TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 55717-1
SENIOR DEPUTY PRESIDENT WATSON
AM2011/24
s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error
Application by Master Plumbers' and Mechanical Services Association of Australia, The
(AM2011/24)
Plumbing and Fire Sprinklers Award 2010
(ODN AM2008/15)
[MA000036 Print PR986378]]
Melbourne
2.04 PM, FRIDAY, 1 JULY 2011
Continued from 15/06/2011
THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE
PN212
THE SENIOR DEPUTY PRESIDENT: Yes, good afternoon. I'll just check on appearances. Firstly, in Melbourne?
PN213
MR P McCRUDDEN: McCrudden, P, from the CEPU.
PN214
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr McCrudden.
PN215
MR B SHAW: Bruce Shaw with KEN GARDENER and SHARON KRAEMER.
PN216
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. And in Sydney?
PN217
MR P NAYLOR: Naylor, P, Master Plumbers Association.
PN218
THE SENIOR DEPUTY PRESIDENT: Yes. And you have - - -
PN219
MS K YU: Ms Yu, Karen, Y-u, for the Master Plumbers Association of New South Wales.
PN220
THE SENIOR DEPUTY PRESIDENT: Thank you. And in Brisbane?
PN221
MS E KANNIS: If it pleases, your Honour, Kannis, E, for the Master Plumbers Association, Queensland.
PN222
THE SENIOR DEPUTY PRESIDENT: Yes. Very well, I've re-listed this matter for further consultation as indicated in the 21 June decision, just to obtain further views of the parties, because there does seem to be some uncertainty as to the application of part 3 the types of employment. Clause 10 suggests availability of daily hire but only in respect of plumbing and mechanical services. Weekly hire employees - sorry, full time weekly hire employees and then part time weekly hire employees, and then casual employees.
PN223
However, the part time provision in clause 12.2 describes a part time employee as an employee who works fewer than 38 ordinary hours per week or fewer than eight hours per day, which if part time employment were restricted to weekly employees - the eight hour reference would be unnecessary it would seem. Eight hours is obviously less than 38.
PN224
So there is some confusion as to the operation of those provisions. So I thought I'd - having regard to what is in my decision, invite any further contributions from those with an interest in the award. Does anyone want to step off the plate, Mr Shaw?
PN225
MR SHAW: We can step off the plate first. We, in fact - our position hasn't changed from when we put it to you, but we have - or I should say, Ms Kraemer has done a bit of lateral thinking and a bit of additional drafting, and we've got an alternative draft which, in fact, is believed - I'll have to concede myself, but it's probably clearer than one I've put up.
PN226
THE SENIOR DEPUTY PRESIDENT: Yes.
PN227
MR SHAW: And it hasn't been sent, I believe to the Tribunal yet, mainly because it wasn't signed off by those who agree with it - which is not everybody as you know - it wasn't until this morning. But you can hand up a copy now if you wish.
PN228
THE SENIOR DEPUTY PRESIDENT: Yes, very well.
PN229
MR SHAW: I don't know if they've received it, but it's seen to them by email this morning.
PN230
THE SENIOR DEPUTY PRESIDENT: Yes.
PN231
MR SHAW: - - - I assume they have seen it.
PN232
THE SENIOR DEPUTY PRESIDENT: Sorry, was sent by email to - - -
PN233
MR SHAW: The other parties.
PN234
THE SENIOR DEPUTY PRESIDENT: So you have that in Sydney and Brisbane?
PN235
MR NAYLOR: We do, your Honour.
PN236
THE SENIOR DEPUTY PRESIDENT: Yes. Ms Kannis?
PN237
MS KANNIS: We do, your Honour.
PN238
THE SENIOR DEPUTY PRESIDENT: Good. Very well, Mr McCrudden, you've got a copy as well?
PN239
MR McCRUDDEN: Yes.
PN240
THE SENIOR DEPUTY PRESIDENT: Okay. You can take me through it then, perhaps, Mr Shaw?
PN241
MR SHAW: Well, it - what it essentially does, as you can see, it alters clause 10 to, effectively, remove - in fact it alters the whole concept, to remove the question of full time weekly hire because, clearly, daily hire is also full time in that sense of the word.
PN242
THE SENIOR DEPUTY PRESIDENT: Yes.
PN243
MR SHAW: So it's split up into daily hire employees, which is still restricted to plumbing and mechanical services classifications only. Weekly hire employees or casual employees, it's the types of employment, right. And then - it then jumps down to clause - new clause 12, weekly hire, which simply weekly hire employees being a person that works an average of 38 ordinary hours per week. Part time employment then, as you've quoted before, is effectively unchanged as a concept, but it can clearly apply to any of the - well, it can't apply to casual of course, but it can apply - because there's a separate clause for casual - but it's not restricted to full time weekly hire, it can apply to the other types of employment.
PN244
THE SENIOR DEPUTY PRESIDENT: Yes.
PN245
MR SHAW: That, essentially, is the change that's been made. The rest is just renumbering - - -
PN246
MR NAYLOR: Excuse us, your Honour.
PN247
THE SENIOR DEPUTY PRESIDENT: Yes.
PN248
MR NAYLOR: Your Honour, here in Sydney we're having major difficulty hearing Mr Shaw.
PN249
MR SHAW: Sorry, I didn't have the microphone point in the right spot. Is that better?
PN250
THE SENIOR DEPUTY PRESIDENT: Is it the right - - -
PN251
MR NAYLOR: Thank you, thank you.
PN252
THE SENIOR DEPUTY PRESIDENT: Okay. Where - does Mr Shaw need to start again, Mr Naylor or was there some point where you lost him?
PN253
MR NAYLOR: No, we picked up most of it, your Honour.
PN254
THE SENIOR DEPUTY PRESIDENT: Yes. I think the concluding part was that the 13.1 in the part time provision remains as it is, and the rest is renumbering. Yes. Can I just ask you in respect of that, Mr Shaw, we've still got the position in 13.1 where a part time employee is someone who works fewer than 38 ordinary hours a week or few than eight ordinary hours per day. Do they need to be qualified by 38 per week in the case of weekly hire employment or fewer than eight hours in the case of daily hire employees?
PN255
MR SHAW: I wouldn't think so, it might create even more confusion because on a - the part of the concern we have is the fact that a part time daily hire could still work, say, four days a week - it could be four by eight hours per week. And I mean, I know, it's - it can be argued that that can be done anyway without the need for a clause.
PN256
THE SENIOR DEPUTY PRESIDENT: Yes.
PN257
MR SHAW: But, in fact, as we pointed out in our original submissions it's - daily hire is really, in effect, a form of weekly hire that - at the end of the day's notice by either side - - -
PN258
THE SENIOR DEPUTY PRESIDENT: Yes.
PN259
MR SHAW: - - - because things have, in fact, run cycles of - even monthly cycles like - such as RDOs apply to daily hire as well as to weekly hire. So it - I'm not sure that that qualification you're suggesting would clarify it or confuse it.
PN260
THE SENIOR DEPUTY PRESIDENT: Yes. Well, taken literally, the eight hour reference is without purpose if it's less than 38.
PN261
MR SHAW: True, true.
PN262
MS KANNIS: Your Honour, may I interrupt?
PN263
THE SENIOR DEPUTY PRESIDENT: Ms Kannis, yes, certainly.
PN264
MS KANNIS: I have a possible fix because I was concerned with your opening as to the eight hours per day is, in fact, not the eight hours per week, eight hours per day is 40 hour week - - -
PN265
THE SENIOR DEPUTY PRESIDENT: Yes.
PN266
MS KANNIS: - - - accepting the fact that there are, you know, allowance for RDOs and averaging provisions depending on the nature of the employment arrangement and what suits the parties. Obviously 38 hours averaged per day without an RDO is only a 7.6 hour day. Now, if a part time worker is working with such employees, perhaps, the fix would be to amend the words to say "a part time employee is an employee who works an average of fewer than 38 ordinary hours per week or fewer than up to eight ordinary hours per day."
PN267
THE SENIOR DEPUTY PRESIDENT: Yes. I'm not sure if that addresses it, but thank you for that. Fewer than up to - I mean, you could have a full time employer working - well, you would - fewer than eight hours per day, but that's the problem of the eight hour reference, I guess.
PN268
MR McCRUDDEN: Well, the other problem is, your Honour - - -
PN269
THE SENIOR DEPUTY PRESIDENT: Yes.
PN270
MR McCRUDDEN: - - - if for some reason that the part time employee had to work more than eight hours per day, whether it was an emergency or something else, does that mean he's not a part time employee any more?
PN271
MS KANNIS: No, it goes into overtime. It would have (indistinct) eight hours - ordinary hours and then go into overtime.
PN272
THE SENIOR DEPUTY PRESIDENT: I think the reference - - -
PN273
MS KANNIS: Unless you wanted - unless the parties had something more flexible in light of the award - - -
PN274
THE SENIOR DEPUTY PRESIDENT: I think the reference to ordinary plus the conditions upon part time employment i.e., the agreed pattern of work would cover that. If you went outside of that then you would move into the overtime regime. I can understand that would occur on occasions if someone's on a job and there's another hour required to complete it. You wouldn't pack up tools and go home and return the next day, although I have had that experience with domestic plumbers.
PN275
MR SHAW: One possible alternative is to remove the reference to all fewer than eight ordinary hours altogether.
PN276
THE SENIOR DEPUTY PRESIDENT: Yes.
PN277
MR SHAW: Because when you look at clause 11 the only thing it distinguishes a daily hire employee an another other employee is the fact that they - it's one day's notice for termination.
PN278
THE SENIOR DEPUTY PRESIDENT: Yes.
PN279
MR SHAW: I mean, it's not, as it was, perhaps, 1975 and it was an hourly hire and a totally different concept for employment.
PN280
THE SENIOR DEPUTY PRESIDENT: So the removal of the "fewer than eight hours" might attend to that.
PN281
MR SHAW: Well - - -
PN282
THE SENIOR DEPUTY PRESIDENT: Is that your understanding, Mr McCrudden, of practice how daily hire works?
PN283
MR McCRUDDEN: Well, I think first of all, I think the eight hours notice is not the only - well, I think - - -
PN284
MR SHAW: An hour to sharpen their tools, which I think applies to carpenters more than plumbers anyway.
PN285
MR McCRUDDEN: I'm not sure that the payment in lieu provisions are - in the NES are different, and certainly the redundancy provisions are different in the NES for daily - daily hire employees are excluded.
PN286
THE SENIOR DEPUTY PRESIDENT: Well, there's industry specific scheme in this award - there's an industry specific scheme in this award, is there not?
PN287
MR McCRUDDEN: There is.
PN288
THE SENIOR DEPUTY PRESIDENT: So the NES doesn't apply in respect to redundancy.
PN289
MR McCRUDDEN: It doesn't respect it - to daily hire employees. It does apply to weekly hire employees.
PN290
THE SENIOR DEPUTY PRESIDENT: I'm sorry.
PN291
MR McCRUDDEN: I don't have the Act with me, but I think it's - I think it's specifically in the construction industry that the redundancy provisions are excluded to daily hire employees in the construction industry not weekly hire.
PN292
THE SENIOR DEPUTY PRESIDENT: But the award excludes the NES redundancy provisions entirely in favour of an industry specific scheme, does it not - or am I thinking of the wrong award? Just one second. Yes, clause 18 of the award, in effect, replaces the NES in this industry as it does in other building - in the building on site award - electrical contractors.
PN293
MR McCRUDDEN: Yes, it does.
PN294
THE SENIOR DEPUTY PRESIDENT: That may well resolve the confusion, because, I mean, it does literally say less than 38 or less than eight. Because in that case a daily hire employee working four or five days a week, less than 38, would be dealt with as a part time employee. Mr McCrudden, while you're looking it up, perhaps, I'll go to Sydney and Brisbane and see whether there are any additional comments on that - from there. Mr Naylor, do you have any views?
PN295
MS YU: Your Honour, may I - - -
PN296
THE SENIOR DEPUTY PRESIDENT: Ms Yu, yes.
PN297
MS YU: Thank you, your Honour. (indistinct) your Honour, (indistinct) not industry specific (indistinct) to apply to employees who are being covered by this type of work. Clause 17, which is the termination of - - -
PN298
THE SENIOR DEPUTY PRESIDENT: Yes, that's the notice - yes.
PN299
MS YU: (indistinct)
PN300
THE SENIOR DEPUTY PRESIDENT: Sorry?
PN301
MS YU: There appears to be an incoming call.
PN302
THE SENIOR DEPUTY PRESIDENT: An incoming call?
PN303
MS YU: Yes.
PN304
THE SENIOR DEPUTY PRESIDENT: Sorry - has it gone now?
PN305
MS YU: Yes, yes, it's gone now.
PN306
THE SENIOR DEPUTY PRESIDENT: They've given up. Thanks. It's the termination provisions clause 17.
PN307
MS YU: Yes. And (indistinct) appears to say it's termination (indistinct) NES but there is an exclusion of the notice provision which applies to daily hire employee working in the building and construction industry - - -
PN308
THE SENIOR DEPUTY PRESIDENT: Yes, in favour of the one day notice prescribed in the award. Is that correct?
PN309
MS YU: Yes.
PN310
THE SENIOR DEPUTY PRESIDENT: Yes.
PN311
MS YU: (indistinct) termination by the employee. If you read clause 19 and 18 together it may suggest - it may suggest that the notice of termination of one that is applied to daily hire employees, which is a lot less than what the NES provides, and that will (indistinct) industry specific (indistinct) redundancies - compensate that one day's notice with a special redundancy scheme.
PN312
THE SENIOR DEPUTY PRESIDENT: Yes. Well, I'm not sure that's - well, sorry, you're right that the redundancy scheme in the construction industry broadly defined - reflects in part the daily hire and more generally the temporary nature of employment on any particular job in much of the industry. But I'm not sure how that affects this issue in the sense that the NES non application of the NES in respect of daily hire employees for notice in favour of the one day notice within clause 11 of the award dealing with daily hire, reflects the nature of daily hire and, I think, the intention and long history of the notice provision in respect to such employees.
PN313
MS YU: Your Honour, (indistinct) that the notice provisions for daily hire is to be considered together with the industry (indistinct) redundancy scheme. The redundancy (indistinct) for the daily hire nature of these employees.
PN314
THE SENIOR DEPUTY PRESIDENT: Yes. Well, what's the significance of that in terms of the wording of part 13 which we've been discussing? I'm just trying to get where you're headed.
PN315
MS YU: Clause 13 (indistinct) which is part time employment (indistinct) under the heading of Clause 12 of weekly hire employment.
PN316
THE SENIOR DEPUTY PRESIDENT: Yes.
PN317
MS YU: (indistinct) appears in clause 18 to redundancy (indistinct) rationale or (indistinct) on daily hire (indistinct) of today's hearing.
PN318
THE SENIOR DEPUTY PRESIDENT: Yes.
PN319
MS YU: We would submit that part time employment is on a daily or weekly hire employment, and part time employment may be (indistinct) work of fewer than 38 hours per week - in this agreement - - -
PN320
THE SENIOR DEPUTY PRESIDENT: I see. Thank you. Yes. Anything further on the issues raised by Mr Shaw's proposed amended words - before I go to Queensland, anything more from Mr Naylor or Ms Yu on that?
PN321
MR NAYLOR: Your Honour, if you look at the proposal that was emailed to us earlier today (indistinct) that the (indistinct) go to the question 10(1)(c) in respect of casual employees - - -
PN322
THE SENIOR DEPUTY PRESIDENT: Yes.
PN323
MR NAYLOR: - - - and 10.2, which it says that at the time of engagement the employer would inform each employee in writing of the terms of their engagement and particularly whether they are engaged as dailies hired with the hired casuals.
PN324
THE SENIOR DEPUTY PRESIDENT: Yes.
PN325
MR NAYLOR: When we had a look at this earlier on, we went to clause 14 casual employment and we went to 14F - - -
PN326
THE SENIOR DEPUTY PRESIDENT: Yes.
PN327
MR NAYLOR: - - - item 2, and specifically 2 - and in negotiating for an employee to go from being a casual employee to a full time or part time employment, it says that if it's agreed that the employee will become a part time employee the number of hours that (indistinct) would be worked are set out in clause 13. When you go to clause 13, it deals with basically the contract of that part time employment and as part of that contract could it be that the employer would stay that you are still a casual employee. It's somewhat circularity.
PN328
THE SENIOR DEPUTY PRESIDENT: I'm sorry: if a casual has elected to be converted - we're only talking about part time in this case?
PN329
MR NAYLOR: Yes.
PN330
THE SENIOR DEPUTY PRESIDENT: So you agree on part time employment. You then have to agree to the number and pattern of hours which is - was the old 12.2 which is now the 13.3.
PN331
MR NAYLOR: 13.3.
PN332
THE SENIOR DEPUTY PRESIDENT: Point 3, yes, in Mr Shaw's document. Yes. And what problem arises from that, Mr Naylor?
PN333
MR NAYLOR: Well, basically that it is in 10.2, the employer still has the ability to determine where is the term of - or the category or classification of the employment, whether he's daily hire, weekly hire or casual.
PN334
THE SENIOR DEPUTY PRESIDENT: Subject of a right of a casual who has been - who meets the conditions in the casual conversion clause to electively convert it to a full time or part time employee status.
PN335
MR NAYLOR: We would say that the original clause 12 in the award makes it quite clear that if that was exercised as it is in in clause 14 of the existing award which is - - -
PN336
THE SENIOR DEPUTY PRESIDENT: Yes.
PN337
MR NAYLOR: - - - 14.6(a) and 14.6(b).
PN338
THE SENIOR DEPUTY PRESIDENT: Yes.
PN339
MR NAYLOR: Once that election is made for part time employment it has to be as weekly hire (indistinct) which is in accordance with clause 12 (indistinct) where part time employment is found.
PN340
THE SENIOR DEPUTY PRESIDENT: Does that need to be the case if - it goes to the fundamental issue is there a role for part time daily hire employment? And if there is then the old 14.6, the reference to what was part time weekly hire employment would be altered to part time employment more generally.
PN341
MR NAYLOR: If the (indistinct) discussion, your Honour - - -
PN342
THE SENIOR DEPUTY PRESIDENT: Yes.
PN343
MR NAYLOR: - - - the issue that we would like to make is - on behalf of our members in New South Wales, is the question of that people go to part time employment which come from (indistinct) different types of category. They could come from a situation where they have recreational injury - - -
PN344
THE SENIOR DEPUTY PRESIDENT: Yes.
PN345
MR NAYLOR: - - - be it a motor bike accident, a football accident, they try to come back to work because they're not covered by things like workers compensation.
PN346
THE SENIOR DEPUTY PRESIDENT: Yes.
PN347
MR NAYLOR: In coming back to work they would want to work restricted hours until the mobility can seen to be return to full time work.
PN348
THE SENIOR DEPUTY PRESIDENT: Yes.
PN349
MR NAYLOR: They could be seeking to use the NES conditions and the looking after either a parent or a carer, or spouse, with some sort of difficulty, or they could be, as we've now found the case, where older employees of plumbing companies are being brought back to mentor apprentices at the present time.
PN350
THE SENIOR DEPUTY PRESIDENT: Yes.
PN351
MR NAYLOR: And they are engaged while they restricted (indistinct) because there's no need to work full time.
PN352
THE SENIOR DEPUTY PRESIDENT: Yes.
PN353
MR NAYLOR: If they are in that - in any of those categories they are looking for also some form of security about that part time employment, because when we have a look through all the previous discussions in relation to the award and the question of part time - the inclusion of part time employment the analogy is being drawn that if part time (indistinct) akin to full time but just in the restricted amount of hours, days a week, that may be agreed according to the contract.
PN354
THE SENIOR DEPUTY PRESIDENT: Yes.
PN355
MR NAYLOR: Now, in that case, that's about giving the employee who elects to go to part time work, security. And we believe that the daily hire positions does not provide that security. In fact, it actually works against the philosophy of going into part time employment.
PN356
THE SENIOR DEPUTY PRESIDENT: But there's no prohibition on - well, sorry, if it's less than 38 it is going to be part time, but there's no prohibition in what's in the document handed up by Mr Shaw from the employer and employee agreeing either on part time weekly hire employment or daily hire, is there?
PN357
MR NAYLOR: No, there's not, but on our research of the submission put before the Full Bench during the consideration of the award, the argument was that part time employment was akin to full time employment and that would make it somewhat inconsistent with those (indistinct) from our position.
PN358
THE SENIOR DEPUTY PRESIDENT: No. Why would it if the substantive difference is simply the amount of notice being provided. I mean, we have an industry where there is - where daily hire does occur for full time employees and I can't - I suppose I don't see why it would be a problem for part time employees to work either on the weekly hire or daily hire basis depending on how work is generally arranged by that employer?
PN359
MR NAYLOR: Well, your Honour, to assist the Court if we go back and look at the traditions of daily hire.
PN360
THE SENIOR DEPUTY PRESIDENT: Yes.
PN361
MR NAYLOR: And, in fact, to the discussions that we were having about this matter earlier this week. There actually happens to be a couple of locations in Sydney at the present time where at 5.30 in the morning you can see a large number of tradesmen standing on corners waiting to be picked up to go and - and actually work under the daily hire scheme.
PN362
THE SENIOR DEPUTY PRESIDENT: Yes.
PN363
MR NAYLOR: So it still exists. And that was the tradition of the old (indistinct) plumber. The (indistinct) plumber was a (indistinct) plumber who, when they finished their apprenticeship and became a tradesman, moved from site to site to actually get work - - -
PN364
THE SENIOR DEPUTY PRESIDENT: Yes.
PN365
MR NAYLOR: - - - basically on a daily required basis, and there are - there would be enrolled, as there would be in Brisbane, as in there is in Sydney, large examples of major housing construction sites - specifically in the western suburbs of Sydney built in the 50s - that were built on that type of employment where the person was engaged for a short period of time to do a project, whether that was one house, or (indistinct) on a multiple number of houses. Once that project was finished, that term of employment was finished also.
PN366
THE SENIOR DEPUTY PRESIDENT: Yes.
PN367
MR NAYLOR: If you look at that nature, that (indistinct) a compensation as it does in the present calculation of (indistinct) on a layman. Now, we're not sure and we don't believe it's correct that if you elect to go to part time employment for specific period of time, whilst it may be a lower rate, you do it for the specific purpose that you will retain the position, there's an agreement about going to part time employment as to the number of days you will work, the number of hours you will work, what are the contractural arrangements, and that's quite clearly set out in the award that you actually have to agree on with the employer.
PN368
THE SENIOR DEPUTY PRESIDENT: Yes.
PN369
MR NAYLOR: So amongst that period of employment is finished you've go to your previous position.
PN370
THE SENIOR DEPUTY PRESIDENT: Yes. Well, I can't see the award is currently framed with the amendments proposed by Mr Shaw would alter that situation. I mean, the award provides for weekly employment and in respect of plumbers and mechanical services daily hire, and what is now proposed is that it be made clear that part time employment can be undertaken on either of those basis, as weekly or daily hire subject to discussion and agreement as required by the current 14.6
PN371
And in that circumstance, for example, of a person returning to work from injury, agreement would be reached one way or the other for a certain number of hours per week and a certain pattern of hours on the basis that when the employee is able to fully resume work those arrangements would cease in favour of resumption of full time work, isn't that how it would work?
PN372
MR NAYLOR: One would hope that that's the (indistinct) your Honour, but it's a question of if it was. more unscrupulous as it were, they may use the provisions of the daily hire to actually terminate that employee.
PN373
THE SENIOR DEPUTY PRESIDENT: Well, they could terminate them on a week's notice in any case, could they not?
PN374
MR NAYLOR: Well, one's a little bit more secure than the other, if I put it that way.
PN375
THE SENIOR DEPUTY PRESIDENT: Yes, yes. I'm not - - -
PN376
MS YU: And, your Honour - - -
PN377
THE SENIOR DEPUTY PRESIDENT: Yes, Ms Yu.
PN378
MS YU: In the proposed 10.1 it outlines (indistinct)
PN379
THE SENIOR DEPUTY PRESIDENT: Yes.
PN380
MS YU: And just following on from the discussion of Mr Naylor, the one day notice of termination is probably a feature of - or the (indistinct) employee and we would like to make the distinction that daily hire employees are not - are very different to casual employees.
PN381
THE SENIOR DEPUTY PRESIDENT: Yes. Well, that's certainly true.
PN382
MS YU: Yes. And in the proposed amendment clause 13, I select part time employment as a separate clause which is not included in clause 10, but not being the type of employment - - -
PN383
THE SENIOR DEPUTY PRESIDENT: Yes.
PN384
MS YU: - - - (indistinct) on its own. There's somewhat confusion that casual employees can also be part time employees - or to turn it the other way around, part time employees is casual - not dealing with the part timers (indistinct) on daily hire (indistinct) which we oppose. The consideration of part time employment and casual will (indistinct)
PN385
THE SENIOR DEPUTY PRESIDENT: Why would that. It's not - it's typical of every award, is it not, if a part time employee works fewer than 38 with reasonably predictable hours of work and then that's then supported by provisions as to agreement in writing as to working a part time work, the hours to be worked, the days, commencing times, and the like, and that's to be contrasted to casual, which is a person who works than less 38, five days over two successive weeks without any linkage to predictability of hours. And that's - that appears in every modern award, does it not, that distinction?
PN386
MS YU: It does. Sir, the speciality (indistinct) award is that it does have the same higher employee and entitlement of employment, and it's usually the most used typed of employment in the plumbing industry.
PN387
THE SENIOR DEPUTY PRESIDENT: Yes, that's correct, but they're distinct from casuals because they - whilst they have the one day's - one day's notice, the casual in this award is someone who is working less than 38, five per week, over two successive weeks, and is then paid those additional loadings in lieu of other payments. That's the distinction, isn't it?
PN388
MS YU: That is distinct if you look at casual employees and part time employees separately. (indistinct) propose that, and tell me if I'm understanding is correct, is that part time employment is now combined with another type of employment for daily hire.
PN389
THE SENIOR DEPUTY PRESIDENT: Well, as it's currently proposed there's daily hire, weekly hire, or casual, and within that - within those categories work can be undertaken on a part time basis on the basis indicated in the proposed clause 13.
PN390
MS YU: That's right. So based on that reasoning an employee can be a part time employee on a casual basis, or they can be a casual employee on a part time basis. If your Honour accepts that you can have a daily hire (indistinct) of part time employment - - -
PN391
THE SENIOR DEPUTY PRESIDENT: Yes. Subject to that regularity and specification of hours worked, and the period part time employment, et cetera, which is directed - and there's a quite a lot of discussion in the various Full Bench decisions of the moderisation events about part time employment, that distinguishes it from the casual employment.
PN392
MS YU: And your Honour, my understanding is that the discussion (indistinct) that part time employment (indistinct) to full time employment is not based on part time employment being similar to a casual type of employment.
PN393
THE SENIOR DEPUTY PRESIDENT: No, it's not suggested that it is a casual type of employment. There is a distinction between part time employment and casual employment in every modern award. Now, you might have people for a period of time working exactly the same hours on a different bases, but if you look at it more closely the part time employee does have regular defined hours agreed in writing so that they do have the certainty which is characteristic of part time employment as distinct from casual and they have the access to the full time entitlements rather than the loading of lieu in some of those entitlements.
PN394
I mean, what you're suggesting really is that the lesser notice and the relatively greater insecurity of the daily hire employee versus the weekly hire employee is problematic and daily hire is the problem, Isn't that, essentially, what you're - you're arguments come down to.
PN395
MS YU: Your Honour, full time or part time employment is a difficult concept - I think is a difficult concept to be (indistinct) daily hire concept. In the plumbing industry - - -
PN396
THE SENIOR DEPUTY PRESIDENT: Well, there are only two ways to resolve it, are there not? Either not have daily hire or not apply part employment to daily hire.
PN397
MS YU: Daily hire is a great concept in the - - -
PN398
THE SENIOR DEPUTY PRESIDENT: Well, this is something that the Full Bench raised, you might recall, during - - -
PN399
MS YU: Yes.
PN400
THE SENIOR DEPUTY PRESIDENT: - - - the modernisation - the ongoing utility of daily hire and to a person we were told it was essential in the industry, I don't mean plumbing but building generally. It was retained for that reason by the Full Bench as the decisions will disclose - - -
PN401
MS YU: Yes.
PN402
THE SENIOR DEPUTY PRESIDENT: - - - and that does complicate the issue of part timer. I mean, the part time casual positions are in exactly the same form as in every modern award, complication arises from the retention of the daily hire concept. And the two can be reconciled, can they not, by restricting part time - ensuring that part time employment on a daily hire basis is associated with the predictability of work which is the characteristic generally of part time employment as distinct from casual.
PN403
MS YU: We would submit that part time employment to be restricted to weekly hire, which is more (indistinct) to full time employment, whereas daily hire is a form of (indistinct) employment where the employee could be terminated with one day's notice. And there are provisions in the Fair Work Act to enable that.
PN404
THE SENIOR DEPUTY PRESIDENT: But I'm being told that daily hire employment is the predominant form of employment in the industry so that would preclude part time employment in the largest part of the industry, would it not. I mean - - -
PN405
MS YU: (indistinct)
PN406
THE SENIOR DEPUTY PRESIDENT: I mean, if you had a - if you had a firm which employed everyone on daily hire and you had an employee injured returning to work then what will occur in that circumstance, it would make the returnee to work - weekly hire employee when everyone is engaged and that person, prior to the injury and after the recovery, will be a daily hire employee.
PN407
MR NAYLOR: Your Honour, the way we read the way the Act - the award is written you would (indistinct) The simple reason of the fact if the person wants surety of their employment, it will allow them not to be concerned about the state of their employment, why they do whatever the issue is that brought to seek part time employment. And then they have finished their period of reason of part time employment they will go back to the situation they were in before and the would be working on a full time basis.
PN408
THE SENIOR DEPUTY PRESIDENT: So you'd give them greater security than they previously enjoyed whilst on the return to work program.
PN409
MR NAYLOR: But they also, your Honour, with respect have a lesser pay for doing it.
PN410
THE SENIOR DEPUTY PRESIDENT: Yes. Very well. Anything further before I go to Ms Kannis?
PN411
MS YU: Nothing further, your Honour.
PN412
THE SENIOR DEPUTY PRESIDENT: No. Thank you. Ms Kannis, did you want to say anything at this point?
PN413
MS KANNIS: Thank you, your Honour. I thank your Honour for showing insight into the issues of the industry and the complexities of, perhaps, unnecessary complexities that it caused if plumbing and mechanical services employees were employed on a combination of weekly and daily hire just on the basis of their hours of work. I think that would cause very grave problems for employers to have it manage, "Is this person subject to the NES or are they subject to the award?"
PN414
I think the award is fairly - the creation of the award and insistence of the industry as your Honour quite rightly said to a T, to a (indistinct) the associations insisted on daily hire for plumbing and mechanical services. It was well accepted that the fire sprinkler fitters employee classifications had already gone to weekly hire, but plumbing and mechanical services are very adamant and, fortunately, Fair Work Australia listened, and we were allowed to maintain daily hire employment.
PN415
THE SENIOR DEPUTY PRESIDENT: Yes.
PN416
MS KANNIS: The reality of being in the 21 century, the economic downturn, none of that affects the fact that daily hire is what's traditional in our industry. And from a Queensland perspective, we are very, very keen to maintain that. Therefore, we see no option and, unfortunately, I do apologise for the late notice, but we see no restriction in principle in allowing a part time plumbing or mechanical services employee to be a daily hired worker, and receive all other provisions on a pro rata basis as the standard rule of thumb in any industry.
PN417
THE SENIOR DEPUTY PRESIDENT: Yes.
PN418
MS KANNIS: The employment relationship is a two-way process, quite clearly. The employer and the employee must agree to the - whatever they commence on and how that type of employment may change. Going to the draft that's been put forward by the MPMSAA, we would suggest that in accordance with our submission that clause 10.1 part B, needs to incorporate - or it would be better to incorporate the words of 11.5. In other words (indistinct) weekly hire employees to - sorry, in fact, it's in 11.5 and therefore taking the words of 10.1B, with the hire employees to be (fire and sprinkler fitters classifications only and apprentices).
PN419
That would then make the distinction very very clear from the outset that daily hire is restricted to plumbing and mechanical and weekly hire is restricted to fire and sprinkler fitters and apprentices. I don't (indistinct) Victoria, but there is no need to address part time provisions in template 1, because they are quite clearly addressed in the number 13, with - subject to the changes that we talked about today to remove that ambiguity of eight ordinary hours per day.
PN420
THE SENIOR DEPUTY PRESIDENT: Yes.
PN421
MS KANNIS: I think that - we would achieve most of that. We (indistinct) submission though one step further in the - actually, before I get to the apprentices, I have one thing that I do need to put on transcript and it goes - yes, it goes to the issue of whether or not employees have actually asked for part time work. In Queensland we've had, not voluminous, but certainly a number of requests from very key employees for a number of good reasons, including those outlined by Mr Naylor, lifestyle preferences, that are concerned for almost a family friendly provisions which is where we're seeing the question being asked consistently is to create part time arrangements for plumbers and mechanical service employees.
PN422
THE SENIOR DEPUTY PRESIDENT: Yes.
PN423
MS KANNIS: Not only do we find in Queensland that there are enterprise agreements that include part time provisions for daily hire workers. So clearly the concept is not totally unheard of by what was the Fair Work Australia but, in fact, and I'm very sensitive to this issue in terms of the union and that's why I did not put it as part of my written submission, but I will say that in Queensland part time daily hire employees provisions exist in the union enterprise agreement which are - which a number of (indistinct)
PN424
So the precedent is already has set the concept which, as an industry, we believe it's very, very important to identify plumbing and mechanical services as being daily hire and fire and sprinkler fitters classification as being weekly hire.
PN425
THE SENIOR DEPUTY PRESIDENT: Can I go - - -
PN426
MS KANNIS: Well - - -
PN427
THE SENIOR DEPUTY PRESIDENT: Can I interrupt, Ms Kannis?
PN428
MS KANNIS: Yes, of course.
PN429
THE SENIOR DEPUTY PRESIDENT: Can you tell me where that change you proposed was earlier? The apprentice - - -
PN430
MS KANNIS: 10 - sorry?
PN431
THE SENIOR DEPUTY PRESIDENT: 10 point.
PN432
MS KANNIS: 10.1 part B.
PN433
THE SENIOR DEPUTY PRESIDENT: Well, that bit in brackets is not - - -
PN434
MS KANNIS: It's apprentices both plumbing and mechanical services and fire sprinkler fitters apprentices as required by clause 15.3 is how it currently reads.
PN435
THE SENIOR DEPUTY PRESIDENT: Yes.
PN436
MS KANNIS: What we propose that, in fact, that wording remain and added to it and the words "fire and sprinkler fitter classifications" only.
PN437
THE SENIOR DEPUTY PRESIDENT: I'm sorry. You're suggesting that weekly hire employment should not be available to - - -
PN438
MS KANNIS: Plumbing and mechanical services, correct.
PN439
THE SENIOR DEPUTY PRESIDENT: - - - plumbing and mechanical services at all.
PN440
MS KANNIS: Correct.
PN441
THE SENIOR DEPUTY PRESIDENT: Why do you put that proposition?
PN442
MS KANNIS: On the basis - - -
PN443
THE SENIOR DEPUTY PRESIDENT: I can understand daily hire's predominant form of engagement but you're saying it should be the only form of engagement available.
PN444
MS KANNIS: Correct.
PN445
THE SENIOR DEPUTY PRESIDENT: Yes.
PN446
MS KANNIS: It's only form of engagement that's currently used in the industry. It's the only form of engagement that's used with the union enterprise agreements that we have for plumbing and mechanical services. And it's a long hard road that the industry has fought to keep daily hire. And, yes, it is a question of cost. It's a question of notice and it's a question ultimately of costs. It's swings and roundabouts of the redundancy severance provision.
PN447
THE SENIOR DEPUTY PRESIDENT: Yes. Yes, very well.
PN448
MS KANNIS: Thank you.
PN449
THE SENIOR DEPUTY PRESIDENT: Now, I interrupted you. You can go back to where you were.
PN450
MS KANNIS: Thank you. Yes, the other predicament that we have found ourselves in since the end of last year in Queensland is that as part of employment training now allows a part time apprentices. So, of course, the employer has duly rung and the members rung and we said, what part time - quite shocked at the concept had even been legally introduced. And sure there it is on websites. And I spoke to the department and they said, "Yes, it is available." So we asked them how it worked and they explained it's all, you know, equivalent time, et cetera, et cetera, and negotiated time - time off in blocks. There's a lot of flexibility in terms of block time being allocated for TAFE. That was on a grade arrangements - a number of employees, not many, but they had taken it up.
PN451
THE SENIOR DEPUTY PRESIDENT: When was this introduced, Ms Kannis?
PN452
MS KANNIS: My best knowledge is at the end of last year, certainly, at the commencement of some of those part time apprenticeships was this year.
PN453
THE SENIOR DEPUTY PRESIDENT: So it was introduced after the making of the award which - - -
PN454
MS KANNIS: Yes.
PN455
THE SENIOR DEPUTY PRESIDENT: - - - didn't - does not provide for such arrangement.
PN456
MS KANNIS: Correct. We’re proposing that either 15 - clause 15.3 be amended to take part time into account - in other words, adjusting the four years, which is quite prescriptive. Alternatively, removing the words "on a full time basis" and, therefore, not making any other adjustments to the clause. But some amendment is needed to 15.3 to accommodate the very real situation of part time apprenticeships in plumbing and mechanical services.
PN457
THE SENIOR DEPUTY PRESIDENT: Well, I mean, this is the first time that's been raised and I suppose I have some difficulty as to when this process will end. It might be a matter for further submission. It's a bit difficult when the award was made on a certain factual basis and the department in Queensland has then amended it's legislative arrangements.
PN458
MS KANNIS: But, of course, can I also - - -
PN459
THE SENIOR DEPUTY PRESIDENT: And alternative, of course, would be to put an additional sub provision, in effect, authorising apprenticeship on a part time basis in accordance with the - whatever Act it is in Queensland on a transitional basis. There were - and if you want anything ongoing you could argue that in the reviews. But having - I've said that on the basis of no-one else here has had an opportunity to comment on what you've put.
PN460
MS KANNIS: Yes. No, I - thank you, your Honour. I accept that - yes - where we currently stand on that issue. I guess is what we're doing here in Queensland is Master Plumbers is accepting that apprentices are weekly hired because of contract of employment, because of the training contract, because of the tradition that those apprenticeships in terms of them being weekly hired, the dismissal has very specific process - certainly here in Queensland.
PN461
THE SENIOR DEPUTY PRESIDENT: Yes.
PN462
MS KANNIS: And we're not looking to change that for apprentices. They remain protected and they should be.
PN463
THE SENIOR DEPUTY PRESIDENT: Yes.
PN464
MS KANNIS: Where our issue goes is to the very real practicality of the genuine need now for part time employment and the very firm position of the employers here in Queensland maintaining daily hire for pluming and mechanical services. So therefore if part time is to be introduced it must be limited to daily hire.
PN465
THE SENIOR DEPUTY PRESIDENT: Yes.
PN466
MS KANNIS: Thank you.
PN467
THE SENIOR DEPUTY PRESIDENT: Very well. Thank you. Mr McCrudden?
PN468
MR McCRUDDEN: Look, your Honour, I guess I'm going to rely on the submission that I lodged here on 30 June.
PN469
THE SENIOR DEPUTY PRESIDENT: Yes.
PN470
MR McCRUDDEN: We're opposed to part time daily hire employment and we will remain to be so. I mean, there's no problem that there is no obstruction to any employer employing someone in the plumbing and mechanical services classifications on part time, all we have to do is change the conditions of their employment and make them weekly hire.
PN471
THE SENIOR DEPUTY PRESIDENT: What would the affect of that be, they'd get an extra four days notice.
PN472
MR McCRUDDEN: Dependent on the length of service, I think it goes up to four weeks, the notice period. So (indistinct) four weeks actually.
PN473
THE SENIOR DEPUTY PRESIDENT: Yes.
PN474
MR McCRUDDEN: So - but that would depend, on, I guess, how long they were employed as a weekly hire employee.
PN475
THE SENIOR DEPUTY PRESIDENT: Yes. But on the downside wouldn't they lose something under the wage provision?
PN476
MR McCRUDDEN: Yes, of course they would, yes, they would. I mean, dependent - that would depend on, you know, how many hours they worked.
PN477
THE SENIOR DEPUTY PRESIDENT: Yes.
PN478
MR McCRUDDEN: I mean, look, I'm unconvinced that a lot of people want to work part time in the plumbing industry. There's no evidence before us that, you know, there's a great demand for it. We've had consultation with some of our members in the past and I'm talking about very few here. That when they approach retirement some of them would like the opportunity to transition into retirement and maybe work, you know, four days a week, maybe three days a week.
PN479
THE SENIOR DEPUTY PRESIDENT: Yes.
PN480
MR McCRUDDEN: But these are people that are employed under enterprise agreements and they enjoy better wages and conditions that might be contained in the award.
PN481
THE SENIOR DEPUTY PRESIDENT: Yes.
PN482
MR McCRUDDEN: So - - -
PN483
THE SENIOR DEPUTY PRESIDENT: They do that - - -
PN484
MR McCRUDDEN: Strictly - it's not in our agreements. It's not a - but there are older gentlemen, getting towards the end of their working life, that would like the - some of them, I've only been approached twice in 12 years - - -
PN485
THE SENIOR DEPUTY PRESIDENT: Yes.
PN486
MR McCRUDDEN: - - - that may like to transition into retirement. There's a few problems in our enterprise agreements and that's why its difficult that some payments are weekly payments, minimum weekly payments. And that's been a problem in the past on how they're not able to be pro rata'ed back so they've had to - they've enjoyed those weekly payments as - and they've come up to an agreement with the employer, they're not real happy about having to pay the whole weekly payment. But that's just the way it is. There's never been - - -
PN487
THE SENIOR DEPUTY PRESIDENT: Is there any - well, what happens in those cases. They're coming from a base of part - of daily hire employment, full time, and then they want to work three or four days moving into retirement. They've then transferred to weekly hire employment.
PN488
MR McCRUDDEN: I don't think that's ever happened, on a formal basis. I think these guys have just come up to an agreement with the boss - with the employer and said, "Mate, I just want to work three days a week instead of four" - sorry, "four days a week instead of five" or "three days a week instead of five," and they've just gone onto those working conditions. We've never received a complaint about it. The employer in these two occasions that I can think of, the employer and the employee were happy and that's just what they did.
PN489
THE SENIOR DEPUTY PRESIDENT: Yes.
PN490
MR McCRUDDEN: They've obviously been used to - like, under enterprise agreement arrangements the redundancy provisions are much higher because they may have been, you know, receiving payments in the redundancy fund for numerous years. That might not be the position with someone under award. There may be no redundancy fund while they receive regularly weekly payments. And then you've got the situation - your weekly hire employee that might enjoy -currently a sprinkler fitter, may have been able to go on part time in the past compared to the plumber.
PN491
THE SENIOR DEPUTY PRESIDENT: Yes.
PN492
MR McCRUDDEN: And then you could have the situation where the plumber goes on part time and receives the lesser conditions that the sprinkler fitter, the weekly hire person would have been entitled to if he remained on daily hire.
PN493
THE SENIOR DEPUTY PRESIDENT: Sorry. Why would they get lesser conditions?
PN494
MR McCRUDDEN: Well, they wouldn't get the notice period.
PN495
THE SENIOR DEPUTY PRESIDENT: What's been sought is provision to allow part time daily hire rather than require it. Does that - - -
PN496
MR McCRUDDEN: Sorry?
PN497
THE SENIOR DEPUTY PRESIDENT: The provision sought is to allow rather than to require part time daily hire. I mean, it's not a circumstance that would arise - it's not arising much now, it wouldn't arise much in the future, would it?
PN498
MR McCRUDDEN: Well, we don't know that because a provision wasn't there in the past. The provision to hire people part time was never there.
PN499
THE SENIOR DEPUTY PRESIDENT: Yes.
PN500
MR McCRUDDEN: And, I mean, what's to stop somebody going out - and I don't know if the market is there or whether it isn't. I've never seen much of a demand for it. If the provision is there then there maybe a lot more of it, I don't know.
PN501
THE SENIOR DEPUTY PRESIDENT: Well, it is protected by the provisions requiring the written agreement as to the working part time - the hours, the period of part time employment and the like. So it's not an open ended availability. I'm just conscious of the Full Bench did in its - noted in the decision determined to include the availability of part time work within the award. I'm conscious it hasn't been there previously.
PN502
MR McCRUDDEN: Well, the availability of part time work is available in the award.
PN503
THE SENIOR DEPUTY PRESIDENT: Yes.
PN504
MR McCRUDDEN: It's just not available for daily hire employees. And it's a quite simple fix to move somebody from daily hire to weekly hire without a considerable cost, dependent on the length of time that people require their part time employment.
PN505
THE SENIOR DEPUTY PRESIDENT: Yes. Thank you for that, Mr McCrudden. Mr - well, can I ask if - is there anyone who wishes to say anything further because we've had some new issues of - I think, arisen since you spoke Mr Naylor and Ms Yu, did you want to say anything about the Queensland proposition or anything Mr McCrudden has said, or you Mr Shaw? Mr Naylor?
PN506
MR NAYLOR: Yes, your Honour. In relation to the issues that were made by Queensland in respect of part time apprentices. There has been some ongoing discussions in respect of part time apprentices with the union. These have commenced some time ago, we're acknowledging the difficulties, we're trying to work our way through that, and we would think that this has been - we were served with this letter an hour before the hearing this afternoon. We think it would be appropriate that this matter not be dealt with today but we actually take the opportunity to continue those discussions and we think we could come to a resolution of the matter over a period time and come back to the Commission and lodge some formal documentation in respect of how they would operate.
PN507
THE SENIOR DEPUTY PRESIDENT: They would, in effect, be a new application to vary. Is that correct?
PN508
MR NAYLOR: We would be quite happy to do that, your Honour.
PN509
THE SENIOR DEPUTY PRESIDENT: Yes. Ms Kannis, what do you say about that proposition?
PN510
MS KANNIS: I think it could be very real industrial relation reality that Queensland finds itself in - your Honour, proposal to put a limitation on the part time apprentices to Queensland would be appropriate. And if we - if required we'll participate in any other States' discussions.
PN511
THE SENIOR DEPUTY PRESIDENT: I wonder in that regard, Ms Kannis, if you could provide me, and it will go on the web, with a copy of the relevant legislation or whatever instrument it is that provides for part time apprenticeships in Queensland or given the award purports to - - -
PN512
MS KANNIS: Yes, certainly, your Honour, we'll do that.
PN513
THE SENIOR DEPUTY PRESIDENT: Mr McCrudden, I wonder if I could ask you to raise - when it's lodged on the website, raise that with the Queensland branch of your union most specifically to obtain a view as to whether - what his view would be on a transitional provision relating only to Queensland terminating on December 2014. That's one way of dealing with it, but I've - I feel reluctant to do anything until hearing from the branch of your union which is the only one directly affected by that proposition.
PN514
MR McCRUDDEN: Well, your Honour, I wasn't aware of this until I came in here today.
PN515
THE SENIOR DEPUTY PRESIDENT: Yes, yes.
PN516
MR McCRUDDEN: I'll need some time.
PN517
THE SENIOR DEPUTY PRESIDENT: Well, if you can provide that as soon as possible, Ms Kannis, and I'll have that posted on the website and, no doubt, the Queensland branch of the union will have a look at it and give me its view one way or the other.
PN518
MS KANNIS: Certainly, your Honour.
PN519
THE SENIOR DEPUTY PRESIDENT: Mr Shaw?
PN520
MR SHAW: Your Honour, in respect of the matters raised by Ms Kannis, we support the submission of Mr Naylor in regard to the apprentice situation. That's - it's not something we've had discussions with the union down here at all and we clearly aren't in a position to put into an agreed position to the Tribunal today and, indeed, one could suggest it might take some time if we, indeed, wanted to pursue the line at all.
PN521
THE SENIOR DEPUTY PRESIDENT: Yes.
PN522
MR SHAW: I appreciate that Queensland apparently has a different problem, but it's certainly something - - -
PN523
THE SENIOR DEPUTY PRESIDENT: Yes, it seems to be a provision of a State government ceding powers to the Commonwealth to come under an award that doesn't - - -
PN524
MR SHAW: Yes.
PN525
THE SENIOR DEPUTY PRESIDENT: - - - permit something then legislating to permit it.
PN526
MR SHAW: And in respect of the proposition that Ms Kannis put that weekly hire should be restricted solely to the sprinkler pipe fitters and/or apprentices, we don't support that and I think it overlooks the fact that this is an occupational award as well as an industry award and I would think employees, particularly, covered by 4.1(b) of the coverage area would certainly want to be able to avail themselves of weekly hire for plumbing and mechanical services grades.
PN527
THE SENIOR DEPUTY PRESIDENT: Yes.
PN528
MR SHAW: And we believe it should be available even though it's seldom used, in fact, I'm surprised if it's used by any of members of the MPMSAA at all, it may well be, but it certainly should be there and retained in the award, even though, perhaps, the employers who were most affected by it are not represented here today.
PN529
THE SENIOR DEPUTY PRESIDENT: Yes.
PN530
MR SHAW: As far as the rest concerned I'd only be repeating myself to put any more - you understand our position, I think, in what I have to say.
PN531
THE SENIOR DEPUTY PRESIDENT: Very well. Okay. Anything further? Well, what - - -
PN532
MS YU: Your Honour - - -
PN533
THE SENIOR DEPUTY PRESIDENT: Yes, sorry. Ms Kannis, is it?
PN534
MR SHAW: No, Ms Yu.
PN535
THE SENIOR DEPUTY PRESIDENT: No. Ms Yu?
PN536
MS YU: Thank you. (indistinct) really confusing (indistinct) Your Honour referred to the statement issued by the Full Bench - - -
PN537
THE SENIOR DEPUTY PRESIDENT: Yes.
PN538
MS YU: - - - on part time work arrangements were included in the stage 2 (indistinct) awards, and I (indistinct) that there's been a conference which is held after that statement has been issued where interested parties have no submissions and definitely (indistinct) submissions during the conference.
PN539
THE SENIOR DEPUTY PRESIDENT: Yes.
PN540
MS YU: We we're aware that there has been the suggestion of part time employment on a daily hire basis in the civil construction industry. And parties have been (indistinct) in relation to that and it was (indistinct) by (indistinct) a party that listed that ability to terminate on a daily basis can partly be seen as being, you know, cornered with a (indistinct) regular part time work. They talked about regular part time work as from section 536J(1)(b) of the Workplace Relations Act, but in that section it talks about the terms of the modern award.
PN541
THE SENIOR DEPUTY PRESIDENT: Yes.
PN542
MS YU: - - - in the modern award. And in types of employment, there was part time employment, there was regular part time employment. It appears that the Full Bench would have considered the proposition before those parties who wanted to (indistinct) part time employment on a daily hire basis and considered the opposition at the time based on the Act at the time. And on a further (indistinct) the Full Bench stated 3 April 2009 at the (indistinct) the Full Bench decided.
PN543
This was also referred to in your Honour's interim decision that they have decided that limitation on daily to plumbing and mechanical services classification - the decided there is a limitation of daily hire to plumbing and mechanical services classification and that limitation is consistent with the current award provision. We also (indistinct) with the Full Bench - - -
PN544
THE SENIOR DEPUTY PRESIDENT: Sorry, where are you quoting from, from that decision?
PN545
MS YU: From paragraph 105.
PN546
THE SENIOR DEPUTY PRESIDENT: That's the final decision?
PN547
MS YU: That's the final decision, yes, that's the Full Bench decision. That probably the last decision that's relevant for part time arrangements.
PN548
THE SENIOR DEPUTY PRESIDENT: Yes. I see, it's in relation I'm making of stage 2 modern awards. Yes.
PN549
MS YU: Yes. And your Honour had referred to that in your interim decision.
PN550
THE SENIOR DEPUTY PRESIDENT: Yes. Correct. Yes. Okay. I'll have a look at that again. All right.
PN551
MS YU: Thank you, your Honour.
PN552
MR SHAW: Your Honour, before we adjourn, I'd raise completely different, I suppose, is the way to put it. But the - - -
PN553
THE SENIOR DEPUTY PRESIDENT: And now for something completely different.
PN554
MR SHAW: Yes. I - in respect of the adult apprentices, as you know there's been a hole series of disagreements and people slowing coming together and there have been discussions this morning between Mr Gardener and Ms Kraemer and Mr Naylor and Ms Kannis as well. It appears now that all - the employer parties anyway, are of a common view as to the outcome they want, which is, in fact, transition provisions to apply to adult apprentices which is quite contrary to the position as you're aware in MPMSAA start off with. But the MPMPSAA particularly still has concerns as to whether there is a potential uncertainty about that.
PN555
It has been agreed that the - certainly, the three parties I just mentioned will cooperate in preparing a draft which they believe achieves the outcome that is desired, and removes the uncertainty. So we, obviously, would need a bit of time for that. I presume you'd want to put a time limit on it.
PN556
THE SENIOR DEPUTY PRESIDENT: Yes.
PN557
MR SHAW: Unless you want to hear from the other parties to - with their own voices, to say - agree with what I'm saying. But - - -
PN558
THE SENIOR DEPUTY PRESIDENT: Yes.
PN559
MR SHAW: I would like to just raise that now. I know it's not a part of this conference but it may assist the Tribunal in dealing with the remaining aspects of this application.
PN560
THE SENIOR DEPUTY PRESIDENT: Well, it would be necessary to have any proposal made available on the website.
PN561
MR SHAW: Yes.
PN562
THE SENIOR DEPUTY PRESIDENT: When could that be made available, Mr Shaw? A short preamble indicating what it is?
PN563
MR SHAW: Well, the drafting isn't done yet.
PN564
THE SENIOR DEPUTY PRESIDENT: Yes.
PN565
MR SHAW: So it - I would presume - perhaps, Mr Naylor could speak to as to the limit there, but I presume that it would have to be at least a week from today - possibly - - -
PN566
THE SENIOR DEPUTY PRESIDENT: Yes.
PN567
MR SHAW: It shouldn't be too long. I mean, the relative - is if people have got time to put into it.
PN568
THE SENIOR DEPUTY PRESIDENT: Yes.
PN569
MR SHAW: It's only a question of, as you say, posting it on there and then the parties conferring by telephone and email. It's that difficult.
PN570
THE SENIOR DEPUTY PRESIDENI mean, the relative - is if people have got time to put into it.
PN571
THE SENIOR DEPUTY PRESIDENT: Yes.
PN572
MR SHAW: It's only a question of, as you say, posting it on there and then the parties conferring by telephone and email. It's not that difficult.
PN573
THE SENIOR DEPUTY PRESIDENT: Yes. Well, what would need to occur would be that it be posted and then all parties could be sent a notice indicating in respect of that and also information Ms Kannis is providing in respect of Queensland.
PN574
MR SHAW: Yes.
PN575
THE SENIOR DEPUTY PRESIDENT: Providing us with the period of 72 hours or whatever to make comment. So the sooner the better. I take it, Ms Kannis, you'd be able to provide the relevant Queensland legislation very quickly.
PN576
MS KANNIS: Yes, sir, I shall.
PN577
THE SENIOR DEPUTY PRESIDENT: Yes. So as soon as - I think I'm speaking to the three parties there - as soon as possible if something could be formulated and provided that will expedite the finalisation of this application. But that would be the process - it would be posted along with Ms Kannis's separate and document and parties advised of the posting and given an opportunity to respond. Very well. Nothing further?
PN578
MR NAYLOR: Your Honour - - -
PN579
THE SENIOR DEPUTY PRESIDENT: Mr Naylor?
PN580
MR NAYLOR: Yes, your Honour, just in respect of those matters you've just raised the issue of the part time apprentices, could we respectfully request that that be dealt with separately, and also the issue of the adult apprentices. As Mr Shaw said there's been a lot of discussion and submission to yourself in relation to this matter, but we acknowledge that we had a very quick discussion this morning.
PN581
THE SENIOR DEPUTY PRESIDENT: Yes.
PN582
MR NAYLOR: Been briefed about where the agreement will possibly go. We need to look at quite considerably what is proposed in respect of what changes would be made to the award.
PN583
THE SENIOR DEPUTY PRESIDENT: Yes.
PN584
MR NAYLOR: But, hopefully, that could be done in short term. And we could we - the week for us, it sounds a little bit too quick, possibly just if it was you were going to make that decision today, if we could make it Wednesday week just to give us that little bit more time to look at whatever is being proposed.
PN585
THE SENIOR DEPUTY PRESIDENT: Yes. Well, as soon as is humanly possible. I mean, you have raised one potential outcome here and that would be to issue a further interim decision but in reality substantive decision determining all matters other than that Queensland one and the - and the adult apprentice transitional issues. And a later decision dealing with them if that's required. Yes. Okay.
PN586
MR NAYLOR: That would be acceptable, your Honour.
PN587
THE SENIOR DEPUTY PRESIDENT: Yes. Good very well. I'll now adjourn.
<ADJOURNED INDEFINITELY [3.21PM]