PN1

THE VICE PRESIDENT: I will take the appearances, please. Mr Stirling, you appear for the applicant, EPI Capital Pty Ltd?

PN2

MR A STIRLING: Yes, Vice President, Stirling, initial A. I'm the head of product compliance with EPI Capital and appearing on their behalf.

PN3

THE VICE PRESIDENT: Thank you. Ms Bhatt, you appear for the Australian Industry Group?

PN4

MS R BHATT: Yes, Vice President.

PN5

THE VICE PRESIDENT: Mr Arndt and Ms Lombardelli, you appear for the New South Wales Business Chamber and Australian Business Industrial?

PN6

MS J LOMBARDELLI: Yes, we do, your Honour.

PN7

THE VICE PRESIDENT: Mr Farrow, you appear for the Australian Chamber of Commerce and Industry?

PN8

MR FARROW: Yes, Vice President.

PN9

THE VICE PRESIDENT: Mr Stirling, this is your application. Can I just confirm the capacity in which EPI Capital is applying? Is EPI Capital an employer which employs people covered by the Clerks Award?

PN10

MR STIRLING: That's correct, Vice President, yes.

PN11

THE VICE PRESIDENT: Am I right in saying that EPI Capital is also a payroll software company or something of that nature?

PN12

MR STIRLING: Yes, that's correct, Vice President. Our primary business is workforce management software, yes. The intent behind addressing the ambiguity in the award is to better reflect that in software, that's correct.

PN13

THE VICE PRESIDENT: How do you say the award is ambiguous? I've read the application, but what is it in the text of the award that makes it ambiguous? Is it some particular clause?

PN14

MR STIRLING: Well, the ambiguity arises in, first, whether leave and hours of absence should be treated as hours worked for the purposes of weekly and daily overtime clauses.

PN15

THE VICE PRESIDENT: I understand the issue you're raising, but is there some particular clause of the award which is expressed in a way which makes it ambiguous or unclear or creates some doubt about that question?

PN16

MR STIRLING: Yes, Vice President, it would be the clause that requires overtime to be paid based on hours worked. That clause doesn't specify or is ambiguous with respect to, or uncertain with respect to, whether leave should be counted for that purpose as hours worked.

PN17

THE VICE PRESIDENT: I'm looking at clause 21.1 and 21.2. 21.1 talks about the circumstances in which overtime is payable and talks about ordinary hours and ordinary weekly hours.

PN18

MR STIRLING: Yes.

PN19

THE VICE PRESIDENT: And 21.2 talks about ordinary weekly hours being the hours of work fixed in a workplace in accordance with the rostering provisions.

PN20

MR STIRLING: Yes.

PN21

THE VICE PRESIDENT: So is there some provision in that wording which you say can be read in different ways?

PN22

MR STIRLING: Yes, Vice President, and I think there's conflicting authority about whether language in those terms should be treated - leave should be treated as hours worked.

PN23

THE VICE PRESIDENT: All right. How do you want to progress your application? Do you simply want me to set it down for hearing or do you want me to take some other course?

PN24

MR STIRLING: Well, Vice President, perhaps you might want submissions in writing?

PN25

THE VICE PRESIDENT: Yes, you tell me, how do you propose the matter should go forward? I note that your application, in effect, contains a fairly lengthy submission, in effect, which is useful, but, in any event, what is your proposal for the Commission dealing with the matter?

PN26

MR STIRLING: I'm in the Commission's hands, but perhaps a month for submissions, if other parties want to make submissions, and then perhaps another two weeks for submissions in reply and then set down again.

PN27

THE VICE PRESIDENT: All right. Have you had any discussions about this application with any union or employer group?

PN28

MR STIRLING: No, I haven't had any discussions. I haven't been contacted by anyone about that application.

PN29

THE VICE PRESIDENT: All right, thank you. Ms Bhatt, do you want to go next?

PN30

MS BHATT: Yes, thank you, Vice President. We have reviewed the application and it seems to us that it gives rise to some potentially complex issues, but we also note that whilst the application is quite detailed, it doesn't appear that the applicant has proposed a specific variation to the award and it's not clear whether it intends to file such a draft determination, for example, and, as Mr Stirling has just said, we have not had the benefit of any discussion with him prior to the directions hearing this morning.

PN31

The course of action that I propose is that the matter effectively be stood over for a period of four weeks. From our perspective, we think we need more time to consider some of the issues that the application gives rise to and also to have some discussions with Mr Stirling, if he's open to that, in the meantime. Hopefully, when the matter is next listed, the parties and, more relevantly, the applicant might be better placed to indicate to the Commission how the matter ought to progress, and our position would hopefully be further developed by then.

PN32

We are asking for four weeks in part because of our involvement in some other major Full Bench proceedings that the Vice President is aware of and also because of the upcoming Easter long weekend. If it please.

PN33

THE VICE PRESIDENT: It might be premature, but has Ai Group formed any view as to whether the alleged ambiguity exists?

PN34

MS BHATT: No, Vice President, and that's one of the fundamental issues that we think we need to give further consideration to. Even if there's an ambiguity in the general sense, I think the relevant question is, is there an ambiguity for the purposes of section 160 of the Act, which is a slightly different thing.

PN35

THE VICE PRESIDENT: Yes, all right. Mr Arndt?

PN36

MR ARNDT: Vice President, Ms Lombardelli will be the primary advocate today.

PN37

THE VICE PRESIDENT: I'm sorry. Ms Lombardelli?

PN38

MS LOMBARDELLI: Thank you, your Honour. We agree with what Ms Ruchi has put forward so far. We're just really here because we have an interest in the matter. ABI and NSWBC have not formed a position on the application yet, we just do have an interest in that. We agree that there is value to having discussions with the other parties and also the applicant to see how we could progress this. Four weeks would be a suitable time to do so, but we could also possibly do it quicker as well.

PN39

THE VICE PRESIDENT: All right. Mr Farrow?

PN40

MR FARROW: Thank you, Vice President. Similarly, we have not formed a position yet on the issues raised in the application. We do have an issue in it, as Ms Lombardelli said as well, and we would like more time. Four weeks seems suitable to us as well.

PN41

THE VICE PRESIDENT: All right, thank you. I will come to you, Mr Stirling. First of all, there's the point about the variation that you seek. I think it's incumbent on you, if you are seeking a variation to an award, to identify what the actual variation you seek is. Are you able to do that in the next few weeks, Mr Stirling?

PN42

MR STIRLING: Yes, Vice President, I'm content, very content, to have discussions with the other parties and - - -

PN43

THE VICE PRESIDENT: No, I asked you something different. What I'm asking you is whether you can formulate the actual variation to the text of the award that you seek?

PN44

MR STIRLING: Yes, and I'll do that in consultation with the other parties.

PN45

THE VICE PRESIDENT: I was thinking of a two-step process. It's your application, so what I was thinking of is that, first of all, you should file and serve a draft determination setting out the text of the variation to the award that you seek.

PN46

MR STIRLING: Yes, Vice President.

PN47

THE VICE PRESIDENT: And then, in the next instance, you should have discussions with the parties that have appeared here today and, probably in addition, the Australian Services Union about your application and the draft determination. Is that a suitable course? Then, after that, the matter can come back before the Commission. Is that a suitable course, Mr Stirling?

PN48

MR STIRLING: Yes, I'm content with that, thank you, Vice President.

PN49

THE VICE PRESIDENT: Okay. How long might you need to draft the variation?

PN50

MR STIRLING: If you give me a week and then - - -

PN51

THE VICE PRESIDENT: Unless you tell me there's some huge urgency, I was thinking that I give you two weeks to do that and then allow a further period of four weeks for the parties to have discussions and then bring the matter back on for report-back in approximately six weeks.

PN52

MR STIRLING: If the Commission pleases.

PN53

THE VICE PRESIDENT: Does that suit you?

PN54

MR STIRLING: Yes.

PN55

THE VICE PRESIDENT: All right, I will formalise those directions, but the directions will be that the applicant is directed to file and serve a draft determination setting out the variations that it seeks within a period of two weeks from today; within a further period of four weeks following that, the parties, being the applicant, the three employer organisations, or the four employer organisations that appear today and the Australian Services Union, are directed to have discussions about the draft determination, and the matter will be listed for report-back after that at a date to be advised.

PN56

I thank you for your attendance. Is there anything further I need to deal with today?

PN57

MR STIRLING: No, Vice President.

PN58

THE VICE PRESIDENT: All right, thank you. We will now adjourn.

ADJOURNED INDEFINITELY [9.56 AM]