PN1

JUSTICE ROSS: Please be seated. Could I have the appearances please. Firstly in Sydney?

PN2

MS R PATENA: If it pleases the Commission, Patena, R, for the SDA.

PN3

JUSTICE ROSS: Thank you, and in Newcastle?

PN4

MS K THOMSON: If it pleases the Commission, Thomson, K, with permission on behalf of ABI and the New South Wales Business Chamber.

PN5

JUSTICE ROSS: Thank you, Ms Thomson. We published a decision on 18 January in which we expressed some provisional views about two outstanding issues relating to the overtime provisions in the revised plain language exposure draft. If I go to the two issues, the first deals with clauses 24.2 and 24.3 and we expressed the provisional view about how those clauses in the revised plain language exposure draft should be addressed.

PN6

The SDA raised an issue in relation to the proposed drafting change to clause 24.2(a), contending that it gave rise to a substantive change in the previous provision, on the basis that the relevant provision in the current award does not distinguish between full-time and part-time employees in order to determine when overtime is paid. They propose an amendment to clause 24.2(b). We invited in a statement of 28 February, we set out at paragraph 7 of that statement the amendment that was sought and we indicated that interested parties could make submissions about that matter at today's hearing. Ms Thomson, do you have anything you wish to say about that? In particular, do you oppose the amendment that the SDA is proposing?

PN7

MS THOMSON: I think, your Honour, there is an issue there that perhaps needs to be resolved but I'm not sure that the drafting proposed makes it as clear as possible what we're trying to achieve and what we're trying to fix, rather than just making it a little bit murkier.

PN8

JUSTICE ROSS: Well, what do you agree that should be fixed?

PN9

MS THOMSON: Well, 29.2 of the current award, 29.2(a), it doesn't appear that that excludes application to part-time employees. So that's the original issue that I think the SDA are trying to remedy, isn't it?

PN10

JUSTICE ROSS: Yes. So it's common ground that the current award, the overtime provision extends to part-time employees?

PN11

MS THOMSON: Yes, your Honour.

PN12

JUSTICE ROSS: Right. Do you - - -

PN13

VICE PRESIDENT HATCHER: Let me just put it this way, so if a part-timer performs hours outside the span of hours, it's accepted that they get overtime penalty rates, even if it's within their contracted hours. Is that right?

PN14

MS THOMSON: Sorry, your Honour, was that question directed at me?

PN15

VICE PRESIDENT HATCHER: Yes. I'll say it again.

PN16

MS THOMSON: Could you just - - -

PN17

VICE PRESIDENT HATCHER: Yes. So you accept that if a part-time employee performs any work outside of the span of hours, even if those hours are within the part-timer's contracted hours. That is their agreed hours at the arrangement - at the commencement, that ought to attract penalty rates?

PN18

MS THOMSON: Well, no, your Honour. So it might be beneficial if I could have the opportunity to make a written submission in relation to this issue.

PN19

VICE PRESIDENT HATCHER: All right, well, unless I'm contradicted that seems to be the essential consequence of what the SDA is submitting.

PN20

MS PATENA: Your Honour, with respect, I think it's uncontroversial that overtime does apply in the circumstances which you've outlined, and if it did not I imagine it would have been a matter that would have been considered by the Full Bench when they dealt with the drafting of the overtime provision as a common issue. So the SDA are not inclined to support re-opening an examination to whom overtime applies when the current drafting of the award makes clear that it is permanent employees; both full-time and part-time employees, so we don't have an appetite to engage in that. I'm concerned.

PN21

VICE PRESIDENT HATCHER: No, no, the point I was trying to make was I thought what you were saying was that the exposure draft had had the result that if a part-time employee worked outside the span of hours, they would not get overtime unless it was outside of their contracted hours.

PN22

MS PATENA: The drafting that was proposed with the provision of - the order of the Commission that - we believe that's - the unintended consequence would be that it excludes part-timers for overtime in some form. So that is for hours worked in excess of the ordinary hours of work or outside of the span, as opposed to just in excess of their agreed hours or as varied under - so it's only applying limited circumstances.

PN23

JUSTICE ROSS: But I take it that nobody's seeking to change the legal effect of the current clause 29.2(a) of the current award. It's how that current provision is translated into the revised exposure draft, and you say it's been translated in a way that removes the - a current entitlement to part-time employees.

PN24

MS PATENA: That's correct, your Honour.

PN25

JUSTICE ROSS: Right, and I take it ABI is not making a submission that whatever the existing entitlements may be in clause 29.2(a) of the current award, you're not contending that they should change in the revised exposure draft. So what we seem to be left with is well, how do we translate the effect of the current clause 29.2 in the award, into the revised PLED. Is that your position as well, Ms Thomson?

PN26

MS THOMSON: Yes, your Honour.

PN27

JUSTICE ROSS: You want an opportunity to make a short submission in relation to that point, is that right?

PN28

MS THOMSON: Yes, in which I could propose an alternative drafting perhaps.

PN29

JUSTICE ROSS: All right, well, how soon can you do that?

PN30

MS THOMSON: Within seven days, your Honour.

PN31

JUSTICE ROSS: All right, well, if it's done by close of business next Wednesday and given that Easter intervenes, when does the SDA - would you be in a position to file any submission in response?

PN32

MS PATENA: Your Honour, it would probably be best for us to file submissions on the - after Easter, which - - -

PN33

JUSTICE ROSS: Sure, so Wednesday 1 May?

PN34

MS PATENA: Yes, that would be - that would be appreciated.

PN35

JUSTICE ROSS: Well, we'll post those on the website. If anyone wishes to say anything about the SDA's reply submission to be filed by 4 pm on Wednesday, 1 May they should do so by 4 pm on Friday, 3 May and we'll determine that matter on the basis of the written material that's filed. There'd be liberty to apply in the event that something arises from the material that's filed. Was there anything orally that you wanted to say now about the proposition or is it really a simple point that you say the provisional view and a provisional draft makes a substantive change in that it doesn't give effect to the entitlements of part-time employees under clause 29.2(a) of the current award?

PN36

MS PATENA: That's correct, your Honour.

PN37

JUSTICE ROSS: So really it's a short point.

PN38

MS PATENA: Yes, and to understand any drafting concerns that ABI might have with what we have proposed, we're happy to - we can deal with that through our reply submissions but certainly we'll seek to conference with them outside of these proceedings to ensure that, yes, we can address the issue.

PN39

JUSTICE ROSS: Sure. Well, I'm content for you to have a direct discussion with ABI and see if you can reach an agreed position. That'd be - - -

PN40

MS PATENA: Yes.

PN41

VICE PRESIDENT HATCHER: Just so I'm clear, you say 29.2(a) of the existing award applies to full-timer and part-timers?

PN42

MS PATENA: That's correct, your Honour.

PN43

VICE PRESIDENT HATCHER: But not casuals?

PN44

MS PATENA: I think that issue has been explored in the Overtime Full Bench, your Honour, but we're not - our submissions don't relate to an overtime entitlement to casuals in this matter.

PN45

VICE PRESIDENT HATCHER: It's just that casuals seem to be comprehensively dealt with in (c), so the issue of the span and the daily hours are dealt with comprehensively. So as I read what you're saying is that (a) applies to full-time employees and part-time employees and (b) applies to part-time employees as an additional overtime requirement.

PN46

MS PATENA: I understand the - and I'm happy to make submissions on the point. The SDA's view is that 29.2(a) should have application to casuals but I believe that we don't have a consent position on that matter and - - -

PN47

VICE PRESIDENT HATCHER: No, but I'm asking - I'm just trying to clarify what your position is.

PN48

MS PATENA: Our position today is in relation to addressing the matter in relation to part-time employees. The casuals are dealt with at 29.2(c), but for the PLED to have consistency with the current award, then 29.2(a) or the proposed 24.2(a) should apply to an employee and not exclude casuals. It should be full-time, part-time and casuals or an employee for consistency with the current award.

PN49

JUSTICE ROSS: Right. The second issue deals with proposed clause 6(a) of the revised PLED, and this is an issue raised by ABI. It's addressed in the statement at paragraphs 18 and following. This is the statement of 28 February, and at paragraph 26 we raise a possible solution to the issue identified by ABI is an amendment to the note, and we set out what the amendment is. Is ABI content with that amendment or do you have a different view?

PN50

MS THOMSON: Yes, I believe we are, your Honour. I think this was a proposal of the NRA, is that a correct understanding, originally?

PN51

JUSTICE ROSS: Look it may be originally but I think it came up in an ABI submission but in any event, you're content with the proposal that's set out at paragraph 26 of the statement of 28 February?

PN52

MS THOMSON: Yes, that's my understanding at this time, your Honour.

PN53

JUSTICE ROSS: Right. Are you content with that as well for the SDA?

PN54

MS PATENA: Your Honour, look we're unsure - don't share the concern that ABI have raised in relation to the drafting.

PN55

JUSTICE ROSS: Sure.

PN56

MS PATENA: We're satisfied with the provisional review and the drafting proposed by the Commission. I think our preference would be that the note is retained and has a reference to - I'll just - - -

PN57

JUSTICE ROSS: Well, really - I mean all I need to know at the moment is are you opposed to the proposal set out at paragraph 26?

PN58

MS PATENA: Yes.

PN59

JUSTICE ROSS: You are?

PN60

MS PATENA: We'd like to make a - sorry, your Honour, just to clarify. Are you referring to the statement?

PN61

JUSTICE ROSS: Yes.

PN62

MS PATENA: Yes, I have something that we'd like to propose in the alternative which is - could be the retention of that note.

PN63

JUSTICE ROSS: Well, when you say could be - - -

PN64

MS PATENA: I'm putting it to your Honour.

PN65

JUSTICE ROSS: Right.

PN66

MS PATENA: We believe it's important to retain a reference to the circumstances in which an employer may refuse and that's the note that was originally drafted by the Commission. If that could be retained with an additional note as proposed at paragraph 26, which is the reference back to clause 6(a) of the award.

PN67

JUSTICE ROSS: Can I go back to you, Ms Thomson. The issue is raised by you in correspondence of 8 February. It was originally raised by the NRA, we agreed with the NRA's position and inserted the note and then you wrote the letter opposing the note so I'm not sure what your position is now, and I'm not sure why you opposed the original note.

PN68

MS THOMSON: The original position, your Honour, was to make it clear that the provisions of 6(a) were not additional entitlements but rather dealt with additional arrangements for how their requests under section 65 should be dealt with. I think there was just some lack of clarity in the drafting proposed about whether there was additional obligations or entitlements rather about the request itself, rather than the manner in which the request should be dealt with.

PN69

JUSTICE ROSS: Well, would you be opposed to - if I take you to paragraph 26 of the statement. Have you got that, both of you? You see there it's got:

PN70

Note: Clause 6(a) contains additional provisions to section 65 of the Act, relating to requests for flexible working arrangements.

PN71

Are you content with - if you're content with that words - those words, I'm sorry, what would you say if we effectively just extended the note so it included what's set out there. I'll read it out in full. The note would say:

PN72

Clause 6(a) contains additional provisions to section 65 of the Act, relating to requests for flexible working arrangements. If an employee makes a request under section 65 for a change in working arrangements, the employer may only refuse that request on reasonable business grounds. See Section 65(5) of the Act.

PN73

What do you say about that?

PN74

MS THOMSON: I don't foresee an issue about that, your Honour, but I'd have to get some instructions on that.

PN75

JUSTICE ROSS: What do you - what does the SDA say about that?

PN76

MS PATENA: That would be acceptable to us, your Honour.

PN77

JUSTICE ROSS: Right, well, if you can clarify ABI's position. If not that, then what is what I want to know and if you include that in your written submission, okay?

PN78

MS THOMSON: Thank you, your Honour.

PN79

JUSTICE ROSS: The SDA requested an oral hearing. Why? What do you want to say?

PN80

MS PATENA: Oral hearing was to clarify matters in relation to the overtime provision and its application to part-timers, your Honour, just because of our submission. There was no reply submissions in relation to the issues we raised. We wanted to understand if it was opposed. It's an important issue for us and there needs to be clarity and certainty around to whom overtime applies, and particularly for part-time employees. So we wanted to - yes, ensure that the matter was addressed.

PN81

JUSTICE ROSS: Right. Well, you're each clear about the timetable for the resolution of - or the filing of submissions and we'll make a decision based on the material filed. Anything further? No? Ms Thomson, no?

PN82

MS THOMSON: No thank you, your Honour.

PN83

MS PATENA: Nothing further, your Honour.

PN84

JUSTICE ROSS: All right, thanks very much. We'll adjourn.

ADJOURNED INDEFINITELY�� [4.20 PM]