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Fair Work Act 2009                                       1057902




AM2020/34 and others


s.157 - FWC may vary etc. modern awards if necessary to achieve modern awards objective


Applications to vary Schedule X

(AM2020/34 and others)




1.27 PM, TUESDAY, 30 JUNE 2020


(Audio malfunction)


JUSTICE ROSS:  - - - by grouping.  In this grouping, we're dealing (indistinct) noted at paragraphs 14 to (indistinct) of my statement of Sunday.  They are also the applications which are referred (indistinct) statement of last Friday.  So there are (indistinct), I broadly categories them as retail applications, that seek to extend the operation of Schedule X in the Fast Food Award, General Retail, Hair and Beauty and the Storage Services and Wholesale Award to extend the operation of the schedule from 30 June to 31 July.


If I can deal with that cohort first.  Who do we have for the SDA?


MR A PARDO:  May it please the Commission my name is Pardo, initial A. I appear for the SDA.  With me is Mr Matthew Galbraith, also of the SDA.


JUSTICE ROSS:  Thank you, Mr Pardo.


MR PARDO:  Your Honour, if I might deal with all four at once for the sake of efficiency.


JUSTICE ROSS:  Mr Pardo, I haven't finished taking the other appearances for that.  So just hold on for a minute.  Mr Millman for the NRA.  Is that right?


MR A MILLMAN:  Correct, your Honour.


JUSTICE ROSS:  And Mr Booth for the Newsagents Associations.  Is that correct?  You may be on mute, Mr Booth.  Bear with me for a moment.


Mr Booth are you there?  No.  Well, we will endeavour to get Mr Booth back.  Is there anyone else with an interest in those four awards?


MR S BULL:  Your Honour, it's Stephen Bull from the United Workers Union.  I understand that we've lodged an application in relation to Storage Services.


JUSTICE ROSS:  Yes.  You have.  All right.  Thank you.  We will deal with that one in that cohort as well.  Anyone else (indistinct) what did you want to say?


MR PARDO:  May it please the Commission.  At the outset, your Honour, I just have to note that the line is quite bad.  I occasionally miss significant portions of what you say.


But I will just briefly deal with all four, with the SDA's position.  We just seek to amend our applications.  We note that currently they say 31 July.  We would just seek leave to amend that to 30 September, consistent with the ACTU position in the various other applications.  We are in the Commission's hands, however, as to the mechanism by which we would effect that amendment.


JUSTICE ROSS:  Well - - -


MR PARDO:  We'd prefer if possible to - - -


JUSTICE ROSS:  Yes.  Let me deal with that now, Mr Pardo.  I'd not be minded - I am not minded to grant leave to amend your application.  You filed last week.  You've only notified us now you want to amend it.  All of the other parties have been on notice that you were seeking 31 July.  So we will deal with the application on that basis.  If, as you - as 31 July approaches, you wish to extend it to the 30th of September, then you could put an application into that effect.


MR PARDO:  May it please the Commission.


JUSTICE ROSS:  Anything further you wish to say?


MR PARDO:  Not at this stage, your Honour.


JUSTICE ROSS:  All right.  Can I go to you, Mr Millman?  What's the NRA's position in respect of the applications?


MR MILLMAN:  Thank you, your Honour.  The NRA would just like to register its support of the application by the SDA in this matter, with respect to the Hair and Beauty Award 2010 and the Fast Food Industry Award 2010, and the General Retail Award 2010.


JUSTICE ROSS:  All right.  Thank you.  I am sorry, Mr Bull.  I should have asked you is there anything you wanted to add in relation to the Storage Award?


MR BULL:  We've made an application on the basis that Schedule X is extended to the 30 September.


JUSTICE ROSS:  Have you?  When did you make that?


MR BULL:  That was yesterday - - -


JUSTICE ROSS:  We are not dealing with that application today.  There's been no- there's been insufficient notice of that application to any party that's had an interest.  We are only dealing with the applications that were the subject of the - at the moment we are only dealing with the applications which were the subject of the statement on Sunday and the statement on Friday.  It's those that were filed last week.


MR BULL:  Okay.  Look, so I understand the SDA has lodged an application in relation to - - -




MR BULL:  We would support their application which has the lesser duration.


JUSTICE ROSS:  All right.


MR BULL:  And it obviously makes it easier to (indistinct) which adds a month or so.


JUSTICE ROSS:  Yes.  All right.  Thank you, Mr Bull.  Is Mr Booth on the line now?


MR I BOOTH:  Yes, your Honour.  And I do apologise.  We had a communication problem.


JUSTICE ROSS:  No problem, Mr Booth.  We've heard from the SDA and the United Workers Union indicating their position that they seek to extend Schedule X until 31 July for the Hair and Beauty, Storage Services Award, Fast Food and General Retail Award and Mr Millman on behalf of the NRA has indicated that the NRA supports those applications.  What did you wish to say about those applications?


MR BOOTH:  We support the application and would agree that appendix X in its entirety is extend for the period stated in the application.


JUSTICE ROSS:  All right.


MR BOOTH:  And we would foreshadow that if the SDA or other parties, including ourselves sought to vary the award for extended term we would more than likely support that.


JUSTICE ROSS:  All right.  Thank you, Mr Booth.  Given the position of all of the parties, I will indicate rather than adjourning to consider the issue, I will indicate my position in respect of the proposed extension to 31 July for these four awards and invite my colleagues, Clancy DP and Bissett C to indicate their position.  From my perspective, I am satisfied that the extension is necessary to ensure that these awards achieve the Modern Awards objective and I would grant each of the four applications and would publish reasons later.  Deputy President Clancy?


DEPUTY PRESIDENT CLANCY:  Thank you, your Honour.  I agree with that outcome and that course of action.  Thank you.


JUSTICE ROSS:  Thank you.  Commissioner Bissett?


COMMISSIONER BISSETT:  Thank you, your Honour.  I agree with the proposed variation and the course of action.


JUSTICE ROSS:  All right.  Well, that deals with those four.  Can we now turn to the next group of awards which is set out at paragraph 15 of the statement of Sunday.  They are the Aboriginal Community Controlled Health Services Award, the Aged Care Award, Ambulance and Patient Transport Award, Health Professionals and Support Services, the Medical Practitioners Award, the Nurses Award, Pharmacy Award, the Social, Community, Home Care and Disability Services Award and the Supported Employment Services Award.


In respect of each of these matters, they're the subject of applications by various parties, but in this case they seek to extend the operation of the schedule until further order of the Commission or other order in matter AM2020/13, which is the Paid Pandemic Leave claim.


Can I go through the people that (indistinct) having an interest in this matter?  There's Mr Clarke from the ACTU?  Mr Clarke?


MR T CLARKE:  Yes, your Honour.  Yes, your Honour, I'm on the line.  Yes.


JUSTICE ROSS:  We have Ms Liebhaber from the HSU.


MS R LIEBHABER:  Yes, your Honour.  I am on the line as well.


JUSTICE ROSS:  Thank you.  Mr Bull from the UWU?


MR BULL:  That's correct, your Honour.


JUSTICE ROSS:  Ms Wischer from the ANMF?


MS K WISCHER:  Yes, your Honour.


JUSTICE ROSS:  Ms Moussa from the VAU?


MS A MOUSSA:  Yes, your Honour.  Thank you.


JUSTICE ROSS:  Ms De Vecchis from ASMOF.


MS M DE VECCHIS:  Yes, your Honour.


JUSTICE ROSS:  Ms Knight and Mr Robson from the ASU.


MS J KNIGHT:  Yes, your Honour.  Mr Robson has had to leave the hearing.


JUSTICE ROSS:  Thank you.  If we can deal with those, are there any employers with an interest in any of those matters?  No.  We indicated in the statement on Friday that anyone who wished to be heard in respect of these matters was to contact my chambers by 12 noon - I'm sorry, wishing to attend the hearing was to advice my chambers by 12 noon Monday, yesterday, and we haven't received any such advice.


Mr Clarke, do you want to - I note you are appearing on behalf of a number of these parties.  What did you want to say in relation to this application?


MR CLARKE:  Well, firstly your Honour, before actually filing the applications we gave notice of them to the Ai Group and ACCI, the Australian Federation of Employers and Industries, the Private Hospital Association, Leading Aged Care Services Australia, Aged and Community Services Australia, The Pharmacy Guild of Australia, the New South Wales Chamber - the Business Chamber and ABI who were the parties participating in the other proceedings in relation to the leave entitlements.




MR CLARKE:  Overtime and leave entitlements in relation to these awards.  We see ourselves as in a position of seeking what's hopefully a very brief extension to what's - to the existing Schedule X.  And it's not an extension pending a trial.  It's an extension pending the delivering of reasons by a Bench that's already reserved on an application which that Bench has indicated will be determined as quickly as possible.  I'd say it's a matter of weeks rather than months before the decision is handed down.


The reason I - in order to sort of characterise it as an extension of existing interim condition relates to the history of how these matters were brought forward.  The position of the ACTU and the unions involved in these nine awards from the outset was to support what the Commission itself described as a quick response in terms of the unpaid leave and annual leave flexibility, while at the same time wanting to agitate the matter of paid leave for the workers covered by those nine awards and that was the position we stated and was attributed to us and our affiliates at paragraphs 53 to 58 of the initial decision in relation to Schedule X.


The opportunity to ventilate the additional matter of paid leave was provided.  There was no decision in the subsequent statement the following day.  The first conference occurred on 14 April less than a week after the Schedule X decision was made.  We filed detailed applications only two days later which seek to vary both the duration and the terms of Schedule X.  And we put the whole issue of what leave entitlements ought to apply to these workforces in connection with COVID-19, within the ambit of the issues that might be decided by the Commission in those (indistinct) proceedings, having regard to section 599 of the Act, which is the sort of relief not limited to claim provision.




MR CLARKE:  So in respect to the form of the order that we proposed in that (indistinct) proceeding, the standard issue that's before that Bench is in relation to what are the appropriate COVID-related leave arrangements to these work forces having regard to the evidence that was put in that proceeding and is what the unions are proposing a better solution?  And no employer party in those proceedings raised any issue with our characterisation of the ambit in the hearing last week.


In the first conference we were asked to provide information on award coverage and proposed directions for the hearings of the claims in order to get a further conference statement.  We got that done in less than a fortnight.  The next conference was only two days later at which directions were issued and agree on 1 May and within 10 days after that we'd filed 34 witness statements, including three expert reports and the next directions were on 13 May when the matter was fixed for trial on 25th and 25th of June, which happened with the (indistinct) material to (indistinct) 17 June and some of it did and some of it didn't, but that's by the by.


What flows from that, we say, is we can't be criticised for failing to act promptly to have the COVID-related leave rights of these workers covered by these awards determined.  We might have been a bit slow in filing these particular applications for the extension more promptly than we did when it became apparent to us there was no prospect that the other proceeding could have reached a conclusion before the expiry of Schedule X in its current terms.


Although, in our defence, I'd say as I said before, we put the other parties on notice prior to the hearing that the extension applications were made and we did make the submission on the full ambit of the issue before that other Bench, before that Bench and that was not contested.


We are really merely seeking to preserve the status quo until a Bench that's already reserved hands down its decision and that's one side, if you like, of the balance of convenience issue.  Other aspects of the balance of convenience (indistinct)are that the existing provisions of Schedule X don't cost the employer anything.  The existing provisions of Schedule X weren't opposed to start with.


The existing provisions of Schedule X have the utility that - in the sense that they save people's jobs and for some people allow them access to some income, if they're required to quarantine or self-isolate and the other employers that are concerned in those proceedings haven't raised their heads today, notwithstanding having been put on notice by both us in advance and by the Commission.


We'd say that prima facie case of the sufficient likelihood that these workers will be entitled to some form of leave entitlement related to the pandemic, quite clearly the pandemic is not over.  It's still circulating in the community.  The workers covered by these awards are not only among those people who might get it, but they are working in environments where we say they are more likely to get it.  They are more likely to spread it.  And they are more likely to spread it to people who are more likely to get a more severe form of the illness, if they get it - if they are to contract it.


So that needs to be borne in mind in adding an extra dimension to the invidious choice of some workers might face as is referred to in paragraph 68 of the (indistinct) position.  It's not just about whether they come to work when they're unwell and what flows from that, it's that what flows from that might be a more serious illness among the aged, the unwell, people in indigenous groups and people with (indistinct) conditions and people with chronic (indistinct) such as those (indistinct) and there was obviously an amount expert evidence in the other proceeding that for obvious reasons I am reluctant to put the same expert evidence before two different Benches as the same time.  And I did circulate some material a bit earlier in the day from the Department of Health - - -




MR CLARKE:  - - - that relates to those issues, including the continued requirements in relation to self-isolation and quarantine.


We say there's a fundamental need to continue to fill the regulatory gaps identified in paragraphs 68 and 69 of the decision that's going to exist beyond today and that sort of (indistinct) findings outlined in paragraphs 118 to 133 of the decision are (indistinct) now as when they were determined 12 weeks ago.


I can only reiterate that the extension we seek is a very brief one, to run no longer than final orders being made in the other proceedings.  We have not nominated a date, because, well, there's no utility in guessing and, as I've referred to, the ambit of was before the other Full Bench is really how, if at all, should Schedule X be different in these awards from what it takes from other awards.


We suggest that an order from this Bench that trespassed across that issue would be inappropriate in the circumstances and it would cut across the issues properly before that other Bench.


The 31 July date referred to in our draft determination (indistinct) for the preservation of leave which started before a particular date, and so that's subclause (d) of X.2.1 and subclause (c) of X.2.2 is unfortunately just a guess.  Perhaps you're in a better position, your Honour, than I am or perhaps (indistinct) Clancy DP to set a date having regard to when a decision in the other matter is likely.


Are But the critical point for us is if you extend beyond the further or other order provisions which we've stated inevitably leads to the situation where you affect the determination in the other proceeding about what the extant position is and that may lead to the other Bench (indistinct) called on to hear further submissions and ultimately delay their determination.  That's all I have to say in relation to those matters to your Honours and Commissioner.


JUSTICE ROSS:  All right.  Thank you, Mr Clarke.  Did anyone else wish to add anything?  No.  Well, we will adopt the same approach as in the general retail matters.  I will express my decision and then invite Clancy DP and Bissett C to indicate their position.


I am satisfied that the variations sought and the extension sought is necessary to ensure that these awards achieve the modern awards objective.  I note the interaction with the other proceedings and the only issue upon which I would not wish to express a view is Mr Clarke's submission that in the other proceedings the unions have demonstrated a prima facie case for variation for obvious reasons I don't need to nor do I wish to express a view about that proposition.


But for those reasons I would grant the variations in the terms proposed in respect of the various health centre awards.  Clancy DP?


DEPUTY PRESIDENT CLANCY:  Thank you, your Honour.  I agree with what your Honour has just put forward.  That is I am satisfied the variations should be made and the extension granted in the terms made in the application.  Thank you.


JUSTICE ROSS:  Thank you.  Bissett C?


COMMISSIONER BISSETT:  Thank you, your Honour.  I concur.  Thank you.


JUSTICE ROSS:  All right.  Well, we will issue the variation determinations shortly.  Can I move to the other two applications that were the subject of the statements on Friday and Sunday?  The first is in relation to the Live Performance Award.  This is an application by Live Performance Australia which seeks to extend the operation of Schedule X until 30 June 2022 and who do we have with an interest in that matter.  Mr Hamilton?


MR D HAMILTON:  Yes, your Honour.  I am here.


JUSTICE ROSS:  And do we have a representative from the Media and Entertainment Alliance?


MR HAMILTON:  No, your Honour. Your Honour, just a preliminary point, I notice this morning with the running sheet that the Media and Entertainment Alliance had made application to vary the Live Performance Award in application AM2020/79, which is in the group 3 awards.




MR HAMILTON:  Upon noticing that I emailed the MEAA person that was responsible for that application and he was unaware of our application even thought I mentioned I'd emailed MEAA on 24 June saying that we requested their support.


To cut a long story short, we've had correspondence just now and MEAA have indicated that they would support an extension for 12 months.  I am not sure whether you wanted to join that matter with this matter or how to proceed with that other matter.


JUSTICE ROSS:  I can take it on the basis of that there is a consent position with the major union to extend the operation of Schedule X to 30 June 2021.  Is that what you're putting?


MR HAMILTON:  That's correct, your Honour.


JUSTICE ROSS:  Right.  And you're content to essentially have your application determined on that basis.


MR HAMILTON:  That's correct, your Honour.


JUSTICE ROSS:  All right.  Well, Mr Hamilton, I indicate I will express my decision in respect of that matter and then invite the Deputy President and the Commissioner to express their view.


Having regard to the significant impact of the restrictions put in place to contain the COVID-19 virus, the significant impact on the arts and recreational services sector, I am satisfied that the variation of the award to provide that Schedule X continue to operate until 30 June 2021, that such a variation is necessary to ensure that the award achieves the modern awards objective.  And I would issue a variation determination to that effect.


Clancy DP?


DEPUTY PRESIDENT CLANCY:  Thank you, your Honour.  I confer.  I concur, sorry.




COMMISSIONER BISSETT:  Thank you, your Honour.  I concur.


JUSTICE ROSS:  All right.  Thank you.  Well, Mr Hamilton, that concludes that matter and it will also effectively deal with the application by me to which you have referred to.


MR HAMILTON:  Thank you, your Honour.  Just clarification on the MEAA application, they also in that application seek to vary two other awards, apart from the Live Performance Award.


JUSTICE ROSS:  They do.  With those applications, because there has been insufficient notice, we will come to those in group 3.


MR HAMILTON:  And, your Honour, just on that we will have a interest in the Broadcast Award.




MR HAMILTON:  Yes. Because of the late notice of that application I haven't registered my interest in that matter in the group.


JUSTICE ROSS:  No, that's fine, Mr Hamilton.  We won't be determining those matters this afternoon. We will just be dealing with a process for their determination.  All right?


MR HAMILTON:  Thank you, your Honour.


JUSTICE ROSS:  Can I go next to the Air Pilots Award, which is an application by Flight Training Adelaide to extend the operation of Schedule X in that award until 31 December this year.  Do I have Mr Mules on the line to deal with that matter?


MR G MULES:  Yes, your Honour.


JUSTICE ROSS:  All right.  Is that correct?  You are seeking to extend the operation to 31 December, having regard to the particular impact of the restrictions put in place to contain the virus on the aviation sector?


MR MULES:  Yes.  That's right.  Just given the - I mean Aviation has taken a real hit, especially the airlines, but because we are in the training part of the aviation sector it hasn't really hit us yet.  A lot of our students are international students and our business is going to take, yeah, a significant hit over the next six-month period.


JUSTICE ROSS:  All right. Thank you, Mr Mules.  Does anyone else wish to be heard in relation to this application?  No.  I note that interested parties were given an opportunity to advise my chambers by 12 noon yesterday if they wished to be heard and other than Mr Mules, we haven't heard from any other interested parties.


I'll indicate my decision in respect of the matter and then I would invite Clancy DP and Bissett C to indicate their decision.


Having regard to the particular impact of the restrictions put in place to contain the COVID-19 virus, the particular impact on the Aviation sector, I am satisfied that the extension of the operation of Schedule X until 31 December 2020 is necessary to ensure that the Air Pilots Award achieves the Modern Awards objective.  And I would grant the application in the terms sought.  Clancy DP?


DEPUTY PRESIDENT CLANCY:  Thank you, your Honour.  I concur.




COMMISSIONER BISSETT:  Thank you, your Honour.  I concur.


JUSTICE ROSS:  All right.  Thank you.  Well, Mr Mules, we will issue a variation determination granting the extension later on this afternoon.  Thank you for your application and for your interest.


MR MULES:  Thanks, your Honour.


JUSTICE ROSS:  Can I go to the range of matters which have been listed in group 3 in the running sheet?  These are matters in respect of which applications were made yesterday and about which interested employer organisations have not had an opportunity to participate in the hearing or to express a view in relation to the application.


There are applications by APESMA.  Do we have Ms Anthony on the line?  I think we're taking a short adjournment now and my associate will get the group 3 participants on the line.  Thank you.

SHORT ADJOURNMENT                                                                     [1.57 PM]

RESUMED                                                                                                [2.14 PM]


JUSTICE ROSS:  My apologies for the delay.  This grouping deals with a number of Schedule X extension applications which were filed yesterday afternoon.  Can I briefly go through each of the cohorts and then check who I have on the line in respect of each one?  There is a group - a series of applications by APESMA.  The Airport Employees Award, Architects Award, Animal Care and Veterinary Services, Local Government, Electrical Power, Professional  Employees, State Government Agencies Award and the Water Industry Award.  Do I have Ms Anthony on the phone in relation to those matters?


MS M ANTHONY:  I am, your Honour.


JUSTICE ROSS:  Thank you.  Did anyone else have an interest in any of those awards?


MR B FERGUSON:  Yes, your Honour.  Mr Ferguson.


JUSTICE ROSS:  Thank you, Mr Ferguson.  Anybody else?


MR L IZZO:  Your Honour, Mr Izzo, representing ABI and also ACCI.  ABI certainly have interest in those awards.


JUSTICE ROSS:  It's likely that ABI and Ai Group will have an - I'll take it that you've got an interest in each of the cohorts that I come to to save you announcing an appearance in each one.  All right?


MR FERGUSON:  Thank you, your Honour.


MR IZZO:  Thank you.


JUSTICE ROSS:  There are then a number of applications by the United Workers Union.  Mr Bull?  You are on the line for that?


MR BULL:  That's correct, your Honour.


JUSTICE ROSS:  And a number of application by the Australian Services Union.  Ms Knight, are you there for the ASU?


MS KNIGHT:  Yes, your Honour.  I am here.


JUSTICE ROSS:  And there are a number of applications by the AWU and Mr Duncalfe, you're on the phone for that?


MR Z DUNCALFE:  Yes, your Honour.


JUSTICE ROSS:  There are applications to vary three awards by the CFMMEU manufacturing division.  Ms Wiles?


MS V WILES:  Yes. I am here.  Thank you, your Honour.


JUSTICE ROSS:  And there is an application to vary three awards by the Media Entertainment and Arts Alliance.  Mr Chesher?


MR M CHESHER:  Yes.  I'm here, your Honour.


JUSTICE ROSS:  Mr Chesher, can I deal with one of yours while I've got you?




JUSTICE ROSS:  The Live Performance Award, as a result of an agreement reached between MEAA and Live Performance Australia, that award was varied earlier today to extend the period of operation of Schedule X until 30 June 2021.  All right?


MR CHESHER:  Yes.  That's correct.


JUSTICE ROSS:  All right.  Thank you.  Can I make a general observation and then put an issue to each organisation in respect of the period of the extension which was sought in these cases?  The first observation is that because of the time frame, a number of these applications weren't filed until quite late yesterday.  And the range of employer interests in respect of these matters have not been given an opportunity to participate in the hearing or to express a view in respect of the particular applications.


So in relation to that observation what we would propose to do is to issue a statement indicating the nature of the variations sought and expressing a provisional view in respect of the variations and provide interested employers with an opportunity to comment on that provisional view and we would provisionally list it for hearing in the event that there was an opposition to any of the applications.


The second observation I'd make is that there is an overlap between the groups of applications.  For example, at least three of the organisations seek to vary the Water Industry Award, but the nature of the extension that's sought is different in each case.  The cohort by profession - by APESMA seek to extend the operation of Schedule X until further order as does the UWU.  The ASU seeks to extend until 30 September as does the AWU and as does the CFMMEU Manufacturing Division and that's also consistent with MEAA's position.


In order to try and reconcile those issues, is there any opposition, if we were to express a provisional view regarding under variation of the operative date of the Schedule X in each of these awards such that the period of  operation was extended to 30 September.  In other words, we try and get some consistency with respect to this complete cohort of awards and express a view about the extension of the schedule to 30 September this year.


Is there any opposition to that course, firstly from you, Ms Anthony on behalf of APESMA?


MS ANTHONY:  No, your Honour.  And that would apply for all 10 awards that we have applied for the extension of the operation of Schedule X.


JUSTICE ROSS:  Yes.  That's right.  Except that the Health Professionals and Supported Services Award has already been extended on a slightly different basis.  It's been extended until there is a further order by another Full Bench which is dealing the various applications for (indistinct) Pandemic Leave.  But with that exception, that's right.


MR CLARKE:  If I may, your Honour, I think that's the case in relation to the Ambulance Award too.


JUSTICE ROSS:  Yes.  That's right.  The Health Sector Awards have been extended on that basis.  So are it would be the other awards that you deal with, Ms Anthony.


Can I go to you, Mr Bull?  Do you have any objection to that course?


MR BULL:  No objection, your Honour.  But I would note that our application seeks to extend the Water Award to 30 September this year.


JUSTICE ROSS:  I've got a note that your others seek to extend until further order.  That might (indistinct).


MR BULL:  I think - look, they were all done in similar terms.  So unless there was a ghost in my computer they should all be 30 September.


JUSTICE ROSS:  All right.  And can I just confirm that you are content with that course, Mr Chesher?


MR CHESHER:  Yes, I am.  Your Honour.


JUSTICE ROSS:  All right.  Is there anything - if we were to adopt the course that I've indicated which would be that the statement by the Full Bench expressing the provisional view that the schedule X in each of these awards, be extended to 30 September this year and provide interested parties with an opportunity to comment on that and with a hearing only if there was any opposition and if there was no opposition then we would proceed to make the variation determinations in those terms.


Is there any party with any concern about that process or wishes to say anything about it?  Can I go firstly - well, Mr Clarke, was there anything you wanted to say before we go to the individual unions?


MR CLARKE:  No, your Honour.  I only say, your Honour, that (indistinct) I noticed the other thing - I'm sorry, I spoke.  Perhaps I shouldn't have.


JUSTICE ROSS:  No, that's all right.  Well, can I invite Ai Group and ABI to make any comment about that proposal?


MR FERGUSON:  Mr Ferguson, your Honour.  We are content with that proposal.  It seems like a sensible course of action, except for one matter, if I can raise a query?




MR FERGUSON:  We had intended to participate in the group 2 hearing, which I think there might have been some miscommunication.  But what falls from that, in particular, there wasn't going to be a level of opposition advanced to the variation to the awards but for perhaps in relation to the extension sought.  I'm just not sure where that entirely landed.


JUSTICE ROSS:  You want to know where that ended up?


MR FERGUSON:  Yes.  Particularly so the Health - my concern there is if it was further order, I understand the other proceedings and I was involved in those, but obviously the application there was contested - - -


JUSTICE ROSS:  No, no - - -


MR FERGUSON:  - - - and so whether or not - yes.


JUSTICE ROSS:  Well, it is to further order, but that's - Mr Clarke mentioned that he anticipated that would mean weeks rather than months and in the event that it creates any difficulty, Mr Ferguson, you can simply ask for the matters to be called back on and we can address that as the issue emerges.




JUSTICE ROSS:  But we didn't put a particular date for the period of operation in those awards, because there was interaction with the other proceedings.




JUSTICE ROSS:  We also, for your information, made it clear Mr Clarke had put the proposition that the unions had demonstrated a prima facie case in the other proceedings for paid leave.  We made it clear that we weren't expressing any view about whether that was right or not.


In relation to the other matters, the retail matters - - -




JUSTICE ROSS:  The four Retail Awards, the NRA supported the applications as did the Newsagents Association.  We granted




JUSTICE ROSS:  We granted those applications to extend the Schedule X to 31 July.




JUSTICE ROSS:  We declined an application by Mr Pardo for the SDA to amend their application to make it 30 September, because interested employer parties had not been given sufficient notice of that proposed variation.




JUSTICE ROSS:  In relation to Live Performance, there was an agreed position between Live Performance Australia and MEAA that the Live Performance Award Schedule X be extended until 30 June next year and in relation to the Air Pilots Award, we are very the award consistent with the application to extend schedule X to 31 December this year.


We took the position in relation to Live Performance and the Air Pilots for a longer period, having regard to the more substantial impact of the restrictions that have been put in place to contain the pandemic upon the Arts and Recreational Services sector and on an Aviation.


I think the issue about your attendance and ABI's arose because I think that you had assumed that you were a respondent to those matters when, in fact, the statement had said that if any party wished to be heard they were to notify my chambers by 12 noon on Monday.  But in any event, given the position of non-opposition, it's no great mischief that that's where they - - -


MR FERGUSON:  (indistinct) I appreciate that explanation and I think while we communicated with chambers we perhaps weren't as clear as we should have been in any event.  The outcome that you've described, there is only one that may cause me concern, but it may not in terms of the period of operation and, you know, we can deal with that if it arises.




MR FERGUSON:  In relation to the group 3 applications, the course of action you're proposing allows us an opportunity to deal with anything that arises in relation to the provisional view about the period of its operation, which is the area where I think there will be any concern it will be relating to that.


So the course of action you're proposing, your Honour, we think has merit.


JUSTICE ROSS:  All right.  Thank you, Mr Ferguson.  Mr Izzo?


MR IZZO:  Thank you, your Honour.  Yes, I might also indicate that there was no opposition from either ABI or ACCI with respect to the extensions in relation to the group 2 or tranche 2 awards that have recently been varied.  In relation to the third tranche of awards, we have no opposition to the approach that's proposed.  So there's no issue in relation to either of my clients.


JUSTICE ROSS:  All right.  Thank you, Mr Izzo.  Does any of the unions wish to say anything about the course of action that we propose?  That is, to express a provisional view approving the extensions until 30 September this year and providing interested parties with an opportunity to comment?  Is there any opposition to that proposal?


MR BULL:  Your Honour, it's Stephen Bull from United Workers Union.  Just to clarify, will there then be a period where there's no Schedule X in place?


JUSTICE ROSS:  There will be.  Well, because Schedule X expires today and we would need to - I don't think we can - just bear with me for a moment.  Look, we will deal with the issue to grant retrospectivity.  But can I indicate this that we don't envisage this process taking more than a couple of days, Mr Bull and so at most you would have a gap of a couple of days.  And I don't think there's any reasonable alternative, given that the applications were only filed yesterday afternoon.


MR BULL:  No.  I am not looking to (indistinct) the particular operation.  I don't want to sound like a - I don't want to be difficult, but I am not quite sure whether the Commission has the capacity to make a retrospective award variation.


JUSTICE ROSS:  No.  I am pretty sure that it is limited to Section 160, dealing with ambiguity, and that wouldn't seem to be - - -


MR BULL:  It's not ambiguous.


JUSTICE ROSS:  No.  I don't think there is a capacity to grant it, but nevertheless it's something that we will look at and if there is any capacity, we will set out what it is and we will express a view and parties will have an opportunity to comment on any provisional view we arrive at.  All right?


MR BULL:  Thank you.


JUSTICE ROSS:  Was there anything - anyone else?  No.


MR HAMILTON:  Your Honour, it's David Hamilton from Live Performance Australia.




MR HAMILTON:  Just a clerical type issue.  Your Honour, in the AWU's application we have an interest in the Amusement, Events and Recreation Award.  That should be 2020.  Not 2010.


JUSTICE ROSS:  Yes, the award itself.  That's right.


MR HAMILTON:  And if it makes things move along quicker, your Honour, we have an interest in the Amusement Award with regard to Exhibition Industry and also in the Broadcasting award with regard to cinema operation.  We would agree to the extensions for those two cohorts, if your Honour pleases.


JUSTICE ROSS:  Yes.  I think the difficulty is that there will be other employer bodies with an interest.  And so we will need to give them an opportunity.  But thank you for the indication.


MR HAMILTON:  Thank you, your Honour.


JUSTICE ROSS:  All right.  If there's nothing further we will issue a statement in respect of these matters later today.  Thank you for your attendance and my apologies for keeping you so late. It's jus t that the other matters ran over time.  Thank you, we will adjourn.


MS ANTHONY:  Yes, sorry.




MS ANTHONY:  There was one further matter.  It's Ms Anthony from APESMA.




MS ANTHONY:  It only came to my attention a little while ago today that one of the awards that we submitted the application for the extension of Schedule X, while we supported the schedule X being inserted into the award back in April, it appears that the Electrical Power Industry Award in fact did not have Schedule X inserted into it back in April.


JUSTICE ROSS:  That's right.


MS ANTHONY:  Our organisation supports having Schedule X inserted into the award and I just thought I would point that out and we are happy to leave it in the Fair Work Commission's hands as to whether it is possible to have it actually inserted into that award in the circumstances.




MS ANTHONY:  And obviously the employer organisations or any other organisation might want to raise any objection.


JUSTICE ROSS:  Thank you for that, Ms Anthony.  That does put that application in a separate category and we will seek to address that in the statement as well.


MS ANTHONY:  Yes.  Thank you, your Honour.


JUSTICE ROSS:  Anybody else?  Last call.  No.  All right.  Thank you very much for your attendance.  We will adjourn.

ADJOURNED INDEFINITELY                                                            [2.33 PM]