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Fair Work Act 2009                                                    






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Horticulture Award 2010






THE VICE PRESIDENT:  Thank you and greetings from Darwin.  I will take the appearances, first of all in Canberra.


MS S McKINNON:  May it please the Commission, thank you; McKinnon, initial S, for the National Farmers' Federation (indistinct).


THE VICE PRESIDENT:  Thank you.  In Melbourne?


MS E BARRETT:  If it pleases the Commission, Barrett, initial E, for the National Union of Workers.




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


MS R BHATT:  If it pleases your Honour, Bhatt, initial R, appearing for the Australian Industry Group.


MR T ANGELOPOULOS:  If it pleases the Commission, Angelopoulos, initial T, for the Voice of Horticulture.


THE VICE PRESIDENT:  Thank you.  I've brought this matter on for directions.  This matter has been referred from the President to myself to chair a full bench in relation to the referral question, which is to deal with the coverage issues raised by the Mitolo Group Pty Ltd and others, AiG Group, the National Farmers' Federation in the above matter.  It follows conciliation which has occurred before DP Clancy.  The proposal for today is to discuss what directions should be made in relation to conducting the hearing in this matter.  Have the parties had any discussions amongst themselves?


MS BHATT:  Your Honour, it's Ms Bhatt here for Ai Group.  There have been some brief discussions only earlier today, involving the NFF, the Voice of Horticulture, the AWU and the NUW.  It's my understanding that there is broad agreement about the following proposal:  the parties - proponents that are seeking a variation to the award be required to file draft determinations in roughly six to seven weeks, which will take us to 21 October;  that submissions and evidence in support of the variations sought be filed by 19 December or thereabouts.  The submissions and the evidence in reply should be filed in February of next year and that a hearing be listed thereafter.  I should say that it was our understanding that there might also be some additional substantive variations that are sought to the award, therefore for determination before this full bench.  I can identify for your Honour - - -


THE VICE PRESIDENT:  Is that clauses 40-something or other?  There were two other matters that have not been currently referred but I understand what you're talking about - but go ahead.


MS BHATT:  So as your Honour has identified there is the coverage claim that has been mounted by Mitolo, Ai Group and potentially some other organisations.  There is a second issue relating to coverage and that arises from an amendment that was made to the pastoral award in the context of this review, I think it was either late last year or early this year.  There is a view held by Ai Group and some other organisations that that may have some unintended consequences to the coverage of the horticultural award that we say should be addressed.  My understanding that there is an NFF proposal that goes to the progression of employees through the classification structure in this award.  It might be more appropriate that Ms McKinnon address you on that.


THE VICE PRESIDENT:  All right, thank you;  Ms McKinnon?


MS McKINNON:  Vice President, the claims for the (indistinct) of the NFF we'd like to deal with in these proceedings is the coverage of the horticulture award - I know that there are different views around whether that's one or two issues.  In our view it's one but we'll wait and see.  The second issue is the process of progressing through the classifications.  It's really looking at the transition from level one to level two classification, which was changed in 2010 and seems to have created some unintended consequences so we'd be looking at that as well.


THE VICE PRESIDENT:  What I propose to do is I'll make available this transcript to the President, when the transcript is produced, and it may well be the President amends the referral following the comments made by the parties.  Either way the matter will be dealt with.  So far as the timetable is concerned, some other questions - albeit that it's a bit difficult in the absence of a - knowing who the witnesses are:  the parties have any preliminary views on how long the case should go or is it too early?


MS BHATT:  Your Honour, Ms Bhatt again for Ai Group:  we intend to run an evidentiary case and - - -


THE VICE PRESIDENT:  Yes - no, I follow that and it needs to be done.  So what are you saying;  that you'd rather the witness statements were all put on and then dates were fixed after that point?


MS BHATT:  I think that might be one way of proceeding.  At this stage it seems that we would be able to estimate the amount of time that's required for a hearing, not knowing the scope of the evidentiary case that is put on by ourselves and by those responding to the claim.


MS BARRETT:  Vice President, it's Barrett for the National Union of Workers:  as I indicated to Ms Bhatt this morning the NUW would have issues with the proposed timetable put forward.  It means that essentially we will be receiving the materials on 19 December, just before Christmas closedown.  By the time we look at those materials and make a decision about whether to engage external legal representation realistically, particularly in relation to barristers, it would be very difficult until late January.  Furthermore, our offices like many others have a closedown period and we are encouraged to take leave in January.


Finally, the AiG was directed by President Voss last December to file correspondence in relation to exactly what it was proposing in relation to the coverage issues.  So for them - we don't think that should necessarily mean that we have to file our material response in January and February;  we'd only have that time to prepare.


THE VICE PRESIDENT:  Yes.  I'm totally sympathetic in relation to that.  I mean, the reality is the referral is to a five-person full bench.  That means I have to accommodate five people and if we continue down the path, even with a revised timetable, we're unlikely to get dates for some time because we'll need to work out the number of witnesses, et cetera, and program it.  So it seems to me that I need to make sure this matter doesn't also go off the rails.  We need to have some tightness about the parameters.  But taking into account everybody's interests and fairness, the December/January period is a problem and therefore needs to be accommodated, which means the thing will blow out a bit.


If I can just go firstly with the first direction being sought:  why would it take six to seven weeks for the proponents to prepare their draft determinations?  I can't understand why it takes that long.


MS BHATT:  Your Honour, the issue regarding coverage of the horticultural award is one that has resulted in a significant amount of interest in the industry generally.  We have been actively engaging with our membership as well as other stakeholders in the industry.  There has also been an exchange of forms of words between ourselves and other employee interests in this industry but we are yet to have reached a common position.  The grant of a period of time to enable us to continue those discussions with the intention of coming up with a single form of words that we can put before the Commission that are being pursued we think would assist with the efficient conduct of the proceedings.


That process of consultation has very recently brought to light some additional issues that we think will require further refinement of our proposal and the need to engage, again, with the other interests in the industry.


THE VICE PRESIDENT:  All right, I'm persuaded by that but also because the referral might be expanded that six to seven weeks would encapsulate, presumably, anything else that goes into - what needs to go in the first tranche.  If the referral is expanded, I'd want whatever draft determinations are being sought to be articulated in that first period.  So that then leads us to, really, the reply evidence.  It's unrealistic to expect the parties to respond in that time frame.  What sort of time frame would you like to respond?


MS BARRETT:  So just premised on the applicants filing their material on 21 October, on 19 December - - -




MS BARRETT:  - - we would seek the beginning of April, Vice President.


THE VICE PRESIDENT:  Is there any objection to that?


MS BHATT:  No, your Honour.


THE VICE PRESIDENT:  All right.  What I suggest is that the parties then prepare some formal directions in writing and then I'll issue them, which take into account that revised time table, which will also make accommodation if there is a further referral to take that into account.  What I will do is - I'm not going to allow the matter just to drift into April.  When would you have an idea of the nature of the witnesses that reply witnesses are going to be - not what they're going to say but the witnesses you're going to be calling?


MS BHATT:  Your Honour, I envisage that we would have a better sense of that once we have filed the draft determination.




MS BHATT:  So in the period between 21 October and when we're required to file our material in December.


THE VICE PRESIDENT:  Yes, well, I'm focussing, really, on not allowing the matter to drift until April, when all the witnesses are on, in terms of getting a scoping of the case and the length of the case, given that we're going to have to accommodate five diaries and counsel and all the rest of it and also discuss venues and the time the case will run.  I think what I might do is bring the matter on for directions some time before 19 December to see where the status is.  By that stage presumably the unions will have a view - at least in a broad sense - of the sort of people they're going to be talking about.  We may not have a definitive view by the time I bring the matter back on but at least we'll have a better idea of how it's developing, because the draft determinations will be out and that will narrow the case to some extent.


So what I'll do is I will check my diary and issue a short note through my associate as to a date for further directions in this matter.  But the direction we made as currently put - that is the draft determinations on 21 October, the submissions and evidence by 19 December, the reply material in April and then the hearing dates to be set after that point.  Any other preliminary questions at this stage?


MR CRAWFORD:  Your Honour, Crawford, initial S, from the AWU.  I just wanted to flag that there are additional substantive issues that the Commission may want to consider referring to this five-member full bench;  those are whether or not casual employees can be entitled to shift work loadings.  That is an area of dispute between the AWU and the NFF.  The other is what paid leave entitlements should apply to permanent piece workers.  I'm just concerned that they may be relatively complicated matters that may be beyond the scope of the general award review full bench so it may be more efficient for them to be dealt with here.  But I'm just obviously in the Commission's hands but I thought I would raise that.


THE VICE PRESIDENT:  Yes, well, my question back was going to be are they caught up with the general award review and you say they're not caught up in relation to that?


MR CRAWFORD:  They've definitely come up in the general award review.  I guess my concern is there may be substantial argument involved that may - I mean, I'm just not sure if the general award review full bench would want to deal with, I guess, that level of complexity in their proceedings, but - - -


THE VICE PRESIDENT:  All right.  Well, again, I will be referring this transcript to the President and the comments you've made - at this stage I won't be adding those myself to the sort of specific nature to be covered by this award but if the President directs this matter, that's what will happen.


MR CRAWFORD:  Thank you, your Honour.


THE VICE PRESIDENT:  Any other questions of parties or comments the parties wish to make?  All right, the Commission will adjourn and a date will be set for further directions.

ADJOURNED INDEFINITELY                                                           [1.50 PM]