PN1

JUSTICE ROSS: My apologies for the delay. Can I take the appearances in Sydney first and if you can indicate which of the awards that are listed for 11.00 am you have an interest in.

PN2

MR S BULL: If the Commission pleases, your Honour, my name's Bull, I appear for United Voice.

PN3

JUSTICE ROSS: In relation to which award?

PN4

MR BULL: Sorry, your Honour, Aged Care, Supported Employment, peripherally not Nurses, Wine and that's it in the first lot.

PN5

JUSTICE ROSS: All right, thank you. Mr Crawford.

PN6

MR S CRAWFORD: Yes, your Honour, appearing primarily in relation to the last four awards, Storage Services, Wine, Aluminium and Horse and Greyhound, that we do have an interest, I believe, in Queensland in the earlier three awards.

PN7

JUSTICE ROSS: Thank you.

PN8

MR B FERGUSON: Yes, Ferguson, initial B, and Bhatt, initial R, for the Australian Industry Group, appearing in relation to all awards, apart from the Supported Employment Services Award.

PN9

JUSTICE ROSS: Thank you, and in Melbourne?

PN10

MR A McCARTHY: Yes, your Honour, McCarthy, initial A, of the ANMF. We have an interest in the Nurses Award and the Aged Care Award.

PN11

JUSTICE ROSS: Thanks, Mr McCarthy.

PN12

MS R LIEBHABER: Pleases the Commission, Liebhaber, initial R, for the Health Services Union and we have an interest in the Aged Care Award, the Nurses Award and the Supported Employment Services Award.

PN13

JUSTICE ROSS: Thank you, and in Brisbane?

PN14

MS L FISHER: Good morning, your Honour, Fisher, Lucy, on behalf of the Private Hospital Industry Employers' Association and we have an interest in the Nurses Award.

PN15

JUSTICE ROSS: Thank you. We might deal with each of the awards in turn. Look, the purpose of the conference is to get an indication from the parties as to what, if anything, they propose to do with the current award provisions, that is, to, if they wish to, replace the current provision with the model term, if that's agreed by all the parties interested in that particular award then we would publish a draft variation determination.

PN16

If that's not the case, then parties would need to consider to make a variation application in respect of each of the awards. If we just go to Aged Care Award, if I can make the observation first that it's not clear what happens in the case of summary termination because it provides for the payment of all wages and other monies owing to the employee no later than the last day of the formal notice period so I'm not sure how that works with respect to summary dismissal.

PN17

In relation to termination where there's been payment in lieu, I'm not entirely sure how the clause operates in those circumstances and if it's confined to circumstances where there's a period of notice given and - no, withdraw that. In any event, I'm not clear how it works in those two circumstances so perhaps if we get an indication, initially, from each of the parties with an interest in this award and look, the course we have adopted with some of the earlier awards, if a party wants an opportunity to consider their position, then we provide that.

PN18

With many of these provisions, it does require some consideration by both the unions and the employer organisations with an interest as to the benefits and, in some cases, disadvantages that may flow from the insertion of the model term and they need to weigh that up and decide which course of action they're going to adopt. Let's deal with Aged Care. Who'd like to kick off with that?

PN19

MR BULL: Well, I can be agreeable and say there's been a process, there's been a Full Bench decision. We've made submissions in relation to these matters. I'm not going to re-agitate those submissions or traverse the findings of the Full Bench. We have nothing to say about the proposal to insert the model term in this particular award, provided obviously it seems to have the guarantees and so forth in relation to payments in lieu and so forth and we can't dealt with long service leave entitlements so we weren't proposing to say anything in relation to what I understand is the proposal to insert the model term.

PN20

JUSTICE ROSS: Well, as I understand it, the employer interest in the earlier matters have taken a view that they would propose the insertion of the model term but perhaps if we start with - we'll hear from them and then I can go to the unions, so let's see what the position is.

PN21

MR FERGUSON: From our group's perspective, we hadn't proposed to raise any objection to the model term going in. I think we just need to give thought to whether we'd run an application calling for it.

PN22

JUSTICE ROSS: Sure, well that might depend on - - -

PN23

MR FERGUSON: Other parties.

PN24

JUSTICE ROSS: - - - I suppose, the attitude of others.

PN25

MR FERGUSON: Yes.

PN26

JUSTICE ROSS: We'll canvass everybody but we may get to the position where no - it will be this sort of awkward moment where no party opposes but no party wants to do anything, in which case if that's where we land, the Commission would publish a draft variation determination and provide an opportunity for people to comment or object and then if there's no objection, vary the award in those terms. All right, can I go to Brisbane.

PN27

MS FISHER: Yes, your Honour. Our preliminary position would be that we'd prefer to leave the current provision. It does reflect some of the old ones. We're not aware of any issues that have operated with it.

PN28

JUSTICE ROSS: Can you just talk into the microphone. I'm just having a little bit of trouble.

PN29

MS FISHER: Yes, I am. Just with it, it's - we're not aware of any issues with the way the current term has operated. There would be some quite significant potential administrative issues going to seven days. The majority of private hospital employers are on a fortnightly cycle. They tend to be paid on termination in the next cycle unless there's a specific request for an offline payment and then that is normally accommodated but our preliminary position would be to leave it unchanged.

PN30

JUSTICE ROSS: Well, all right. Can I go to, we've heard from United Voice, can I go to the unions in Melbourne.

PN31

MS LIEBHABER: Yes, your Honour, it's Liebhaber, Rachel, for the HSU. In terms of the Aged Care Award, we would oppose the model term being inserted. We believe that the current term should be retained. Our general view is where the current term in an award provides for a greater entitlement than in the model term, then that should be retained at least to the extent that it's greater and, yes, we believe that seeing that the current term provides for payment of all wages and other monies owing and also that the payment will be made no later than the last day of the formal notice period. We think those points should be retained in the provision.

PN32

JUSTICE ROSS: Well, I suppose it's really a choice of whether you support the current term or there's an agreement to insert the model term. If there's something different then a party would need to make an application to vary it in some way. What do the current terms say about payments where there's summary dismissal?

PN33

MS LIEBHABER: We would agree that the term is silent on that, but we would - - -

PN34

JUSTICE ROSS: All right. The aim is - no, that's all right, Ms Liebhaber.

PN35

MR McCARTHY: Yes, your Honour. We would support the HSU's view to retain the term in the form it's in, because as outlined by my colleague it provides a better entitlement than the model clause. In relation to summary dismissal there may be an ambiguity about what the formal notice period means. There may be an argument that formal notice period in summary dismissal is, well that is the notice - you know, leave, pack up now.

PN36

JUSTICE ROSS: I am not really going to decide that, but I think you would be pushing that argument uphill, because it says where notice of termination of employment has been given. You don't give notice of termination of employment in summary dismissal.

PN37

MR McCARTHY: If there's an ambiguity on what that means I suggest that maybe that last bit could be changed to by no later than the day on which the employee's employment terminates, which is borrowing words from the model clause.

PN38

JUSTICE ROSS: Mr McCarthy, you can suggest that, but you will need to make an application if you want to vary it. The purpose of the conference isn't to sort of workshop what might be options, it's really just to try and go through each of these awards and get a feeling for what the differences are between the current provision and the model term, and if parties want to pursue a matter then they can pursue it. For my part I must say it doesn't seem ambiguous to me. I just don't think it has any application in the case of summary termination, but ultimately a court would have to decide that question after argument. Whether you want to vary it is really a matter for you, and if Ai Group or another employer interest wants to vary the current term to insert the model term then that would be a matter that they would need to take up as well.

PN39

MR FERGUSON: Just one point of clarification. It may be that obviously the model term has some benefits to both parties and some detriments.

PN40

JUSTICE ROSS: Sure.

PN41

MR FERGUSON: Is your Honour inviting claims just for the model term to be inserted, or any - - -

PN42

JUSTICE ROSS: No, I wouldn't restrict - you can seek to vary the current provision and run a merit argument based on that.

PN43

MR FERGUSON: But in the event that parties were to reach agreement on a compromise position.

PN44

JUSTICE ROSS: If you reach agreement on a compromise position then the general position of the Commission during the review has been to give weight to that consent position, and if we have any concerns or questions in relation to it we would provide the parties to the consent position with an opportunity to be heard about that.

PN45

MR FERGUSON: I just raise that, because now that these issues have been ventilated, and take this clause for example there would be one view that it doesn't really do very much for employees in some circumstances and we won't have the argument, but if the parties were able to reach agreement we might negate the whole fight.

PN46

JUSTICE ROSS: Sure.

PN47

MR FERGUSON: And there would be a process potentially allowing that.

PN48

JUSTICE ROSS: Yes, that's true in relation to each of these matters. I would indicate that what we would do after these conferences are concluded tomorrow is publish a short statement there has been a resolution or at least preliminary views expressed in relation to some of these awards where there's an agreed position to insert the model term. We would take steps to give effect to that. In relation to others where there is no agreement, as is the case in this award, the parties will be encouraged to have discussions, and we will set a timeline for the filing of any application to vary, and that would be some weeks away from when the statement is published. Anything further in relation to aged care? No.

PN49

Can we go to supported employment services. This current clause provides for immediate payment on its face of all termination payments due to the employee on termination, but it is confined to circumstances where the employee is discharged from employment, which has the sort of - I am not quite sure what that means. It's suggestive of termination at the initiative of the employer rather than resignation, but I have not seen that expression. It looks like something out of the 18th century, so I don't really know what that means. If it is limited to termination at the initiative of the employer well as you know a significant number of terminations are affected by the employee resigning, and it would seem to be silent about that. Any initial reactions in relation to that provision, whether there's a preference to retain it, a preference for the model term, or a preference for another outcome?

PN50

MR BULL: There also seems to be a penalty clause in the current award in the term of obligation to pay ordinary times until the money is paid.

PN51

JUSTICE ROSS: Yes.

PN52

MR BULL: This is just in - I assume this is what you want, this is just reacting to - - -

PN53

JUSTICE ROSS: Yes, that's exactly right. It's just trying to sort through these issues to identify whether there is any agreement in relation to any of the matters. If there is then to progress that. If not to let parties know what the process will be from here end.

PN54

MR BULL: This award covers persons with disabilities who are also paid particularly low wages, and they're often concurrently or soon to be in receipt of a Disability Support payment. It is uncontroversial that a large number of these people have an intellectual disability. It would seem to us that those unique features of the work covered by this award would tend to suggest that maintaining some form of immediate payment in that a person with a significant intellectual disability and also frankly on low money shouldn't be made to wait seven days. So that's United Voice's view.

PN55

JUSTICE ROSS: Yes, all right. So retain the current provision?

PN56

MR BULL: Some clause which requires immediate payment. It seems to me appropriate in the sense that if you are dealing with people who have intellectual disabilities they shouldn't be confused about what's going on. The most expedient way to deal with the end of the employment relationship is to do it all as nearly as you can in the same moment.

PN57

JUSTICE ROSS: Yes, all right. Anyone else on this award?

PN58

MS LIEBHABER: Your Honour, HSU would agree with Mr Bull's comments. We would support retaining the clause.

PN59

JUSTICE ROSS: All right. Let's move to the nurses award. On its face it doesn't seem to specify a time period. It depends how you read it. It could be read as when notice of termination has been given, so it might be triggered by the giving of the notice. Then that would seem to suggest that when you give notice payment has to be made. I am not familiar with the background to it, so it's not immediately apparent to me how it currently operates. Perhaps if we hear from the unions first and then the employer interests in relation to this clause.

PN60

MR McCARTHY: Yes, your Honour. It's Mr McCarthy from the ANMS. Yes, I think the clause is ambiguous. I don't think it is clear when payment is to be paid and I'm not quite clear whey the wording ended up the way it did.

PN61

JUSTICE ROSS: Yes.

PN62

MR McCARTHY: On that basis, broadly speaking we are happy with the model clause, however the only difference, and obviously bearing in mind by what you've said that it will require a variation, is that payment of all wages and other money owing to an employee is a stronger entitlement for employees than the model clause. So we would have to consider a variation if we were to remove the ambiguity.

PN63

JUSTICE ROSS: Yes. In relation to the scope question, let's just tease that out for a moment, the model term provides for the payment of wages under the award for any complete or incomplete pay period. Let's deal with that for the moment. That was inserted because there's at least a technical argument that under, well, this award and most awards, the legal entitlement to payment is on the completion of the pay period. So for example if you're paid weekly and you leave after four days there's at least a technical argument that you're not entitled to any payment flowing from the award. You might have a common law action for partial payment but no entitlement under the award provision. I'm not suggesting that employers exploit that legal technicality but it's at least open to argument, hence that explains the reference to the incomplete pay period. So in other words, if the termination takes effect half way through a pay cycle you are entitled to be paid for the incomplete pay period.

PN64

But the second one, Roman (ii), "all other amounts that are due to the employee under the award and the NES." I'm not sure where you think it falls short of what's required under the current clause.

PN65

MR McCARTHY: Just that if there was an over-award payment.

PN66

JUSTICE ROSS: Yes.

PN67

MR McCARTHY: Arguably the current award clause would require the over award payment to be paid, as well.

PN68

JUSTICE ROSS: That's probably right, yes. Yes. Anyone else on this award?

PN69

MS FISHER: Yes, your Honour, the Private Hospital Associations.

PN70

JUSTICE ROSS: Yes.

PN71

MS FISHER: We would support retaining the current clause.

PN72

JUSTICE ROSS: Right. Anyone else?

PN73

MR FERGUSON: Ai Group, and again we hadn't proposed to raise an objection and I say that for the benefit of the parties, perhaps. We'll get some thought though to whether or not we would run the application. I foreshadow it is likely that in the event the approach of a piecemeal approach is taken and that wages issue is picked up, we'll run in opposition to that, the retention of an obligation in relation to over award payments.

PN74

JUSTICE ROSS: Yes. But it would only be that you wouldn't oppose the model term going - - -

PN75

MR FERGUSON: That's right. In the event that it was the model term I think we would just live with that.

PN76

JUSTICE ROSS: Yes. Can I ask the Private Hospital employers, what do you think the clause means? When are you supposed to pay termination payments?

PN77

MS FISHER: Historically it has tended to operate in line with the normal pay cycle unless, you know if it's a summary dismissal then obviously it is immediate but otherwise it's followed a normal pay cycle, unless there has been a specific request and that does happen sometimes, in which case most employers would abide. But we tend to sort of – normally they would follow a normal pay cycle.

PN78

JUSTICE ROSS: All right, it's probably then going to be up to - - -

PN79

MS FISHER: Which, as I say in our industry it's – yes.

PN80

JUSTICE ROSS: Yes. No, that's all right.

PN81

MS FISHER: It's just in most of our industry it's a fortnightly cycle.

PN82

JUSTICE ROSS: Yes, all right. Mr McCarthy, I think it is probably going to come down to your organisation to make a decision on whether you make an application to vary, to insert the model term as varied as you have highlighted. And in the statement we will provide a timeline about when you need to do that. But it won't be within the next week or anything like that. It will be some weeks away, all right?

PN83

MR McCARTHY: All right, thank you, your Honour.

PN84

JUSTICE ROSS: Let's got to the Storage Services and Wholesale Award. Two observations about this. The first is that it's confined to wages due to an employee, so on its face it would be seen to cover accrued leave entitlements. And it sort of has three propositions on time and payment, either day of termination or forwarded to the employee as soon as reasonably practicable. I think you would read the "and" as conjunctive then. So really what it's saying is that the obligation is to forward it to the employee within two working days after the termination. The use of "working days" is different to the model term which is expressed as "days", which would be interpreted as calendar days, so I think those are two central differences, the two working days and it's confined to wages due. Any observations about this one?

PN85

MR CRAWFORD: Your Honour, the AWU's preliminary view would be that it doesn't oppose the insertion of the model provision. As per the course that I think was largely accepted during other matters this morning we'd just like a little bit of time to consult and make sure there is no dramatic opposition to that.

PN86

JUSTICE ROSS: All right, so I think the course we took with the others was to provide you until 4 p.m. on Friday 10 August to confirm your position in relation to that matter.

PN87

MR CRAWFORD: Yes, that's right.

PN88

JUSTICE ROSS: All right, Mr Ferguson?

PN89

MR FERGUSON: I think if there is a consensus around this provision going in then I don't have to say – well, we won't raise any opposition.

PN90

JUSTICE ROSS: Yes.

PN91

MR FERGUSON: If not, we'll just have to give some thought to what we do, whether we run the application or a different application.

PN92

JUSTICE ROSS: Yes. No, no, certainly. I suppose, let's see. Is there anyone else with an interest in this award? I don't think so. You can work on the assumption, Mr Crawford can let you know what he is going to put in and - - -

PN93

MR FERGUSON: As I anticipate we would run the application. It's just what it would look like.

PN94

JUSTICE ROSS: Yes. If the AWU has no opposition to the model term we would draft a variation determination along those lines, provide parties with a short period to comment on it and deal with it that way. All right. The Wine Industry Award?

PN95

MR BULL: I understand the AWU is going to make an – I don't have specific instructions in relation to this particular award.

PN96

JUSTICE ROSS: Yes, all right.

PN97

MR BULL: But I have heard some things from my friend and I'm happy to – they sound sensible so we will support them.

PN98

JUSTICE ROSS: All right. Thanks, Mr Bull. Mr Crawford?

PN99

MR CRAWFORD: So, your Honour, the Wine Industry Award in our view – well, from our perspective falls into the same category as the other agricultural awards that we referred to this morning, being the Pastoral and Horticultural Awards.

PN100

JUSTICE ROSS: Yes, all right.

PN101

MR CRAWFORD: So our preference would be to consult with the other parties and try and reach a sensible agreed position that probably adopts most of the model term and it just deals with this issue that people may leave the vicinity of the workplace after their work ends. And we are worried about cash payments, for example, being made seven days after the employment ends on that basis, so that would be our preferred approach to this award too.

PN102

JUSTICE ROSS: Yes. So the discussions might be around in each of those awards, Horticulture, Pastoral and this award, that in circumstances where an employee is usually paid in cash they're paid in accordance with the current term. But where they are paid by electronic funds transfer then the model term applies. That might be an option that works.

PN103

MR CRAWFORD: Correct, and I guess – I'm not sure how often cheques are used but I wouldn't rule it out, so I think the same approach that applies for cash should probably apply for cheques.

PN104

JUSTICE ROSS: Yes. Yes. The real point is you don't want them to go back to have to return after harvest to seek payment when they might be moving somewhere else.

PN105

MR FERGUSON: Correct.

PN106

JUSTICE ROSS: Yes, well, that can be a discussion between the interested parties and we can see where that goes. There is the Wine Industry Association of South Australia, I think, and they normally appear at these matters so it might be worth, just on the employer's side, making sure that they're involved, or Business SA occasionally pops up in relation to the Wine Industry Award. All right. Are you content with that course?

PN107

MR FERGUSON: Yes, I am.

PN108

JUSTICE ROSS: Yes, all right. The Aluminium Industry Award.

PN109

MR CRAWFORD: Your Honour, our position is the same as I just articulated for the Storage Services and Wholesale Award in that our preliminary position is that we wouldn't oppose the model term being inserted. We just would like a little bit of time to confirm that's the final position.

PN110

JUSTICE ROSS: Look, similarly here, if that is the position, we'd publish a draft variation determination because this clause falls into one of those categories, it's wages due so it would be over award as well, on the face of it, it's not confined to wages due under the award, and it does provide for the next regular pay day so you'll need to make your decision about what you want to do about that.

PN111

MR FERGUSON: We'll have some discussions with the union before we do that.

PN112

JUSTICE ROSS: Yes, yes.

PN113

MR CRAWFORD: Your Honour, I believe, as you indicated this morning, that awards generally refers to the NES for leave payments and that - - -

PN114

JUSTICE ROSS: They do.

PN115

MR CRAWFORD: - - - generally uses the term base rate of pay which can include over award.

PN116

JUSTICE ROSS: Yes, I don't really want to drift into what the leave payments are under the NES but, yes, look the issue about whether the model term covers wages due under the award or over award payments was ventilated in the main case and that's where we've ended up with in the model clause. Consistent with the position we've taken in other proceedings in relation to the standard clauses, it matters in awards as well.

PN117

But look, reflect on that. We'll put in that the category as well that you'll let us know by 4.00 pm next Friday and then that'll govern where we go with it. We'll adopt that approach with Storage Services as well. I'm sorry, with Wine, is that what you wanted to do, let us know by the end of next week?

PN118

MR CRAWFORD: Yes, but except it's a bit different in that our primary position is that the model term is problematic because of the seven day issue.

PN119

JUSTICE ROSS: Yes, yes. Well, it might be with Wine we leave that out of that process and we put it in the process of further discussions between the parties and a period of time and then you'll let us know what you want to do with it.

PN120

MR CRAWFORD: Yes, thank you.

PN121

JUSTICE ROSS: Yes, all right. Horse and Greyhound Training.

PN122

MR CRAWFORD: Your Honour, the AWU's view is the same as for the previous award, that our preliminary position would be to not oppose the insertion of the model term and if we can confirm that by the date you've already specified, that ‑ ‑ ‑

PN123

JUSTICE ROSS: No, that's fine. The three awards in that category are Aluminium, Storage Services and the Horse and Greyhound Training?

PN124

MR CRAWFORD: Thank you.

PN125

JUSTICE ROSS: You've got no interest in Horse and Greyhound Training, Mr Bull? Well you might. Does the United Voice?

PN126

MR BULL: On a personal level, I have absolutely no interest. I think it's cruel to the animals and I can't speak for my employer.

PN127

JUSTICE ROSS: No. All right. Is there anything else anyone wishes to say about any of the awards that we've covered? Are you each clear about the process from here or do you have any questions about that? Anyone in Sydney? No? In Melbourne? No?

PN128

MR McCARTHY: No, your Honour.

PN129

JUSTICE ROSS: In Brisbane?

PN130

MS FISHER: No, thank you, your Honour.

PN131

JUSTICE ROSS: All right. As I say, we'll publish a statement following the completion of these matters and I would encourage the parties to have discussions between the interested organisations in the event that you want to pursue either the model term or a different variation to address some of the issues that may occur in relation to the current terms. Nothing further? All right, thanks very much, we'll adjourn.

ADJOURNED INDEFINITELY [11.40 AM]