TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1050273-1

JUSTICE ROSS, PRESIDENT

AM2014/76, AM2014/85, AM2014/68, AM2014/86, AM2014/71 AM2014/73, AM2014/77, AM2014/84

s.156 - 4 yearly review of modern awards

Four yearly review of modern awards
AM2014/76 Marine Tourism and Charter Vessels Award 2010
AM2014/85 Professional Diving Industry (Recreational) Award 2010
AM2014/68 Cement and Lime Award 2010
AM2014/86 Quarrying Award 2010
AM2014/71 Cotton Ginning Award 2010
AM2014/73 Hydrocarbons Industry (Upstream) Award 2010
AM2014/77 Maritime Offshore Oil and Gas Award 2010
AM2014/84 Professional Diving Industry (Industrial) Award 2010

(ODN AM2008/59)
[Print PR988998]]




Melbourne

10.19AM, THURSDAY, 3 JULY 2014

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA TELEPHONE CONFERENCE AND RECORDED IN MELBOURNE

PN1

JUSTICE ROSS: Could I have the appearances, please?

PN2

MR S CRAWFORD: If it pleases the Commission, Crawford, initial S, from the AWU, appearing in both matters.

PN3

JUSTICE ROSS: Thanks, Mr Crawford. I note there's no appearance from any other party? Mr Crawford, there was a proposal suggested at the award stage conference on 13 May in relation to the amalgamation of these two awards, and I was wondering whether you had a view about that? Or your organisation had a view about that?

PN4

MR CRAWFORD: Your Honour, I would have to get further instructions. I haven't had a lot to do with these two awards, but upon looking at them this morning, it did appear there were some pretty specific issues in both awards, I guess might be - I guess bringing them together is a little bit complicated. But
- - -

PN5

JUSTICE ROSS: I think it was proposed by the AFEI, Mr Forster, from that organisation. Can I suggest that what you might do is have a discussion with him about the issue as there seems - there's significant commonality in relation to the core positions of both awards. I accept what you say that there might be some individual matters, but those could still be accommodated within an amalgamated award. But if you have some discussions with him - what I'd anticipate is that we'd prepare an exposure draft which would show you what the amalgamated award would look like.

PN6

And in some ways that might be the appropriate point then to comment on whether you think an amalgamation is feasible or not because you'll be able to see and assess for yourself what's the impact of it being amalgamated in a practical sense.

PN7

Now, the exposure draft would also put the award into the format which is proposed in the exemplar award that's been released.

PN8

MR CRAWFORD: Yes.

PN9

JUSTICE ROSS: Okay. Was there anything else in relation to either of these two awards, other than this amalgamation issue on which - you can take it that I'll take the position of the AWU to be that it's reserving its position in relation to that issue until it sees what it looks like, and until you've had the opportunity to consult further, both with your members and with the AFEI.

PN10

MR CRAWFORD: Yes. And we will do that, but I mean, on a general level, I think the attitude is - I have no conditions (indistinct) at the - - -

PN11

JUSTICE ROSS: That would be contention - - -

PN12

MR CRAWFORD: - - - if that makes life easier I don't necessarily have a problem with it. I was mainly just looking at some pretty, sort of, specific not overnight conditions in one of the awards - - -

PN13

JUSTICE ROSS: Yes.

PN14

MR CRAWFORD: - - - the hours of work. But I guess they could be still brought together and we have different sections.

PN15

JUSTICE ROSS: Yes.

PN16

MR CRAWFORD: But anyway, we will do that.

PN17

JUSTICE ROSS: Look, in relation to this matter and the matter listed at 11, the intent from the Commission's perspective was to look at - having gone through the 122 awards, looking at, "Well, is there some potential for some amalgamation without changing substantive provisions." These were really the four awards that fell out in the first stage, at least. But as you say, I think you'll have a look at it, when it is released as an exposure draft and see whether there's any substantive change in conditions and if there's isn't we'll have a - there'll be an opportunity to say what you want to say about that.

PN18

But it wasn't our intention to have any substantive change. It was really looking for areas where you could bring them together, preserve what was there that was different, but where there was a significant enough overlap in both the, sort of, logical area of coverage but also in some core provisions that it made some sense to bring the awards together.

PN19

MR CRAWFORD: Is there any issue from the Commission's perspective with, for example, in the hours work clause, having one section with the old previous award - - -

PN20

JUSTICE ROSS: In principle, I don't think so.

PN21

MR CRAWFORD: Thank you.

PN22

JUSTICE ROSS: But we haven't really worked through the exposure draft at the moment.

PN23

MR CRAWFORD: Yes.

PN24

JUSTICE ROSS: But the general principal that was guiding, at least, Commission initiated amalgamations, if you like, was where it could be done relatively simply and where it didn't resolve in a substantial change of entitlement. So we weren't proposing to equalise upward or down, or do anything like that as a general proposition, but we'll look at how it can be done and we'll take into the comments you've made about that particular provision.

PN25

MR CRAWFORD: Okay. Aside from that I have reviewed the Commission's research papers.

PN26

JUSTICE ROSS: Yes.

PN27

MR CRAWFORD: In relation to the Martine Tourism and Charter Vessels Award - - -

PN28

JUSTICE ROSS: Yes.

PN29

MR CRAWFORD: - - - as I said I haven't had much to do with this award, but it appeared to me that for non overnight casual employees basically they don't - actually, they're not allowed to work overtime. So hence, they're excluded from the - - -

PN30

JUSTICE ROSS: This is in clause 10.3?

PN31

MR CRAWFORD: Yes. That's the clause that seems to probably restrict them from working overtime and then in clause 22.1, casual employees are specifically carved out of the overtime rates.

PN32

JUSTICE ROSS: Yes, they are.

PN33

MR CRAWFORD: So they're carved out on - I'm assuming that's because they're actually not allowed to work more than 12 hours on a shift, and more than 38 hours in a week. That seems to be reflected in clause 10.3(iii) - - -

PN34

JUSTICE ROSS: 10.3(iii), yes.

PN35

MR CRAWFORD: So, I mean, that is a slightly unusual situation, but I mean, if that's the intent we haven't been alerted to - - -

PN36

JUSTICE ROSS: Problems - - -

PN37

MR CRAWFORD: - - - with that, but it does appear to me to be an issue - in clause 20.2(c) there is a span of hours - Monday to Saturday between 6am and 2am, so it's quite a broad span but, nevertheless, there are four hours that fall outside of that period. And then in clause 22.1 - and this is for non overnight employees and, perhaps, that's relevant too because otherwise it might turn into an overnight shift, but in an event, the point I was going to make was there's no - in the overtime clause in 22.1, there's no reference to work outside the span of hours.

PN38

JUSTICE ROSS: Right.

PN39

MR CRAWFORD: I mean, there is for more than 12 hours in a day, I think, more than an average of 38 hours, but not - no reference to work outside the span of hours. I'll just - again - wonder if there's a practical reason why that's unnecessary, or otherwise whether it's an oversight that could be correct.

PN40

JUSTICE ROSS: Well, so the spread of hours is prescribing clause 20.2(c) is that right?

PN41

MR CRAWFORD: Yes, for non overnight charter employees.

PN42

JUSTICE ROSS: So what you're suggesting would be requiring an additional dot point in 22.1 to cover hours worked outside the spread of hours prescribed in 20.2(c) is that right?

PN43

MR CRAWFORD: Yes.

PN44

JUSTICE ROSS: All right. Well, I suppose it's a matter for you as to whether you're - are you proposing that is a change?

PN45

MR CRAWFORD: Yes, yes, your Honour.

PN46

JUSTICE ROSS: All right.

PN47

MR CRAWFORD: But as I said, I mean, I'm doing that without much of a background in relation to the award, and if someone can explain why that's unnecessary or whatever, we're certainly willing to look at it, but I mean, as it stands - yes, I'd say we would request that as a variation.

PN48

JUSTICE ROSS: Okay. Well, perhaps, I can give you seven days to consider your position on that and if you're still seeking a variation along those lines or any other change to the award, if you can just write to us indicating what your position is and we'll put that on the website.

PN49

MR CRAWFORD: Yes, that will be fine. And the Commission has picked up some typos in 26.3(a) and (b) which we think is correct and we support that being tidied up.

PN50

JUSTICE ROSS: And what about the proposition that clauses 2.3 to 2.6 - given that we've now passed the relevant dates?

PN51

MR CRAWFORD: I'm aware, as you obviously are too, that the transitional provisions are subject to a common claim but, perhaps, not - - -

PN52

JUSTICE ROSS: It's not historical. Yes.

PN53

MR CRAWFORD: - - - the transitional provisions. So, yes, I mean, if they're not - if those provisions aren't relevant to any of the common claims we wouldn't have a problem with them coming out.

PN54

JUSTICE ROSS: Okay. And the same issue applies in 4.3 and 4.4. I think that must be 3.3 to 3.6 - same sort of issue as in (indistinct), yes.

PN55

MR CRAWFORD: 3 point?

PN56

JUSTICE ROSS: 3.3 - - -

PN57

MR CRAWFORD: There doesn't appear to be a 3.3 - are we still on the Marine Tourism - - -

PN58

JUSTICE ROSS: Yes, yes. I'm sorry, it's A3.3. Yes. No, that's fine. That would be in the transitional provisions generally so - for the reasons you articulated unless they're part of a common claim which I don't think they are. It's really - this really deals with the phasing to the new rates.

PN59

MR CRAWFORD: And just generally, your Honour, given that - my understanding is my - no award review will be finalised until all the common issues - - -

PN60

JUSTICE ROSS: That's true.

PN61

MR CRAWFORD: - - - so with a lot of these transitional provisions that ultimately can be removed, is that likely to happen after the - - -

PN62

JUSTICE ROSS: No. Look, the sort of transitional provisions I've been raising with you would happen before, only because they're transitioning up to the rates that are now in the award. So the award - they're really for historical purposes. If, for example, this award contained an allowance which was only to operate until 31 December this year, well, that would be in a different category because that would be likely to be the subject of the transitional review Full Bench - - -

PN63

MR CRAWFORD: Yes.

PN64

JUSTICE ROSS: - - - well, not the transitional review Full Bench, but the Full Bench that's dealing with the transitional provisions. But the sort of provisions that are in this award are not the sort of matters that are being agitated in that case. You'll be able to see what's being agitated in that case from the website.

PN65

MR CRAWFORD: Well, there are - I mean, district allowances and accident - - -

PN66

JUSTICE ROSS: No. That's exactly right.

PN67

MR CRAWFORD: - - - sections - - -

PN68

JUSTICE ROSS: Yes. That's exactly right. Once you take those matters out - - -

PN69

MR CRAWFORD: Yes.

PN70

JUSTICE ROSS: And, for example, if it included accident make up pay - - -

PN71

MR CRAWFORD: Yes.

PN72

JUSTICE ROSS: - - - I don't think it does, but if it did then - - -

PN73

MR CRAWFORD: I think at clause 16 - - -

PN74

JUSTICE ROSS: Of the award itself or of the schedule?

PN75

MR CRAWFORD: Of the Marine Tourism Award - - -

PN76

JUSTICE ROSS: Yes. Well, if that is the - and it probably is - if that's the subject of the ACTUs claim then that matter would be determined by that Full Bench and the award would not be varied until - or at least in that respect until the Full Bench had its decision.

PN77

MR CRAWFORD: Okay. But for more straightforward matters there would actually been an order to take them out, like, before - - -

PN78

JUSTICE ROSS: Exactly right. If a district allowance, for example, in 15.2 - - -

PN79

MR CRAWFORD: Yes.

PN80

JUSTICE ROSS: - - - that's also the subject of a matter before the transitional provisions Full Bench.

PN81

MR CRAWFORD: Yes.

PN82

JUSTICE ROSS: But in other respects - and the NT allowance as well, but in other respects, where you're talking about the phasing up or down of allowances, et cetera, those - as you put it the more straightforward matters would be dealt with in the award stage.

PN83

MR CRAWFORD: Yes.

PN84

JUSTICE ROSS: But so that you're clear about the - how the - what the delineation is, if you have a look at the website it sets out exactly what that transitional provision Full Bench is dealing with.

PN85

MR CRAWFORD: Yes.

PN86

JUSTICE ROSS: Yes.

PN87

MR CRAWFORD: Thank you.

PN88

JUSTICE ROSS: Is there anything else in relation to either of these two awards?

PN89

MR CRAWFORD: I've also reviewed the - - -

PN90

JUSTICE ROSS: Professional - - -

PN91

MR CRAWFORD: - - - professional research document for the Professional Diving Industry (Recreational) Award.

PN92

JUSTICE ROSS: Yes.

PN93

MR CRAWFORD: I was actually relatively comfortable with the terms of the current award in that, I think, you know, there could be arguably some ambiguity in - that has been identified by the Commission that - my view is that that can be resolved with reference to the current terms. For example, in terms of overtime for ordinary hours of work more than an average of 38 per week and not exceeding 152 hours over 28 days. I think it's been raised - does it mean that if you work over 38 hours, say, in week 1, does that mean you get the overtime or do you wait until the end of the averaging period?

PN94

I mean, I think that would probably depend on whether an averaging period is being applied or not. Similarly, with the casual loading, the fact that it's referred to as an all purpose rate, I've understand that terms means it will be paid for all purposes including overtime, so I think that the fact that an all purpose rate - those words have been included means that it's sufficiently clear.

PN95

JUSTICE ROSS: Yes. What about the - well, the same sort of redundancy, or obsolescent issues raised about transitionals, but the award doesn't include a method for calculating the minimal annual wage. And when you look at the example that's given in the documents, a level 1 dive master at 676 per week, and its specifies an annual rate of 35,247, but the annual rate doesn't equal the weekly rate multiplied by 52.

PN96

MR CRAWFORD: I see that. Yes, we wouldn't have any problem with those words being inserted.

PN97

JUSTICE ROSS: All right. Do we have any idea why?

PN98

MR CRAWFORD: Why the calculations aren't correct?

PN99

JUSTICE ROSS: Well, why the calculation comes out at 52.14 rather than - - -

PN100

MR CRAWFORD: No, your Honour, I don't - I'm not sure.

PN101

JUSTICE ROSS: Okay. All right. Was there anything else in relation to that award?

PN102

MR CRAWFORD: No. we'll write our positions in seven days.

PN103

JUSTICE ROSS: Okay. Thank you. And you might do that in relation to both as to whether you're seeking any changes.

PN104

MR CRAWFORD: Yes.

PN105

JUSTICE ROSS: Right. Thank you. There being nothing further in relation to those two awards, I'll adjourn the conference and we'll reconvene at 11, but I'll just remain where I am for that moment. Thanks. We'll go off the record. Thanks, Mr Crawford.

<SHORT ADJOURNMENT [10.38AM]
<RESUMED [11.05AM]

PN106

JUSTICE ROSS: Can I have the appearances, first in Melbourne and then in Sydney?

PN107

MR S CRAWFORD: If it pleases the Commission, Crawford S, from the Australian Workers Union in both matters.

PN108

JUSTICE ROSS: Thanks, Mr Crawford. And Sydney?

PN109

MR B FERGUSON: If it please the Commission, Ferguson, initial B for the Australian Industry Group.

PN110

JUSTICE ROSS: Thanks Mr Ferguson.

PN111

MR M WARD: If it please the Commission, Ward, initial M, for Australian Business Industrial and seeking permission to appear for the New South Wales Business Chamber Ltd.

PN112

MS P THOMPSON: If it please the Court, Ms Thompson, initial P, for the Australian Federal of Employers and Industries. Also we were going to re-look at the Marine Tourism and Professional Diving Industry (Recreation) Award. We'd also be appearing for the Commercial Vessels Association of New South Wales, and the association of Marine Park Tourism Operators. Unfortunately, it seems that there might have been a technical difficulty that we were unable to participate in that initial conference.

PN113

JUSTICE ROSS: All right. Well, perhaps, if we - is there any objection to the application for permission to appear?

PN114

MR CRAWFORD: No.

PN115

MR C BURNS: Your Honour, it's Michael Burns from the (indistinct) appearing for the Maritime Union. We were here for the previous matters but due to the technical difficulties we weren't heard. I'm here for the Marine Tourism and Charter Vessels Award, the Professional Diving Industry (Recreational) Award, the Maritime Offshore Oil and Gas Award, and the Professional Diving Industry Industrial Award.

PN116

JUSTICE ROSS: All right. Well, the Maritime Offshore Oil and Gas Award is listed at 3.15. The Professional Diving Industrial Award is listed at 4pm. I'll come back to the Marine Tourism and Chartered Vessels and the Professional Diving Recreation Award in a moment. Any objection in relation to the matters list at 11 for - in relation to the application for permission to appear? No.

PN117

MR CRAWFORD: No.

PN118

MR BURNS: No, your Honour.

PN119

JUSTICE ROSS: Well, having regard to the complexity of the matter, Mr Ward, permission is granted.

PN120

MR WARD: Thank you, your Honour.

PN121

JUSTICE ROSS: Can we deal firstly with the matters that were listed at 10? Now, what do the two parties that have indicated they wanted to be heard about those wish to say? Let's deal with AFEI first, and then the MUA?

PN122

MS THOMPSON: Thank you, your Honour. As indicated in our correspondence there was an issue that we raised concerning annual leave in the Maritime and Charter Vessels Award. We understand that's been moved to the common matters part of the proceedings, so we didn't intend to speak further on that point this morning. In terms of any consideration by the Commission about whether there should be an amalgamation of the commercial - sorry, of the amalgamation of the Maritime and Chartered Vessels Award and the Professional Diving Recreational Award, we would be opposed to any amalgamation. It's our view that there's been an historical context of the industries operating separately. There's no need to amalgamate them and there's currently no party seeking to amalgamate them.

PN123

JUSTICE ROSS: Well, whether there's a party seeking to amalgamate them or not is not a ground for not doing it. The Commission is conducting the review. The discussion this morning with Mr Crawford was that we'll prepare an exposure draft which will consolidate these two awards. We'll release that in mid August and that will be an opportunity for parties to make submissions about the proposition that they be amalgamated or not be amalgamated.

PN124

Are there any specific changes to the award that the AFEI seek?

PN125

MS THOMPSON: No, your Honour, not apart from - issues going to common matters.

PN126

JUSTICE ROSS: Yes, okay, thank you. The MUA?

PN127

MR BURNS: Your Honour, in relation to the - well, the MUA also objects to the merger of the two awards, the Marine Tourism and the Recreational Diving Award, but I take your position that we'll look at the exposure draft and deal with that at that time. In relation to the Marine Tourism and Chartered Vessels award, one the thing - I've got limited instructions on it, but an issue that the MUA has raised is the issue of overnight charters and that the award doesn't provide significant - really, contemplate the emerging circumstance of overnight stays.

PN128

There's currently dispute - or discussions between the MUA and tourism operators in Queensland over the issue of pontoons on the Barrier Reef where boats go out to the pontoons and stay there for a week. Under the minimum rates, there's a - the rates of pay are such that an overnight charter employee gets the - gets paid at the daily rate plus 25 per cent for all work performed within ordinary hours. So effectively they're spending a week on a boat an employee could end up being paid $800 or so.

PN129

So the award doesn't appear to contemplate the emerging occurrence of these weekly stays, or the more than overnight stays. So that's - - -

PN130

JUSTICE ROSS: Is that dealt with in 20.4? Is that what you're referring to there? So that - you say that the charter length is - in practice is actually - there are instances where it's more than four days/four nights and they're not appropriately compensated. Is that the - - -

PN131

MR BURNS: Yes.

PN132

JUSTICE ROSS: Okay.

PN133

MR BURNS: And that's the issue in relation to this award - after the merger of the awards, that's the issue which has been raised which the - I'm yet to get employee instructions but - in relation to the nature of how to resolve it.

PN134

JUSTICE ROSS: Yes.

PN135

MR BURNS: But that is an issue which the MUA wishes to look at varying the award to deal with it.

PN136

JUSTICE ROSS: Okay. When do you think you'd be in a position to identify what the nature of the various is that you're seeking?

PN137

MR BURNS: Well, I'll be bound by you, your Honour. If you're - are you required to report back to the Full Bench on 18 July? So we've got a deadline within the next week, don't we?

PN138

JUSTICE ROSS: Yes.

PN139

MR BURNS: So - - -

PN140

JUSTICE ROSS: Technically, that's right.

PN141

MR BURNS: Sorry?

PN142

JUSTICE ROSS: Yes, that's right. Yes.

PN143

MR BURNS: Well, that being the case then probably I should attempt to get you a position by next Friday.

PN144

JUSTICE ROSS: Okay. Look, the AWU has raised some issues of clarification as well, and it will be putting in correspondence by close of business next Friday clarifying its position as well.

PN145

MR BURNS: Thank you, your Honour.

PN146

JUSTICE ROSS: And, look, the AFEI, if anything occurs to you that you particularly seek to amend the award in relation to, either award, then you'd have the same opportunity to file correspondence by the next week, and it will be posted on the website and each of you will be advised in any event. Okay. Is there anything else in relation to those two awards?

PN147

MR BURNS: No, your Honour.

PN148

JUSTICE ROSS: Okay. Can we move then to the Cement and Lime Award and the Quarrying Award? I think, Mr Ward, on the occasion when this matters was - or the award stage conference on 13 May, you indicated that your organisation was looking at the possibility of consolidating these awards and you were going to have some discussions, I think, at that stage with the AWU, is that right?

PN149

MR WARD: It was, your Honour. And I can only say that my conversation with Mr Crawford was fleeting and informal. I must apologise for that. I haven't dealt with it in any great detail. The best way to describe this - there's no particular enthusiasm to put the awards together within the industry but also there's no dramatic opposition if it can be achieved in a proper way that doesn't fundamentally change the conditions within the industry.

PN150

JUSTICE ROSS: Yes.

PN151

MR WARD: And I haven't advanced anything further than that, but if it's a matter that Mr Crawford was amenable to explore with us, we would be open to exploring it, but it would have to be on the premise that it doesn't fundamentally alter the conditions. Both of the awards were originally written by ourselves and the AWU from what might be described as the same template, so they do have some very strong similarities, the differences are largely related to the structure of classifications and the rates of pay.

PN152

JUSTICE ROSS: Well, I think - look, the position Mr Crawford put on behalf of the AWU in relation to the earlier matter was really along those lines that I didn't detect much enthusiasm or opposition to the amalgamation course provided. It didn't result in a change in conditions.

PN153

Look, in relation to those two awards as well, the Commission will prepare an exposure draft around mid August which will consolidate the two awards, and then the parties will be in a position to assess that and to - they'll be given an opportunity to make submissions in relation to that proposal. But, of course, there'd be nothing to stop the parties having discussions between now and then.

PN154

Can I raise - - -

PN155

MR WARD: Can I just say one thing for the record?

PN156

JUSTICE ROSS: Yes.

PN157

MR WARD: The one nuance between the two sectors that the Commission will need to be mindful of is that Cement and Lime tends to operate with seven rosters and Quarrying doesn't.

PN158

JUSTICE ROSS: Yes.

PN159

MR WARD: So there's a small nuance there the Commission will have to be altered to as it does that exercise.

PN160

JUSTICE ROSS: Okay. Thank you. If we can look at - was there anything you wanted to say about any of that, Mr Crawford?

PN161

MR CRAWFORD: No, your Honour, that's our position for these two awards would be the same. We will certainly consider the draft consolidated award produced by the Commission, and provided that - yes, no entitlements are reduced by the process we don't have an issue with bringing them together.

PN162

JUSTICE ROSS: Okay. Thank you. If you look at - then if we go to the individual or the matters raised in relation to each of the awards individually, Cement and Lime you'll see there's a short paper that has been prepared identifying some of the issues in relation to that award. Is there anything from that paper that any party or anything else, indeed, that any party wishes to raise about the Cement and Lime Award?

PN163

MR BURNS: Your Honour, for our part - if I can start?

PN164

JUSTICE ROSS: Yes.

PN165

MR BURNS: We believe the award has operated satisfactorily from its inception. There was no desire to - apart from, I think, the question of annual leave close down, there was no desire to changing anything in this award in the 2012 review. When I read the paper issued by the Commission on 2 July, these matters largely appear to have been derived from the Ombudsman's paper in large measure or really go to questions of more clarification of the relationship between various clauses.

PN166

There's nothing that appears in that paper that immediately causes us any anxiety. I think we're in the Commission's hands as to how that's dealt with. It can either be dealt with on the basis that we meet with Mr Crawford and try and sort through those issues which appear largely uncontroversial, or we leave it in the hands of the Commission then respond to the exposure draft. I'm very much in the Commission's hand on that.

PN167

JUSTICE ROSS: Yes. Look, I don't imagine that we would be seeking to make any widespread - or propose any widespread changes in the exposure draft having regard to the nature of the issues raised. What would be of assistance is if you could look at the - it's under the heading Possible Ambiguity - - -

PN168

MR BURNS: Yes.

PN169

JUSTICE ROSS: And it refers to clause 10.5(b)(ii). Could I ask you to have some discussions with the AWU about that matter, and if you could indicate in correspondence what the intention of the parties is or what you believe the proper intention is of the award provision. It may be that that requires some attention and that certainly some of the transitional provisions appear to be obsolete. Leave aside those matters that are the subject to the separate common issue proceedings; some of the other matters can probably be attended to. The balance of it looks largely to be a cross referencing issue and that's probably something that can await the exposure draft. But the only thing that caught my attention was the possible ambiguity.

PN170

MR BURNS: Your Honour, I'll undertake to do that. In what timeframe would your Honour wish that to be done?

PN171

JUSTICE ROSS: Look, I think if it's done by the end of July. It doesn't need to be done by the time the report is provided, but - to the Full Bench because the report will simply reflect what the parties have indicated. But it would be desirable if it's done before the exposure draft is finalised.

PN172

MR BURNS: Your Honour, we'll undertake to do that.

PN173

JUSTICE ROSS: Okay. Thanks. Are you happy with that course, Mr Crawford?

PN174

MR CRAWFORD: Yes, your Honour.

PN175

MR FERGUSON: It's Mr Ferguson?

PN176

JUSTICE ROSS: Yes, Mr Ferguson?

PN177

MR FERGUSON: I just indicate I haven't identified any issues previously and we don't propose to make any variations to the award so we'll just involve ourselves in discussions between the parties as foreshadowed.

PN178

JUSTICE ROSS: Yes, thank you. Are you content with that course, Mr Crawford?

PN179

MR CRAWFORD: We are, your Honour. I might just mention that the Commission, either directly or through the Fair Work Ombudsman (indistinct) to identify in both awards a lack of clarity in terms of how the casual loading applies for overtime.

PN180

JUSTICE ROSS: Yes.

PN181

MR CRAWFORD: We'd be happy to have some discussions with the other parties about that. We certainly have a view about how it should operate now, and if we're all on the same page in relation to that it would maybe better if it can be just left as is.

PN182

JUSTICE ROSS: Sure. Well, if you can have the discussions and just identify in correspondence what your respective positions are and if it requires any amendment to the award then that can be taken into account in the exposure draft. So if that can be addressed in the correspondence by the end of July as well.

PN183

MR CRAWFORD: Thank you, your Honour.

PN184

JUSTICE ROSS: Anything else in relation to this award? No. Can we go to the Quarrying Award? Who would like to start?

PN185

MR BURNS: Your Honour, I think in many respects this instruments sits in the same sense as the Cement and Lime Award did.

PN186

JUSTICE ROSS: Yes.

PN187

MR BURNS: And - unless there's anything in particular your Honour wishes to turn our minds to in the 2 July modern awards paper, I think we just meet with the union, go through that document, see if there's any issues which come to light. There is - the casual issue is raised in Quarrying (indistinct) and Cement. We can have that conversation with the union at that time - - -

PN188

JUSTICE ROSS: Yes.

PN189

MR BURNS: - - - and report back in the same sense that we're reporting back with Cement.

PN190

JUSTICE ROSS: Yes. Thank that's - - -

PN191

MR BURNS: There's no desire to change this instrument in any way, as I understand it.

PN192

JUSTICE ROSS: Yes. Look, other than some minor changes really to - by way of clarification, can I give you an example of that. In the definitions, clause 3 defines employee in charge of processing plant.

PN193

MR BURNS: Yes.

PN194

JUSTICE ROSS: But the text of award only refers to employee in charge of plant. Well, I think that's a fairly minor amendment to make it clear that you're referring to the same thing. I'm assuming it is referring to the same things.

PN195

MR BURNS: I must have been tired when I wrote that, your Honour.

PN196

JUSTICE ROSS: Yes. And look, the other changes in relation to the obsolete provisions, other than where its dealt with as a common issue, that's the district allowances mainly in this award, then the others - it's really just a matter of removing some of those transitional arrangements because they're moving up to a certain wage level over time and the time has now passed.

PN197

MR BURNS: Your Honour, we'll attend to those in conference with the union and we'll report back, as we said, by the due by date.

PN198

JUSTICE ROSS: Okay. Anything else in relation to that award?

PN199

MR FERGUSON: Yes, your Honour, Mr Ferguson, from AI Group.

PN200

JUSTICE ROSS: Yes, Mr Ferguson?

PN201

MR FERGUSON: Just to confirm, we hadn't proposed - we're not attempting to propose any variations other than what might be included in the common claims proceedings.

PN202

JUSTICE ROSS: Okay.

PN203

MR FERGUSON: We'll just follow the same course of action as the previous award. Okay.

PN204

JUSTICE ROSS: All right. Is there anything further in relation to either of those two awards? No. Okay. Well, I'll adjourn the conference and we'll reconvene - I'll remain in place and we'll reconvene at 12 noon to deal with the Cotton Ginning Award. Thank you.

<SHORT ADJOURNMENT [11.25AM]
<RESUMED [12.05PM]

PN205

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

PN206

MR S CRAWFORD: If it please the Commission, Crawford, initial S, from the AWU.

PN207

JUSTICE ROSS: Thanks, Mr Crawford. And in Sydney?

PN208

MR M WARD: If your Honour pleases, Ward, initial M, for Australian Business Industrial and seeking permission to appear for the New South Wales Business Chamber Ltd.

PN209

JUSTICE ROSS: Any objection to the application to appear?

PN210

MR CRAWFORD: No, your Honour.

PN211

JUSTICE ROSS: Permission is granted.

PN212

MR WARD: Thank you, your Honour.

PN213

JUSTICE ROSS: All right. Well, the Commission document has been posted on the website identifying some issues in relation to the award. The main one appears to be whether or not the entitlement of casuals to overtime is clearly stated. There don't appear to be any other matters of any significance identified. Are there any issues the parties wish to raise about this award?

PN214

MR CRAWFORD: Yes, your Honour, we have detected what we think is an error in relation to casual employees. Clause 10.4(b) - - -

PN215

JUSTICE ROSS: Yes.

PN216

MR CRAWFORD: - - - states that arranged will not apply to casuals.

PN217

JUSTICE ROSS: Yes.

PN218

MR CRAWFORD: It's got clause 28 public holidays.

PN219

JUSTICE ROSS: Yes.

PN220

MR CRAWFORD: And then in clause 28 - - -

PN221

JUSTICE ROSS: It talks about the NES.

PN222

MR CRAWFORD: Yes. And the penalty rate is in clause 28.2.

PN223

JUSTICE ROSS: Yes.

PN224

MR CRAWFORD: On the face of it the wording in 10.4(b) would exclude casuals from receiving those penalty rates.

PN225

JUSTICE ROSS: They'd receive the casual loading but not the penalty rate?

PN226

MR CRAWFORD: Yes. (indistinct) time and a half. And I believe that is an error. I was looking at the NAPSAs - New South Wales and Queensland NAPSAs that applied before the modern ward.

PN227

JUSTICE ROSS: Yes.

PN228

MR CRAWFORD: And in the New South Wales NAPSA, which is identified at the back of the Fair Work Commission's document.

PN229

JUSTICE ROSS: Yes. That's the Cotton Ginning and Employees State Award.

PN230

MR CRAWFORD: Yes. And that had a similar clause for casuals whereby it said, I think - basically in that clause there was a separate clause which contained public holidays and stated, you know, a permanent employee will not lose pay for those days. And then there was a separate clause dealing with payment for work on public holidays. The exclusion in that New South Wales award only cross referenced that, you know, you get the day off without loss of pay.

PN231

So I think it's been an error in that - because now there's only one public holiday clause they've inadvertently removed any penalty entitlement for casuals which, my understanding, is that would be a relatively unique situation for a modern award not to have any additional penalty for casuals being required to work on a public holiday.

PN232

JUSTICE ROSS: Have you had an opportunity raise this with Mr Ward?

PN233

MR CRAWFORD: No, I've only just picked it up, your Honour.

PN234

JUSTICE ROSS: Okay. Is there anything you want to say about it at this stage, Mr Ward, or do you want to give it some thought?

PN235

MR WARD: Your Honour, the industry is very heavily weighted to New South Wales and Queensland - - -

PN236

JUSTICE ROSS: It is.

PN237

MR WARD: And the New South Wales (indistinct) the award that was primarily looked at to make the modern award. I'll just take that on notice. It's not a - I don't think it's a controversial matter. I think Mr Crawford and I can sort it out.

PN238

JUSTICE ROSS: Okay. Well, can we proceed on this basis? Mr Crawford, if you can have a discussion with Mr Ward, I'll note in the report to the Full Bench that it's been raised as an issue. Can I ask that you advise me by the end of July as to where you're discussions have gotten to and what the nature of the change is that you would seek?

PN239

That will probably determine whether or not the matter needs to proceed to a hearing, Mr Ward. If it's - if there's a consent variation proposed then what we would simply do is incorporate that in the exposure draft that would go out in mid August and deal with it that way. If it's going to be a matter that's going to be - proceed as a contested matter, then that's a matter, ultimately, the Full Bench will decide what the method will be for resolving all those issues, whether they're dealt with by single members or Full Benches. Okay.

PN240

MR WARD: Can I say this, your Honour, at the same time Mr Crawford and I will turn out minds to those matters raised in the Commission's - - -

PN241

JUSTICE ROSS: Yes.

PN242

MR WARD: - - - paper and see if there's anything there that needs to be brought to the Commission's attention in terms of variation of the award.

PN243

JUSTICE ROSS: Yes. Thank you. I think the only issue that seems to arise is
- - -

PN244

MR WARD: (indistinct)

PN245

JUSTICE ROSS: Yes. The only that arose in the earlier matters today.

PN246

MR WARD: Yes.

PN247

JUSTICE ROSS: It's the casual entitlement to overtime and how that might work.

PN248

MR WARD: We'll have that resolved, your Honour.

PN249

JUSTICE ROSS: Okay. Thanks, Mr Ward. Is there anything else? Mr Crawford?

PN250

MR CRAWFORD: I mean, obviously, I can - I will discuss this directly with Mr Ward, but just so that he can maybe have a look at it beforehand. It's probably also a question about why in clause 10.4(d) that payment of wages provision wouldn't also have (indistinct) to casual employees, given that it refers to the method of payment and that type of thing. So that might be something - - -

PN251

MR WARD: I feel almost cheeky enough to say (indistinct) in this industry in the black market - that it would be inappropriate.

PN252

JUSTICE ROSS: Look, I think, it's probably answered by looking at the award history and - my understanding being that most of the employment in this award was in New South Wales and from what Mr Ward said the New South Wales State Award seem to be the basis of it, and that might provide some guidance but I'll deal with that on the same basis, Mr Crawford. You have the discussions and let me know at the end of the month where you're up to, and what changes you'd be seeking and whether or not thereby consent. Okay.

PN253

Is there anything else in relation to this award? No. All right. Thanks very much. I'll adjourn the conference until 2.30, at which time I'll deal with the Hydrocarbons Industry Upstream Award.

<SHORT ADJOURNMENT [12.13PM]
<RESUMED [2.38PM]

PN254

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

PN255

MR M NGUYEN: Nguyen, N-g-u-y-e-n, initial M, appearing for the AMWU.

PN256

JUSTICE ROSS: Mr Nguyen.

PN257

MR D MAMMONE: Mammone, initial D, appearing for AMMA.

PN258

JUSTICE ROSS: Thanks, Mr Mammone.

PN259

MR S CRAWFORD: If the Commission pleases, Crawford, initial S, for the AWU.

PN260

JUSTICE ROSS: Thanks. There was a document posted on the website from the registry just seeking to identify what might be some issues associated with the award. Are there any matters that the parties particularly want to raise in relation to this award? Mr Mammone, do you want to - you don't need to stand, it's fine.

PN261

MR MAMMONE: Your Honour, I must say I'm quick, but I'm not that quick. I haven't had a chance to look at the document.

PN262

JUSTICE ROSS: That's all right. Look, it's - I don't think you're the only party in that circumstance. The - look, one of the issues that's raised both in this award and in a range of awards is it doesn't seem to be clear about whether there's an entitlement to overtime for casuals, whether that was intended or not or what the issue might be in relation to that. I think - the only issue I'd bring to your attention to two other matters: one is that it seems that some of the provisions in the award are obsolete. That's as a result of transitioning to the new minimum rates.

PN263

Some are dealt with in the transitional provisions common issues. Full Bench, for example, the accident pay and district allowances for the NT and WA, but others don't seem to be, so that would seem to be obsolete. There's an issue raised about consistency with other modern awards.

PN264

In the clause 20 provides for some - for an annualised salary or composite salary in satisfaction of a range of award entitlements. And just pointing to some difference provisions in other awards, that's all. And the suggestion is that the word in the current provisions might provide - require some clarification, or an example might assist to clarify how the matter would operate.

PN265

MR MAMMONE: Your Honour, I don't think it would take too long internally to have a look at that time - - -

PN266

JUSTICE ROSS: Yes. Well, look, I put this to each of you: if there's any feedback on any of the issues that have been raised and if you think that an issues that's been raised requires an award variation. You can indicate what you think that should be without it being, you know, too elaborate in detail. It doesn't need to specify the form of the variation, at least, not at this stage. But if you can let me know your position in relation to those matters by the end of next week then I can, at least, alert the Full Bench as to there might be some issues in this award.

PN267

Are there any issues that the parties want to raise about this award?

PN268

MR MAMMONE: Your Honour, I don't have instructions to do so today. I don't anticipate we'll be raising any potential variation.

PN269

JUSTICE ROSS: Well, again, you'll have until Friday of next week, just to confirm that that's the view. Is the position of the AMWU or the AWU any difference, Mr Nguyen?

PN270

MR NGUYEN: Your Honour, just in relation to the casual loading.

PN271

JUSTICE ROSS: Yes.

PN272

MR NGUYEN: I understand that the 25 per cent isn't part of the all purpose rates, which is (indistinct) the penalty rates. That's our understanding of the (indistinct) in relation to casuals.

PN273

JUSTICE ROSS: Well, I suppose the issue that's raised in the document is that if may not be clear that that's the case. But - - -

PN274

MR NGUYEN: I think it's (indistinct) the employment.

PN275

JUSTICE ROSS: Yes.

PN276

MR NGUYEN: (indistinct) is a casual category.

PN277

JUSTICE ROSS: Well, 10.4.

PN278

MR CRAWFORD: This is the Hydrocarbons?

PN279

JUSTICE ROSS: Yes, the Hydrocarbons. Well, the AMWU can consider its position as can the AWU on that issue and left me know by the end of the next week as well as to whether or not - or what your position is and if there's a different position from AMMA, for example if AMMA takes a view that there is no - that it was intended there be no entitlement to overtime and you were just paid the casual loading, then that might suggest there's an issue that requires some resolution if you're both of the same mind that it might just require clarification.

PN280

so let's see - put in what your view is and we'll - once we've got them all in we'll sort out where we go from there. Is there anything else from the AMWUs point of view?

PN281

MR NGUYEN: No, your Honour.

PN282

MR CRAWFORD: No, your Honour. Now that I'm looking at the correct document. Our view is also that the current position does (indistinct) casual loading of overtimes. The casual clause, I think, refers to (indistinct) paid for all hours worked.

PN283

JUSTICE ROSS: Yes, it talks about - yes. Well, you've heard that, Mr Mammone, and you might give some thought to what AMMAs position is in relation to it and see whether there's any issue about this or not. But - - -

PN284

MR MAMMONE: I take it, your Honour, this is not an issue necessarily unique to this award - - -

PN285

JUSTICE ROSS: No, it's not. Well, I only say that that because half of the ones I've had on today have a similar issue.

PN286

JUSTICE ROSS: Yes.

PN287

JUSTICE ROSS: The (indistinct) issue is a bit different in as much as the language used to describe the casuals might be different as well. Bearing in mind one of the common issues is casual part time employment. And if this emerges as a contested issue across a range of awards, that may be where it ends up being dealt with. I can't tell you at this stage the extent to which its contested. The parties in the matters this morning seem confident they'd be able to reach a consensual position on all the issues that were raised. I wouldn't take that to the bank at this stage. They've not had an opportunity to have discussions, so we'll find out.

PN288

But I don't know, for example, what the practice is in this industry and that might influence matters as well.

PN289

MR MAMMONE: Sure. It may be, your Honour, that by the end of next week I may not be in a position where I've got some - - -

PN290

JUSTICE ROSS: That's right. Well, even if you reserve your position in relation to it that's fine. And bearing in mind that the draft - the exposure draft of a reviewed award is unlikely to come out until mid to late August. There'll still be an opportunity - I might seek to close off - we're just trying to get some idea of the extent of issues. But by what's been put by the parties it seems that there aren't too many issues with this award. And the ones that do arise are likely to be quite narrow in compass. Is there anything else anyone wants to say about that?

PN291

Am I right in thinking that - Maritime Offshore and Gas, does that involve parties other than the ones who are here?

PN292

UNIDENTIFIED SPEAKER: (indistinct)

PN293

JUSTICE ROSS: Yes. That's right. Okay. All right. Well, if there's nothing further in relation to the Hydrocarbons Award, I'll remain in place but adjourn the conference to 3.15 to deal with the Maritime Offshore and Gas Award.

<SHORT ADJOURNMENT [2.48PM]
<RESUMED [3.18PM]

PN294

JUSTICE ROSS: Can I have the appearances in Melbourne first, please?

PN295

MR M NGUYEN: May it please the Commission, Nguyen, N-g-u--y-e-n, initial M, appearing for the AMWU.

PN296

JUSTICE ROSS: Thanks, Mr Nguyen.

PN297

MR D MAMMONE: Mammone, initial D, I appear for the Australian Mines and Metals Association.

PN298

JUSTICE ROSS: Thanks, Mr Mammone.

PN299

MR S CRAWFORD: If it please the Commission, Crawford, initial S, for the AWU.

PN300

JUSTICE ROSS: Mr Crawford. And in Sydney?

PN301

MR M BURNS: Burns, initial M, on behalf of the MUA. Solicitor, seeking your permission to appear.

PN302

JUSTICE ROSS: Any objection to the application for permission to appear?

PN303

MR CRAWFORD: No.

PN304

JUSTICE ROSS: Permission is granted. Who would like to go first if there proposed changes in relation to this award?

PN305

MR NGUYEN: Your Honour, Mr Nguyen, (indistinct) I'd like to change of the legislation and also the title of the employers.

PN306

JUSTICE ROSS: Yes.

PN307

MR NGUYEN: (indistinct)

PN308

JUSTICE ROSS: No, that's fine. We'll post the correspondence on the website. If anyone has any issue with what's proposed in the correspondence they should let me know by close of business next Friday. Otherwise we'll reflect the proposed change in the exposure draft that we release ultimately in relation to this award. Were there any other matters, Mr Nguyen?

PN309

MR NGUYEN: No, your Honour.

PN310

JUSTICE ROSS: No. Anyone else? Does the MUA have any matters?

PN311

MR BURNS: No, your Honour.

PN312

JUSTICE ROSS: Look, I think there's a - in terms of the Commission document they draft attention to a grammatical matter in cluse 14.7(d)(iv) and I think the proposed change there seems to be sensible. But I'll give the parties an opportunity to review that document and if there's anything that arises from it that you want to take up by way of a change to the award then you can let me know by close of business next Friday.

PN313

Is there anything any other party wish to say in relation to this award?

PN314

MR CRAWFORD: No, your Honour.

PN315

JUSTICE ROSS: Other than the fact I'm starting to regret listing these at 45 minutes apart. But, look, one of the reasons is we're just not sure in each case who the interested parties are. So we - just out of an abundance of caution don't want to miss anyone. So if there's nothing further in relation to that award - those of you who are present can express a view - one option to save you some time. Do you all have an interest in the Professional Diving Industrial Award?

PN316

MR CRAWFORD: Yes.

PN317

MR BURNS: Yes.

PN318

JUSTICE ROSS: Well, what I might do is I'll call that matter on now, and then I'll call it on again at 4, just in case someone different turns up so you don't have to hang around, at least, until 4 o'clock. So we'll formally call it on.

PN319

Can I indicate that I'll also call this matter on at 4 o'clock but there are some parties present who are in a position to say what they want to say about this matter. Can I take the appearances in relation to this award, please? Firstly in Melbourne?

PN320

MR D MAMMONE: Mammone, initial D, appearing for Australian Mines and Metals Association.

PN321

JUSTICE ROSS: Thanks, Mr Mammone.

PN322

MR S CRAWFORD: If it pleases the Commission, Crawford, initial S, from the AWU.

PN323

JUSTICE ROSS: Thank you. And in Sydney?

PN324

MR M BURNS: Burns, initial M, seeking permission to appear for the MUA.

PN325

JUSTICE ROSS: Thanks, Mr Burns. Any objection to the application for permission to appear.

PN326

MR CRAWFORD: No.

PN327

JUSTICE ROSS: Being no objection, I'll grant that. I seem to remember at some time in the dim dark part there was a Professional Diving Association, but then it must have amalgamated with somebody. Am I imagining that or?

PN328

MR BURNS: I'm not sure.

PN329

JUSTICE ROSS: They could easily have amalgamated with the AWU. Almost everyone else did. Did they amalgamate with the MUA?

PN330

MR BURNS: I'm not sure. There is a pretty active section of Professional Divers within the MUA.

PN331

JUSTICE ROSS: Okay. Well, the registry has published a short document identifying some issues in relation to this award. Are there any comments any party wishes to make about that document or any other matters in this award that you wish to raise during the award phase. Can I - I might start in Sydney and then move to Melbourne?

PN332

MR BURNS: No, your Honour. When I looked at the website I hadn't seen published document for this particular award. It only came out yesterday.

PN333

JUSTICE ROSS: They did.

PN334

MR BURNS: But I hadn't seen one for the Professional Award only the Recreational Award, and the other awards we've dealt with. But in any event, if there is one, I will take the opportunity to respond to it by close of business next Friday.

PN335

JUSTICE ROSS: Yes.

PN336

MR BURNS: I don't have - there are no instructions in relation to the award generally apart from the maintaining status quo about the - - -

PN337

JUSTICE ROSS: Okay. Well, you'll be given the opportunity say what you wish to say about the registry document by close of business next Friday. That will be afforded to each of the other parties present as well. Was there any other matter you wanted to raise, Mr Crawford?

PN338

MR CRAWFORD: Only, your Honour, that I haven't viewed the Commission's research document for this award. There is reference to potential ambiguity in relation to the casual loading overtime issue that clause 10.3 of the award does refer to the loading being part of the all purpose rates. We we're pretty comfortable that that means it has to be included in all calculations. That was the only real comment I had on the document.

PN339

JUSTICE ROSS: Right. Mr Mammone, anything?

PN340

MR MAMMONE: No, your Honour. I must say I'm not aware of the document. I haven't looked at it.

PN341

JUSTICE ROSS: No, that's fine. I appreciate it was posted relatively late. But you'll have the same opportunity the other organisations will have to let me know whether you have any views about it by close of business next Friday. That will also extend to - if on further consideration of this award there are other matters that a party wants to raise then if you can let me know by close of business next Friday.

PN342

Is there anything else anyone wishes to raise about his award? Are any of you aware of anyone else who has an interest in this award?

PN343

MR MAMMONE: No, I don't.

PN344

JUSTICE ROSS: Okay. Well, in any event, out of an abundance of caution, I'll come back at 4 and call the matter on.

PN345

MR MAMMONE: I suspect they're offshore somewhere - - -

PN346

JUSTICE ROSS: No doubt.

PN347

MR MAMMONE: - - - without access to the internet, your Honour.

PN348

JUSTICE ROSS: Yes. Okay. Well, I'll adjourn the conference until 4pm. Thanks.

<SHORT ADJOURNMENT [3.26PM]
<RESUMED [4.07PM]

PN349

JUSTICE ROSS: I should note that this matter was dealt with earlier today following the completion of the conference in relation to the Maritime Offshore Oil and Gas Award. I indicated that I would retain the 4pm listing to see if any additional parties were wanting to attend. I note that there are no parties in attendance. On that basis, I'll adjourn the Professional Diving Industry Industrial Award.

PN350

MR BURNS: Sorry, your Honour, I'm based in Sydney (indistinct)

PN351

JUSTICE ROSS: Okay. Well, I don't think there's anyone else that's turned up, Mr Burns. Is there anything wanted to add to what you'd said before?

PN352

MR BURNS: No. I'm just making sure that there was nothing further (indistinct)

PN353

JUSTICE ROSS: No. Okay. Well, on that basis I'll conclude the conference in relation to the award. Thanks for your attendance, Mr Burns.

PN354

MR BURNS: Thank you.

PN355

JUSTICE ROSS: Thank you.

<ADJOURNED INDEFINITELY [4.08PM]