PN1

JUSTICE ROSS: Could I have the appearances, please? Firstly, in Sydney.

PN2

MR M NGUYEN: Your Honour, Mr Nguyen, initial M. I appear for the Australian Manufacturing Workers' Union.

PN3

JUSTICE ROSS: Thanks, Mr Nguyen.

PN4

MR B FERGUSON: Ferguson, initial B, for the Australian Industry Group.

PN5

MS M ADLER: And Adler, initial M, for the Housing Industry Association

PN6

JUSTICE ROSS: Thanks, Ms Adler. And In Canberra.

PN7

MR S HARRIS: If it pleases, your Honour, Harris, S, for Pharmacy Guild of Australia.

PN8

JUSTICE ROSS: Thank you, Ms Harris. And we have Ms Thomson from ABI on the phone, I think; is that right?

PN9

MS K THOMSON: That's correct, your Honour.

PN10

JUSTICE ROSS: In Melbourne?

PN11

MS V WILES: Your Honour, Wiles, initial V for the manufacturing division of the CFMEU.

PN12

JUSTICE ROSS: Thank you. So by way of background, in a decision issued on 18 July the plain language Full Bench finalised the review of standard clauses A through to G, and noted that there were two outstanding issues in relation to clause H. Clause H deals with the circumstances where an employee leaves during a redundancy notice period.

PN13

A statement issued on 19 July dealt with the two outstanding issues in respect of this clause, and they relate to subclauses H.2 and 3, and the circumstances where an employee is made redundant and elects to leave their employment before the end of the redundancy notice period.

PN14

There is no dispute that the employee may make such an election or that the employee is not entitled to be paid notice pay for the period of notice not worked. The disputed issues concerned, issue (1), was I think whether an employee was entitled to benefits and payments they would've received had they remained in employment until the expiry of the notice, and (2) was whether an employer may make deductions from payments due to the employee if the employee did not give the employer the required period of notice. Issue (2) in the statement of 19 July the Full Bench said that it seemed that this issue may have been overtaken by earlier decisions, and any party wishing to press that issue was directed to advise the Commission of their intent by last Friday. No party indicated they wished to proceed and press the issue. On that basis we'll proceed on the basis that the issue is not being pressed.

PN15

In relation to issue (1) the question here really is that it seemed like some of the submissions were like ships passing in the night, and Ai Group submitted that clause H.2 should be varied in the manner that appears at paragraph 7 of the statement of 19 July. And in support of that position Ai Group submitted that the existing entitlement for an employee, that is, the existing entitlement under modern awards, for an employee who leaves during the notice period, is to receive the entitlements they would've received under the redundancy clause in the award had they remained in employment until the expiry of the notice. And current clauses in modern awards refer to benefits and payments under this clause, being under the redundancy clause.

PN16

Do I take it, let's just go through this step by step, that Ai Group is still pursuing the amendment that's outlined at paragraph 7 of the statement?

PN17

MR FERGUSON: Yes.

PN18

JUSTICE ROSS: Does anyone oppose that amendment?

PN19

MR NGUYEN: Yes, your Honour.

PN20

JUSTICE ROSS: On what basis?

PN21

MR NGUYEN: We ‑ ‑ ‑

PN22

JUSTICE ROSS: I know you filed a submission, but ‑ ‑ ‑

PN23

MR NGUYEN: Yes, we looked at the history of the awards in which we have an interest, and the history of those words as they were used in the pre-reform awards was that they had a connection to the annual leave entitlement. Continuous service was to be calculated in the same way for both redundancy and annual leave.

PN24

JUSTICE ROSS: Sure. But that's in the pre-reform awards. Continuous service is defined in the Act now, and redundancy pay is in the NES.

PN25

MR NGUYEN: That's right. So there was no distinction between the date, which is what the AiG is proposing, in relation to the date that's used for the calculation of the entitlements. Prior to the modern awards there was no distinction in the form that the AiG is suggesting, which is that there should be a different date for the calculation of the annual leave and redundancy. And the issue wasn't ventilated or discussed.

PN26

JUSTICE ROSS: No. No, it wasn't.

PN27

MR NGUYEN: And I don't think anyone was aware of that during the aware modernisation proceedings.

PN28

JUSTICE ROSS: Ms Wiles?

PN29

MS WILES: Yes, your Honour. We'd support the submissions of the AMWU.

PN30

JUSTICE ROSS: On what basis? Which awards do you have an interest in that have a similar history?

PN31

MS WILES: We'd be supporting it on the basis of general application. Certainly ‑ ‑ ‑

PN32

JUSTICE ROSS: I don't think you can have a general application because it's based on an award history. In the awards that Mr Nguyen has indicated.

PN33

MS WILES: In terms of the principle that Mr Nguyen has alluded to today.

PN34

JUSTICE ROSS: All right. To be clear, Mr Nguyen, this isn't based on a reading of the Manufacturing Award as it stands at the moment, is it?

PN35

MR NGUYEN: We would say that the history is relevant to the interpretation of the current award.

PN36

JUSTICE ROSS: Let me just take you to the current award. I don't follow that at all, and I don't follow your submission at all. It provides that - if you go through the redundancy clause, clause 23 provides that redundancy pay is provided in the NES, right? Clause 23.4 provides that:

PN37

An employee given notice of termination in circumstances of redundancy may terminate their employment during the notice period. The employee is entitled to receive the benefits and payments they would have received under clause 23

PN38

That is redundancy:

PN39

had they remained in employment until the expiry of the notice but is not entitled to payment instead of notice.

PN40

And clause 41.11 says:

PN41

On termination of employment an employee must be paid for annual leave accrued

PN42

It already says annual leave is dealt with in the NES:

PN43

that has not been taken.

PN44

How in any of that does it support the notion - are you suggesting that if they go during the redundancy notice period then they're entitled to annual leave that would have accrued for the whole of the redundancy notice period? Is that the proposition?

PN45

MR NGUYEN: Yes, that's correct, your Honour.

PN46

JUSTICE ROSS: Well, what we'll do is we'll vary all modern awards in the manner that's proposed by Ai Group. We'll issue draft variation determinations and parties that want to run an argument along the lines that you've outlined will be given an opportunity to raise an objection to the variation and the matter can be heard and determined then. On your construction it only applies to where there's an award history. There's no warrant for extending that proposition generally and anyone who wants to argue the point that you're advancing, Mr Nguyen, they can do it in response to the variation determinations and the matters will be listed for oral hearing.

PN47

To the extent that you're saying it wasn't picked up in the modernisation process, you'll need to file an application to vary the modern award in the manner that you contend it was overlooked during both the modernisation process and apparently the transitional review and apparently this review to this point.

PN48

MR FERGUSON: And that being just a substantive application saying you want to change the entitlement?

PN49

JUSTICE ROSS: Sure.

PN50

MR FERGUSON: Regardless of what it says.

PN51

JUSTICE ROSS: All right, is there anything else in relation to this? I take it - - -

PN52

MR FERGUSON: In relation to - - -

PN53

JUSTICE ROSS: Yes?

PN54

MR FERGUSON: I'm jumping ahead of you. There seem to be two other issues which we may be in agreement, we may not be in agreement on, and we didn't advance any further submissions because I thought it would be useful to work out the extent to which we were actually fighting over these things, and apologies if I'm jumping ahead. But one is what is notice as contemplated under the clause?

PN55

And obviously Ai Group has advanced a view that it should be - the notice that the clause is dealing with is notice under the Act, and then probably a related issue is to how does the severance pay - and let's just confine it to that - get calculated? Is it severance pay as though you had continued employment until the end of that notice period? Or is it just that this clause serves to ensure the initiative isn't flipped, as you will, as to the termination? I think I'm not sure whether other parties are opposing the proposition.

PN56

JUSTICE ROSS: Well, just go over the second bit?

PN57

MR FERGUSON: I think the ACTU in the conferencing process put the proposition that the purpose of this clause was to say that when you calculate severance you assume that the person has continued in continuous service until the end of the notice period.

PN58

JUSTICE ROSS: Yes.

PN59

MR FERGUSON: Where I think our initial contemplation was that really the purpose of this clause had been that you'd still get your severance pay even though you didn't continue in service until the end but you actually resigned as opposed to being - - -

PN60

JUSTICE ROSS: Yes, but you get your severance pay calculated on what you would have - - -

PN61

MR FERGUSON: And I think - - -

PN62

JUSTICE ROSS: Had you completed - - -

PN63

MR FERGUSON: And I think from our perspective we can reflect on that as to whether we would press that. But it is a little bit connected to what people might perceive with the - or what might be the answer in terms of what is notice, in terms of is this just notice.

PN64

JUSTICE ROSS: Yes.

PN65

MR FERGUSON: And I suppose I'm just interested in what people's views are. Is it just notice under the - - -

PN66

JUSTICE ROSS: You're only going to get the views of two unions, so.

PN67

MR FERGUSON: Yes.

PN68

JUSTICE ROSS: Look, I think we'll just go ahead and publish the variation determinations including the point. This process has gone on long enough.

PN69

MR FERGUSON: No, no, and I don't - and I thought it might have been over. We hesitated and I don't think we actually advanced a form of words.

PN70

JUSTICE ROSS: No.

PN71

MR FERGUSON: To clarify, and the reason is if you just think for example if it was - whenever you were notified that there was going to be a termination, if the second point is right for example and you get the severance as though calculated till the end of the notice and someone was told - they started and they'd been employed for a week and they're told "Well, actually we've now decided we're going to close down in two years' time and you're going to be retrenched".

PN72

JUSTICE ROSS: Well, that's not - - -

PN73

MR FERGUSON: No, no, but the issue has come up in my organisation's view that there are people given longer than their notice.

PN74

JUSTICE ROSS: Yes, well if you want to apply to vary it, put in the application when we publish the variation determinations because, you know, if it arises in one particular thing, then apply to vary or notify a dispute in that. Let's not try and construct a clause to meet every conceivable circumstance.

PN75

MR FERGUSON: No, look and as I say I was initially of the view that perhaps - I think it was the ACTU said the parties aren't that far apart in terms of - - -

PN76

JUSTICE ROSS: That's why the conference was on, but they're not here and it does seem that the parties are far apart.

PN77

MR FERGUSON: I know. No, so on those things I just wasn't sure whether people actually think it's just notice under the NES, and if that's the case and everyone thinks that then we would happily put a form of words for you to consider, and I appreciate it's not a party matter. But you're right, they're not here anyway, so.

PN78

JUSTICE ROSS: Yes.

PN79

MR FERGUSON: And that wasn't an academic exercise. I know it's - - -

PN80

JUSTICE ROSS: Why? What's the difference?

PN81

MR FERGUSON: Well, I think the issue is it had come up in the past. There had been as I understand - look, I am acting under instructions. There had been arguments around whether it just meant notice under the - well, now the NES, but under the award or if it was just when you were notified. So if you were notified three months in advance - - -

PN82

JUSTICE ROSS: Notice under the award has now been subsumed into notice under the NES.

PN83

MR FERGUSON: Right, and I think there was an argument - - -

PN84

JUSTICE ROSS: Bearing in mind the clause says redundancy is dealt with in the NES. So I think it's tolerably clear - - -

PN85

MR FERGUSON: Well, maybe it's self-explanatory and that's fine if that's the case.

PN86

JUSTICE ROSS: Yes.

PN87

MR FERGUSON: I think it's earlier in the process I gleaned that some might have had a more expansive reading.

PN88

JUSTICE ROSS: Look, I think to the extent if it becomes an issue in practice then notify it and we'll re‑examine the standard clauses.

PN89

MR FERGUSON: All right.

PN90

JUSTICE ROSS: Yes.

PN91

MR FERGUSON: Yes, I see

PN92

JUSTICE ROSS: Yes.

PN93

MR FERGUSON: I had first thought maybe this was an academic point and instructed otherwise which is - but anyway.

PN94

JUSTICE ROSS: Yes.

PN95

Anything from you, Ms Adler?

PN96

MS ADLER: Only, your Honour, that in light of the industry‑specifics being in the Building Award we'd just take the opportunity when the draft determination is issued to make sure that AiG's proposed words fit appropriately in the award.

PN97

JUSTICE ROSS: Sure. Yes. Okay, anything further? All right, we'll issue the variation determinations and then provide an opportunity for the parties to comment on them. Sorry, anything from ABI?

PN98

MS THOMPSON: No thank you, your Honour.

PN99

JUSTICE ROSS: Mr Harris?

PN100

MR HARRIS: No, your Honour.

PN101

JUSTICE ROSS: Thanks, we'll adjourn.

ADJOURNED INDEFINITELY�� [2.46 PM]