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Fair Work Act 2009                                       1056862





s.156 - 4 yearly review of modern awards


Four yearly review of modern awards





9.42 AM, WEDNESDAY, 3 APRIL 2019


JUSTICE ROSS:  Look, I won't take the appearances because that will take the better part of the morning.  Let me just make some preliminary comments that might address some of the issues everyone wants to raise, in any event.


So the purpose of this morning's conference was to deal with any questions arising, or issues arising from the statement I issued on 13 February. The statement set out the timeframe for the completion of the technical and drafting issues in groups 1 to 4.  Parties were invited to make submissions about those issues.  We received submissions from the CFMMEU, the National Aboriginal & Torres Strait Islander Health Workers Association, the ANF and the NBA.  Let me touch on those submissions and that might address some of the other issues.


If I start with the ANF's, ANF says, in short, that they want to raise a number of issues about their exposure draft.  That's not really what this conference is about.  If you've got issues about your exposure drafts you file the submissions in accordance with the timetable.


The CFMMEU notes a comment that's been echoed throughout this review by a number of parties, so you're not on your own, about the difficulties they faced in meeting deadlines where you've got an interest in a number of awards.  While I've got some sympathy for that view, my sympathy is sort of limited by the fact that we've got to complete the review.  In relation to the CFMMEU's point and the MBA's point, it's related, which is, in short that, look, the substantive issues Full Bench is still going along in the Construction Awards, and how does that intercept with the technical and drafting issues.  And I think there's some merit in that point given the Construction substantive issues are quite pervasive in terms of their impact upon the award.  So I will publish a separate timetable for the Construction Awards that will look at finalising the revised exposure drafts once the substantive matters have been determined.


The National Aboriginal & Torres Strait Islander Health Workers were simply requesting a mention in respect of some matters they've got in their award, and that mention is listed before Gostencnik DP tomorrow morning at 10.30.


So if you have a concern about something in your exposure draft you can put in a submission in accordance with the timetable.  If you've got any questions or anything else, by all means, we can hear from you now, if I haven't already addressed your questions, that is.  Anyone?  Anyone in Sydney?  Yes, just probably keep your seat because I think we'll have trouble tracking the – yes, Mr Bull?


MR BULL:  If the Commission pleases, my name is Bull.  I appear for United Voice.  The Registered & Licensed Clubs Award, what are we doing with that?  It wasn't in the statement because it's status was uncertain.


JUSTICE ROSS:  Yes, because at that point – has the Full Bench determined the question about whether it's to be merged, or not?


MR BULL:  Yes, they've - - -


JUSTICE ROSS:  And I think they've said it's not going to be.  Is that the essence of it?


MR BULL:  Correct.


JUSTICE ROSS:  We will issue a separate statement in relation to that.


MR BULL:  And I suppose I'll make the usual statement about we also have a number of awards we're dealing with.


JUSTICE ROSS:  Yes.  Probably the usual response, Mr Bull.


MR BULL:  I know, I know.  But it's a pathetic plea for sympathy.


JUSTICE ROSS:  That's your description, not mine.  Bearing in mind that you will have some time, anyway.  It won't be this timetable.  We will need to look at it, probably – look, I'll have a look at it and I'll see – I need to refresh my memory about what the status is of any substantive claims in that award.  Have they all been determined now or?


MR BULL:  I beg your pardon?


JUSTICE ROSS:  Have they all been determined?


MR BULL:  No, they haven't.  I can run through briefly what we have left if that helps.




MR BULL:  Just, one of our issues, and once again, I'm not suggesting that you should structure the remainder of the view to one participant, but we've got the Children's Service Award which is a substantial review - - -


JUSTICE ROSS:  Sure.  Sure, yes.


MR BULL:  The SHADS(?) Award, and so forth.




MR BULL:  Which we'll discuss maybe later in the day.


JUSTICE ROSS:  Yes.  I'm looking forward to that.  The easiest course is, I'll call it on for mention and get the views of the parties about where they're up to.


MR BULL:  Yes.


JUSTICE ROSS:  And that will better inform me with all the parties that have got an interest in it, about just what's left and how long they think it will take, so - - -


MR BULL:  Yes.  I should sort of amend my appearance.




MR BULL:  My colleague, Ms Dabarera, and I are also appearing on behalf of the Health Services Union.




MR BULL:  They were fogged in, in Melbourne.




MR BULL:  They were attempting to get here.  I might just mention that they have a concern in relation to the Health Professionals & Support Services Award.  There are some substantive issues remaining in the review of that award.  There was a Full Bench decision on 3 December last year, FBCFB 7350, and I understand that at paragraphs 125 and 126 that Full Bench deferred consideration of certain claims.




MR BULL:  So I have been asked on behalf of the Health Services Union that likely a timetable for submissions and the usual orders for hearing need to be anticipated in relation to that award.


JUSTICE ROSS:  Yes.  No, that's fine.  What they should do is contact the presiding member of that Full Bench and ask for the matter to be brought on for mention for that purpose.


MR BULL:  I can very briefly run through the matter.


JUSTICE ROSS:  No, you don't need to - - -


MR BULL:  I won't.


JUSTICE ROSS:  Because I'm not the presiding member on that Full Bench.


MR BULL:  No, I was talking about other matters.


JUSTICE ROSS:  Other matters?


MR BULL:  In stage 3 and 4.


JUSTICE ROSS:  Yes, all right.  Other awards?


MR BULL:  Yes.


JUSTICE ROSS:  Yes, sure.


MR BULL:  We have an interest in the Food, Beverage, Tobacco Manufacturing Award.




MR BULL:  And that is listed for mention on 4 April.  I assume on that date there will be a timetable set for the arbitration of the remaining - - -


JUSTICE ROSS:  I presume so, yes.  Again, I'm not the presiding – this is really dealing with the timetable for the technical and drafting.  If you've got an issue about the substantive claims those are going to be dealt with by different Full Benches and they will be called on for mention.  We've got an indicative timetable that we've published for all of those matters which tries to balance – and the parties will be given an opportunity to comment on that, and that timetable seeks to balance the circumstances of those of you who are in a number of different areas, to the extent we have been able to do it.


MR FERGUSON:  For the benefit of Mr Bull, in relation to Food Manufacturing, we will do a timetable and provide it to Gostencnik DP and ask that the court (indistinct) for that reason.




MR FERGUSON:  But the timetable has been very helpful to us in trying to co-ordinate the management of resources (indistinct).


JUSTICE ROSS:  Yes.  I mean, the purpose of the substantive issues timetable is not the subject of this mention, but nevertheless, is so that it's been set in consultation with all the parties because there was a draft circulated.




JUSTICE ROSS:  And but possibly more importantly, with the presiding members of each of those Benches.  Because what I was trying to avoid is, you know, just constituting a raft of substantive issues Full Benches and then have each presiding member set dates without reference to everything else that's going on.  So it avoids multiple matters being listed on the same dates where there are parties who have interests in different proceedings having to be in different parts of the building on the same time.  So that was the purpose of that.


But with respect to any of those substantive matters, if you haven't received directions yet for the filing of the material and you want them, contact the presiding member.  You know who the presiding member is because I put it in the statement, okay?  So those are all the substantive issues, which is really not what we're here about.


We're just here about the timetable for the finalisation of what we might characterise as the technical and drafting phase of groups 1 to 4.  Bearing in mind we've dealt with all of the issues in group 1 to 4 in the technical drafting stage, essentially now, I'm just trying to lay out, well, what's the sequencing for how we're going to wrap this exercise up, is really the purpose.  Mr Maxwell?


MR MAXWELL:  Yes.  Your Honour, in our email the issue we raised was wider than the Construction Awards.


JUSTICE ROSS:  Yes, I appreciate that.


MR MAXWELL:  And the concern we have is that I think the date for filing comments on the group 1 exposure drafts was 13 March.




MR MAXWELL:  And there's a couple of awards there we had an interest in and we've unfortunately not been able to meet that deadline, and a similar situation with the group 2 awards and group 3 awards.  So the concern was that with a number of those that the dates passed but we have not been in a position to make comment.


JUSTICE ROSS:  I mean, I don't know what to tell you.




JUSTICE ROSS:  Bearing in mind that each of these phases where we're – I decided not to just issue one further final exposure draft that incorporates all of the common issues, all of the changes that have been made, the light touch, plain language exercise and everything else, because I thought that would be too much for you, not to put too finer point, too much for you to chew on at the one time.




JUSTICE ROSS:  So what we've tried to do is phase it.  So the first one is going to capture what's been decided, to date, and that's what it's intended to reflect.  It's not an opportunity to re-argue what's been decided, to date.  It's really to make sure we haven't missed anything or there's not some transposition problem.


You will have further opportunities as we go through, and while, you know, I don't want to encourage people not to comply with the timeframe, you know, nor am I saying, if you put something in next week about group 1 we're going to ignore it.  But don't fall into the temptation of trying to re-argue the battles that have already been fought and won or lost because we're not that interested in doing that.


You can never rule anything out because there might be something that's come to light that puts something in a different context, but by and large, it's really intended just as a cleaning up exercise, the first one.  Plain language, light touch, will be a bit different but again, you'll see how that will evolve in a statement I'll issue in the next few weeks.  And it is really intended to – "light touch" means light touch.  It might deal with some structuring of the award so that's consistent across the awards.  And it's more likely to deal with archaic language, those sorts of issues.  And I want to try and finish that process before we update all of the awards following the annual wage review, assuming there's an increase from that review then that will be a significant exercise.


So the objective of this is to try and clear everything else out of the way before we get to any annual wage review adjustments because given that the awards now include hourly rates, et cetera, it's quite an exercise of checking and I want to make sure everyone's got enough time to do that.  And, of course, during the course of the year as substantive issues are determined that will require some updating of the exposure drafts as we go through.  But that's the intent of it.  So if you bear that in mind when you're having a look at them as you go through.


I'm trying to balance some structure and timeframe with the recognition that I know a number of parties are under resource pressure so I'm not going to – and those of you who have been involved in the review till now will know I haven't done this, to date – I'm not going to say, if you don't meet a deadline we're going to ignore what you say.  At some point I am going to impose a hard deadline later in the year because we've got to finish it and make the award variation.  But I'm conscious that a number of parties have raised a similar issue, and do the best you can and we'll stick with the timeframe for when we publish things but if, at a later stage, you raise something that's a problem and your point has got merit then we'll deal with it.


MR MAXWELL:  Your Honour, the other issue that we raised in the email that we sent was in regard to the definition of "all purposes" to be included in the orders.


JUSTICE ROSS:  Yes.  That issue has been referred to the plain language Full Bench for determination.  And it's addressed in the statement issued on 28 February.  Interested parties were invited to comment on that proposal and submissions were due to be filed in March.  Our provisional view was expressed and the point was that if there was no opposition of the provisional view then that change would be applied to all exposure drafts.  So it will be determined by that Bench in accordance with those directions, all right?




JUSTICE ROSS:  Anyone else?  On the front row?  I'll deal with the front row first.  Anyone else?  No?  The second row?


MR HAMILTON:  Your Honour, Hamilton, initial D, from Live Performance Australia.




MR HAMILTON:  In the timetable, your Honour, group 4 awards were to be republished by 15 March.




MR HAMILTON:  Two of our awards were published on 22 March.  And the parties had to comment by 12 April.  I'm just wondering whether there's going to be an extension there.  But more - - -


JUSTICE ROSS:  Until when?  Because you've got – what, Easter starts the following week.  Do you want it until the Wednesday, following?


MR HAMILTON:  Also another complication, your Honour, the Live Performance Award exposure draft has yet to be published, and so how we fit into the timetable already set down.


JUSTICE ROSS:  Just bear with me for a sec.  It will be published shortly and I'll extend the time period, probably till after Easter.


MR HAMILTON:  Thank you, your Honour.


JUSTICE ROSS:  Look, it gets a bit messy because then you've got Anzac Day following.  Look, it's probably going to be until 4 PM on the Monday after the Easter break.  As you know there are some complexities in that award and I think there are still some substantive issues to be determined in that award, as well.  But look, when it's published, and we'll publish the timeframe for the filing of the submissions in relation to it, if that gives rise to any problem by any party, then contact my chambers, all right?


MR HAMILTON:  Thank you, your Honour.


JUSTICE ROSS:  Anyone else in the second?  Anyone else in the body of the hearing room?  Okay.  Anyone in – well, let's go to – anyone in Melbourne wish to say anything?  No?  In Adelaide?


MR NIVEN:  No, your Honour.


JUSTICE ROSS:  Canberra?


MS ROGERS:  No, thank you, your Honour.


JUSTICE ROSS:  Canberra?


MR JOHNS:  No, your Honour, no submissions.  Thank you, your Honour.


JUSTICE ROSS:  Thank you.  Brisbane?


MR TAYLOR:  No, your Honour.


JUSTICE ROSS:  All right.  As I indicated, we'll publish the light touch issue, shortly.  I'll have a further conference about that in an effort to – again, I'll try and strike a balance between my own desire to rewrite every award in plain language, and your desire that I not touch anything, and I'll try and make it as – we'll provide an example so you'll see what it looks like in a particular award.  And I'm also conscious that because of the changes to the Act it need not be the last time any of us looks at restricting some of these awards in plain language.  I suspect it will be a sort of an ongoing intuitive process, so I'm conscious that we don't need to do everything this time round.


All right, is there anything further?  Nothing else troubling you?  No?  All good.  All right, thanks very much.  I'll issue a short statement which will just address some of the issues that have been canvassed this morning and I'll probably do that on Monday, and I'll take the steps that I've indicated in relation to the other matters, and I'll list (indistinct) for mention just so every party with an interest has an opportunity to say what they want to say about that, and then we'll set down a timetable for that.  All right, thanks very much.  I'll adjourn.

ADJOURNED INDEFINITELY                                                        [10.02 AM]