PN1

JUSTICE ROSS: Can I have the appearances, please, firstly in Sydney.

PN2

MR S BULL: If the Commission pleases, my name is Bull. I appear for United Voice.

PN3

JUSTICE ROSS: Perhaps if you can indicate the award you have an interest in.

PN4

MR BULL: We're interested in the Children Services Award and the Restaurants Award.

PN5

JUSTICE ROSS: Thank you.

PN6

MS T WALTON: Walton, initial T, for the Transport Workers Union of Australia. Our interest is in the two road transport awards and the Passenger Vehicle Transportation Award.

PN7

JUSTICE ROSS: Thank you.

PN8

MS WALTON: Thank you.

PN9

MR B FERGUSON: Ferguson, initial B, and Bhatt, initial R, for the Ai Group. Interested in all awards apart from the Restaurant Industry Award.

PN10

JUSTICE ROSS: Thank you, and in Adelaide?

PN11

MS K ROGERS: Good afternoon. May it please the Commission, Rogers, initial K, for the Australasian Meat Industry Employees Union. We have an interest in the Meat Industry Award.

PN12

JUSTICE ROSS: Thank you, Ms Rogers, and in Canberra?

PN13

MR D JOHNS: If it please the Commission, my name is Johns, initial D. I appear on behalf of the National Road Transport Association. Our interest pertains to the Road Transport and Distribution Award and the Road Transport Long Distance Operation Award.

PN14

JUSTICE ROSS: Thank you. The purpose of the conference is to look at the current payment of wages provision in the award and I'll identify some differences between that provision and the model term and then to get an indication from the parties as to what they wish to do about the matter. There are a number of options, one is to vary the award to insert the model term.

PN15

The second would be to retain the existing provision. The third is some form of variation to the award that maybe tailored to suit the particular circumstances in the industry. In each case I'd be encouraging conversations between the unions and employer interests in the award to see if an agreed resolution can be arrived at.

PN16

If in the absence of an agreement a party would need to consider whether they wish to make an application to vary the award either to insert the model term or some variant of it, okay. Let's just go through each of the awards. The first is the Children Services Award. I'm not entirely sure, it's got a ‑ ‑ ‑

PN17

MR FERGUSON: I think there's an issue with this award in that the table hasn't replicated the relevant clause.

PN18

JUSTICE ROSS: Yes, what is the relevant clause?

PN19

MR FERGUSON: I'm just going to it now. 19.3

PN20

JUSTICE ROSS: Sorry?

PN21

MR FERGUSON: Clause 19.3.

PN22

JUSTICE ROSS: Which says?

PN23

MR FERGUSON: Where an employee lawfully leaves their employment, they will be paid all monies due at the time of leaving by cash, cheque or electronic funds transfer. Alternatively, the employee may paid on the next working day where this is reasonable. It's the lawfully leaves issue which is a bit - potentially arguable what that means.

PN24

JUSTICE ROSS: Yes, all monies dues.

PN25

MR FERGUSON: All monies due is - - -

PN26

JUSTICE ROSS: What occasions for payment?

PN27

MR BULL: It's not unclear at all. It means if they don't give notice that - what employers have always been able to do is that they can deduct notice from whatever's owed. I would have thought that's what it means.

PN28

JUSTICE ROSS: Well, yes, well that might be changing shortly but that's - - -

PN29

MR FERGUSON: It might be that where the employee complies with the notice requirements that might be required then set - - -

PN30

MR BULL: You can offset them lawfully.

PN31

MR FERGUSON: But I just know that in the past we've regarded that as perhaps - - -

PN32

JUSTICE ROSS: What's the introductory words?

PN33

MR FERGUSON: Where an employee lawfully leaves their employment.

PN34

JUSTICE ROSS: An employee lawfully leaves?

PN35

MR FERGUSON: Their employment they will be paid all monies due at the time of leaving by cash, cheque or electronic funds transfer.

PN36

JUSTICE ROSS: All right, so where the employee leaves their employment?

PN37

MR FERGUSON: Yes.

PN38

JUSTICE ROSS: Leave aside lawfully for a moment, it doesn't saying anything about where the employer terminates the employment.

PN39

MR FERGUSON: Well, no, somebody could be terminated and you've got to work out your notice and they leave two days later and they wouldn't lawfully be leaving because they haven't worked out their notice.

PN40

JUSTICE ROSS: Yes, I think the notice questions and lawfully is going to have to be re-visited in this clause anyway as we have addressed the issue in the standard clauses question and it raises a series of other issues, so we'll be reviewing this clause in any event if it permits the deduction of wages on termination. Deduction from there about not giving lawful notice.

PN41

MR BULL: Well, I was going to not be difficult and just say that we weren't going to make any particular submission and that in terms of the draft clause that we can't think of any compelling reason why it shouldn't go in this award. It is one of those areas where the award seems to be at a lighter level of advisory for many employers. They don't comply with it but anyway.

PN42

JUSTICE ROSS: All right. Well, what's Ai Group's position in relation to the deletion of 19.3 and the insertion of the model term?

PN43

MR FERGUSON: Look, we hadn't intended to oppose the insertion of model term. In relation to 19.3, if it's going to be reviewed we'd probably have a think about it too because I say that because - - -

PN44

JUSTICE ROSS: Well, it's not going to be reviewed.

PN45

MR FERGUSON: Sorry.

PN46

JUSTICE ROSS: It's going to be deleted - - -

PN47

MR FERGUSON: Yes, I - - -

PN48

JUSTICE ROSS: - - - and the model terms inserted.

PN49

MR FERGUSON: I must say, we had initially just looked at the Commission's document and then I had a quick look at that and I, just at a glance, wasn't sure that that necessarily permitted a deduction as such. There's a limited obligation in relation to notice, so - - -

PN50

JUSTICE ROSS: Sure.

PN51

MR FERGUSON: Where we land on all of that is we would have to give thought as to whether we'd want a case in this particular award.

PN52

JUSTICE ROSS: No, no. The question is whether you would oppose the insertion of the model term in this award - - -

PN53

MR FERGUSON: No.

PN54

JUSTICE ROSS: In lieu of 19.3, that's all.

PN55

MR FERGUSON: No, we would not. So we would not.

PN56

JUSTICE ROSS: That seems to be the position from both the union and the employer so we'll publish a draft variation determination after the provisional views. There's the opportunity to comment on those arising from the main decision. So some time in mid-August we will publish a draft variation determination in the Children's Services Award.

PN57

MR FERGUSON: Yes.

PN58

JUSTICE ROSS: The parties will have seven days to comment. It will delete 19.3 and insert the model term.

PN59

MR FERGUSON: Yes.

PN60

JUSTICE ROSS: All right. I am rather assuming that the others don't have any comment on the Children's Services Award but if I miss someone on the way through please slow me up. Let's move to the Restaurant Award. Mr Bull?

PN61

MR BULL: I was going to indicate that in common with the other, what are currently three Hospitality Awards, we hope it remains that way.

PN62

JUSTICE ROSS: I'm not on that Bench so - - -

PN63

MR BULL: No.

PN64

JUSTICE ROSS: Your please is falling on deaf ears, Mr Bull.

PN65

MR BULL: Well, you know, it's always – have a go, that's my - - -

PN66

JUSTICE ROSS: Sure. Every time I look at our subscriber's page there seems to be a new development in that case so - - -

PN67

MR BULL: What I was going to say is all these Hospitality Awards have a provision in their definition of "casual employment" that says a casual must be paid at the termination of each engagement but may agree to be paid weekly or fortnightly. The term seems to be in aid of the fact that there is a lot of casual work in this area and it sort of harkens back to the traditional definition of a casual, who basically when the engagement ends, that's it. So on the basis that we're workshopping it I would indicate that if you're going to put the model term into this award, and this is going to apply to the Hospitality Award also which has a similar term, and also the Clubs Award, should it survive - - -

PN68

JUSTICE ROSS: I should be clear. I'm not going to be doing anything unless there's an absence of opposition, or if there is opposition, a party applies to do one thing or the other. I mean, we accept that in these awards there is a payment of wages provision and we haven't expressed a prima face view that they should be changed to insert the model term.

PN69

MR BULL: Yes. What I was going to suggest is that in relation to – if you're going to put something like the model term in the Restaurants Award there maybe should be some provision or qualification in relation to its treatment of the payment of casuals.

PN70

JUSTICE ROSS: Yes. I think that would be a useful issue for you to raise with Restaurant and Catering Industrial or the AHA in relation to all three because on the one hand it provides a benefit to your members in so far as it provides for payment on termination. On the other hand it only deals with wages. Now what is meant by "all wages due", there might be a debate about but "wages" seem to be a different concept to the payment of accrued leave, for example.

PN71

MR BULL: It just says you've got to be paid at the end of each engagement.

PN72

JUSTICE ROSS: No, for the casuals, yes. Leave doesn't arise for them in any event.

PN73

MR BULL: For casuals, yes.

PN74

JUSTICE ROSS: Yes. I think I'd leave this one on the basis that you'd have the discussions and if they reach some sort of agreed position or if you want to seek to amend any of the Hospitality Awards then you can file an application and we deal with it then, okay?

PN75

MR BULL: And this is by 10 August?

PN76

JUSTICE ROSS: No. No, I'll issue a statement that will set out the time period within which any application should be made but it would be some weeks away. The 10 August was, for those who joined us late, was a reference to in some of the earlier conferences parties that wanted the opportunity to clarify their position and to indicate whether they agree to the model term going in or not, and they've been asked to do that by 10 August, Friday of next week. And in the event that there was no opposition to the insertion of the model term in a particular award in lieu of the current position then we would publish the draft variation determination probably in the middle of August and then parties would have seven days to comment on that. But that's only in those cases where there has at least been a provisional view expressed that the parties are prepared to look at putting the model term in.

PN77

MR BULL: In relation to this particular award we don't practically need to do anything because if you maintain what's in the definition of "casual" that probably trumps what you are proposing to put in.

PN78

JUSTICE ROSS: That's right, we don't. Well, I'm not - - -

PN79

MR BULL: So I'm happy to say we've got nothing in particular to say about whether the model term goes into this award.

PN80

JUSTICE ROSS: No, that's fine, yes.

PN81

MR BULL: We just want to make the Commission aware that there does seem to be a specific provision that mandates casuals being paid at the end of engagements.

PN82

JUSTICE ROSS: Yes.

PN83

MR BULL: Which no doubt is not observed in restaurant land.

PN84

JUSTICE ROSS: No, it's probably more payment by week, yes.

PN85

MR BULL: Yes. But that's not being critical of the sections.

PN86

JUSTICE ROSS: It might be by agreement, of course, but - - -

PN87

MR BULL: Yes.

PN88

JUSTICE ROSS: We'll leave that one on – I'm not quite sure where we've left that one actually, Mr Bull. Do you want us to publish a variation determination?

PN89

MR BULL: As I said, I don't know whether you're meant to – because if you insert the model term there will still be the provision of casuals having to be paid at the end of each engagement, and obviously there is all this argument about whether they're an ongoing casual and so forth.

PN90

JUSTICE ROSS: All right.

PN91

MR BULL: We wouldn't mind the provision, you know, the 13.3 which is this being paid at the end of engagements, being maintained in the award.

PN92

JUSTICE ROSS: The 13.3?

PN93

MR BULL: The 13.3, rather.

PN94

JUSTICE ROSS: There is no proposal to change that clause.

PN95

MR BULL: So if it's maintained and the model clause goes in that's it.

PN96

JUSTICE ROSS: Yes. In lieu of clause 27.4 and 27.5.

PN97

MR BULL: They'll sit together and - - -

PN98

JUSTICE ROSS: All right. We'll do that as a – it will still be characterised as a draft variation determination because not all of the parties with an interest in the award are here. But we'll publish that in mid-August. So that would propose a variation of the Restaurant Award to delete 27.4 and 27.5, and insert the model term, in lieu. And not make any other changes in relation to the casual payment and engagement clause.

PN99

MR BULL: Thank you.

PN100

JUSTICE ROSS: All right, the Meat Industry Award, the issues here, Ms Rogers, are really this, that the current clause talks about any wages due to the employee but doesn't deal with any other amounts that might be due under the NES, particularly accrued annual leave. And there are particular arrangements in the meat industry and that may explain the current wording. It provides for payment on the day of termination or at the employee's option forwarded to them the next working day. It's really a case of, well, what do you want to do about it, if anything.

PN101

MS ROGERS: Thank you. Look, certainly there is a practice in the meat industry for that clause to be read to include all forms of leave so generally on termination on the day or a subsequent day by agreement everything gets paid to the worker. Certainly it's our preference to retain that tight timeframe. We've had minimal difficulties with employers complying with it. It is pretty standard practice. And it's also a longstanding term that has been in all of the pre reform awards going back quite some time. We would certainly be agreeable to the modern term if the provision around the seven days was changed to reflect the current timeframe in the award. So if it read something along the lines of the employer must pay an employee on the day of termination of employment or at the employee's option forwarded to them on the next working day, and then (i), (ii).

PN102

So certainly we would see some benefit in combining the two. However we are very happy with the current timeframe for payment of those entitlements.

PN103

JUSTICE ROSS: In relation to whether the model terms tailored - if that's where you were looking to go with it then I would suggest you have a conversation with the meat employers and see if you can reach an agreement as to what such a term might look like, and if you do reach an agreed position and submit that as a consent variation determination then that's obviously the Full Bench would give significant weight to, and if they were of a view - if they had any concerns about the consent position then the relevant parties would be given an opportunity to comment in relation to that.

PN104

MS ROGERS: Thank you.

PN105

JUSTICE ROSS: But absent a consent position then you would need to consider whether your organisation wants to make an application to vary the award to seek what you have indicated.

PN106

MS ROGERS: Thank you.

PN107

JUSTICE ROSS: I mean it's a long way of saying nothing is going to happen until you do something. So it will be with you.

PN108

MR FERGUSON: I just note Ai Group has got a significant interest in that award and we will need to give some consideration as to what position we take, which might be advocating for the model term, but we are happy to have discussions with the relevant union.

PN109

JUSTICE ROSS: All right. Again there will be the timeframe about when you have to make the application. Passenger Vehicle Transport Award; it provides for the payment of all moneys due to the employee within two working days of dismissal. TWU?

PN110

MS WALTON: Your Honour, it might be a little quicker if we can deal with the three transport awards, the passenger vehicle road transport - - -

PN111

JUSTICE ROSS: Yes, absolutely, they're all in the same terms.

PN112

MS WALTON: They are, and the TWU would seek that those existing provisions remain in the award. I have had discussions with those at Nat Road and the Ai Group who have alerted me to the fact that they will apply for a variation. They are going to have to do that, and at that time we will discuss - - -

PN113

JUSTICE ROSS: That's fine.

PN114

MR FERGUSON: Yes, we will and we will have to give thought to what that looks like.

PN115

JUSTICE ROSS: No, that's fine. Nat Road, are you in the same position, so you want to consider whether you make an application to vary, to insert the model term and remove the existing one?

PN116

MR BULL: Thank you, your Honour. Yes, Ms Walton and I have had some discussions and unfortunately haven't arrived at a consent position, and my instructions at this time are that we will be making the application to pursue the variation.

PN117

JUSTICE ROSS: All right. As I say we will issue a statement at the end of these conferences indicating when that application has to be filed, and it will be listed for mention and programming after that.

PN118

MS WALTON: Thank you, your Honour.

PN119

JUSTICE ROSS: Anything else anyone wants to say about those? No, that's it. I will see some of you at 9 am tomorrow morning. Thanks very much, I will adjourn.

ADJOURNED INDEFINITELY [2.22 PM]