICE PRESIDENT HATCHER: Right.

PN116

MR BUTLER: We were just seeking to ensure that the common law rights aren't disturbed, to have a set-off arrangement and to pay someone an amount that sets off whatever obligations and entitlements there might be, or really monitor any entitlements there might be within a pay period under the award.

PN117

VICE PRESIDENT HATCHER: All right. And finally, section 139(1), if these are not annualised wage arrangement provisions pursuant to section 139(1)(f), where do we get the source of power to do this, particularly in relation to the record keeping and reconciliation?

PN118

MR BUTLER: The record keeping and reconciliation aspects would be covered by 142, and they would be incidental terms to – you know, this clause is an hours of work clause, so it's incidental to 139(1)(c). And it also has some aspects that, you know, link in with 139(1)(a), and even 139(1)(h), because there are leave aspects to this clause. But the original version of this clause was that clause in the IT Professional Employees Award back in the late 1990's, and it had more detail in it than the earlier versions in those Engineers and Scientists Awards. But it was always an hours of work clause. I think these additional aspects are appropriately characterised as some additional safeguards that are being put into an hours of work clause. You know, it is an hours of work provision. There are safeguards.

PN119

VICE PRESIDENT HATCHER: Perhaps a better answer might be that the proposed 13.3(f) effectively is to create a default overtime rate if there's a shortfall, isn't there? That is, the additional remuneration, or the annual salary has to be enough to cover the additional hours worked about 38, on the basis that there is a calculation done by reference to the hourly rate under the salary, and you then – you have to beat that. So that's effectively creating a default overtime rate, isn't it?

PN120

MR BUTLER: We wouldn't see it that way, your Honour. The clause that is in the existing award provides a number of options. You can pay someone a salary in return for all the things that you expect that person to do in terms of additional hours, and shift work, and standing by, and all the other arrangements. You can give them additional leave; you can give them a special additional allowance; you can give them some special, additional remuneration. And those arrangements have been there in the hours of work provisions of these awards since the 1970's. In fact the hours of work clause in the original versions of these awards was called, 'overtime,' but it didn't actually have anything about overtime in it. It really just said, you pay an amount of money in return for the hours that you want someone to work, quantum and time, and it had some dot points about things that were to be taken into account. But we would not conceptualise this clause as an annualised salary clause because it is actually the hours of work clause. It just has some protections about what you do when someone works a quantum of additional hours that goes into those areas where those protections apply.

PN121

VICE PRESIDENT HATCHER: But the comparison for the purpose of reconciliation is based upon the notion that you'd continue on top of the base salary or the minimum salary, to get an ordinary time rate calculated by reference to the salary that is paid per hour in addition to 38? Is that the way it - - -

PN122

MR BUTLER: With one of the options. Now we would think in most cases the other options might apply which is to give people additional leave, and you know, all the salary surveys for people coming under this award show that people are typically paid way above minimum rates anyway. So those provisions are there as a, you know, I guess, part of a safety net but there are various options, as you can see, in the existing clause and in the proposed new wording as to how people should be compensated for those things.

PN123

And one final question, there has been foreshadowed the review of professional rates. I'm just wondering whether anyone has a view as to the wisdom of proceeding on this before that's undertaken.

PN124

MR BUTLER: The view of APESMA, your Honour, was that the hours of work clause, firstly, even though it's referred to as an 'hours of work' clause, it's in actual fact, a hybrid clause when it comes to compensation for additional hours that attempts to cover a multiplicity of different employment arrangements, traditionally - - -

PN125

JUSTICE ROSS: It's a hybrid, in what sense? A hybrid of what things?

PN126

MR BUTLER: Well, there's hours of work, the minimum hours of work; there's the capacity to average hours of work over a cycle; and this was one of the issues. The lack of a clear provision for the payment of additional hours was identified by the Full Bench in one of the exposure draft statements as being an inherent difficulty with this clause.

PN127

JUSTICE ROSS: It doesn't provide the cycle.

PN128

MR BUTLER: Yes.

PN129

JUSTICE ROSS: It doesn't tell you what the cycle is.

PN130

MR BUTLER: It doesn't tell you what the cycle is, and also there's no way of checking whether or not there's been adequate remuneration, because the existing provisions in the award are advisory rather than mandatory. So in addition to the hours of work, the averaging, it's effectively, and I know Mr Smith will probably take exception to this but it's a very broad based overtime clause to cover employees, some of whom would work a traditional working week; others would work unsociable hours, you know, particularly in the IT industry, for example, and it's an attempt to built in rights independent of any rates of pay, that I would submit that if there is a review of professional rates, and again it's in the early stages of that, but a review of professional rates, I would assume would deal with the minimum rates that would be paid to professional employees, not hours of work and various overtime arrangements. Our whole rationale is that such a fundamental part of the award, hours of work and the remuneration for additional hours, is in a state of uncertainty. So we would argue that the two issues are totally different.

PN131

MR SMITH: Yes, if I could just make a couple of comments. We don't think that that other proceeding should hold up these variations. But there's another important issue that the Commission may or may not be aware of. In our submissions to the graduate employment proceedings, and I think the AMWU made the same point about the - - -

PN132

JUSTICE ROSS: Is this the AQF review?

PN133

MR SMITH: Yes, the AQF review. And now that that report has come down, as the Commission is probably aware, there are a number of models in that report of where the degree level qualified person and higher degrees and associate degrees, and so on, should line up with AQF levels, and currently there are ten AQF levels and most of these models that have been contemplated are really about eight levels. So in our submission there would be no point in moving ahead with those proceedings until the government has released its response and also, I would think, implemented the response to that AQF review, because it's highly likely in our view that there will be some significant changes to the AQF.

PN134

But that is going to have significant implications for the award system but at this stage we don't know what those changes are, and it looks like, on the basis of that report that the changes are going to be more significant at the top end than they are at the bottom end. So it may be that those proceedings become even more important in the context of the outcome of that review. But as we've argued, and the AMWU and perhaps other parties that it would be premature to have that review until that piece is looked at because we might get to an outcome and then find that the case needs to be completely re-run.

PN135

JUSTICE ROSS: All right, thank you. Anything further? No? We have indicated the additional material that we seek from you. If you can forward that to the AMOD website, but also to my chambers. And we'll adjourn and reserve our decision. Thank you.

ADJOURNED INDEFINITELY [10.47 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #APESMA1 STATEMENT OF ALEX CROWTHER...................... PN23

EXHIBIT #APESMA2 STATEMENT OF MICHELLE ANTHONY............... PN23