PN1

JUSTICE ROSS: Could I have the appearances, please. When announcing your appearance, if you could indicate which of the seven awards listed at 9 o'clock you have an interest in.

PN2

MR S CRAWFORD: If it pleases the Commission, Crawford, initial S, for the AWU, appearing in relation to the first five awards in the list. Do I need to name them, or?

PN3

JUSTICE ROSS: No, that's fine.

PN4

MR CRAWFORD: Thank you.

PN5

MR B FERGUSON: Ferguson, initial B, for the Australian Industry Group with Bhatt, initial R. We're appearing in relation to the Horticulture Award, the Asphalt Industry Award, the Market and Social Research Award and the Business Equipment Award.

PN6

JUSTICE ROSS: Thank you, and in Canberra?

PN7

MR B ROGERS: It's Rogers, initial B, your Honour, from the National Farmers' Federation and I'm appearing in respect of the Horticulture Award, the Pastoral Award and the Silviculture Award.

PN8

JUSTICE ROSS: Sorry, Mr Rogers, can you just get the microphone near you. I just can't quite pick you up. You're here for Horticulture, Nursery, Pastoral and Silviculture?

PN9

MR ROGERS: Not the Nursery, your Honour.

PN10

JUSTICE ROSS: Not the Nursery.

PN11

MR ROGERS: Just the Pastoral, Silviculture and the Horticulture.

PN12

JUSTICE ROSS: All right, thanks. Well, I take it each of you have got the working document that was published and the purpose is to ascertain your attitude to the variation of the relevant award to insert the model term. Can I start with the Horticulture Award. Can I make a couple of observations first. The current payment of wages on termination term is limited to wages. It doesn't apply to accrued annual leave or any other amounts due under the award for that matter or the NES. The second is that it doesn't say really when the payment will be made.

PN13

You either pay on the day of termination or you forward it by post the next working day. Well, without wanting to be too disparaging about the postal service, that might take some time to wind its way to the employee. Similar observations might be made about at least the first three awards, so they're slightly differently expressed. They're each limited to wages and one talks about forwarded to the employee within two business days.

PN14

That presumably means you send it to them by post as well, though it's not clear, and the same with the Pastoral Award. What's the AWU's attitude and let's deal with those three together. It's probably convenient, that is, Horticulture, Nursery and Pastoral.

PN15

MR CRAWFORD: Well, certainly the terms of the Horticulture and Pastoral Awards seem to be pretty much identical. Nursery's slightly different in that it doesn't have the word "by post" in there and it refers to business days not working days and those differences may be of some substance.

PN16

But fundamentally, our concern with the insertion of the model term is the seven day period, particularly for these agricultural industries because the reality is there's a lot of overseas workers, a lot of people travel around work on different farms so they may well finish work, I suspect, and then move onto the next farm, possibly even return overseas, so within that seven period they may be planning to leave and I mean if it's a payment into a bank account, that may have less concerns but paying by cash or cheque, and I do understand that does still occur, it's not all payment by bank transfer, unfortunately.

PN17

JUSTICE ROSS: Well, how does it help you with the Horticulture Award, they can post it. Where are they going to post it to?

PN18

MR CRAWFORD: Exactly. I'm not saying the current term is ideal. I guess what I'm saying is that the primary concern we'd have with the insertion of the model term as is, is that seven day period and whether that's suitable given the transient nature of the industry.

PN19

JUSTICE ROSS: Well, I suppose ultimately if you want to cherry pick, if you like, from the two, you'll have to run a case for that, so it's either really there's an agreed position that you either stay with what you've got or an agreed position that you move to the model term or you go to arbitration. That's pretty much the choices. I'm not sort of - these conferences aren't really to negotiate different outcomes. Even if you agree on a different outcome, you'll still have to run a case for it, so that's where we're up to.

PN20

MR CRAWFORD: That does assist. If I could just seek some further clarification. In the decision dated 17 July, there is a paragraph, paragraph 156, so my reading of that was that the Full Bench was indicating that the prima facie position would be that the current term remains and any variation would have to be justified based on a merit case.

PN21

JUSTICE ROSS: That's right. I mean, but if you consent to the model term, that's one issue, but if you want to adapt the model term, then that's something you'd need to run a case about. If an employer wants to knock out the existing provision, then they'll have to run a case as well.

PN22

MR CRAWFORD: As in - - -

PN23

JUSTICE ROSS: Put the model term in, they'll have to run a case because there's an existing award term dealing with termination. We don't have a case where there's a stronger argument for the insertion of a provision where there's nothing in the award and that's the case with the other 86 modern awards. There is no provision for termination in those awards, termination payments. Here there is a provision albeit, as I've indicated, it's deficient in the sense that it doesn't deal with all termination payments but nevertheless it deals with wages, not all allowances or anything else payable under the award, and the prima facie position is the award meets the modern award objective.

PN24

It has a term in there that deals with this issue, so if you want to displace it, then you need to run an argument, that's all we say. But I think you need to be alive to the fact that, and I'm sure this'll happen on both sides of it, don't cherry pick. You're going to have to have a good case. I understand that, from your perspective, you just prefer to pick the paid on termination and shove it in the model term and I'm sure this won't be the first time I'll view this over the next two days.

PN25

Well, it's fairness to both parties that we need to look at when we're deciding what goes in the award, so you won't be making your submissions here. You'll be running a case, and this applies to both sides. You want the model term, you'll have to run a case for it and you've got to make your decision about whether you want to do that or not.

PN26

MR CRAWFORD: I think, given we are on transcript, your Honour, I would like to put on the record that we wouldn't necessarily accept that the current award, read as a whole, albeit the reference is the payment of wages, that the intent of the current provision wouldn't be to also include leave payments, although I certainly understand why that maybe argued differently but I would - - -

PN27

JUSTICE ROSS: Yes, well, good luck with that argument.

PN28

MR CRAWFORD: Well - - -

PN29

JUSTICE ROSS: Because the award doesn't even deal with annual leave payments. It will refer to - annual leave's dealt with in the NES. It doesn't say, and it says wages not payments due on termination or anything of that nature, it's wages. Look, you can certainly argue that and that'd be - but that's not a matter for here really. That's a matter for somewhere else.

PN30

MR CRAWFORD: I certainly wasn't indicating it was a matter for here but we're on transcript. I wouldn't concede ‑ ‑ ‑

PN31

JUSTICE ROSS: No, no, no, I accept that. Yes, that's fine.

PN32

MR CRAWFORD: That aside, I mean there are certainly issues with the current provision. I wouldn't be able to at all say there isn't but on balance, given the nature of this industry, the AWU's position would be that the current provision should remain and on that basis we'd be opposed to the insertion of the model term.

PN33

JUSTICE ROSS: All right. That's in the first three, so they're similar, Horticulture, Nursery and Pastoral?

PN34

MR CRAWFORD: Yes, your Honour.

PN35

JUSTICE ROSS: All right. Mr Rogers, what do you want to say about these three?

PN36

MR ROGERS: Do you mind if I remain seated, your Honour?

PN37

JUSTICE ROSS: No, that's fine. That's easier.

PN38

MR ROGERS: Our position is that we would not object to the inclusion of the model term. We don't think the existing provision is sufficient for the reasons you've pointed out and the one day turnaround of a payment on termination is not, taking into account what Mr Crawford said, is not always realistic and I think in the July decision, your Honour, the Bench, made the point that seven days balances the interests of the employers and the employees.

PN39

We were, at one point, pressing for the payment to be made in the usual pay run so this is a concession, the seven days. I think we were seeking something around about a fortnight or two weeks, so that's our position, your Honour.

PN40

JUSTICE ROSS: Well, okay, and Ai Group?

PN41

MR FERGUSON: In relation to those three, our interest in the Horticulture Award, we would support it with the inclusion of the model term in that award.

PN42

JUSTICE ROSS: All right.

PN43

MR FERGUSON: I must say, we'd apprehended the process a little bit differently. We thought this might be an avenue for raising award - - -

PN44

JUSTICE ROSS: What did you think it might be?

PN45

MR FERGUSON: Looking at the statement we thought it might be an avenue for raising award specific tailoring, if you will, as to the clause.

PN46

JUSTICE ROSS: Sure but you'll need evidence for that.

PN47

MR FERGUSON: I appreciated that and our position will generally be, from these proceedings, that we're supportive of the model clause going in. This was an award that was the subject of our original claim which was more ambitious and we did run that case and then we reached that landing, we thought, but subject to the fact that we anticipated there was avenue for raising specific considerations that might have bubbled up.

PN48

JUSTICE ROSS: There will be.

PN49

MR FERGUSON: Yes.

PN50

JUSTICE ROSS: There will be.

PN51

MR FERGUSON: Right.

PN52

JUSTICE ROSS: It's really to get an indication - do I take it from that you'll be making an application to vary the Horticulture Award to insert the model term?

PN53

MR FERGUSON: I anticipate we will. As I said to you, I think we were perhaps operating on a wrong assumption that we'd run the case, that we'd got to a certain landing and that was the provisional view subject to an avenue for people raising a specific - - -

PN54

JUSTICE ROSS: No, we haven't expressed a provisional view in relation to these 26.

PN55

MR FERGUSON: Well, when I say that, I'd read that paragraph, I suppose, initially with some concern, that my friend referred to, thought that the situation would be that there'd still have to be a cogent reason for doing it but that may well be reflected in the arguments that people have advanced and that you'd just go through a process of looking at award by award.

PN56

JUSTICE ROSS: No. We will go through a process of looking at award by award but we don't know the circumstances in the those awards and there was a particular issue in Transport where it was raised. They wanted the opportunity to run an award specific and while, on the face of it, you can see the force of an argument that payment immediately, with no other option, of all entitlements may create an unrealistic provision to actually practically implement. You can imagine payment late in the day or a dismissal at the end of a shift and there's simply no one around to get the information.

PN57

MR FERGUSON: Well, that's - - -

PN58

JUSTICE ROSS: But that's the case that has to be run, you want to displace an existing provision. Our concern was that there were awards where there was no provision, and as your organisation, in particular, is fond of telling me, it's not a one size fits all business so in these 26, they've got a provision and let's see why they've got it, what its deficiencies might be and what the context of the industry is and then we can make a decision about it.

PN59

MR FERGUSON: I appreciate that. I'm just raising it now so that I don't keep doing it during the day.

PN60

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

PN61

MR FERGUSON: Because in terms of how it unfolds, I'd anticipate, and will reflect on what you've said, if something changes we'll tell you, but I'd anticipate that we'd run arguments for each of the awards saying that this is better because on balance when we looked at it almost in all instances we think it's sensible, at least for dealing with that very narrow issue around just the practicality of dealing with termination payments that happen at a moment's notice and there might be additional award specific issues, like in Transport there will be issues around how you get run sheets.

PN62

JUSTICE ROSS: Yes, I think the challenge for you is though that in the Horticulture Award, at least, it's got "or they can be forwarded by post the next working day" so that's not a you have to stump up with the money or the cheque on the day and where is there created a problem in the horticulture industry?

PN63

MR FERGUSON: No, I think there will be some arguments about obviously the movement generally to electronic funds transfers and so forth. I was alive, and I'm saying this without fully thinking through it, but in those small number of industries perhaps where cash payments to itinerant workers are a very real issue, there might have been, I thought, fertile ground for tailoring for that specific scenario. Does that make sense?

PN64

JUSTICE ROSS: Yes, tailoring.

PN65

MR FERGUSON: But in most, that that's just not an issue in this day and age.

PN66

JUSTICE ROSS: But look, I mean the argument that may be open in Horticulture, for example, and the problem for you, Mr Crawford, is that there are only two options in the award. It's either paid on the day of termination or forwarded by post the next day. Well, why wouldn't you be able to pay by electronic funds transfer? It's not permitted. You've either got the two options, you forward by post or you pay on the day so if you miss the day, what, you're going to send them a cheque.

PN67

It will wind its way through the system, they'll get it, they'll have to go to a bank account or go to a bank to deposit it and particularly in the areas where some of the ‑ horticultural award where the employees will be working, there's not going to be a bank nearby and there's not going to be one open when they're off shift. I think you need to take the pragmatic view on both sides to what is overall in the best interests of your respective constituents.

PN68

Otherwise you are going to have to run an argument. In some cases, the argument might be clear on the face of the term. In others where you've had a provision that's been there for a long time and what problems has it created in practice, it does, at least, require you to advance a cogent argument as to why it should be changed. You understand the - I mean, we gave a lot of thought to the model term and it went through iterations and there are both pluses and minuses for you, Mr Crawford, in each of these provisions but I just want to take the opportunity in these conferences to highlight those tensions so that you can give some thought to what you want to do.

PN69

MR CRAWFORD: I mean, I don't disagree with anything you've said, your Honour, but the real practical issue we have is that people, particularly in the horticultural and pastoral industries, do get paid by cash and the model term allows payment by cash up to seven days after and we do genuinely think that may impose practical problems.

PN70

JUSTICE ROSS: Well, look, it may be that you're able to have a discussion with the NFF and Ai Group and see if you can come up with a tailored solution for this industry. Speaking for myself, if you do that and, subject to it not wildly offending or doing tremendous violence to the model term, but if it was around the days, for example, and you reach an agreement, having regard to this industry and the particular circumstances, and that's what you consent to and you put that to us, well I'd be sympathetic to that.

PN71

I just want to make the observation if you don't reach an agreed landing, if you want to change the current provision you're going to have to run a case and the problem for you, Mr Crawford, if you run a case just sort of cherry picking, for example, if you just want to keep everything you've got and then just add to it, well that's going to be resisted and we'll be into a full argument, that's all.

PN72

MR CRAWFORD: Yes, I appreciate that, your Honour, and unfortunately although it's a far from ideal position, I suspect it would be more keep it as is as opposed to try and cherry pick a solution, unfortunately.

PN73

JUSTICE ROSS: Yes. Well, anything else on those three?

PN74

MR FERGUSON: Can I just raise one thing that might come up, I'll just ventilate it now?

PN75

JUSTICE ROSS: Yes.

PN76

MR FERGUSON: I think there was some encouragement somewhere in the decisions for parties to have discussions and try and reach agreement - - -

PN77

JUSTICE ROSS: Of course.

PN78

MR FERGUSON: - - - and I suspect that for lots of reasons, it probably just hasn't happened perhaps because we've thought the statement meant it was up to them and they thought the reverse.

PN79

JUSTICE ROSS: Well, we're not doing anything.

PN80

MR FERGUSON: No, I - - -

PN81

JUSTICE ROSS: Let me make our position clear, on the 26th we're having these conferences to try and ascertain where you're up to. I'll point out some of the differences between the clause and the term, try and get people to start to think about what they want to do. We don't want to, as it were, blunder into some of these areas without giving the parties an opportunity to think through what the pluses and minuses are, to have discussions between yourselves and then at some point I'll issue a statement after it encouraging discussions between the parties and that in the event that any party wishes to make an application to vary, they should do so by a particular date.

PN82

MR FERGUSON: Yes, that makes sense. As I said to you, I think we concede to this as the outcome as being potentially quite simple not with inside the processes as there are - look, cases have been run, deficiencies in the awards have been ventilated for the benefit of the Commission and, to a degree, accepted and some of the cases have been run about the specific awards and I know the landing we've got to.

PN83

We can obviously go through the process of saying well we'll just run the same case and get to the same outcome and amend it, sure, to give some specific industry considerations but, in all candour, I think coming today I didn't think there would be any - it wasn't apparent what industry specific considerations would justify a deviation but perhaps there are some when the other side raised them and - - -

PN84

JUSTICE ROSS: Yes, and look, and you will - - -

PN85

MR FERGUSON: And the process allows that.

PN86

JUSTICE ROSS: When you have itinerant workers you can sort of see that if they're moving from place to place and if Mr Crawford's right, and you know, those are the caveats on it, if he's right that they're paid in cash and that's the not uncommon circumstance then you could see some logic - - -

PN87

MR FERGUSON: And a way forward that deals with both scenarios is easily identifiable.

PN88

JUSTICE ROSS: Yes.

PN89

MR FERGUSON: And where there's some sympathy to the situation. We didn't mean to create a situation where people would be paying in cash seven days later and people being required to return. That wasn't intended.

PN90

JUSTICE ROSS: Yes.

PN91

MR FERGUSON: And in the vast array of awards that's not a relevant consideration.

PN92

JUSTICE ROSS: No, I think that's right.

PN93

MR FERGUSON: No.

PN94

JUSTICE ROSS: And it may not be in pastoral, for that matter. It's more of a feature of horticulture, that sort of working pattern than it is, the pastoral industry.

PN95

MR FERGUSON: Yes. So, at the most, encouraging electronic funds transfer or facilitating it, is just a win-win.

PN96

JUSTICE ROSS: Yes.

PN97

MR FERGUSON: And there's certainly less justification to the timing if people aren't physically present any more.

PN98

JUSTICE ROSS: Yes.

PN99

MR FERGUSON: But if your Honour has in mind a process that allows that sort of issue to be generated.

PN100

JUSTICE ROSS: Absolutely. Yes, yes, absolutely.

PN101

MR FERGUSON: And then it may be that when we get a landing to that there's a way forward with dealing with it that doesn't require, you know, a raft of individual separate cases.

PN102

JUSTICE ROSS: I think we would probably – there might be a raft of individual applications.

PN103

MR FERGUSON: Yes.

PN104

JUSTICE ROSS: But we wouldn't be running them separately. They would be grouped.

PN105

MR FERGUSON: Yes.

PN106

JUSTICE ROSS: And you could group clause types and then you could run your general argument about the deficiencies of clause type, and then run your evidence as to why the circumstances of this particular industry favour a particular outcome.

PN107

MR FERGUSON: Or your arguments and why in the context of the clause.

PN108

JUSTICE ROSS: Yes. Because there is a similarity between a number of these clauses and - - -

PN109

MR FERGUSON: That's right and then there will be some conceptual arguments that are just the same everywhere.

PN110

JUSTICE ROSS: Yes. Yes.

PN111

MR FERGUSON: Forthwith it's just impossible to (indistinct) the argument, you know.

PN112

JUSTICE ROSS: No, no, I understand that.

PN113

MR FERGUSON: All right.

PN114

JUSTICE ROSS: All right, well, that's the first three. Anything further on those? Can I go to Silviculture. Look, this is differently framed. The substance of the clause provides that within two clear working days of termination the monies due to the employee under this award are to be paid. I mean, wherever you go it does say, "Must be paid at the time of termination", but there's the exception, "within two clear working days." Which can mean if they're terminated on a – you know, it may not be much different for the seven days – if they're terminated on a Friday and don't work on the Saturday and Sunday then they're not going to be paid until the Tuesday. And if you've got a public holiday intervening it could be longer. But the thing that struck me about this clause is that it is limited to where notice is given in accordance with the NES. So it doesn't apply to an employee resignation and it doesn't apply to summary dismissal.

PN115

So those are the differences and also there's the option to send it by cheque by registered post to the employee's home address. So there's two working days which may in fact be four days, by the time the employer is obliged to do anything, and at that stage they could just send it by post to the employee's address, is the practical upshot of that. And also I accept that you don't want to enter into this point but it talks about money due to the employee under the award. So it's broader than wages. I would encompass allowance payments and the like, but on its face there's at least an argument that it doesn't apply to annual leave payments.

PN116

MR CRAWFORD: Yes, your Honour, I need to go back and, I guess, clarify that issues are raised by others within the AWU but at this stage I can indicate that subject to any concerns being raised we are pretty open potentially to the model term going into the Silviculture Award.

PN117

JUSTICE ROSS: All right.

PN118

MR CRAWFORD: And while I'm at it, it's probably a similar situation in relation to the Nursery Award, having (indistinct) within the initial R3. I mean, given what you have indicated this morning, your Honour, about the reference to wages and other aspects of this clause we certainly accept there are positive aspects of the model term compared to what is there. And I mean, in terms of the Nursery Award and the Silviculture Award, the people moving around when they finish employment is less of a concern than it is in the Farming Award.

PN119

JUSTICE ROSS: Yes.

PN120

MR CRAWFORD: So subject to finalising our view at this stage I guess our preliminary view would be we wouldn't oppose the insertion of the model term.

PN121

JUSTICE ROSS: All right. What I might do, in relation to – and we'll get the list but this might be a slightly quicker way home, but so far in relation to Nursery and Silviculture, if you can confirm – I'll hear from the employers in a moment but I've taken from what you've said, Mr Ferguson, that you'll be seeking the model term. But if you can advise Mr Crawford by the end of next week as to your organisation's position in relation to Nursery and Silviculture and if that confirms your preliminary view about the model term, and I'll hear from the employers in a moment, if they support the model term on the record here then we would proceed to vary on that basis, okay? So Mr Ferguson, I take it you want the model term in those two awards?

PN122

MR FERGUSON: We're not in those - - -

PN123

JUSTICE ROSS: Sorry?

PN124

MR FERGUSON: We don't have an interest in those awards and we're not appearing in those awards.

PN125

JUSTICE ROSS: All right. Mr Rogers, are you content for the model term to go into those two awards?

PN126

MR ROGERS: Your Honour, we don't have an interest in the Nursery Award so I would just be commenting on the Silviculture Award. I am sorry to say I haven't been able to get instructions on that award. I'm happy to - - -

PN127

JUSTICE ROSS: But that's okay. We can deal with it on the basis that if you can advise whether your organisation has any objections to the model term going into the Silviculture Award, by the end of next week?

PN128

MR ROGERS: Yes, your Honour.

PN129

JUSTICE ROSS: All right, so if you both do that, that will address those. I think – did you have an interest in any of the other awards listed at 9, Mr Rogers? I'm not raising this in order to eject you or anything like that but if you didn't and you wanted to leave, you should feel free to do so.

PN130

MR ROGERS: I don't but I might just stick around to hear some of the discussions if that's okay, Commissioner.

PN131

JUSTICE ROSS: Yes. No, absolutely. It's fascinating, Mr Rogers, I know. Let's got to the Asphalt industry. Look, again, Mr Crawford, that's raising similar issues. It is confined to wages and it can be forwarded to the employer within two business days - business days works differently to the seven days as calendar days, and also, "forwarded." I'm not quite sure what – but you might consider your position in relation to that and let us know at the end of next week, unless you have any views you want to say now?

PN132

MR CRAWFORD: No, I think we would be happy for it to go in the same category as the Nursery and Silviculture Awards.

PN133

JUSTICE ROSS: All right. And I take it your position is the same?

PN134

MR FERGUSON: Yes, we are supportive of that.

PN135

JUSTICE ROSS: Then so just to be clear, in Asphalt, if the AWU comes back saying they don't oppose the model term, and I understand you may not – while the language of, "do not oppose", normally irritates me on this occasion I understand why you might want to adopt that. If you're not opposed to the model term going into the Asphalt Award, Ai Group supports the model term going into the Asphalt Award, and if that's where we land at the end of next week then we should issue a variation determination, okay, subject to the views of my colleagues and I'll talk to them about that, but that would be my view in relation to it, all right.

PN136

Market and Social Research Award. This is slightly more complicated in that the current clause has two aspects, that an employer must on request provide an employee on termination a detailed statement about outstanding entitlements. So it's the provision of information which we didn't canvass in the other. The second part of the clause is the wages due must be paid on the day of termination or forwarded by post the next working day. So again it's the wages due and the forward by post issues.

PN137

MR CRAWFORD: Your Honour, can I just indicate and I don't think I indicated an interest in the sixth and seventh award - - -

PN138

JUSTICE ROSS: All right, that's fine, Mr - - -

PN139

MR CRAWFORD: Although on one argument they are Australian workers and potentially within our coverage. I don't think I'm instructed to appear for those matters so - - -

PN140

JUSTICE ROSS: Given your coverage rule they probably do, but no, that's fine, Mr Crawford so it's really - - -

PN141

MR CRAWFORD: May I be excused, your Honour, until - - -

PN142

JUSTICE ROSS: Yes. No, certainly. Certainly. So we're really with Ai Group on Market Research and Business Equipment.

PN143

MR FERGUSON: Yes, and we are supportive in both instances of the model term. I wonder in relation to Market Research

PN144

if the same course of action might be adopted to carve off that first contentious issue. So if we were to retain that issue as it is about information.

PN145

JUSTICE ROSS: Yes.

PN146

MR FERGUSON: And if we want to address that at some later point we would, but for the purpose of these proceedings we just insert the model term in replacement to that second sentence.

PN147

JUSTICE ROSS: Yes. Yes.

PN148

MR FERGUSON: Absent any objection.

PN149

JUSTICE ROSS: What we could do is, arising from the conference, publish a draft variation determination in relation to the Market and Social Research Award, which retains the first sentence of the current 19.5 and inserts the model term in replacement of the second sentence.

PN150

MR FERGUSON: Yes.

PN151

JUSTICE ROSS: Is that the idea?

PN152

MR FERGUSON: I think so. That's - - -

PN153

JUSTICE ROSS: Yes. That will narrow - - -

PN154

MR FERGUSON: Then there wouldn't be a need for a case.

PN155

JUSTICE ROSS: Yes. No, indeed, yes. All right, we will adopt that course. So for the record, Market and Social Research Award, I note there are no other appearances other than Ai Group so we'll adopt the approach of providing a draft variation determination and provide parties with seven days on which to comment. The variation determination will retain the first sentence of 19.5 of the current award and replace the second sentence with the model term. And we'll invite comment on it and depending on what we receive we'll determine how we proceed in that matter.

PN156

If I can go to the Business Equipment Award, again the issues here are, it only covers wages due on termination and it provides they can be forwarded by post the next working day. Do I take it that Ai Group's position is to replace that term with the model term?

PN157

MR FERGUSON: It is, although I'm sorry, I'm thinking through this on the go.

PN158

JUSTICE ROSS: That's all right.

PN159

MR FERGUSON: As I said at the start of this our assumption had been that the model term was the compromise that was going in and it was for the parties almost to argue against it. So I anticipate we will be supportive of the position. The model term of course reflects a degree of compromise from our perspective, as well.

PN160

JUSTICE ROSS: Sure.

PN161

MR FERGUSON: And I don't anticipate we will depart from that position but perhaps if in all of these we could resolve them based that we're supportive but a window to - - -

PN162

JUSTICE ROSS: That's fine.

PN163

MR FERGUSON: Yes.

PN164

JUSTICE ROSS: We can publish a draft variation determination for Business Equipment and you would have seven days, in any event.

PN165

MR FERGUSON: Yes. I think it just seems to be one of those issues where there are in various respects, we've – if you might view it this way, have gone backwards with the model term.

PN166

JUSTICE ROSS: Sure.

PN167

MR FERGUSON: And I probably haven't weighed up where it all sits if an option was still retention of the current provision.

PN168

JUSTICE ROSS: Sure.

PN169

MR FERGUSON: But let's let it that way, your Honour.

PN170

JUSTICE ROSS: Yes. All right. So in relation to these awards, if I can confirm the course of action, in relation to the Nursery, Silviculture and Asphalt Award, the AWU is to inform the Commission of its view in relation to the variation of these awards to insert the model term by 4 p.m. next Friday, 10 August. The NFF is to advise the Commission of its view in relation to the Silviculture Award by 4 p.m., Friday 10 August. In relation to the Market Social Research Award and the Business Equipment Award we will publish draft variation determinations for comment and provide parties with seven days to advise whether or not they oppose the variations made. In relation to the Market and Social Research Award the draft variation determination will provide for the deletion of the second sentence in clause 19.5 of the current award and the insertion of the model term to replace the other provision. We won't publish those variation determinations until after 10 August. We won't do that because parties have until then, I think, to comment on the provisional view about the 86. So let's see where we go with that. And it would be published at some time after that but whenever they are published parties would have seven days to comment, all right? Any questions about any of those? No? I'll see some of you at 11 a.m. If for example, I don't know if the NFF has got an interest in the Wine Industry Award in the 11 o'clock ones, Mr Rogers?

PN171

MR ROGERS: We've played a role in the past, your Honour, but I wasn't proposing to take a role with respect to this particular issue.

PN172

JUSTICE ROSS: All right.

PN173

MR ROGERS: And so the answer is no.

PN174

JUSTICE ROSS: For the convenience of Ai Group then, if you're here at eleven, if you can indicate now which ones you have an interest in and then we can deal with them first and then you won't need to - - -

PN175

MR FERGUSON: We have the Aged Care Award.

PN176

JUSTICE ROSS: Yes.

PN177

MR FERGUSON: It's all but the Supported Employment Services Award.

PN178

JUSTICE ROSS: So it's not really going to help you one way or the other really.

PN179

MR FERGUSON: No, it's not, so - - -

PN180

JUSTICE ROSS: All right, sorry about that.

PN181

MR FERGUSON: That's fine.

PN182

JUSTICE ROSS: And, yes, I expect some of the conversations in relation to some of the others might take longer but it's very difficult to predict when you are grouping these things. Are you in this afternoon's, as well?

PN183

MR FERGUSON: Yes.

PN184

JUSTICE ROSS: Sorry about that. All right, I'll adjourn until 11.

ADJOURNED INDEFINITELY [9.45 AM]