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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                                    

 

COMMISSIONER HARPER-GREENWELL

 

C2021/1525

 

s.739 - Application to deal with a dispute

 

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

 and

Visy Packaging Pty Ltd

(C2021/1525)

 

Visy Packaging Pty Ltd (Coburg) Collective Agreement 2019

 

Melbourne

 

10.00 AM, TUESDAY, 26 OCTOBER 2021

 

Continued from 06/09/2021

 


PN1          

THE COMMISSIONER:  Good morning parties.

PN2          

MR GARDNER:  Good morning.

PN3          

MR POPPLE:  Good morning, Commissioner.

PN4          

THE COMMISSIONER:  Thank you.  I'll take appearances first and then I'll hear from both parties before I propose how I'm going to conduct proceedings this morning.  Thank you.

PN5          

MR GARDNER:  Joshua Gardner appearing for the applicant and I have Dean Griffiths with me.

PN6          

THE COMMISSIONER:  Right, thanks, Mr Gardner.

PN7          

MR POPPLE:  Good morning, Commissioner.  Popple, initial B, with Morand, initial G, for the respondent pursuant to permission granted previously.

PN8          

THE COMMISSIONER:  Right, thank you, Mr Popple.  Mr Gardner, any preliminary matters this morning before I discuss how the proceedings will be conducted?

PN9          

MR GARDNER:  No, nothing from me.

PN10        

THE COMMISSIONER:  All right.  Thanks, Mr Gardner.  Mr Popple.

PN11        

MR POPPLE:  No, nothing in particular, Commissioner, save to register our thanks to your associate for preparing the court book.

PN12        

THE COMMISSIONER:  All right.  Wonderful, thank you.  So, what I'm going to propose is that Mr Gardner, I'll hear your submissions first and then Mr Popple, I'll hear from you, your oral submission.  Then Mr Gardner I'll let you have a submission in reply.  When you do your submission in reply, I'd like you to address me in closing okay?

PN13        

MR GARDNER:  Yes, Commissioner.

PN14        

THE COMMISSIONER:  All right.  And that's for efficiency.  I don't think we need to have separate closing submissions and then Mr Popple I'll hear you in closing and then we're done.  All right.

PN15        

MR POPPLE:  That's convenient for my part, Commissioner, save that there is no contested evidence today.  The facts recorded in the statement are agreed facts provided by the parties, so in those circumstances I wouldn't propose to do a separate opening or closing which is I think what you're getting at, Commissioner, so I - - -

PN16        

THE COMMISSIONER:  Yes.

PN17        

MR POPPLE:  Thank you.

PN18        

THE COMMISSIONER:  All right.  Thanks, Mr Popple, you've probably put it more eloquently than I did.  I'm going on leave at the end of the week so you'll have to forgive me.  All right.  Mr Gardner.

PN19        

MR GARDNER:  Thank you, Commissioner.  Really, I probably won't take too much time.  For the most part we'll rely on our written submissions.  As my friend has pointed out there's no - there's no contested evidence.  There's just a statement of agreed facts and I think we've both set out our positions in the written submissions fairly - in a fairly detailed way.  So I'll really just provide an overview of our argument and if there's any questions you may have to clarify that I'll endeavour to answer those.

PN20        

THE COMMISSIONER:  And deal with some of the issues that you've put in reply to Mr Popple's - the respondent's arguments about me dealing with the first question as well, okay, Mr Gardner?

PN21        

MR GARDNER:  Yes, Commissioner.

PN22        

THE COMMISSIONER:  Yes.

PN23        

MR GARDNER:  In terms of the first question, well our view is that the answer - sorry, the question can't be answered with a simple yes or no, and frankly I don't think either party has really advanced that position.  Certainly, we haven't and the respondent, while they do say in their written submission that the answer is yes they've also noted that there are particular changes, particular arrangements of ours which do require employee agreement pursuant to the award.  So, the question doesn't, in our view, have an easy answer.  It's really more a matter of - for the Commission to try to determine what are the boundaries of the respondent's right to change rosters and working hours.

PN24        

We think that really that sort of difficulty is linked to our concerns about the Commission's jurisdiction to hear the dispute.  We would say that normally in a dispute around a company's right to introduce a change to a roster that would normally arise when a company has made a decision to implement a particular roster as notified employees.  This is the roster we're implementing.  This is the date we propose to implement it and if the employees don't agree and object to that change then the dispute may arise and if it can't be resolved it may be referred to the Commission to determine whether that particular roster change can be implemented without the employees' agreement.

PN25        

That hasn't happened in this case.  We agree that there have been discussions around the idea of a change to the roster over the course of the dispute but really those haven't progressed further than the company indicating that the current roster is not, in their view, sustainable.  Putting various alternatives forward to the employees and asking for their feedback, the employees' feedback has been that they want to maintain the current roster but otherwise they have given their views on some of the proposals.  And that's really where it's - where it's ended.

PN26        

The company hasn't - the respondent hasn't said, you know, after those discussions we decide to implement roster A or roster B and so be it.  If you don't like it, we say that's our right to do so.  And so in our view there haven't been discussions that would really be characterised as a dispute - as an attempt to resolve a dispute about the roster change.  Because there isn't a particular decision of the company to implement a roster that is in dispute.  It's really just about this overall notion of whether they can change the roster or not.

PN27        

That takes us then back to well, how should the Commission answer that question and as outlined in our submissions, our view is that there are some - that in some cases yes, the respondent can change a roster without employee agreement.  Those are set out in clause 17 of the award.  For instance, a change to the starting and finishing times by 15 minutes either way is likely to be something a decision maker could make without agreement but then there are, as expressed in clause 17, of the award changes that do require the employee agreement.

PN28        

So, our view is that clause 17 is fairly clear about changes that can be made without agreement which are covered in clause 17.5, and that it is also then fairly clear what decisions can only be made with employee agreement.  That would include implementing a roster where the employees work more than eight hours, more than eight ordinary hours per day or an averaging of hours over a period longer than 28 days, or ordinary hours worked on the weekend.  We don't - we don't see that clause 17 puts forward a conclusion that the company has an overarching unfettered right to implement any roster that it sees fit.

PN29        

So, really that is our submission on the first question.  Ultimately, we don't believe that the dispute resolution procedure has been followed but if the Commission finds otherwise then in answering the question, we would say that the company has a right to make limited changes to the roster as set out in clause 17.

PN30        

THE COMMISSIONER:  Thanks, Mr Gardner.

PN31        

MR GARDNER:  Turning to the second question in relation to Mr Trimsevski's remuneration.  This is ultimately what we say the dispute has always been about and we've always thought it was a fairly narrow dispute to resolve that question.  We submit that Mr Trimsevski's employment is covered by clause 40.  In our view, the respondent's position is really that clause 40 does not have a binding - does not create a binding obligation on the - on the respondent.

PN32        

We accept that the preamble to clause 40 is unusual.  If it simply - if it read that the following provisions set out the 12 hour shift and payment rules applicable to 12 hour workers, I think that would be more clear than it is creating a binding obligation and really then the issue arises in - the clause actually reads that the following provisions simply set out the existing 12 hour shift payment rules, and the question is what significance do those words 'simply' and 'existing' have.  Well, in our view they don't change the meaning of the clause, they don't give rise to an interpretation that clause 40 doesn't create an obligation.  The purpose of an enterprise agreement is to set out existing rules that apply in the workplace and that sentence we say can't be construed to mean that what follows in clause 40 can be changed at the respondent's - as the respondent sees fit.

PN33        

The respondent - even if the respondent has the right to make changes to the rosters and the ours of work, the clause goes beyond describing rosters.  As it says in that sentence it sets out payment rules and even if the Commission accepts that the company has a right to change the roster and that may be an extensive right or not, it doesn't give rise to a right for the company to change the payment rules, such as the way it pays overtime.  When those payment rules are different to what is set out elsewhere in the agreement or the incorporated award.

PN34        

So, we say that a conclusion that clause 40 doesn't have a binding effect is inconsistent with the wording and the content of the clause.  And we say that the clause does apply to Mr Trimsevski, as is set out in our written submission.  We say that he is - he is a - he works predominantly 12 hour shifts.  In our view he is a 12 hour worker because of that and therefore that he would be covered by the rules that are set out in that clause and - - -

PN35        

THE COMMISSIONER:  Mr Gardner, just so I've got this completely, and I've read your submissions and you've said effectively that in your submissions.  But I'm interested in this 12 hour shift basis for that, so can you just provide a little bit more detail as to how I distinguish between it says here 12 hour workers working in (indistinct) - - -

PN36        

MR GARDNER:  Yes.

PN37        

THE COMMISSIONER:  - - - as well as the other areas.  So, it doesn't say 12 hours and an eight hour shift.  So, can you just give me a basis to what your submission would - underpinning you submission there for that 12 hour - for me to get my head around that 12 hours, even though he's doing 12 hours and an eight hour shift.

PN38        

MR GARDNER:  Yes, Commissioner.

PN39        

THE COMMISSIONER:  Sorry, if I put it in context for you.  If I preface it this way.  Were the other employees not doing 12 hour shifts before there was a separate agreement for them to go onto that one eight hour shift.  So they were all eight hours weren't they?

PN40        

MR GARDNER:  Yes.

PN41        

THE COMMISSIONER:  And then there was a separate agreement for them to have one eight hour shift but you could say that they grandfathered the agreement that they get paid under clause 40.  That's correct?

PN42        

MR GARDNER:  They came to an agreement that one shift would be reduced to eight hours and that otherwise the payment would continue in accordance with clause 40.

PN43        

THE COMMISSIONER:  Yes.  So, you understand where my question's coming from so I can better understand your submission?

PN44        

MR GARDNER:  Yes.

PN45        

THE COMMISSIONER:  Great.  Thanks.

PN46        

MR GARDNER:  Well, I suppose our view is that the agreement talking about 12 hour workers seems to create a distinction between 12 hour workers and eight hour workers - - -

PN47        

THE COMMISSIONER:  Yes.

PN48        

MR GARDNER:  - - - and our workers are referenced elsewhere, and that Mr Trimsevski and the other workers in the department, given that they work almost all 12 hour shifts and that they're not eight hour workers, they only work one eight hour shift per fortnight, so our conclusion would be that they're 12 hour workers.

PN49        

THE COMMISSIONER:  So the agreement you're saying only provides for either 12 hour workers or eight workers, not something in-between.

PN50        

MR GARDNER:  Yes.

PN51        

THE COMMISSIONER:  Thanks.  Continue, Mr Gardner.

PN52        

MR GARDNER:  Yes, Commissioner.  So, we would say that Mr Trimsevski essentially - he meets the criteria.  He works in the (indistinct) department so he is a 12 hour worker and so that those rules would apply to his work, and therefore he should be paid in accordance with that clause and in the same way as the other (indistinct) tapered ends workers are paid or the three who pre-date his employment.  And we also say that because we know that in the reply submission that there's the issue of clause 6.7 of the agreement, which provides that except for agreed changes made under the facility provisions, or as otherwise provided for in the agreement, existing site payments and employment conditions will continue to apply as part of the agreement.

PN53        

We say that that would capture the payment conditions that are made in the tapered ends department at the time that the agreement was approved, and therefore those conditions continue to exist as part of the agreement.  And that they apply not in related grandfathering across specific employees but to the - to someone who is employed in that area.  Therefore, although Mr Trimsevski was employed later on, after the agreement was approved, that those conditions continue to apply until they were changed through facilitative provisions or otherwise.

PN54        

Therefore, we'd say that he should be paid the 10.85 hours at ordinary rates for the 12 hour shift and the remainder at double time as we've put in the submissions.  Therefore, on that basis that's why we would say that the Commission should answer the second question to say that yes, clause 40 does cover Mr Trimsevski's employment.

PN55        

THE COMMISSIONER:  That's all, Mr Gardner?

PN56        

MR GARDNER:  Yes, that's all, thank you.

PN57        

THE COMMISSIONER:  Thank you.  Well, look, they were the main questions that I had for you when I read the submissions.  It seemed to missing that particular part of the information that I required as to - or are you saying that there's only eight or 12 hour, so thank you for addressing that.  Mr Popple.

PN58        

MR POPPLE:  Thank you, Commissioner.  What we thought we would do is just walk through the written submissions that we filed in the order that they appear in reasonably summary format, noting that the written submission we filed is relatively comprehensive of the arguments that we made.  And in doing that just highlight the key thrust of the argument and answer any questions that you might have, Commissioner, along responding to the points that the union's raised.  So if that's a convenient course I'll launch into it, although I start just by - - -

PN59        

THE COMMISSIONER:  Mr Popple, sorry, when you do go through your submissions I'd like you to address the same issue that I've asked Mr Gardner to and just take me to the agreement and explain to me then how you say Mr Trimsevski should be paid, okay?

PN60        

MR POPPLE:  Yes, certainly.

PN61        

THE COMMISSIONER:  Right, thank you.

PN62        

MR POPPLE:  To lead off I'll just pick up on one thing that my friend said at the outset, which is that the question posed under Question 1 has no easy answer, and we don't agree with that.  We think that it does and the (indistinct) for the answer to the question that's asked really is set out in the Custom Coaches case that we refer to in our written submission.

PN63        

That's a case that's on effectively all fours with what you're faced with here, Commissioner, at least in respect of Question 1.  The question in that decision was whether the provisions of the vehicle, and I'm paraphrasing, prevented the - in the factory award, those provisions being relatively identical, which were incorporated into the agreement require agreement to be reached with the majority of employees as a pre-requisite to changing the ordinary hours from the (indistinct) referred to.  And the answer to the question was yes.

PN64        

So, we think that is, as I say, on all fours with this case and provides the roadmap to the way the Commission would deal with this question.  And in that context, of course, it's not (indistinct) question and is capable we say of a reasonably straight forward answer.  I'll come to that case and also the case of Coates Hire, which we refer to in our submission in due course.

PN65        

But to take up the submissions and work through them, I won't spend any time on the background.  The background really sets out a synopsis of (indistinct) statement of agreed facts and unless you have any particular points of clarification, Commissioner - - -

PN66        

THE COMMISSIONER:  No, thank you.

PN67        

MR POPPLE:  I should also - I should note there I'm not sure, Commissioner, whether it's your practice to received and mark the statement of agreed facts.

PN68        

THE COMMISSIONER:  Yes, I will do that.  I'll let the parties deal with the submissions, then I'll mark them (indistinct) convenience (indistinct).

PN69        

MR POPPLE:  Thank you.  So, that takes us then in our written outline to Question 1.  Again, what follows from paragraph 7 is really a summary of the thrust of the argument to be made but I won't work through those in any detail.  And similarly, at paragraph 12 to 14, the written outline works through a proposition which I understand not be contested between the parties.  That is, that the enterprise agreement really doesn't deal with the setting of hours of work, subject perhaps to the question that you've raised, Commissioner, about 12 and eight hour workers, which I'll come to.  But subject to that I think it's common to the parties that any limitations that apply on (indistinct) rights to change hours of work derive from the award and not the enterprise agreement.  I think that's uncontroversial.

PN70        

So, really where that takes us to is paragraph 15 of our written outline under the heading numbered 1(c).  The point that we really make at this part of our outline is that for both day workers and non-continuous shift workers, and indeed continuous shift workers, the award provides for a discretion or confers a discretion on the employer to set out work.  Now, we don't put any focus on continuing shift workers because on any view the employer's here to not meet  the description of a continuous shift worker.  They could be characterised as either a day worker or a shift worker.  We say that they are day workers but the distinction is really no difference here because the award provisions are for present purposes the same.

PN71        

So, what the clause does at 17.2(d) and 17.4(e) for those two types of workers is provide employers with a discretion to set the hours of work within a particular span of hours and particular limitations.  That discretion is then reinforced at 17.5(a) of the award which is really at the heart of this matter.  Because what 17.4(a) does at its outset is say that subject to the employer's right to fix the hours of work - - -

PN72        

THE COMMISSIONER:  17.5(a), you're referring to, aren't you?

PN73        

MR POPPLE:  17.5(a), thank you, Commissioner.  What 17.5(a) starts off by saying is that subject to the employer's right to fix the hours of work, the arrangement of ordinary hours is by agreement.  And so what is clear and manifest from that provision is that the need to seek a majority agreement to the arrangement of hours of work, only arises subject to the employer's discretion.  That is it's only when the employer seeks to implement a scheme of hours which goes outside, it transgresses the boundaries of the award, that majority agreement's required.  If the employer is wanting to set hours of work within the span of hours set by the award there is no need for the agreement.  That's what those words, subject to the employer's right, mean when you read them harmoniously with clause 17 - the rest of clause 17 that says that the employer has discretion.

PN74        

So, that fundamentally is the respondent's construction of clause 17, and we say that that is consistent with the ordinary and actual meaning of the words in clause 17 as you find them.  If you read them in the way that I have, given that actual meaning, that is the only construction that is open and we say that those words should be given that actual meaning.

PN75        

That construction that we contend for is reinforced by a number of other contested matters, and they are the status of clause 17.5 in the award's facilitative provision, the history of facilitative provisions and what those types of clauses mean and what they do.  And also the history of the language of clause 17.5 in the context of this award.  Those are the matters that we address at paragraph 24 to 67 in our submission - our written outline that I'll work through now.  But they are all matters that reinforce the natural and ordinary meaning of the words that you find in clause 17.5 of the award.

PN76        

So, to turn to those contextual matters that we rely upon and I'm moving down to paragraph 27 of our outline under the heading numbered 1(d).  The point we make in this part of our outline is that clause 17.5 is unambiguously a facilitative provision.  The award says that in terms at clause 7.3.  The award also tells us at clause 7.1 what a facilitative provision is and I won't read it, it's set out at paragraph 29 of our outline but the short summary is that a facilitative provision is a term of an award where there is a standard or default condition, and then there is a capacity to move beyond the boundaries of that default condition within a particular specified framework with the agreement of employees.

PN77        

That is there is a - and to give an example we can refer to

PN78        

17.2 - bear with me, Commissioner - 17.2(c) I think it is of the award.  Yes, 17.2(c), as an example, provides that:

PN79        

The ordinary hours of work for day workers who work Monday to Friday -

PN80        

That's the standard condition of the award.  Then there is a capacity to flex beyond that standard condition within a specified framework.  That is ordinary hours of work if you work on Saturday and Sunday.  That can be done with the agreement of employees.

PN81        

In the same way, at 17.2(d) we see another example (indistinct) and it says that the ordinary hours of work are to be worked within a span of hours from 6 am to 6 pm.  That's the standard condition of the award.  There is then a capacity to vary that standard condition, that's the framework within which the standard condition can be varied, one hour at either end, and the way that's done is with the agreement of employees.  And you can see that those components of the facilitative provision, (indistinct) set out in clause 17.1 (indistinct) of the outline.  Standard condition, the framework within which the condition can be moved away from and the methodology by way that's done.

PN82        

What we go on to explore in this part of our written outline is that that understanding of the facilitative provision is not novel or unique or new.  It's been around for about 30 years.  It was first described in the 1991 wage case and we set out the extract at paragraph 30, and again this is where you see the language or the departure from (indistinct) condition come in, which I think there's some issue taken with in the submissions of my friend.

PN83        

But the way the Full Bench in that 1991 wage case describes facilitative provision, the definition of a facilitative provision that it postulated there was that there is an award condition with a default setting, a framework within which the default setting can be varied and the mechanism by which that's done.

PN84        

The other important point which we don't refer to in our submission - the other important point that was made in the 1991 wage case, namely that this was the - really the start point of the Commission's focus on structural efficiency, principle and workplace, fixation of terms and conditions of employment.  In that light the other feature of a facilitative provision is that it is not subject to supervision or review by the Commission which is (indistinct) at that point in time.

PN85        

In any event, we then move forward to the 1994 safety net adjustment and review decision which was the opportunity for the AIRC then as it was to review and monitor the implementation if you like of the structural efficiency principle and the workplace level plain setting or condition setting.  And in that decision, again the extract is at 31 of our outline, the Commission picked up on the definition of facilitative provision, and he elaborated on what a facilitative provision is, and then says, and I will read from the extract that's in our outline at paragraph 31:

PN86        

Normally it provides the standard approach in an award provision may be departed from by agreement.

PN87        

And it goes on, and then it says:

PN88        

Where an award clause contains a facilitative provision it establishes both the standard award condition and the framework within which agreement can be reached as to how the particular clause should be applied in practice.

PN89        

Now, if you refer back up to paragraph 29 which is where we extract clause 7.1 of the award as it stands today, that bolded section of the quote that I just read is precisely the words that you find in the award.  That is in this award and in modern awards generally the facilitative provision is derived from this history which is set out and was established by the Full Bench in the 1994 Safety Net Adjustments and Review decision, and it just reinforces the point that I was making earlier, that a facilitative provision is not just a mechanism whereby there's a necessity to reach agreement at large.

PN90        

A facilitative provision is a particular species award provision where there is a default condition within which the employer has discretion, and then there is a capacity to move beyond it subject to the handbrake, the safety valve, of requiring the agreement of employees, and that's the balance that was struck between giving the employer flexibility to set hours, but also in an appropriate case where the flexibility goes beyond the standing condition providing a safety check if you like that can only be done with employee agreement.

PN91        

And that really is the key point to be made at this part of our outline, is that 17.5 needs to be understood in that way, because it is, as I said, a facilitative provision identified in the award, and the consequence of that is that within the boundaries of the award, the standing condition, there is a discretion burdened on the employer, and the need to move beyond the standing condition, such as for day workers scheduling hours of work for Saturday and Sunday including (indistinct) hours from (indistinct) other side.  Those are steps that move beyond the default condition of the award, and that is where the facilitative provision comes into play, and it's consistent with as I said that 30 year old history of the facilitative provisions and the definitions of those types of award provisions.

PN92        

That then takes us to paragraph 41 of our outline under the heading '1(n)'.  What we do here is set out the history of the language, the text of clause 17 of the award, the current award, and trace that back to its beginning, and again what you see from this - the matters we set out in this part of our outline, is that the construction of clause 17.5 that Visy contends for and the construction that the Commission arrived at in Custom Coaches and Coates Hire is consistent with not only the text we say in the clause, not only the history of facilitative provisions, not only the text of the facilitative provision regime in the award, but also the history of the language of clause 17.5 itself.

PN93        

The reason we say that is because clause 17, and I won't take the Commission to the decision, but it comes from the 1998 decision of Senior Deputy President Marsh in the award simplification case, and we set out in short form the background to that decision starting from paragraph 42 of our outline, but in short previous metals award was the subject of a consent application in 1998 by the union groups and the employer groups to delete the entirety of the text of the award as it stood at that point in time.  There was also a consent application to replace all the deleted text with a new award that had by vast majority been agreed between the union and the employer groups.

PN94        

There were some matters as part of that consent application that had not been agreed.  So there was a brand new award being created with most of the content of it having been agreed by the parties.  The parts of the award that hadn't been agreed was to be arbitrated by the Commission, and what is now clause 17.5, and indeed 17 generally, was one of those clauses that had not been agreed between the employer parties and the union parties and was arbitrated by the Commission.

PN95        

You can see if you work through the decision the language is identical, it hasn't really changed at all from 1998 to now, what's appeared in (indistinct) the modern award now.  Her Honour Senior Deputy President Marsh goes through the union parties submissions and the employer parties submissions and assesses the merits of those submissions when arriving at the language of the award as it stands today, and the theme that's followed through all parts of clause 17 is really the same, and we set out an example in paragraph 46.  The union parties sought a clause that permitted hours of work for day workers to be worked on Monday through Friday only, and the employer parties asked for a clause, which is the language you find in the award today, asked for a clause that provided that ordinary hours of work for day workers to be worked Monday to Friday, but they could also be worked on Saturday or Sunday subject to agreement.

PN96        

Her Honour went through the history of the facilitative provisions and said, well, there is a standing condition, that is Monday to Friday, but it's appropriate to give the facilitation to (indistinct) the employer part of this to have ordinary hours of work available on a Saturday or Sunday as well, because it is subject to the safety net of employee agreement.  What her Honour said, and it's set out at paragraph 46 of our outline, is that under the MTIA provision, that is the proposed clause that the employer parties proposed, under the MTIA provision an employer cannot direct an employee to work ordinary hours on a Saturday or Sunday.  That is it's a facilitative provision requiring agreement of the majority.

PN97        

To put that another way what her Honour said in drafting this direct clause is that an employer has a discretion to require hours of work to be worked Monday to Friday.  If you go beyond that standing condition - again I'm picking up the language from the facilitative case and then 7.1 of the award - if an employer wants to go beyond that standing condition within a particular set framework, that is Saturdays and Sundays, then he can do so by majority agreement, and that is the safety net.

PN98        

Her Honour went through the same exercise with the standard hours where the union parties contended for a clause that provided that ordinary hours had to be worked between 6 am and 6 pm.  The employer parties said or contended for a clause where ordinary hours could be worked between 6 am and 6 pm, but that standard could be moved one hour either side with agreement, and her Honour made the same observations.  She said that it's appropriate to include that flexibility, because in the specified span of hours there is a discretion for the employer to set hours and direct employees to work at times of its choosing within that span.  But where the employer wants to go outside of that standing condition within the framework then that can be done with the agreement of the employees.  That's how the facilitative provisions work, and that was the backdrop against which this clause was drafted.  That's really the reliance that we place on the 1998 award simplification case.  That is the origins of the current clause 17.5, and the meaning, or the function of that clause as it was arbitrated back in 1998 is precisely the construction as it contends for now.

PN99        

The only additional point that we make as to the history of the award provision is what starts at paragraph 52 of our outline, and this is really the only major change that's been made to the language of the clause since 1998, and that is the insertion of a specific reference to the consultation obligations in the award.  That reference was inserted by the Full Bench as part of the four years review of modern awards in 2017.  And what the Full Bench recognised there, and again we set this out in our submission, but what the Full Bench recognised there is that provided the employer is moving outside the span of hours, or the default standing conditions of the award, the clause otherwise gave the impression that employers have an entitled and unfettered right to change hours of work.

PN100      

The Full Bench recognised that that is not quite right, because there is one particular (audio malfunction) upon employers to change hours within the span, and that is the requirement for consultation.  And that's precisely why reference to the consultation clause was included.  The Full Bench sets out its reason for that in its decision at paragraph 11, as we identify in 54 of the outline.  It was to clarify that, yes, employers have a discretion within the span of hours to implement arrangements of working hours, but that is subject to them to consult.  And as I say beyond that amendment in 2017 clause 17 of the award as we find it today is identical to the clause that was arbitrated by Senior Deputy President Marsh in 1998.

PN101      

Against that history, that is just to recap, Commissioner, we say that clause 17.5, the natural words (indistinct) into that construction, they're reasonably clear.  The employer has a discretion (indistinct) the language of 17.5.  Subject to that discretion there's a need for majority agreement.  We say that only applies when an employer seeks to move outside the standing condition of the award, namely that construction is consistent with the history of facilitative provisions with the terms of clause 7 and the history of this award provision.

PN102      

From paragraph 56 of our outline we set out some more recent examples of the Commission considering precisely this issue.  The two cases are that of Custom Coaches and Coates Hire.  As I mentioned Custom Coaches is effectively we say on all fours with the matter before you today, Commissioner.  It was a matter that was considering the operation of the vehicle award, but the terms are identical.

PN103      

I should note that paragraph 59 we set out the observations of Senior Deputy President O'Callaghan in answering the question for arbitration in the way that we contend it should be answered for here, but the pinpoint references for those extracts of the decision are paragraph 21 and 22 respectively, so that's 59(a) and 59(b) of our outline.  So Custom Coaches is probably the most on point guidance for this question.

PN104      

There was some analysis of the issue as well in Coates Hire.  Coates Hire was a slightly different case.  It was similar in the sense that the employer had an enterprise agreement that didn't really regulate the setting of hours of work, but it incorporated the manufacturing award to modern award.  Where the facts in that case depart slightly from this case is that the agreement there specifically said that the modern award was incorporated except for facilitative provisions.  So the threshold debate in that case was whether or not what you find in clause 17.5 was incorporated into the enterprise agreement, and the employer Coates Hire said, no, it wasn't, because 17.5 was a facilitative reason, and by virtue of the enterprise agreement it wasn't incorporated, whereas the union said that it was.

PN105      

Commissioner Hunt ultimately concluded that clause 17.5 was not incorporated into the enterprise agreement there, but the Commissioner went on to consider the meaning of and the operation of clause 17.5 had her primary conclusion been wrong and that clause was incorporated into the agreement.  On that analysis it is again squarely on fours with this case.  The only difference is that at the time the clause was 36.9, but it's otherwise identical.  The observations that Commissioner Hunt makes in that decision are set out at paragraph 65 of our outline, and again consistent with Custom Coaches and consistent with all the history that I have taken the Commission to the Commissioner there in Coates Hire determined that, as I have postulated already, clause 17 gives employers a right to set hours of work within a framework, and what is at clause 17.5 now only requires majority agreement where there is an arrangement of hours that goes beyond the default standing conditions of the award, and in our submission that is not a novel or unique construction.  That is entirely orthodox and consistent with the history of the clause.  We cannot find any decision anywhere that indicates that the employer requires the agreement of employees under this award or any similar award to set the arrangements of working hours.

PN106      

We are not entirely clear as to the extent to which we differ from our friends in this respect, because my friend indicated in his oral submissions earlier, but also in his written outline, that the union accepts there is a right to alter hours of work, subject to certain limits, and as can be seen from what we work through, Commissioner, we agree with that.  The question ultimately becomes what the limits are, and we say that the limits are simply those that are set out in the award provision.  That is for a day worker his hours of work can be set on - ordinary hours of work can be set on a Saturday and Sunday it requires agreement.  If the span of hours is to be moved one hour either way that requires agreement, and similar with - I think my friend referred to averaging of hours.

PN107      

Those are the matters we say require agreement if there is a proposal to move beyond the standard conditions, but if there is a proposed arrangement of hours that works within the standard conditions of the award then that doesn't require agreement on our construction, and the constructions accepted in the cases I have taken you to supported by the history.  To give that a practical example - we will come to the point that was made about particular proposals in addressing the question of jurisdiction - but to put that in a practical example if Visy were to propose hours of work for the (indistinct) employees that would comprise of 7.6 ordinary hours per day, and Monday to Friday starting at 8 am for example.  We would say, well, unequivocally that is the arrangement of hours that falls within the default terms of the award for day workers.  That is not something that would require the agreement of employees.  So that's the construction we contend for.

PN108      

The reason why I say we are not entirely clear whether we're at odds with our friend on that issue is that as we set out in paragraph 67 of our outline the position was put in the union's outline that the - (indistinct) outlines on merits at 29 - that the extent to which Visy can change daily hours of work without agreement in accordance with clause 17.5 of the award is to change the time at which ordinary hours are worked within the spread of hours, and the days on which those hours are worked between Monday to Friday.  So far so good, we agree with that.  But then it says while maintaining prevailing shift arrangement, and it's not clear to us how one can change starting and finishing times of working hours and the days on which working hours are worked, whilst at the same time maintaining the prevailing shift arrangement.

PN109      

But if that last part which we've bolded in paragraph 67 of our outline is set to one side there is otherwise (indistinct) agreement in that Visy has a discretion to set hours of work within the standing conditions of the award, and again that's consistent with I think the orthodox understanding of the award provisions.  Only that as I said we have not been able to identify any case that says that the employer will set hours of work or maintain (indistinct) to hours of work within those default conditions requires the agreement of employees, and noting that we're talking about the award provision here, but advised across industry generally, if there was such a requirement one would expect to see some decision of the Commission that makes that known, but there is no authorities for that proposition we have been able to find.  That is really all I wish to say about question 1, Commissioner, and this is in the questions that we had.

PN110      

THE COMMISSIONER:  (Audio malfunction) get them out, Mr Popple.  I think those that I have I believe is more relevant to Mr Gardner's submission.  Thank you.  Next is question 2.

PN111      

MR POPPLE:  Thank you, Commissioner.  Yes, to question 2.  We really put this at two levels.  Not only gets the context that the dispute is about whether Mr Trimsevski should be paid consistent with what we have described as the without prejudice arrangement, the grandfather arrangement that was applied to the other employees at the time under an old - a previous enterprise agreement when Mr Trimsevski wasn't employed, and Visy says that that is not what is required under the enterprise agreement.  Rather the arrangement by which it presently pays Mr Trimsevski under his contract of employment is consistent with its obligations under the award and the enterprise agreement.

PN112      

I think you raised a question at the outset, Commissioner, about where those obligations come from, and there's probably two answers to that.  The second part of the answer I will come to, but in short it's the award.  But I just pause here to note that we set out in our statement of agreed facts what the payment arrangements are for Mr Trimsevski in his employment contract.  But certainly one source of those obligations is the contract of employment.

PN113      

In terms of the construction of clause 40 that we contend for as I said it's put at really two levels.  In the first instance we say that it simply does what it says, which is that clause 40 simply records the existing arrangements that applied at a particular point in time, and it is in our view difficult to think of words that can more clearly express that intention because the clause starts off by saying that it simply sets out the existing shift and payment rules, and that is in terms consistent with the construction we contend for.  It's simply recording an existing arrangement.

PN114      

Now, my friend's submission focuses on the word 'rules', and I think that really is at the heart of his submission that clause 40 operates to set some enduring entitlements, rights and obligations.  We say that shouldn't be accepted because it ignores the surrounding language, and it's also not necessary to give that word that meaning.  In fact it's strange the meaning of that word 'rules' in context, because all that word is really saying is that the clause sets out the existing 12 hour shifts of the payment rules, that is it sets out the rules in terms of shift in payment that Visy was applying at a particular point in time, and that is entirely consistent with the context of the opening in clause 40, but also as we will come to the content of it as a whole.

PN115      

So that's the primary view that we take, is that clause 40 simply records existing shift in payment rules.  That's what it says, that's what it does, and it's also consistent with the content of the clause, because when you work through it it's reasonably apparent that clause 40 isn't capable of being sensibly applied once shift patterns change.  We explain the reasons for that in our written outline from around paragraph 80, and this really is venturing into the second limb of the argument on clause 40, that is that even if clause 40 does set particular rules that create substantive rights and obligations, that's only half the answer to the question, because it's then necessary to ask the question, well when do those substantive rights and obligations apply.  For the same reasons that they can't apply to (indistinct) described in the statement of agreed factors and current roster, that is why they shouldn't be taken to have created substantive rights and obligations in the first place, because once the roster changes then it fails to have any sensible application.

PN116      

To make that point good we have set out the details as I mentioned in paragraph 80 of our outline, but one can turn for example - unfortunately some aspects in the clause aren't separately numbered, but on page 19 of the enterprise agreement under the heading 'Rostered hours Monday to Friday, rostered hours Saturday and Sunday' the obvious point is that there is no function or provisions in clause 40 for a number of hours to be worked on any day that is other than 12, because it says, When an employee works rostered hours Monday to Friday they're paid 12 hours' - according to the breakdown that you find in the clause - 'and when an employee works rostered hours on Saturday or Sunday they will be paid 12 hours at double time.'

PN117      

A literal construction, and if you were to apply that to any worker on any rostered pattern, is that if they work three hours on a Saturday they're paid 12 hours.  Now, that's not a sensible construction that fits neatly with the content of the clause to pick up the language in courts and those cases about industrial purpose.  It doesn't serve any sensible industrial purpose.

PN118      

Equally, and again set out in our written outline, if you multiply out the 10.85 hours across the previous roster pattern that was in place when this clause was in effect it equals 38 ordinary hours per week, as is the descriptive for a full-time employee under the award.  The fundamental point is that when the roster changes the clause really doesn't have any sensible application.  Now, that cuts both ways as well, Commissioner, because the other point we made is let's say Visy was to implement a roster pattern whereby employees worked four 12 hour shifts every week.

PN119      

On the union's case you will pick up this language and you apply this clause to that roster pattern with the effect that for working those 48 hours per week employees will be paid four times 8.5, so around about 42 hours of ordinary time, and the rest at double time, and that would of course result in a dramatic short (indistinct) of employees, because after 38 hours in the week they would expect to be paid an appropriate overtime penalty.

PN120      

So it cuts both ways, and the point again really is that once you move outside the rostering arrangement that was in place and which this clause was adapted to meet it's no longer capable of sensible practical application.  And that's the reason why we say that the opening words to clause 40 where it refers to 12 hour workers that should be taken as a reference to workers who worked the previous roster.  Again I am picking up the definition in the statement of agreed facts, because first of all the previous roster would require solely 12 hour shifts.  So it's consistent with the definition, and it makes sense of the clause as a whole when you read it in context (indistinct), it all works.

PN121      

Once you have got a different roster pattern, including the current roster here which includes an eight hour shift, the whole scheme of clause 40 fails to hang together, and it is no answer to say, well clause 40, even leaving to one side the difficulties with the application of the clause (indistinct) as I mentioned, but it's no answer to say, well this clause should apply to Mr Trimsevski on the occasions when he worked a 12 hour shift, because the only words to clause 40 that set out the existing 12 hour shift in payment rules, so the first part of the clause refers to the lengths in the shift, but then it says to 12 hour workers.  So the application of the clause really hangs off the definition for that 12 hour worker reason.

PN122      

For reasons that we have been through in our written outline and I have canvassed just now we say that definition of a 12 hour worker can only be someone who was working the previous roster that was comprised of 12 hour shifts and contain an average of 42 hours work per week.  That was the arrangement in place in the clause that was operating under the previous enterprise agreement, and to that arrangement the provisions of clause 40 make sense and apply (indistinct).

PN123      

That just leaves two matters.  The first is the point that my friend raised about clause 6.7 of the enterprise agreement.  That, in our submission, really doesn't take the Commission all that far, primarily because the arrangements that were being applied to the other TAFE employees at the time this agreement was made were implemented on a without prejudice basis for the purpose of resolving an industrial dispute, because as was set out in the statement of agreed facts, there was a change in the previous roster and the current roster.  There was a mistake made by Visy as to the way it was paying the employees.  Visy sought to correct the mistake.  There was some consultation with employees about the change to correct the mistake, and Visy agreed to keep things the way that they were, that is, keep paying according to 10.85 hours and (indistinct) hours for the 12‑hour shift to those employees, and when new employees were brought on they weren't part of that grandfather agreement and they were paid consistently, and Visy knew what the enterprise agreement would require.

PN124      

So in that context, clause 6.7, we say, can't (indistinct) up and extend for without prejudice compromise and apply across the board.  But, in any event, all clause 6.7 really does is take clause 40 and continue with this application, and the question is, when we come to what does clause 40 mean, when does it apply.  So we don't think that really takes the Commission all that far.

PN125      

The second matter that was left to briefly address is the final part of your question, Commissioner, about the source of Mr Trimsevski's rights to payments, and the short answer to that question is, in the absence of anything in the agreement, of which there is not, that's dealt with by the AMWU, and that is what's reflected in Mr Trimsevski's employment contract.

PN126      

I should just pause and note there as well that what my friend made of the submission that the enterprise agreement requires all employees to be either eight‑hour employees or 12‑hour employees, and effectively, as I understand the thrust of it, irrespective of what working arrangements employees work, you've got to (indistinct) fitting into whichever category seems most appropriate.  We don't think that there's any basis for that construction in terms of the enterprise agreement.

PN127      

Unless there's any questions that you have, Commissioner, on question two, then I'll just turn to the question of jurisdiction.

PN128      

THE COMMISSIONER:  (Indistinct).

PN129      

MR POPPLE:  This has been canvassed again in our written outline, but also the previous submissions of the parties, so I won't say more than what's on paper about it, save for the three critical points that we make here, that first of all, in our submission, the question of jurisdiction included there is a distraction, because ultimately part of the reason that we contend for in the construction of clause 2 – that's clause 40 for you in relation to question two – is because, for the very reasons that we've answered in relation to question one, hours of work for these employees is capable of changing (indistinct) discretion, and if you accept that proposition, then that goes part of the way to explaining why clause 40 should be construed, in the terms of the employment clause, construing it as just recording the existing entitlements or the existing laws that applied at a point in time.  It makes sense why the clause would be intended to function in that way given that employees' hours of work are capable of change.

PN130      

So, (indistinct) on one question rather than the other on jurisdictional matters is, as we say, a bit of a distraction, because ultimately question one is a step along the way, if you like; it's part of the argument as to the proper construction of clause 40 that's dealt with in question two.

PN131      

Beyond that, we also make the points we have in our previous submissions on the submission on the questions of arbitration, which we continue to rely upon, that we verily sought by the union in the application filed on 19 March to seek orders from the Commission that the parties use the facilitative provisions of the award to incorporate the current roster in the enterprise agreement.

PN132      

The argument as to the proper construction of clause 17.5 of the award is really an argument about what facilitative provisions mean and do, and it's squarely relevant to the relief sought by the union in its application that the facilitative provisions be used to incorporate the current roster, because on our construction of those provisions of the award, they're not capable of being used in that way, because they talk about expanding hours of work beyond the default condition, not adjusting penalty rates and all those sorts of things.

PN133      

But also, to the extent that the orders require the parties to incorporate the current roster into the agreement is (indistinct) to this.  For reasons that were made very well known to the union and the employees prior to the dispute being filed, Visy no longer considers the current roster to be suitable for these employees, and so the issue of the roster and the incorporation of the roster is squarely raised in the application; it is part of the relief sought by the union.  That is the second key point that we make about jurisdiction.

PN134      

The third is that, even leaving all of those matters to one side, the Commission can be comfortably satisfied that it has the jurisdiction necessary to resolve question one, and picking up the language from my friend's oral submissions earlier, there is an acceptance that prior to the application being filed there were discussions to Visy, the union and the employees about the need for a change in roster.

PN135      

There was some feedback provided about those rosters.  Part of the feedback of course was that the employees didn't want to change roster, and they didn't think that Visy was able to impose a change in roster, and they wanted to keep their current roster, and that's recorded in the statement of agreed facts and the submissions my friend made earlier, and that is perfectly sufficient to enliven the jurisdiction of the Commission to resolve a dispute, and I referred in paragraph 99 and 100 of our written outline to the Federal Court decision from last year in Qantas and AIA.  All that's required for there to be a dispute is there is a matter in relation to which opposing views have been expressed and there's been some discussions about it.

PN136      

What's set out in the statement of agreed facts at paragraph 26 to 30, that's precisely what's occurred.  There's no need for there to be a precise articulation of whichever proposed roster Visy wants to implement(?) -leaving to one side the fact that there was discussions about the rosters - there's no need for that type of particularity in formulating or to provide a basis for the dispute, nor is there a need for any party to set out in any detail the legal basis upon which their view is put.  That is the type of undue technicality that the Federal Court ordinanced in Qantas, with nothing more required than there had been a difference of views.

PN137      

Now, the difference of views here is not about the merits of any particular roster, because the reason that the discussions with employees about the new roster stalled was a fundamental disagreement about whether or not there was any discretion available to Visy to change hours of work.  That's the dispute.  The dispute is we say that we have a right, the discretion to change hours of work, albeit within the span of hours of certain default provisions of the award, and the employees in the end were aware at that time that there was no such discretion.

PN138      

So if that dispute was answered, and that question is resolved in the way that we contend for, the result is that the dispute as to that issue is resolved.  It's clear that there is a discretion available for Visy to set hours of work.  It's not the end of the matter, because Visy then needs to conduct a consultation process, and if it wishes to arrange (indistinct) working hours it goes beyond the standard conditions of the enterprise agreement.

PN139      

With all those things possible, from a practical perspective, once there's a resolution to the dispute that has fundamentally separated the parties about whether or not there is a discretion available to Visy to alter the roster, and that's the matter fundamentally in respect of which opposing views have been expressed, and that's what sits at the heart of question one and the issue that's taken with the relief sought by the union's dispute application.

PN140      

So I think, Commissioner, that's all I need to say about jurisdiction, and then those are the, as I said, the three critical points that we wanted to emphasise.  Unless there's any questions that you have, Commissioner, those are the oral submissions.

PN141      

THE COMMISSIONER:  Thank you, Mr Popple.  Mr Gardner?

PN142      

MR GARDNER:  Thank you, Commissioner.  I will just touch on a few things that my friend has put in his submissions.  In relation to the first question, the issue of the right to change rosters, the respondent has referred to a couple of cases, which they say are on full fours with the present matter, and we'd say that there are distinctions between those cases and the current matter.

PN143      

The first is about the scope of the question to be determined.  In the Custom Coaches case, the question was whether the provisions of the award, or the vehicle award - but we accept that the provisions are essentially the same - which are adopted into the agreement required the agreement to be reached with a majority of employees as a prerequisite to changes to ordinary hours within the spread of hours referred to in the award.

PN144      

In contrast, the question in this matter is whether the respondent has a right to change the (indistinct) employees roster without the majority agreement.  We see that as a broader question, because changing a roster goes beyond simply changing the hours worked within the spread of hours set in the award.  For instance, the roster that is currently worked, which involves 10.85 ordinary hours worked in a day, goes beyond the hours that are authorised by the award without agreement to that clause.  Clause 17.2 requires that day workers not exceed eight ordinary hours per day unless agreed, in accordance with clause 17.5.

PN145      

So we say that the question posed in this matter is broader and suggests that the respondent has a much broader right than that which was posed in the Custom Coaches matter, and in both the Custom Coaches case and the Coates Hire case the changes which the companies sought, which were a specific change, was to change the start and finish times by one hour.

PN146      

As we've said, we accept that the award allows the respondent to fix the start and finish times within the ordinary spread of hours, but that doesn't, in our view, mean that it has a right to change the roster unqualified, and which is the question that has been put for the Commission to determine.

PN147      

THE COMMISSIONER:  Mr Gardner, I'll just make sure I understand that.  So you're distinguishing the difference between changing the hours within the scope of clause 17, but it's changing the roster which sits outside of that scope of the hours in clause 17 - - -?

PN148      

MR GARDNER:  We would say that the question in those cases was whether the employer could change ordinary hours within the spread of hours.  We say that that would be included in the change to the roster, which is the question that's being put in this matter; that it's really a subset of the changes which would be included in a change to the roster, because a change to the roster could include changing to or from a 10‑hour day, or including weekend work, or any of these other changes which do expressly require employee agreement.

PN149      

THE COMMISSIONER:  Thank you.

PN150      

MR GARDNER:  In relation to my friend's point about our submissions and the reference to maintaining the prevailing shift arrangement, I think really what we mean by that is that yes, there can be changes made, for instance, to start and finish times but a change that would change the averaging of hours or the destruction of the roster in a general sense, in a more broad sense such as from eight hours to 12-hour shifts or it changed because it's a change to how the shifts are averaged.  That is a change which we say would require a majority agreement, in accordance with clause 17.

PN151      

And, Commissioner, moving to the second question, the respondent has said that basically it is not practical or sensible to apply those provisions of clause 40 to an employee who is not working seven 12-hour shifts.  That is what has been happening with the other three employees, that those - as part of that agreement was reached those conditions have continued to apply.  So we say it is practical to do that, they have been doing that.  Again, while there maybe be scope or the Commission may find that there is scope for the respondent to change the rosters, change the hours that are worked, we don't believe that that satisfactorily explains how rules set out in that clause relating to the payment of overtime at double-time can be departed from at the company's limb.

PN152      

I mean, if the clause 40 is not binding upon the respondent, there would be nothing stopping them from going to employees and saying, 'We're changing the payment of overtime from double time to time-and-a-half for the first three hours'.  And then what is the purpose of clause 40 if it's supposed to be setting out rules that govern that arrangement?  We say that those must be binding upon the respondent.  That is all that I had to say.

PN153      

THE COMMISSIONER:  All right, thank you.  Mr Popple, just - I do want you to respond to one thing that Mr Gardner has raised and that is this differentiation here between the change of the structure of the roster and the composition of the hours - can you just address me on what the respondent has to say about that?

PN154      

MR POPPLE:  I'm not sure that we clearly understand the distinction in the sense that as we say in our written outline, if - I'm not sure where one ends and the other begins.  If we accept that we can change hours of work and the days on which hours can't be worked, which is what the union says in its outline in chief, where does that venture over the line of changing the structure, or however it's put, of hours?  We don't think that the award should be construed in such a way that there is this sort of amorphous boundary between hours of work and not the structure of hours.  I don't think they're the words that are used in the order in any case.

PN155      

But that just raises more questions than answers, which is why the construction that we contend for - again, at the risk of labouring the point - which is consistent with the history of the clause, is met because it says the employer, provided it doesn't transgress the boundaries in clause 17, it has the right to set hours of work.  If you move beyond those boundaries - so for day workers you put hours of work and Saturday or a Sunday or you want to extend hours beyond that per day, with average hours beyond 28 days or any of those sorts of things, then you require majority agreement.  But if you're just working within the standard conditions of the award and you don't, we don't think that there is any basis on the text of the award to require a majority agreement when the employer is looking to do things that were within those standard conditions of the award.

PN156      

THE COMMISSIONER:  I think Mr Gardner raises the point that if there's a roster arrangement that is outside of that standard, so in the provision of 17 to set the standard hours and standard days - so Monday to Friday - within the standard hours, if there's already a roster that sits outside of that, then I think Mr - Mr Gardner, correct me if I understood your submission incorrectly - that what Mr Gardner is saying that if you're trying to bring that roster back into the provisions of 17.2, then it can't be without consultation and majority agreement.  Is that correct, Mr Gardner?

PN157      

MR GARDNER:  Yes, yes.

PN158      

THE COMMISSIONER:  That's what I've understood, Mr Popple.  So that's the point I'm asking you to address.

PN159      

MR POPPLE:  I understand, Commissioner.  That is a different point to, I think, what's put in the written submissions for the union because that would need - I'm not sure how that would work in practice.  I think the consequence of that would be if you had agreement of employees to work more than eight hours per day, taking what my friend says, the employer would then have the capacity to - in its discretion - direct employees to work a different arrangement of hours, provided that they remain below eight hours per day but could reduce the hours back into the standard award conditions.

PN160      

That's not a construction - I'm not aware of any case in the authorities of that proposition anywhere.  That seems to be rather a reversal of what the Senior Deputy President Marsh did in the 1998 award decision where this was all a safety net for employers going outside it.  The other answer that might be given to that proposition - I'll just drop in - this is perhaps an unorthodox way of doing things but - into the chat link because we didn't file this in authorities.  But I've put in the chat a link to the Coates Hire decision.

PN161      

THE COMMISSIONER:  Mm-hm.

PN162      

MR POPPLE:  What my friend might be getting at is what's found at 17.5(b)(iii) which is - - -

PN163      

THE COMMISSIONER:  It's just loading, just wait a sec - yes, got it, thank you.  Which one?  17.5 - - -

PN164      

MR POPPLE:  (iii), which says:  'Matters upon which agreement may be reached can include rosters which specify the starting and finishing times'.

PN165      

THE COMMISSIONER:  Yes.

PN166      

MR POPPLE:  Now, that is, we think, again consistent with the proper approach to the (indistinct) provision.  That is something that can be agreed in circumstances where facilitation pursuant to the (indistinct) is required.  But nonetheless, that is peculiar, that reference.  The Commissioner in Coates Hire addressed this in paragraph 55 and 56 of her decision.  This follows from the findings that the Commission have already made that we refer to in our submissions where she accepts that the order, properly construed, gives employers the discretion to set hours of work within the standard conditions.  Then she says, 'Well, it's not clear' - this is the second sentence of paragraph 55 - - -

PN167      

THE COMMISSIONER:  Yes, I've got it.

PN168      

MR POPPLE:  - - - it's not clear what that is intended to do but one meaning might be that it's the publication issuing the rosters noting that the award requires a certain amount of notice to be given.  That might be what that is directed to.  It might also - one other operation of that might be agreement as to rosters that can be made in order to facilitate working arrangements that fall outside the default conditions of the award, pursuant to the (indistinct) provisions, if that makes sense.

PN169      

THE COMMISSIONER:  Yes.

PN170      

MR POPPLE:  But - - -

PN171      

THE COMMISSIONER:  Sorry (indistinct).

PN172      

MR POPPLE:  That's all right.

PN173      

THE COMMISSIONER:  It just dropped.

PN174      

MR POPPLE:  That's all right, but to answer the question you posed head-on, Commissioner, we're not aware of any authority for the proposition that the agreement is required to move back into the default condition of the award.  That seems to be entirely at odds with the history of the facilitative provisions over the past 30-odd years.  We don't understand that to be - we hadn't understood that to be the position advanced by the union and the other key difficulty that would arise from that construction is that it then just becomes very difficult to understand how it would work in practice because if there is a discretion available to employers there is no real answer, at least no clear answer, to what the boundaries of that discretion would be in circumstances where there is prevailing facilitation provision.

PN175      

Save that, perhaps the answer is that if there's agreement to introduce 12-hour (indistinct) to work shift of more than eight hours per day, then once that agreement has bene made the employer has discretion to change hours of work and keep hours of work in excess of eight hours per day.  We think that might (indistinct) - - -

PN176      

THE COMMISSIONER:  (Indistinct) Mr Gardner, is there anything on that point before I proceed to (indistinct) submissions?

PN177      

MR GARDNER:  No, there's nothing further, Commissioner.

PN178      

THE COMMISSIONER:  All right.  Well, I'll just mark the submissions of the parties.  One moment.  Too many documents open.

PN179      

MR POPPLE:  It's a digital world, Commissioner.

PN180      

THE COMMISSIONER:  Look, I've got the award, the agreement, submissions, and your latest decision that you just sent through.

PN181      

MR POPPLE:  (Indistinct) the President's comments, Commissioner, that electronic hearings might be here to stay.  I'm not sure if (indistinct) but - - -

PN182      

THE COMMISSIONER:  Actually, I don't mind.  I think there are some - we should be off transcript.  I like seeing it on transcript.  There are definitely some matters that can certainly be dealt with online:  cost efficiency, access to justice is a big concern for us and I think it does provide that.  Some complex matters with lots of evidence - contested evidence - could be a different story.  So all right, I'll mark the applicant's outline of submission as exhibit A1.

EXHIBIT #A1 APPLICANT'S OUTLINE OF SUBMISSION DATED 23/09/2021

PN183      

That's the submissions dated 23 September 2021.  The applicant's outline of submissions in reply, dated 20 October 2021, is exhibit A2.

EXHIBIT #A2 APPLICANT'S SUBMISSIONS IN REPLY DATED 20/10/2021

PN184      

The respondent's outline of submissions dated 14 October 2021 as exhibit R1.

EXHIBIT #R1 RESPONDENT'S OUTLINE OF SUBMISSIONS DATED 14/10/2021

PN185      

And the statement of agreed facts dated 2 September 2021 as SA1.

EXHIBIT #SA1 STATEMENT OF AGREED FACTS DATED 02/09/2021

PN186      

MR POPPLE:  Sorry, Commissioner - R1 is the - - -

PN187      

THE COMMISSIONER:  Respondent's submissions.

PN188      

MR POPPLE:  - - - respondent's submissions on questions?

PN189      

THE COMMISSIONER:  Yes, on the - no, sorry, the respondent's outline of submission 14 October 2021.

PN190      

MR POPPLE:  And - - -

PN191      

THE COMMISSIONER:  Thank you, I haven't marked the submissions regarding questions for arbitration.  That's what you're getting at, Mr Popple?

PN192      

MR POPPLE:  It is, it is, Commissioner.

PN193      

THE COMMISSIONER:  Thank you for the - an oversight.  So the applicant's submission re questions for arbitration, 13 August, exhibit A3.

EXHIBIT #A3 SUBMISSIONS RE QUESTIONS FOR ARBITRATION

PN194      

The respondent's submissions re question for arbitration, 13 August, exhibit R2.

EXHIBIT #R2 RESPONDENT'S SUBMISSIONS RE QUESTION FOR ARBITRATION

PN195      

MR POPPLE:  Thank you, Commissioner.  The only other matter to raise - and we're in your hands - but we did take the Commission to this in passing:  the application filed by the union on 19 March (indistinct) - - -

PN196      

THE COMMISSIONER:  It's the Commission's document.  I don't normally mark Commission documents.  So it's - I know it forms part of the file.  I'll refer to it as the application.

PN197      

MR POPPLE:  Thank you, Commissioner.

PN198      

THE COMMISSIONER:  Okay, any further matters from yourself, Mr Gardner?

PN199      

MR GARDNER:  No.

PN200      

THE COMMISSIONER:  Mr Popple?

PN201      

MR POPPLE:  No, thank you, Commissioner.

PN202      

THE COMMISSIONER:  Thanks, parties.  That concludes the hearing and I'll reserve my decision and hand my decision down in writing.

ADJOURNED INDEFINITELY                                                          [11.31 AM]


LIST OF WITNESSES, EXHIBITS AND MFIs

 

EXHIBIT #A1 APPLICANT'S OUTLINE OF SUBMISSION DATED 23/09/2021 PN182

EXHIBIT #A2 APPLICANT'S SUBMISSIONS IN REPLY DATED 20/10/2021 PN183

EXHIBIT #R1 RESPONDENT'S OUTLINE OF SUBMISSIONS DATED 14/10/2021           PN184

EXHIBIT #SA1 STATEMENT OF AGREED FACTS DATED 02/09/2021... PN185

EXHIBIT #A3 SUBMISSIONS RE QUESTIONS FOR ARBITRATION...... PN193

EXHIBIT #R2 RESPONDENT'S SUBMISSIONS RE QUESTION FOR ARBITRATION   PN194