PN772      

JUSTICE ROSS:  Can I have the appearances, please.

PN773      

MR B FERGUSON:  If the Commission pleases, my name is Ferguson, initial B, for the Australian Industry Group.  With me is Ms R Bhatt.

PN774      

JUSTICE ROSS:  Thank you.  In Sydney?

PN775      

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

PN776      

MR K SCOTT :  If the Commission pleases, Scott, initial K, appearing from ABI and the New South Wales Business Chamber.

PN777      

MS J LIGHT:  If the commission pleases, Light, initial J, for the Australian Federation of Employers and Industries.

PN778      

MR FERGUSON:  During the interval, the parties have had some discussions.  It seems that there will be a range of issues related to the general issue, if I can say that - the rates‑type issues - that we're not going to reach agreement on, but then there are a raft of other matters that we could probably make - hopefully make, I assume - good progress on.  A lot of them are obviously drafting‑related issues and in some cases the concern is about the amendment we've proposed rather than the issue.

PN779      

What we've thought about is a course of action.  The parties agree that it would be sufficient for us to be given a period of time to have some discussions between ourselves and then to come back to the commission to report on the outcome and matters outstanding, if there are any, et cetera, and perhaps indicate a course of action that will assist going forward beyond that.

PN780      

I know that we've talked about 10 April.  There was some hope that perhaps we could be given one extra week just to accommodate Easter breaks and the amount of reports that might need to be written.

PN781      

JUSTICE ROSS:  Is the proposition that you'll confer in relation to the range of issues that are - I'll describe them as award specific.

PN782      

MR FERGUSON:  Yes.

PN783      

JUSTICE ROSS:  I appreciate that the wages and allowance issues are, as well, but they're caught up in the general argument.

PN784      

MR FERGUSON:  Yes.

PN785      

JUSTICE ROSS:  That you'll discuss those and, by 17 April, you'll put in a joint report indicating what you've agreed on, what remains in dispute ‑ ‑ ‑

PN786      

MR FERGUSON:  Yes.

PN787      

JUSTICE ROSS:  ‑ ‑ ‑ and then we'll deal with it on the basis of that report.

PN788      

MR FERGUSON:  Yes.  There was some suggestion that perhaps we'd also write into the commission if we thought the commission could assist us in terms of conferencing.

PN789      

JUSTICE ROSS:  Certainly.

PN790      

MR FERGUSON:  So liberty to do that.

PN791      

JUSTICE ROSS:  That request should be made to Commissioner Bull, in the event that you're seeking that assistance.

PN792      

MR FERGUSON:  Yes, okay.

PN793      

JUSTICE ROSS:  All right.  When you talk about the future steps, I have to say that we're not attracted to another oral hearing.

PN794      

MR FERGUSON:  No.

PN795      

JUSTICE ROSS:  Unless it becomes absolutely necessary.

PN796      

MR FERGUSON:  We'll take that on board.  I think as much as anything else, we were thinking whether at that stage it became clear that a conference was helpful ‑ ‑ ‑

PN797      

JUSTICE ROSS:  Sure.

PN798      

MR FERGUSON:  We hope that, you know, perhaps we can get it all sorted hopefully before the 10th, but, if not, we might foreshadow that in the correspondence.

PN799      

JUSTICE ROSS:  Okay.

PN800      

COMMISSIONER BULL:  Mr Ferguson, what you've just said there, are you limiting that to this particular award or the ‑ ‑ ‑

PN801      

MR FERGUSON:  No, sorry.  That's in relation to the three awards.

PN802      

COMMISSIONER BULL:  Yes.

PN803      

MR FERGUSON:  The Premixed, Asphalt, Cement and Lime Awards.  All three in that fashion.

PN804      

COMMISSIONER BULL:  What about Concrete Products?  Is that drawn in there or not?

PN805      

MR FERGUSON:  No, we hadn't intended to ‑ ‑ ‑

PN806      

COMMISSIONER BULL:  That's fine.  You do what's appropriate.

PN807      

JUSTICE ROSS:  Quarrying, is that in a second category, is it?

PN808      

MR FERGUSON:  Cement and Lime and Quarrying are amalgamated.

PN809      

JUSTICE ROSS:  Yes, okay.

PN810      

MR FERGUSON:  The same category, I suppose.

PN811      

JUSTICE ROSS:  Yes.

PN812      

VICE PRESIDENT HATCHER:  In Cement and Lime and Quarrying, what is being conferred about?

PN813      

MR FERGUSON:  All the issues apart from the rates.  All the general issues, if I can call them that.

PN814      

VICE PRESIDENT HATCHER:  In your submissions, I notice you've dealt with the issue of the definition of permanent night shift.  I think we've done that.  We've made a decision about it.

PN815      

MR FERGUSON:  Yes.  I must admit, we had sort of looked at that as though you'd made a decision about what went into the exposure draft and there still an opportunity to raise it ‑ ‑ ‑

PN816      

JUSTICE ROSS:  Not if we have decided the issue on its merits.  How we translate the decision into an exposure draft, there might be room for debate about it, but once the parties have had an opportunity to make a submission about a merit issue and we've decided it, I don't think we'll be looking to revisit it.

PN817      

MR FERGUSON:  We're in the bench's hands.  You know, we expressed a concern that we genuinely had about the clause.  I think all that had transpired before, apart from the conference - and I'm not criticising it - was an email exchange.  We had thought there would still be an opportunity, but I hear what you're saying.

PN818      

JUSTICE ROSS:  Yes.  I'll hear from the parties in Sydney.  We will need to then formally call on the remaining matters and then I'll put a proposition to you about where you're up to, and we'll deal with it that way.  Before we get there, can we just go to the parties in Sydney.  Is there anything you want to add or are you content with the process that has been outlined by Mr Ferguson?

PN819      

MR CRAWFORD:  Your Honour, the AWU is content with that process.  Although the parties may be able to resolve this issue amongst themselves in discussions, we think it probably is worth drawing the full bench's attention to an issue that AIG have identified with the current Quarrying and Cement and Lime Awards.

PN820      

JUSTICE ROSS:  Yes.

PN821      

MR CRAWFORD:  If I refer you to the Quarrying Award 2010 ‑ ‑ ‑

PN822      

JUSTICE ROSS:  Which paragraph of AI Group's submissions is this in?

PN823      

MR CRAWFORD:  Paragraph 133 in relation to clauses 11.2(a)(i) and 11.2(b) of the exposure draft.

PN824      

JUSTICE ROSS:  So that's in relation to the industry disability allowance?

PN825      

MR CRAWFORD:  Yes.  We hadn't realised this before AIG raised the issue, but in the current award the wording doesn't make a lot of sense for the industry allowance.  For example, in clause 18.1 of the Quarrying Award, there's reference to the industry allowance being -

PN826      

3.25 per cent of the standard rate ... to compensate for the disabilities of the industry.

PN827      

The problem is it says:

PN828      

This additional rate will be regarded as part of the standard rate for all purposes.

PN829      

The standard rate is obviously defined in most of the modern awards with reference to a particular level and it's generally used for calculating allowances.  The exposure draft correctly, in our view, remedies this issue by applying the general approach to industry allowances, which is you work out the rate and then apply it to the employee's ordinary classification level rate.

PN830      

VICE PRESIDENT HATCHER:  Although I think you'll see that the definition of "standard rate" - perhaps it serves no purpose - is still in the exposure draft on page 66 as it came from both the current awards.

PN831      

MR CRAWFORD:  Sorry, your Honour?

PN832      

VICE PRESIDENT HATCHER:  The definition of "standard rate" which you referred to in the Quarrying Industry Award, which is also in the Cement and Lime Industry Award, has been put together and reproduced at page 66 of the exposure draft, although that definition may no longer serve any purpose because it doesn't connect, as you pointed out, with the drafting of clause 11.2.

PN833      

MR CRAWFORD:  Correct.  As I indicated, we think the exposure draft correctly clarifies this issue, but given AIG have indicated in their most recent submission that they may argue for a literal interpretation, if that's even possible, of the current award provisions, it's potentially a significant issue that I thought I should at least bring to the bench's attention.

PN834      

VICE PRESIDENT HATCHER:  I was going to raise that with you, Mr Ferguson.  In both awards, the current reference to "standard rate" doesn't seem to make a lot of sense when you read the definition.

PN835      

MR FERGUSON:  We did have a detailed discussion in the break about this issue and we've said that we'll have a look at that in similar detail prior to discussions.  We spent quite a bit of our time talking about this in particular.

PN836      

JUSTICE ROSS:  We might just call on all the remaining matters, just out of an abundance of caution.  I don't expect there will be any additional parties involved, but just for the record.

PN837      

THE ASSOCIATE:  AM2014/66 Asphalt Industry Award 2010, AM2014/68 Cement and Lime Award 2010, AM2014/86 Quarrying Industry Award 2010, for hearing.

PN838      

JUSTICE ROSS:  Is there any addition to the appearances that have been already announced in relation to the Premix Concrete Award?  No?  All right.  The transcript will cover all the matters beginning with Premix Concrete and onwards.  Can we then just test the proposition - had you finished, Mr Crawford, about what Mr Ferguson has proposed as a means of dealing with the outstanding issues in these awards?

PN839      

MR CRAWFORD:  Yes, your Honour.

PN840      

JUSTICE ROSS:  Does anyone else wish to say anything about that process?

PN841      

MR SCOTT:  No, your Honour.  We're content with that process.

PN842      

MS LIGHT:  No, your Honour.

PN843      

JUSTICE ROSS:  In relation to the Cement and Lime and Quarrying matter, if a conference is required, you should contact Vice President Hatcher's chambers in relation to that matter.  Is there anything else in relation to any of these awards at this stage?  If not, I think that concludes the proceedings and we'll adjourn.  Thank you.

ADJOURNED INDEFINITELY                                                         [12.33 PM]