PN1792

THE COMMISSIONER: Good afternoon. It's only in Sydney today, no video link, so I'll take appearances, please.

PN1793

MS J STEELE: Ms Steele, initial J, from NATSIHWA. I appear with Ms P Forster and Prof McCullum.

PN1794

THE COMMISSIONER: Thank you.

PN1795

MR J MILJAK: If the Commission pleases, Miljak, initial J, for the AFEI. I appear with my colleague, Mr J McDonald.

PN1796

THE COMMISSIONER: Thank you.

PN1797

MS E SLAYTOR: Ms Slaytor, initial E, appearing for ABI and New South Wales Business Chamber.

PN1798

MS R LIEBHABER: Ms Liebhaber, initial R, appearing for the Health Services Union.

PN1799

MR S BULL: Bull, initial S, appearing for United Voice.

PN1800

THE COMMISSIONER: Thank you to you all. This is a follow‑up conference, following up from the last conference before me on 28 April regarding the substantive variations paper in terms of this award. From my recollection, the parties had agreed at the last conference to meet off site and my notes reflect that that was to happen on 26 May. Perhaps if the parties could give me an indication as to whether or not that did occur.

PN1801

MR BULL: That did happen. I'll speak generally for the - - -

PN1802

MR MILJAK: Yes.

PN1803

MR BULL: We have had two good meetings.

PN1804

THE COMMISSIONER: Right.

PN1805

MR BULL: I think we have actually made some real progress.

PN1806

THE COMMISSIONER: In terms of how you want to conduct the - - -

PN1807

MR BULL: We have agreed on things.

PN1808

THE COMMISSIONER: Terrific. That's very good news.

PN1809

MR BULL: Obviously subject to the Commission, you know, thinking it's appropriate. No, we've had two good meetings. We had an extra one yesterday. We were proposing perhaps to indicate on the record the matters where we have come to some level of agreement, so maybe my friend Ms Forster wants to note the matters we have agreed on.

PN1810

THE COMMISSIONER: Well, how did you wish to proceed?

PN1811

MR BULL: Sorry, I didn't mean to jump in - - -

PN1812

THE COMMISSIONER: No, that's okay.

PN1813

MR BULL: - - - but I thought we might just note what we've agreed on.

PN1814

THE COMMISSIONER: I would just like holistically to get an idea as to how we're going to proceed over the course of this afternoon and, if necessary, in the morning. I take it there are some matters that are still not agreed in that basket.

PN1815

MS STEELE: Yes. There are three categories. There are a substantial number of matters that are agreed.

PN1816

THE COMMISSIONER: Yes.

PN1817

MS STEELE: There are some matters that I understand are subject to further instruction that may or may not be agreed, then there are some matters that are not agreed at this point.

PN1818

THE COMMISSIONER: Is it the intention of the parties in relation to the third category to conduct further discussion today and tomorrow morning, if necessary, around those matters? Is that something that the parties would think is helpful to the process moving forward?

PN1819

MS STEELE: It's our intention to continue to discuss all the matters to see if it's possible to reach agreement.

PN1820

THE COMMISSIONER: Right. So in terms of that third category, would the parties be amenable or interested to having those sorts of conversations off the record to start with? I'll just ask for an indication of - - -

PN1821

MR MILJAK: Commissioner, I think the discussions off the record and just having those broad points thrown around was quite helpful, so I would be happy to go off the record for the discussion period if that would be okay with my friends on either side.

PN1822

THE COMMISSIONER: For the record, it will be my intention to definitely go on the record at some point - - -

PN1823

MR MILJAK: Yes, of course.

PN1824

THE COMMISSIONER: - - - so that we can have recorded which category each matter falls into at the end of the conferences, so I'm in your hands.

PN1825

MR MILJAK: If I can just make one more comment, Commissioner.

PN1826

THE COMMISSIONER: Yes.

PN1827

MR MILJAK: I recognise that the next conference is listed for tomorrow morning potentially.

PN1828

THE COMMISSIONER: Yes.

PN1829

MR MILJAK: I think we should take this opportunity while we're here, but I'm just wary that there might be - like, for example, the way we finish today, I don't anticipate much changing by tomorrow morning, unless it's just a case of we don't have a chance to get to everything.

PN1830

THE COMMISSIONER: I'm happy for tomorrow to be vacated. I listed it only for the convenience of the parties, if they felt there was a need or it was helpful in terms of attempting to resolve any of these matters. That shouldn't be at the forefront of any of the parties' minds in terms of how we deal with this moving forward today. Are the parties then happy to proceed now off the record into conference with a view to, at the conclusion of today's proceeding, going back on the record to identify what it is their position is in relation to each of the items?

PN1831

PROF McCALLUM: Commissioner, if I may, I would like us to go on the record and at least detail for you the matters in the three categories so that we're clear what those matters are and that the matters which are agreed upon are clear and stated on the record.

PN1832

MR BULL: If we deal with that point now where we do agree on some things. I suppose the concern is that you tend to wander around if you start - you know, everything becomes sort of negotiable.

PN1833

THE COMMISSIONER: Not a problem. Thank you.

PN1834

MR BULL: Things that are agreed may go off the table and so forth.

PN1835

THE COMMISSIONER: We certainly don't want that.

PN1836

MR BULL: So let's try and take what we can when we can.

PN1837

THE COMMISSIONER: All right. Thank you. We'll proceed on that basis then. If you could identify - I'll use the summary of proposed substantive variations document, dated 24 May. Is everyone happy to proceed from that document?

PN1838

MS STEELE: Yes.

PN1839

THE COMMISSIONER: There is the report that was published on 9 May.

PN1840

MR MILJAK: 24 May, was it?

PN1841

THE COMMISSIONER: Yes.

PN1842

MR MILJAK: Yes.

PN1843

THE COMMISSIONER: All right. Starting with item 1 - and again apologies for this laborious task, but when you are making any comment in relation to each item, if you don't mind identifying your name and the organisation you represent for the sake of the transcript. It makes everything much easier at a later stage.

PN1844

MS STEELE: Yes, Commissioner.

PN1845

THE COMMISSIONER: Thank you. All right. Item 1.

PN1846

MS STEELE: Ms Steele, NATSIHWA. I believe that this item is agreed.

PN1847

MR MILJAK: Mr Miljak, AFEI. I believe that AFEI does not object or does not oppose this.

PN1848

MS SLAYTOR: Ms Slaytor, ABI and New South Wales Business Chamber. We had proposed that the definition of "Aboriginal" be changed to include "and Torres Strait

PN1849

Islander". However, we're not going to press any objection to NATSIHWA's proposal in relation to this item.

PN1850

MS STEELE: We have agreed to - - -

PN1851

MR BULL: Stephen Bull, United Voice. We agree.

PN1852

THE COMMISSIONER: All right. Thank you. The report will be amended to reflect the precise wording of each of the parties. Item 2?

PN1853

MS STEELE: S2?

PN1854

THE COMMISSIONER: Apologies, S2, yes.

PN1855

MS STEELE: Ms Steele, NATSIHWA. S2 should be dealt with as part of S5A. This issue really deals with the classification structure and it may be more convenient to deal with S2 when we get to S5A; to deal with it holistically rather than on a discrete issue by issue basis.

PN1856

MR MILJAK: Mr Miljak, AFEI. I agree that we might wish to look at it in relation to the other issues, but I do also think that it can be talked about in its own right, as well. I believe in the last conference - I forget if it was on or off the record - we had expressed issues with how that incentivising should be expressed in the award and we were a bit uncertain about how that obligation was to, in practise, actually come about. I believe those were some of the issues we had in relation to that and we didn't have the opportunity to touch on that particular issue during our off site conferences.

PN1857

THE COMMISSIONER: But in principle do you object to it being dealt with with S5A?

PN1858

MS STEELE: But that's all in the draft with the classification structure.

PN1859

MR MILJAK: It is. I agree we can talk about it all holistically, but it was just about - - -

PN1860

PROF McCALLUM: You should answer the Commissioner's question.

PN1861

THE COMMISSIONER: Thank you.

PN1862

MR MILJAK: My apologies, Commissioner.

PN1863

THE COMMISSIONER: Do you object to it being dealt with - - -

PN1864

MR MILJAK: No, I don't object - - -

PN1865

THE COMMISSIONER: Thank you. In that case - - -

PN1866

MR MILJAK: - - - to it being dealt with with the classifications, no.

PN1867

THE COMMISSIONER: The classification being S5A; so S5A and S2 will be considered together. Thank you. S2A?

PN1868

MS STEELE: Ms Steele, NATSIHWA. This is issue is linked into the coverage issue and whether there is going to be any change to the award and its coverage. I understand that NATSIHWA is still - any proposed change to the name of the award is still under consultation and subject to the coverage issue.

PN1869

THE COMMISSIONER: Ms Steele, apologies. I've been using your three categories in my own notetaking as either "agreed", "further instruction" or "not agree". Where would you like me to - - -

PN1870

MS STEELE: Further instruction.

PN1871

MR MILJAK: Mr Miljak, AFEI. We would not be opposed to that issue being in that category.

PN1872

THE COMMISSIONER: Ms Steele, would you mind clarifying for me what precisely is meant by "further instruction"?

PN1873

MS STEELE: There are two issues, Commissioner.

PN1874

THE COMMISSIONER: Not just in terms of this matter, but when you said that there were three broad categories - - -

PN1875

MS STEELE: Yes.

PN1876

THE COMMISSIONER: Certainly "agreed" and "not agreed" is very clear to me.

PN1877

MS STEELE: Yes.

PN1878

THE COMMISSIONER: Do I take "further instruction" to mean it's subject to further discussion between the parties?

PN1879

MS STEELE: Further discussion within and between the parties in terms of obtaining instructions from parties' own clients - - -

PN1880

THE COMMISSIONER: Obtaining instructions. I understand.

PN1881

MS STEELE: Communicating instructions and then seeing whether or not agreement can be reached on those issues - on that particular issue.

PN1882

THE COMMISSIONER: Yes. Thank you for clarifying that. So I've put S2A into that category. Mr Miljak, you're happy for it to proceed on that basis?

PN1883

MR MILJAK: Yes, Commissioner.

PN1884

THE COMMISSIONER: Thank you.

PN1885

MS SLAYTOR: Ms Slaytor, E. ABI and New South Wales Business Chamber. We're happy for it to proceed on that basis, too.

PN1886

THE COMMISSIONER: Thank you.

PN1887

MR BULL: I think the unions are happy for the matter to proceed on that basis.

PN1888

THE COMMISSIONER: Thank you. S2B.

PN1889

MS STEELE: Ms Steele, NATSIHWA. It's NATSIHWA's understanding that S2B is largely agreed and we would like to seek clarification from the other parties as to whether or not NATSIHWA's understanding is correct.

PN1890

THE COMMISSIONER: Thank you. Mr Miljak?

PN1891

MR MILJAK: I believe that this issue was one that - if I might just have a moment, Commissioner.

PN1892

THE COMMISSIONER: Certainly.

PN1893

MR MILJAK: Thank you, Commissioner. AFEI would not be opposed to that.

PN1894

MS SLAYTOR: Slaytor, New South Wales Business Chamber and ABI. We're not pressing an objection to this.

PN1895

MS LIEBHABER: Ms Liebhaber from HSU. We agree.

PN1896

MR BULL: Stephen Bull, United Voice. We agree.

PN1897

THE COMMISSIONER: Item 2C?

PN1898

MS STEELE: Ms Steele, NATSIHWA. It's NATSIHWA's understanding that this is largely agreed and was part of item S2B.

PN1899

MR MILJAK: Mr Miljak, AFEI. We would not be opposed.

PN1900

MS SLAYTOR: Ms Slaytor, E. ABI and New South Wales Business Chamber. We're not opposed.

PN1901

MS LIEBHABER: Liebhaber, HSU. We agree.

PN1902

MR BULL: Bull, United Voice. We agree.

PN1903

THE COMMISSIONER: Item 2D?

PN1904

MS STEELE: Ms Steele, NATSIHWA. This wasn't the subject of the conferencing between the parties, but NATSIHWA has no objection and agrees - or has no opposition to the proposal. I'm not certain of the attitude of the other parties.

PN1905

THE COMMISSIONER: Thank you. I'll just wait for Mr Miljak to - - -

PN1906

MR MILJAK: My apologies, Commissioner.

PN1907

THE COMMISSIONER: No problem. Take your time.

PN1908

MR BULL: I think it relates to the fact that this was before the registration system was implemented, so it was dealing with the real possibility. It's not particularly consequential. It's just dealing with the fact that something they thought would happen has happened.

PN1909

MR MILJAK: Commissioner, Mr Miljak, AFEI. We wouldn't be opposed to that. We're not opposed.

PN1910

MS SLAYTOR: Ms Slaytor, ABI and New South Wales Business Chamber. We're not opposed.

PN1911

MS LIEBHABER: Ms Liebhaber, HSU. We agree.

PN1912

MR BULL: Well, it's my proposal, so we should agree.

PN1913

THE COMMISSIONER: Yes, I take it you agree, Mr Bull. Thank you. Item 2E?

PN1914

MS STEELE: Ms Steele, NATSIHWA. It's NATSIHWA's position that item S2E is part of S2B and, therefore, falls away with the agreement pursuant to item S2B and that the parties agree.

PN1915

THE COMMISSIONER: So the position is that once the parties have agreed to S2B, then by definition S2E falls away. Is that - - -

PN1916

MS STEELE: Yes.

PN1917

MR MILJAK: It seems so. Commissioner, AFEI would not oppose.

PN1918

MS SLAYTOR: Commissioner, New South Wales Business Chamber and ABI are not opposed either.

PN1919

MS LIEBHABER: Ms Liebhaber, HSU. We agree with that.

PN1920

MR BULL: Bull, United Voice. We agree.

PN1921

THE COMMISSIONER: Item 2F?

PN1922

MS STEELE: Ms Steele, NATSIHWA. Item 2F is the same as item 2E or in the similar category.

PN1923

THE COMMISSIONER: Once the parties have agreed on 2B, then by definition 2F is agreed.

PN1924

MS STEELE: Yes, Commissioner.

PN1925

MR MILJAK: Mr Miljak, AFEI. Yes, Commissioner, we would not oppose.

PN1926

MS SLAYTOR: Ms Slaytor. We're not opposed either.

PN1927

MS LIEBHABER: Ms Liebhaber. We agree.

PN1928

MR BULL: Bull, United Voice. We agree.

PN1929

THE COMMISSIONER: Item S3?

PN1930

MS STEELE: Ms Steele, NATSIHWA. This is the coverage issue. Whilst I wasn't at the last meeting yesterday, it's my understanding that this item is largely agreed. I'm interested to hear the other parties' position.

PN1931

MR MILJAK: Mr Miljak, AFEI. I think we reached a point at the conference where we were potentially moving towards agreement, but I do think that we also sought the opportunity just to seek some further instruction before agreeing in totality to that expansion; but there have been fruitful discussions in relation to that issue.

PN1932

THE COMMISSIONER: Thank you.

PN1933

MS SLAYTOR: Ms Slaytor, ABI and New South Wales Business Chamber. We are not instructed to press any objections to this change.

PN1934

MS LIEBHABER: Ms Liebhaber. The HSU agrees.

PN1935

MR BULL: Bull, United Voice. We agree with the change in coverage proposed.

PN1936

THE COMMISSIONER: Mr Miljak, is that a matter then that you wish to take some further instruction on internally or is it a matter that you wish to have discussed further between you and - - -

PN1937

MR MILJAK: I think it might just require a little bit more of internal instruction, although we also received some material yesterday, as well, I believe, which we would just like to have a bit more of a look at, as well, from the other parties.

PN1938

THE COMMISSIONER: Thank you. Item S4?

PN1939

MS STEELE: Ms Steele, NATSIHWA. This item wasn't discussed in our private conferencing.

PN1940

MS LIEBHABER: Commissioner, Ms Liebhaber from HSU. I believe this matter has been referred to the part‑time and casuals Full Bench.

PN1941

THE COMMISSIONER: So it ought be removed from consideration here. Is that the point?

PN1942

MS LIEBHABER: I think so. That will depend on that decision, so - - -

PN1943

THE COMMISSIONER: Does that seem sensible? Does everyone - - -

PN1944

MR MILJAK: That does seem sensible.

PN1945

MS STEELE: Ms Steele, NATSIHWA. We agree it should be removed from consideration.

PN1946

MR MILJAK: Mr Miljak, AFEI. We would share a similar view.

PN1947

MS SLAYTOR: Ms Slaytor, ABI and New South Wales Business Chamber. We agree it could be removed.

PN1948

MR BULL: Bull, United Voice. We agree it should be removed.

PN1949

THE COMMISSIONER: Item S5?

PN1950

MR BULL: We didn't talk about this at the conference. I put in a letter which was about the casual loading being paid in addition to any other penalties and so forth. It was a bit obscure, because it's complex. It was trying to make it consistent with what the Full Bench said in the penalty rates review decision on 23 February where they did say that the preferred method is to basically ensure that there is always a 25 per cent premium in any penalty rate.

PN1951

When I looked at this award, it seemed that it was - there were some minor adjustments tweaking that would bring it in accordance with what the Full Bench said should be the case. I don't know whether my friends want to have a look at what I wrote and - - -

PN1952

THE COMMISSIONER: When you say you put in a letter, is that something - - -

PN1953

MR BULL: It's a submission.

PN1954

THE COMMISSIONER: Is that what you meant, a submission that was put - - -

PN1955

MR BULL: Yes, just indicating what that - sorry. It's on the web site.

PN1956

THE COMMISSIONER: 4 April? Is that the one?

PN1957

MR BULL: I've got two files, which isn't always a good way to run something. Yes, 4 April. It's addressed to the Commission. Essentially I say that - - -

PN1958

THE COMMISSIONER: Sorry, I missed what you said at the start, Mr Bull. Did you say this was not part of the discussions between the parties?

PN1959

MR BULL: No, we haven't discussed this.

PN1960

THE COMMISSIONER: Okay.

PN1961

MR BULL: It's quite typical and, frankly, I didn't get the impression that - if you were to make sure that this award is consistent with this concept of having a 25 per cent add‑on, you delete one or two clauses and that will make it consistent. Broadly, casuals do get an extra increment when they get penalty rates and so forth. It's a matter which we - as people seem to say, we could perhaps park that issue and maybe discuss it later, because we haven't discussed it.

PN1962

THE COMMISSIONER: How do the other parties feel about that?

PN1963

MS STEELE: Ms Steele, NATSIHWA. We are in a position to say that we support Mr Bull's proposal.

PN1964

MR BULL: But it's quite complex because there is shift work and so forth, but I think this - - -

PN1965

THE COMMISSIONER: Ms Steele, just so I'm clear on what you are putting to me, are you putting that you're supporting the proposal in the 4 April letter or are you saying you support the proposal that the matter is parked?

PN1966

MS STEELE: We support not that the matter - subject to what the other parties say, NATSIHWA is in a position to deal with Mr Bull's - what he says in his letter of 4 April and we agree with what he says, but if other parties need time to get instructions, that's a matter for the other parties because it hasn't been the subject of discussion between the parties.

PN1967

THE COMMISSIONER: So NATSIHWA agrees with the position put by Mr Bull in his correspondence of 4 April.

PN1968

MR BULL: Because it appears, for example, in shift work that you don't need to do any adjusting because the award says that there is the extra 25 per cent for casual work and shift work, so that seems to be consistent. The main issue seems to be for public holidays where the casual doesn't get the benefit of the casual loading.

PN1969

MR MILJAK: Mr Miljak, AFEI. We would note that this issue hasn't been foremost in our discussions. We would probably be in a position at this point in time to, you know, note that whilst there may be a preferred view sometimes that may have been stated, there is variations for a number of reasons amongst a number of awards. We would have to have a closer look at that and probably need a little bit more time in forming a final position. For lack of a better word, yes, we might be happy to park that.

PN1970

THE COMMISSIONER: So it's a further instruction - - -

PN1971

MR MILJAK: I'm not sure how much we can offer in terms of today at this point in time on the issue, except to say that we might need a little bit more time to consider it considering our focus has been on the other issues.

PN1972

THE COMMISSIONER: I have, Mr Miljak, no criticism of anyone if you haven't had time to consider it. It's a matter that you would like to have some time to consider further and take some internal instructions about, if that is the position.

PN1973

MR MILJAK: I feel that would be appropriate, Commissioner.

PN1974

THE COMMISSIONER: Thank you.

PN1975

MS SLAYTOR: Ms Slaytor, ABI and New South Wales Business Chamber. We will need additional time to consult and get instructions in relation to this matter.

PN1976

MR BULL: I've just really got my head around it. It's not a big change. It basically mainly affects what casuals are paid on public holidays. The rest of the award is broadly compliant.

PN1977

MR MILJAK: I think casuals and public holidays would be the change.

PN1978

MR BULL: It seems to be, yes.

PN1979

MR MILJAK: Okay.

PN1980

MR BULL: But it's not something that you would expect people to, on the hop, make a decision about.

PN1981

MS LIEBHABER: Ms Liebhaber. This was actually originally the HSU's claim, but we support Mr Bull's submission. I will note that we were pressing the claim in relation to the weekend rate as well as the public holiday rate.

PN1982

MR BULL: That might be the case, too.

PN1983

THE COMMISSIONER: Thank you. All right. Item S5A?

PN1984

MS STEELE: Ms Steele, NATSIHWA - - -

PN1985

THE COMMISSIONER: That's the one that we're joining with item S2. Is that right?

PN1986

MS STEELE: Yes. We understand that this item, the classification structure that NATSIHWA has proposed, is the agreed structure.

PN1987

MR MILJAK: Mr Miljak, AFEI. Commissioner, I believe that we have had agreement between the employer parties and other parties that, broadly speaking, we're not opposed to a new classification structure in the form proposed. There is still some discussion about certain elements of that structure, but broadly we're not opposed to having that newer kind of structure that has been proposed.

PN1988

To the extent that the issue is about redrafting the classification structure, we would not be opposed to that. We're certainly not suggesting that we retain the same classification structure, but I don't think we have finalised our discussions in relation to every single point about that.

PN1989

MS STEELE: Ms Steele, NATSIHWA. So would that be a matter that needs to be the subject of further instruction and conferencing?

PN1990

MR MILJAK: Yes, Commissioner.

PN1991

MS SLAYTOR: Ms Slaytor, New South Wales Business Chamber and ABI. We're not instructed to press an objection to this claim in relation to the reclassification - the new classification structure.

PN1992

THE COMMISSIONER: In any event, in relation to this item, further conferencing will result. The transcript will note the ABI's position.

PN1993

MS LIEBHABER: Ms Liebhaber. We agree in terms of the classification proposal.

PN1994

MR BULL: Bull, United Voice. We agree with NATSIHWA's classification proposal.

PN1995

THE COMMISSIONER: Ms Steele, is there any discussion that needs to be had in relation to item S2 now that - - -

PN1996

MS STEELE: Ms Steele, NATSIHWA. No, Commissioner. It's tied up with item S5A.

PN1997

THE COMMISSIONER: Thank you.

PN1998

MR MILJAK: Excuse me, Commissioner. I just need to know - I would be appreciative of how my friends are interpreting the fact that no - like, we don't need to discuss the education and training issue.

PN1999

THE COMMISSIONER: I'm happy for you to ask the question, Mr Miljak, on transcript and please feel free.

PN2000

MR MILJAK: Yes. It's just that I believe - - -

PN2001

MS FORSTER: Ms Forster for NATSIHWA. My understanding is that AFEI's objections on this relate to some particular wording concerning proposed classification grade 1 and some concerns that that places obligations in that. That is an issue for further conferencing.

PN2002

MR MILJAK: Can I just have one moment, Commissioner?

PN2003

THE COMMISSIONER: Not a problem.

PN2004

MR MILJAK: Commissioner, my apologies for that. It appears that there may not be an issue there on the part of AFEI. I think I was slightly confused about what precise issue we were dealing with. I would just seek further clarification before I confirm that there is no opposition, if that is okay.

PN2005

THE COMMISSIONER: Of course. Would you like to do that during the course of a break at some point during these proceedings?

PN2006

MR MILJAK: Yes, that would be appreciated. Thank you.

PN2007

THE COMMISSIONER: So at this stage what we'll record then is that Mr Miljak, AFEI, would need to take further instructions internally in relation to this issue.

PN2008

MR MILJAK: Thank you. Yes, Commissioner.

PN2009

MS STEELE: Commissioner, Ms Steele from NATSIHWA. Just to make sure that I understand, that is only in relation to S2. Is that correct?

PN2010

MR MILJAK: Yes, Commissioner.

PN2011

THE COMMISSIONER: I may have confused the parties myself and, if I have, I apologise. It's just that when we started I understood, Ms Steele, you to be suggesting that S2 and S5A were to be considered together.

PN2012

MS STEELE: Yes.

PN2013

THE COMMISSIONER: So when we got to S5A and no one mentioned S2, I thought I might remind the parties that that is where we started.

PN2014

MS STEELE: Yes.

PN2015

THE COMMISSIONER: So, to that extent, I'm simply raising it as something that needs to be addressed.

PN2016

MS STEELE: Yes, Commissioner.

PN2017

MR MILJAK: Commissioner, I think some further discussion just off the record might be able to clear that up once we've finished going through the list. It should clear it up.

PN2018

THE COMMISSIONER: All right. Thank you. Item S6?

PN2019

MS STEELE: Ms Steele, NATSIHWA. The issue of minimum wages is under discussion and is not agreed in relation to new grades 5 and 6 only at this point. Prof McCallum correctly points out that grade 5 is agreed with respect to the care strand, but not to practice strand at this point. My understanding is, subject to the parties' agreement, that those issues are still under discussion.

PN2020

THE COMMISSIONER: So not agreed as to the practice strand.

PN2021

MS STEELE: Yes.

PN2022

THE COMMISSIONER: Thank you.

PN2023

MR MILJAK: Mr Miljak, AFEI. We would agree with that characterisation. There still seems to be just an outstanding issue in relation to grade 6 and the grade 5 practice stream.

PN2024

MS SLAYTOR: Ms Slaytor, New South Wales Business Chamber and ABI. We agree with the description put forward by Ms Steele in relation to where the parties are at.

PN2025

THE COMMISSIONER: Thank you.

PN2026

MS LIEBHABER: Ms Liebhaber, HSU. We support NATSIHWA's proposal.

PN2027

MR BULL: Bull, United Voice. We also support NATSIHWA's proposal. I agree that the characterisation of where we're at is correct. There was agreement on grade 5 care.

PN2028

THE COMMISSIONER: Item S7?

PN2029

MS STEELE: Ms Steele, NATSIHWA. As a result of the discussions that the parties have had, NATSIHWA has circulated an amended draft determination which sets out some changes to some of those allowances that we understand have been agreed between the parties. If it's convenient, I'd like to hand up a copy of that amended draft determination.

PN2030

THE COMMISSIONER: Thank you. Do the parties have that - - -

PN2031

MS STEELE: Yes, we have circulated that today.

PN2032

THE COMMISSIONER: Apologies.

PN2033

MS STEELE: Commissioner, the relevant page is page 7 of the amended draft determination, which sets out the proposed changes that have been made to some of the allowance based on the discussions that the parties have had. It perhaps would be convenient to work through the allowances one by one, starting with the occasional interpreting allowance which is 15.2 on page 7.

PN2034

Commissioner, you will see that NATSIHWA has inserted some changes to overcome some of the other parties' concerns that there may be some double‑dipping. It's my understanding that with those amendments, that allowance is largely agreed although they may be seeking instructions.

PN2035

MR MILJAK: Commissioner, Mr Miljak from AFEI. I'm reluctant to agree to the characterisation that we had agreed on the allowances. That wouldn't be my recollection of the way that the discussions panned out yesterday. I understand that we discussed each allowance individually and issues pertaining to each individual allowance, but AFEI also in its initial submissions, on 24 April, had expressed - did not support the introduction of an extensive new range of allowances.

PN2036

One of the things that we were talking about was about where those new allowances would fit in considering the significantly higher remuneration that is currently being received by individuals in the classifications in the current award. I do not recall that being the result of the discussions yesterday.

PN2037

THE COMMISSIONER: Mr Miljak, Ms Steele can certainly speak for herself - - -

PN2038

MR MILJAK: Yes, Commissioner.

PN2039

THE COMMISSIONER: - - - but from where I'm sitting, it didn't sound to me like there was any attempt to mislead anyone in any way.

PN2040

MR MILJAK: No.

PN2041

THE COMMISSIONER: Or force anyone into any position that they didn't wish to be in. If your position is that discussions have taken place regarding these allowances and this document and that nothing has been agreed, then I'm happy for you to say that.

PN2042

MR MILJAK: Yes, Commissioner. I believe we're still discussing the issues.

PN2043

THE COMMISSIONER: Prof McCallum, did you wish to - - -

PN2044

PROF McCALLUM: I think perhaps to explain things a little, what we've done in the new draft - when we discussed the allowances individually, the employers made some useful points and what we have tried to do is to meet those points to make it clear, for example, in the interpreter's allowance, that there is no double‑dipping. In other words, we have tried to push the discussion as best we can in relation to seeing how we can meet those objections.

PN2045

It's very hard to meet a discussion when a party says, "Look, we don't think there should be any allowances on a global basis, because some of the allowances really simply relate to reimbursement of expenses." The only way to look at these allowances is allowance by allowance and all we've tried to do is to meet some of the points, and to try and satisfy the employers as best we can for those allowances. I'm not suggesting they're agreed, but I think the only way to discuss this is allowance by allowance.

PN2046

It's very difficult to say globally there should or there should not be. Maybe at the end of the discussion of the allowances, one can take a global point, but I think putting a global point first is like putting the cart before the horse.

PN2047

MR MILJAK: Commissioner, Mr Miljak, AFEI. Just to clarify my statements earlier in relation to the allowances, we recognise that in relation to that, for lack of a better word, global point that we made about the allowances, that that may be more applicable to certain allowances than others. I believe the professor mentioned that for allowances where it might be a reimbursement kind of situation, it would be a slightly different situation in relation to an allowance that does not relate to, for example, a reimbursement.

PN2048

THE COMMISSIONER: I think he's putting it, if I - it's either that it might look more like an expense than is an expense as opposed to an allowance. I think that was the point that was being made.

PN2049

MR MILJAK: Yes. I wish to make it clear on the record that we certainly hear that and we're not just saying no to no allowances. We made a broad point about - initially, you know, about our position on having new allowances and we recognise that some we may perhaps be amenable to and others perhaps we maybe wish to be pressing our initial objection in relation to.

PN2050

THE COMMISSIONER: Thank you. I think that clarifies the position.

PN2051

MS STEELE: Yes. Ms Steele, NATSIHWA. Just to summarise what my friend has said, is your position then that you're still obtaining instructions on these allowances and that we should have further conferencing to see if we can narrow the issues at this point in time?

PN2052

MR MILJAK: Correct. I think that we may be in a position to make more progress on that given a little bit more time. I think we're getting there, but again we concluded discussions yesterday night and we're here the next day, sort of thing, so - yes.

PN2053

MS STEELE: Yes.

PN2054

MR MILJAK: Further discussion could certainly be productive, I anticipate.

PN2055

THE COMMISSIONER: Thank you.

PN2056

MS SLAYTOR: Ms Slaytor, ABI and New South Wales Business Chamber. We note that NATSIHWA has made some amendments to the allowances as they originally appeared in the draft determination. We have not been able to get instructions in relation to the amended allowances. Certainly we did have instructions to oppose some of them on certain grounds, so we would appreciate the opportunity to be able to get some further instructions in relation to the amended allowances.

PN2057

THE COMMISSIONER: Thank you.

PN2058

MS LIEBHABER: Ms Liebhaber, HSU. We support the allowances that NATSIHWA propose.

PN2059

MR BULL: Bull, United Voice. We also support the allowances as proposed. I would note that some of them are cut and paste almost completely from the Health Professionals and Support Services Award, so in the event that there is dispute, I would be hopeful that it could be of fairly narrow arbitration as to whether it's appropriate just to have similar allowances in what we say is a similar award covering similar work.

PN2060

Some of the matters which I noted at the conference are things that are, you know, in hospitals and so forth. They may not currently apply, but might apply as these organisations become more sophisticated.

PN2061

THE COMMISSIONER: Thank you. Item S8?

PN2062

MS STEELE: Ms Steele, NATSIHWA. Item S8 is an allowance issue and would be in the same position as S7; that the parties would need further discussion and further instructions in order to narrow the issues.

PN2063

THE COMMISSIONER: Thank you.

PN2064

MR MILJAK: Mr Miljak, AFEI. We would agree with that characterisation.

PN2065

MS SLAYTOR: Ms Slaytor, ABI and New South Wales Business Chamber. We also agree with that characterisation.

PN2066

MS LIEBHABER: Ms Liebhaber, HSU. We agree.

PN2067

MR BULL: Bull, United Voice. We agree.

PN2068

THE COMMISSIONER: Thank you. Item S9?

PN2069

MS LIEBHABER: Commissioner, Ms Liebhaber from HSU. We had a number of claims for allowances, as well, but I believe that wasn't discussed in the conferences. I wasn't there. That would be something that we would want to discuss as part of these conferences.

PN2070

THE COMMISSIONER: So further discussions?

PN2071

MS LIEBHABER: Yes.

PN2072

MS STEELE: Ms Steele, NATSIHWA. We agree that that should be the subject of further instructions, together with the other allowances that are proposed.

PN2073

MR MILJAK: Mr Miljak, AFEI. We would agree with that course of action.

PN2074

MS SLAYTOR: Ms Slaytor, ABI and New South Wales Business Chamber. We also agree that it should be discussed with the other allowances sought.

PN2075

MR BULL: Bull, United Voice. We agree.

PN2076

THE COMMISSIONER: Thank you. Item S9A. Could you just confirm, Ms Liebhaber, that that is no longer being pressed?

PN2077

MS LIEBHABER: Yes, Commissioner. I can confirm that we no longer press that claim.

PN2078

THE COMMISSIONER: Thank you. Item S10?

PN2079

MS LIEBHABER: Commissioner, that is another claim for an allowance from the HSU, so, similar to the previous ones, that hasn't been discussed yet and we would hope it can be discussed in these conferences.

PN2080

THE COMMISSIONER: Further instruction and/or discussion.

PN2081

MS LIEBHABER: Yes.

PN2082

THE COMMISSIONER: Anyone?

PN2083

MR MILJAK: In relation to S11?

PN2084

THE COMMISSIONER: S10.

PN2085

MR MILJAK: S10?

PN2086

THE COMMISSIONER: Yes.

PN2087

MR BULL: I would have thought it's very similar to one of the allowances that are being proposed by NATSIHWA, so it's either the HSU version or the NATSIHWA version.

PN2088

THE COMMISSIONER: Ms Liebhaber has proposed further instruction on the matter and/or discussion. I'm looking for an indication from each of the parties - - -

PN2089

MS STEELE: Ms Steele, NATSIHWA. We agree on further discussion.

PN2090

THE COMMISSIONER: Thank you.

PN2091

MR MILJAK: AFEI, Mr Miljak. We would agree with that.

PN2092

MS SLAYTOR: Ms Slaytor, New South Wales Business Chamber and ABI. We agree.

PN2093

THE COMMISSIONER: Thank you.

PN2094

MR BULL: Agreed, but on the basis that I think it will be subsumed by general discussion about the NATSIHWA allowances.

PN2095

THE COMMISSIONER: Item S11?

PN2096

MS LIEBHABER: Commissioner, Ms Liebhaber from the HSU. The HSU has two related claims; one in relation to the on‑call and recall allowances, and one in relation to the break before return to work.

PN2097

THE COMMISSIONER: How long the break - the minimum period of engagement - - -

PN2098

MS LIEBHABER: Before being recalled to work, which we provided some wording, I think, in an earlier conference. Again, this hasn't been discussed between the parties, so I think this would require further instruction and discussion.

PN2099

MS STEELE: Ms Steele, NATSIHWA. NATSIHWA supports the HSU proposal, but it should be the subject of further discussions. That hasn't been discussed between the parties.

PN2100

MR MILJAK: Mr Miljak, AFEI. AFEI would be opposed to the introduction of an on‑call or recall allowance, but we agree that we should further discuss this matter with all parties.

PN2101

MS SLAYTOR: Ms Slaytor, ABI and New South Wales Business Chamber. We agree this requires further discussion.

PN2102

MR BULL: Bull, United Voice. We would agree with the allowance, but obviously it needs further discussion.

PN2103

THE COMMISSIONER: Item S11A?

PN2104

MS STEELE: Ms Steele, NATSIHWA. It's my understanding that agreement has been reached between the parties as to the progression clause. If I could ask for that to be confirmed.

PN2105

MS SLAYTOR: Ms Slaytor, ABI and New South Wales Business Chamber. We won't be pressing an objection.

PN2106

MR MILJAK: Mr Miljak, AFEI. We will not be pressing any objection.

PN2107

MS LIEBHABER: Ms Liebhaber, HSU. We agree with the progression clause.

PN2108

MR BULL: Bull, United Voice. We agree with the proposed progression within grades.

PN2109

THE COMMISSIONER: Thank you. Item S11B?

PN2110

MS STEELE: Ms Steele, NATSIHWA. It's NATSIHWA's position that this is the same issue as item 11A and therefore is agreed between the parties.

PN2111

MR BULL: Bull, United Voice. I agree with NATSIHWA's characterisation of our claim. It's the same as theirs.

PN2112

MR MILJAK: AFEI, Miljak. We would agree with that. It seems that it has been dealt with.

PN2113

THE COMMISSIONER: You're not pressing - - -

PN2114

MR MILJAK: No, we're not pressing it.

PN2115

MR BULL: I can formally withdraw the claim if that makes it tidier. Bull, United Voice. I formally withdraw the claim.

PN2116

THE COMMISSIONER: Thank you. Item S11C?

PN2117

MS STEELE: Ms Steele, NATSIHWA. This item hasn't been the subject of joint conferencing as yet. It's NATSIHWA's position that it's something that the parties should discuss at the next informal conferencing.

PN2118

MS LIEBHABER: Commissioner, Ms Liebhaber from HSU. I think this matter might have been previously agreed. It was a matter of change to wording and I believe that the employer parties didn't oppose, from memory.

PN2119

MR MILJAK: Mr Miljak, AFEI. I believe that we did not oppose the changes to wording. This may have been discussed or previously stated before, but AFEI does not oppose the change in wording.

PN2120

THE COMMISSIONER: Okay, so not opposing. ABI?

PN2121

MS SLAYTOR: Ms Slaytor, ABI and New South Wales Business Chamber. We're not opposing.

PN2122

THE COMMISSIONER: Not opposing.

PN2123

PROF McCALLUM: Change our position - - -

PN2124

MS STEELE: Ms Steele, NATSIHWA. We change our position if it's agreed.

PN2125

THE COMMISSIONER: Your position then is - - -

PN2126

MS STEELE: That it's agreed.

PN2127

THE COMMISSIONER: It's agreed. Thank you. Item S12? Referred to a Full Bench, is that - - -

PN2128

MS LIEBHABER: Ms Liebhaber from HSU. I believe this matter has been referred to the payment of wages Full Bench. Similar to the previous matter, we think it - - -

PN2129

THE COMMISSIONER: It will be removed.

PN2130

MS LIEBHABER: Yes.

PN2131

THE COMMISSIONER: Item S13 has been withdrawn. My copy doesn't actually tell me whose claim it is, but I'm assuming it is the HSU.

PN2132

MS LIEBHABER: Yes, Commissioner. This is the HSU's claim and that claim was withdrawn.

PN2133

THE COMMISSIONER: Thank you.

PN2134

MS LIEBHABER: I can speak to S14.

PN2135

THE COMMISSIONER: Ms Liebhaber, can I ask you to speak up, please. I'm having difficulty - - -

PN2136

MS LIEBHABER: I can speak to S14, which is the next claim.

PN2137

THE COMMISSIONER: Thank you.

PN2138

MS LIEBHABER: Which again is something we haven't discussed between the parties. It's a claim about increase from seven days' to 14 days' notice with rostering.

PN2139

THE COMMISSIONER: One of my documents led me to believe that that item is agreed. Maybe I'm looking at the wrong thing. I am.

PN2140

MR MILJAK: Sorry, Commissioner - - -

PN2141

THE COMMISSIONER: No, Mr Miljak, I was looking at the wrong thing. Apologies.

PN2142

MR MILJAK: That's okay.

PN2143

THE COMMISSIONER: I did not just make you agree.

PN2144

MR MILJAK: Good. That's a relief. Are we discussing 14?

PN2145

THE COMMISSIONER: We are still. I'm on the right page now.

PN2146

MR MILJAK: Okay. Mr Miljak, AFEI. Our view is that we would oppose the HSU claim. We note we haven't had a chance to discuss it, but we have already put in our submissions that we would be in opposition to an increase from seven to 14 days as per the HSU claim.

PN2147

THE COMMISSIONER: In terms of moving forward, is it an item that the parties wish to discuss?

PN2148

MR MILJAK: Commissioner, Mr Miljak, AFEI. We're happy to discuss any item that is outstanding, but I don't anticipate that we will be agreeing on this item. In our submission, we made the point that there didn't seem to be any evidence to suggest a need for the change if the current provision is in line with other awards, such as the SCHADS Award and the Nurses Award. There just seemed to be no basis for the claim. I don't anticipate us changing our position on that matter, Commissioner.

PN2149

MS STEELE: Ms Steele, NATSIHWA. There is always hope, so it we could put that into the category of things that we can discuss and see how we go.

PN2150

THE COMMISSIONER: Thank you.

PN2151

MS STEELE: Because we're going to be meeting, in any event.

PN2152

MR MILJAK: Yes, we're happy to do that, Commissioner.

PN2153

THE COMMISSIONER: Thank you. All right. Item S15?

PN2154

MS LIEBHABER: Commissioner, Ms Liebhaber from the HSU. This again is another claim we hope we can have further instructions and discussions in relation to a minimum four‑engagement, including in relation to sleepover and broken shift provisions.

PN2155

MR MILJAK: Mr Miljak, AFEI. Commissioner, we're happy to have that be the subject of further discussions, but as per our previous submissions, we have expressed a view that we would oppose that change. However, again we're happy to discuss it.

PN2156

THE COMMISSIONER: Thank you.

PN2157

MS STEELE: NATSIHWA. We agree with the position. It should be subject to further discussions.

PN2158

THE COMMISSIONER: Thank you.

PN2159

MR BULL: Bull, United Voice. We agree with the position that it obviously needs to be subject to further discussions.

PN2160

MS STEELE: Ms Slaytor, ABI and New South Wales Business Chamber. Yes, we agree it should be the subject of further discussions.

PN2161

THE COMMISSIONER: Thank you. Item S16? Does that fall into the same bundle?

PN2162

MS LIEBHABER: Yes, Commissioner. This is again another claim that hasn't yet been the subject of discussions; around tea breaks.

PN2163

MS STEELE: NATSIHWA, Ms Steele. We agree, further discussions.

PN2164

MR MILJAK: Mr Miljak, AFEI. Again, similarly, we would be opposed but we are happy to make that the subject of further discussions.

PN2165

THE COMMISSIONER: Thank you. Item 17 has been withdrawn. If the parties could confirm that. My document records it is an HSU claim.

PN2166

MS LIEBHABER: Yes, Commissioner. I can confirm that it has been withdrawn.

PN2167

THE COMMISSIONER: Thank you. Item S17A?

PN2168

MS STEELE: Ms Steele, NATSIHWA. This concerns the issue of ceremonial leave. At the moment that's not agreed, but we would like to include that in the items for further discussion.

PN2169

THE COMMISSIONER: Thank you.

PN2170

MR MILJAK: Mr Miljak, AFEI. AFEI will not be pressing opposition in relation to this matter, but is happy to be involved in further discussions.

PN2171

MS SLAYTOR: Ms Slaytor, ABI and New South Wales Business Chamber. We're instructed to oppose this claim.

PN2172

THE COMMISSIONER: It is a matter though that I take it you don't object to having discussions about?

PN2173

MS SLAYTOR: That's correct. We don't object to further discussions.

PN2174

THE COMMISSIONER: Thank you.

PN2175

MS SLAYTOR: But so far the instructions we have received is to oppose the - - -

PN2176

THE COMMISSIONER: Keep opposing.

PN2177

MS SLAYTOR: To keep opposing.

PN2178

THE COMMISSIONER: Thank you. Item S18?

PN2179

MS STEELE: Ms Steele, NATSIHWA. This is the same issue as item 17A.

PN2180

THE COMMISSIONER: 17A. Mr Miljak, I take it your position is the same.

PN2181

MR MILJAK: Correct, Commissioner.

PN2182

THE COMMISSIONER: Thank you. As is yours?

PN2183

MS SLAYTOR: As is mine, yes. Thank you.

PN2184

THE COMMISSIONER: Thank you. Item S18A?

PN2185

MR BULL: I think that has been captured by the agreement to S1; a change in terminology.

PN2186

MS STEELE: Ms Steele, NATSIHWA - and the agreement to S5A.

PN2187

MR MILJAK: Commissioner, I may just seek some clarification on this issue and confirm my position when we get back on the record.

PN2188

MR BULL: This was the name change; just "Aboriginal and Torres Strait - - -"

PN2189

MR MILJAK: AFEI is not opposed to the change in nomenclature. I believe we already said that.

PN2190

MR BULL: Yes, that's what I said.

PN2191

MR MILJAK: Yes.

PN2192

THE COMMISSIONER: So in terms of item S18A, Mr Miljak, are you agreeing or - - -

PN2193

MR MILJAK: Yes, we would not be opposed to that. Yes, that's fine. Sorry, it's just - - -

PN2194

MR BULL: Come on, agree. It's less words.

PN2195

MR MILJAK: AFEI agrees. AFEI agrees happily.

PN2196

THE COMMISSIONER: We all agree.

PN2197

MS STEELE: We all agree.

PN2198

THE COMMISSIONER: Yes. Thank you. Terrific. S18B has been moved.

PN2199

MS STEELE: Ms Steele, NATSIHWA. We can confirm that that item has been removed.

PN2200

THE COMMISSIONER: Thank you. Item S19?

PN2201

MS STEELE: Ms Steele, NATSIHWA. This is the same as item 2B, which we've all agreed has been agreed.

PN2202

THE COMMISSIONER: S19 has been agreed then. You can utter the words, Mr Miljak.

PN2203

MR MILJAK: Yes, Commissioner, it seems it has.

PN2204

THE COMMISSIONER: Thank you.

PN2205

MS SLAYTOR: My apologies. Ms Slaytor, ABI and New South Wales Business Chamber. We agree.

PN2206

MS LIEBHABER: Ms Liebhaber, HSU. We agree.

PN2207

MR BULL: Bull, United Voice. Agreed.

PN2208

THE COMMISSIONER: S20?

PN2209

MS STEELE: Ms Steele, NATSIHWA. Item S20 is the same as the previous item and is agreed.

PN2210

THE COMMISSIONER: Thank you.

PN2211

MR MILJAK: Mr Miljak, AFEI. We're not opposed.

PN2212

MS SLAYTOR: Ms Slaytor, ABI and New South Wales Business Chamber. We agree.

PN2213

THE COMMISSIONER: Thank you.

PN2214

MS LIEBHABER: Ms Liebhaber, HSU. We agree.

PN2215

MR BULL: Bull, United Voice. Agreed.

PN2216

THE COMMISSIONER: Now, items S21, S22 and S23 have been removed.

PN2217

MS STEELE: Yes. Ms Steele, NATSIHWA. That's correct, Commissioner.

PN2218

THE COMMISSIONER: Item S24?

PN2219

MS STEELE: Ms Steele, NATSIHWA. It's my understanding, Commissioner, that this item has been agreed as a result of the conferencing.

PN2220

MR MILJAK: AFEI, Mr Miljak. That is correct.

PN2221

MS SLAYTOR: Ms Slaytor, ABI and New South Wales Business Chamber. We're not pressing any objection.

PN2222

MS LIEBHABER: Ms Liebhaber, HSU. We agree.

PN2223

MR BULL: Bull, United Voice. We agree.

PN2224

HE COMMISSIONER: All right. Thank you all. Now, having identified those matters on transcript at the outset, are the parties happy to go off the record to commence discussions in relation to some of the matters that have been identified as requiring further discussion?

PN2225

MS STEELE: Ms Steele, NATSIHWA. Yes.

PN2226

MR MILJAK: Mr Miljak. Yes.

PN2227

MS SLAYTOR: Ms Slaytor, ABI and New South Wales Business Chamber. Yes.

PN2228

MS LIEBHABER: Ms Liebhaber, HSU. Yes.

PN2229

MR BULL: Bull, United Voice. Yes.

PN2230

THE COMMISSIONER: Thank you. We will go off the record.

OFF THE RECORD [3.20 PM]

ADJOURNED INDEFINITELY [3.20 PM]