PN1

JUSTICE ROSS: Could I have the appearances please, firstly in Melbourne?

PN2

MR WARD: If it pleases the Commission, I appear for the New South Wales Business Chamber Ltd and the Norfolk Island Chamber of Commerce Inc.

PN3

JUSTICE ROSS: Thank you, Mr Ward.

PN4

MR T CLARKE: Trevor Clarke for the ACTU and also today the Construction and General Division of the CFMEU and the AMWU.

PN5

JUSTICE ROSS: Thank you. In Sydney?

PN6

MR M ROBSON: If it pleases the Commission, I'm Michael Robson, appearing for the Australian Services Union. With me is my friend Daniel Papps from the Australian Services Union - United Services Branch in New South Wales.

PN7

JUSTICE ROSS: Thank you, Mr Robson.

PN8

MR P RYAN: May it please the Commission, Ryan, initial P. appearing for the Australian Hotels Association.

PN9

JUSTICE ROSS: Thanks, Mr Ryan.

PN10

MS E ROOKE: May it please the Commission, Rooke, initial E, appearing on behalf of Local Government and Shires Association.

PN11

JUSTICE ROSS: Thanks, Ms Rooke. So just to make sure everyone's got everything. At the time the matter was listed for mention we also posted on the website the correspondence from ABI dated 30 June 2018, which went to various matters concerning Norfolk Island. We received on 5 July, that is well, yes, this morning, correspondence from ABI attaching a copy of their proposed Norfolk Island interim award 2018 and the unsworn affidavit of a Ms Cherri Buffett, who holds a position or who is president the Norfolk Island Chambers of Commerce Inc.

PN12

It occurred to me and perhaps you can consider whether this would be helpful or not, that the Commission did some work in relation to these changes, by some work I mean I'd circulated a memorandum to members advising them that because of the various changes in the legal arrangements of Norfolk Island, they would be the subject of modern awards at particular points in time, and there was at that point I think a rule under the transitional arrangements made by the minister that dealt with the phasing. Just so that everyone is operating off the same sort of, I suppose, legal knowledge base and to save you the trouble of having to look for the somewhat arcane provisions yourself, I might get that document updated as a background information piece, and provided to each of you. If there are any issues with it you can alert me to those.

PN13

I think the short point in ABI's correspondence, their initial correspondence and I suppose the point is made in the sworn statement and in the filing of the interim awards is that from 1 July this year modern awards apply with full force and effect to employers and employees on Norfolk Island. They have had a transition to national minimum wages and to the NES over the course of the last few years, but it's only been from 1 July this year that the range of other provisions in modern awards would apply to them.

PN14

Without characterising it, I think the correspondence alerts the parties to the fact this is causing some anxiety on Norfolk Island and there are various statements as to the consequences that might flow from it. ABI in its initial correspondence was looking at one of two ways of dealing with it, as I understand it. One was to transition the impact of all modern awards in respect of the impact on Norfolk Island over a period of five years. The other proposition was an award specific to Norfolk Island.

PN15

Now bearing in mind everyone's only just got and may not have had an opportunity to even access it or see the material you filed this morning, is there anything you wanted to add, Mr Ward, before I go to the others? What I'm interested in is a process for dealing with the matters that you've raised.

PN16

MR WARD: No, your Honour, I think it's an eloquent, with respect, summary. What I'm seeking today is to be heard on the making of the interim award as a matter of very real urgency, given that it's more than likely that while we speak people are exposed to several penalties, while we speak without any drama at all people are contemplating whether or not to employ people or continue to operate businesses. So my first port of call is to be heard on the making of an interim award. I will be available tonight, tomorrow, Saturday, whatever time the Commission can convene to have that hearing heard.

PN17

Obviously there will then be a need for a full hearing on whether or not that award should be maintained, and that can perhaps be done in a more orderly way at that time. I should say we've moved to favour that approach. I don't believe there's any legislative impediment to that approach and we'll deal with that if we need to later. We favour that approach because it doesn't disturb all the other modern awards and importantly it allows us to focus on the very, very genuinely unique situation in a very genuinely unique island.

PN18

JUSTICE ROSS: Can I raise - - -

PN19

MR WARD: Please.

PN20

JUSTICE ROSS: - - - a couple of questions in relation to that. Does the making of an interim award require a Full Bench or can it be determined by a single member?

PN21

MR WARD: Your Honour, I have to say I sat up late last night dealing with three things I was struggling with. The impression I have, which is not my favourite one, but the impression I have is that given that this matter is brought under section 156, it probably does require a Full Bench. There's power under section 156 in the review to make a modern award but the powers - the modern awards powers must be exercised by a Full Bench. It's available, I suspect, to delegate those powers to a single member but that would be somewhat unorthodox. But that seems to be sadly the requirement.

PN22

JUSTICE ROSS: That's under 156?

PN23

MR WARD: Yes, your Honour.

PN24

JUSTICE ROSS: But why is the - but it needn't be dealt with under 156 is my short point. I should make it clear, I'm not contemplating a single member dealing with it, I'm just curious as to what I would need to do in terms of constituting a Bench.

PN25

MR WARD: Yes. I mean it's an interesting observation, your Honour. I must say that we troubled ourselves as to how it could be dealt with anywhere else in the Act but that might be just our failing.

PN26

JUSTICE ROSS: So there's no other separate power to make a modern award?

PN27

MR WARD: We can't - and again your Honour might be aware of one that I'm not. We can't find another power that allows for the making of a modern award outside of 156.

PN28

JUSTICE ROSS: I'm not aware of it happening outside of 156. There are a couple of applications in the system at the moment. I think there was one for a helicopter award, there have been a couple. The second issue is - and this might be something for you to reflect on, and I'm not I should be clear in drawing it to your attention advocating it as a course of action. The various transitional arrangements that have been put in place flow from a - the making of a rule by the minister - - -

PN29

MR WARD: Yes.

PN30

JUSTICE ROSS: - - - under the Territories Legislation Amendment Act, and that provided for the operative date. I don't know the answer to this question but whether that power's been exhausted or whether any rule made under those provisions can be amended it would obviously be a matter for the minister and all the relevant parties, that that would affect the date in terms of your concern about civil penalties.

PN31

MR WARD: Your Honour, I think in our original correspondence we indicated we, at least the New South Wales Business Chamber, was looking to communicate with the minister. I must say, as matters have moved fairly fast we haven't - they haven't done that yet and I was inclined to wait to see where we got to today before we did that, but if it's only a matter of four or five days, that's one thing. If it's a matter of weeks that's another.

PN32

JUSTICE ROSS: Yes.

PN33

MR WARD: We intend to rely on the affidavit of Cherri Eleanor Buffett, various other materials and submissions for the making of the award on an interim basis. So as I say, we would be very to go at very short notice on that.

PN34

JUSTICE ROSS: I suppose it's - - -

PN35

MR WARD: Then we might circle back on the days - - -

PN36

JUSTICE ROSS: Yes. No, no, sure. Well, I suppose it's a question of making sure others with an interest - - -

PN37

MR WARD: I understand, your Honour.

PN38

JUSTICE ROSS: - - - have an opportunity to consider the proposition.

PN39

MR WARD: Can I just say for abundant clarity, our interest, that is my two clients' interest, is in relation to the private sector. We have no - we have expressed no interest in relation to the public sector nor do we express an interest in relation to local government. They can speak for themselves. So the interim award is drafted very specifically to relate to private sector employers.

PN40

JUSTICE ROSS: Right, thank you. Well, perhaps if I deal with the other employer representatives first to ascertain their interest and then go to Mr Clarke and Mr Robson. Ms Rooke or Mr Ryan?

PN41

MR RYAN: Thank you, your Honour, I might just stay seated if that's - - -

PN42

JUSTICE ROSS: No, that's fine.

PN43

MR RYAN: The AHA's had very limited time to consider the material, we've only - we were made aware of the application yesterday and we were only provided with a copy of the proposed interim award this morning. On a prima facie basis we wouldn't be opposed to it but there are some issues that we would need to give some further consideration that's in there, in terms of the drafting of the proposed award. That would be our position at this early stage, your Honour.

PN44

JUSTICE ROSS: Thank you. Ms Rooke.

PN45

MS ROOKE: Thank you, your Honour. All the Local Government and Shires Association would seek to do is have the Norfolk Island Regional Council and its employees excluded and we're fairly happy with the wording that has been proposed in the interim award provided this morning that it does that.

PN46

JUSTICE ROSS: In respect of that employer and those employees, they're now covered by or the relevant modern awards operate in respect of them, is that right?

PN47

MS ROOKE: That's correct, your Honour, and we also have an enterprise agreement that's come into effect.

PN48

JUSTICE ROSS: All right, thank you. Mr Clarke?

PN49

MR CLARKE: My understanding of the application is for an award to be made on an interim basis and then a final hearing to be made about - to occur as to whether or not there should be a modern award. We're in the process of obtaining a position of various affiliates who may have various extensive interest in the employment arrangements on Norfolk Island. We don't come here with a fixed view about the outcome. We do foresee some difficulties with the course that's proposed but ultimately as my friend just said the application is supported by an affidavit and will be supported by various other materials and submissions. It's important really for us to have a look at the sum of that material before we're in a position to say well this is how long we think is appropriate to respond to that.

PN50

Now ultimately it's up to the Commission to make whatever procedural orders it needs to make but given the logistics involved, those procedural orders if given too short a time might sort of reduce our status to nothing but a kind of technical contradictor, rather than being in a position to raise any material. So let's have a look at the material. Let's have a look at the sum of the material that's proposed to be put together and then we'll be in a position to indicate what our likely response is and how long we would need to cobble our case together.

PN51

JUSTICE ROSS: Right, thank you. Mr Robson, did you want to add anything?

PN52

MR ROBSON: No, your Honour, we agree with the ACTU. We're largely here because of Norfolk Island Regional Council agreement - sorry, of our members at the Norfolk Island Regional Council and we're in the same position as the ACTU, we haven't had the time to fully consider the application and its scope. We are glad to see that the Norfolk Island Regional Council is excluded but we do have other interests and we are still working out how this might affect our members.

PN53

JUSTICE ROSS: Right, thank you. Look, Mr Ward, whilst I've got some sympathy for your desire to deal with the matter expeditiously and I understand the force of the argument while modern awards apply from 1 July, the other factor is of course everyone's known that for some time.

PN54

MR WARD: Yes, yes.

PN55

JUSTICE ROSS: There is some force in the argument that - or the proposition put that other interested parties at least need an opportunity to consider it. From my own perspective, I would be interested in - also I'll come to the filing material in a moment - knowing how long it would be proposed that such an interim arrangement would operate, what are the proposed scheduling arrangements for the hearing of any final outcome in relation to the application, such an outcome could be either nothing. That is the interim awards cancelled.

PN56

MR WARD: Yes.

PN57

JUSTICE ROSS: It could be it's replaced by a final award. It could be a transitional arrangement or it could be the application's rejected.

PN58

MR WARD: Yes.

PN59

JUSTICE ROSS: There are a range of possibilities but what's the process - because I think that may go some way to framing the response from the union parties, would be both the content of the interim instrument and also how long is it proposed to operate. If it's sort of a short period then I'd apprehend that anxiety levels might be less, but if it's open ended then you can understand how they would want to have a much closer look at it.

PN60

MR WARD: Your Honour, can I just - - -

PN61

JUSTICE ROSS: Certainly.

PN62

MR WARD: - - - help a little bit with that straight away. We've given some thought to that. We don't seek to tarry between the making of the interim award and the hearing full. In fact we're probably more in the Bench's hands as to this fact, and I don't make this with a sense of humour because it's winter and it's probably not the best time to go to Norfolk Island. It is a case that the proper hearing needs to be dealt with in Norfolk Island, and the reason I say that is - - -

PN63

JUSTICE ROSS: The interim or the - - -

PN64

MR WARD: No, no, the full hearing, the full hearing needs to be dealt with in Norfolk Island. I say that because it is unique, the physicality of where people live, where people work, how they actually relate to work is all part of the issue. So it would probably be more a case of when a Bench might be available to travel for a week to Norfolk Island. The reason why I say a week is you can only fly in on one day and fly out on another about a week later. There is one plane in and one plane out. You can't - - -

PN65

JUSTICE ROSS: I though the affidavit was that that was true from one location but there were other - - -

PN66

MR WARD: See your Honour's ahead of me already.

PN67

JUSTICE ROSS: Well, I think one of the points is about declining tourism.

PN68

MR WARD: That's true.

PN69

JUSTICE ROSS: The proposition at paragraph 12. So it's true that from Sydney there are only flights on Monday and Friday.

PN70

MR WARD: Yes.

PN71

JUSTICE ROSS: But there are some - I see, Air New Zealand stopped. I thought I'd read some - no, it's you can go from Brisbane - but in any event so there'd be a - your proposition is there'd be a period of time, however much that is, that for - this is in relation to a final hearing, but do I take it that subject to me trying to get a Bench together that you're looking at resolving the matter by the end of the year, rather than it going on forever.

PN72

MR WARD: Frankly, earlier than that. We could be in a position to deal with the matter in full, including the filing of any evidence for the final hearing, we were hoping to have it disposed of in sort of four to eight weeks. We're not seeking to have the interim award sort of hang around for a very long period of time. We would rather give the island certainty so that absolutely before the end of this year, yes. Yes.

PN73

JUSTICE ROSS: Right. When would you be in a position to file your material - submissions and material in support in respect of your application for an interim award?

PN74

MR WARD: I'm just trying to remember what day it is, I think it's Thursday.

PN75

JUSTICE ROSS: Thursday.

PN76

MR WARD: That's very helpful.

PN77

JUSTICE ROSS: Bearing in mind my intention would be to provide a date for you to file that material and then some few days after that have a further mention and programming in relation to it and encourage the - I mean no disrespect to the other parties but principal parties, ABI and the ACTU, to discuss the matter and then come back in a further mention and we can then sort out the details of material in response if need be.

PN78

MR WARD: Without wishing to appear mischievous in any way, we'll fit into any timetable. If your Honour said to me the Full Bench will be convened on Thursday next week and working back, Mr Ward you have to achieve this, we'll meet it.

PN79

JUSTICE ROSS: Yes. No, I wasn't going to propose that. I'm proposing an interim step that it come back for mention before me before - because I want to consider the question about single member versus Full Bench.

PN80

MR WARD: Thank you, your Honour.

PN81

JUSTICE ROSS: In a little bit more detail. I also want to provide you with the opportunity of - should ABI wish to do so - - -

PN82

MR WARD: The minister.

PN83

JUSTICE ROSS: - - - of contacting the minister in relation to that rule making power.

PN84

MR WARD: Your Honour, can we do it this way. Could you contemplate when you want us to come back and work backwards?

PN85

JUSTICE ROSS: Sure. Next Thursday.

PN86

MR WARD: Next Thursday. So does that mean you would want us to have our material filed tomorrow or on Monday?

PN87

JUSTICE ROSS: 4 pm Monday would be fine.

PN88

MR WARD: 4 pm Monday is fine, your Honour, thank you.

PN89

JUSTICE ROSS: I'd encourage you to have direct discussions with Mr Clarke and let's see how we go.

PN90

MR WARD: Thank you, your Honour.

PN91

JUSTICE ROSS: It may be that - well you've already clarified your timeframe but that can be the subject of - that is for the operation of an interim award and the determination of any final relief.

PN92

MR WARD: Yes.

PN93

JUSTICE ROSS: But that can also be the subject of discussion between you.

PN94

MR WARD: Thank you, your Honour.

PN95

JUSTICE ROSS: Is there anything any other party wishes to say because - so far what we're looking at is that ABI will file its submissions in support and any other material it wishes to rely on by 4 pm on Monday. We'll create - there will be part of the website that will deal with this matter, and you'll be notified when all that material's lodged and the matter will come back before me at 1 o'clock next Thursday for a further mention. In the interim after ABI's filed its material there will be some discussions between ABI and the ACTU, and any other interested party. If the parties with an interest in the local government area have any issues or concern in relation to the relevant provision in the proposed interim award, the carve out provision for want of a better description, then that can also be raised directly with ABI prior to the next mention. Is there anything else at this stage?

PN96

MR WARD: Your Honour did indicate the possibility of my friend having an opportunity to put some material on in reply. Do you want to do that after the mention?

PN97

JUSTICE ROSS: Yes, I do. I think they would need to look at your material and I mean speaking for myself, I haven't had an opportunity to read the interim - proposed interim award and I'm sure that the other parties haven't had an opportunity to closely study it. So let's see where we go and if it's necessary to make any such directions I can do them next Thursday. You might in your discussions give some thought to what the next step in respect of the matter would be and what your respective positions are about that.

PN98

MR WARD: Thank you, your Honour.

PN99

JUSTICE ROSS: If that involves the filing of material then you can give some thought to a timeframe for that process. I'll also ask for the transcript to be expedited and provided to each of you and I'll also draw it to the attention of the department. Nothing further? Thank you, I'll see you at 1 pm next Thursday.

ADJOURNED UNTIL THURSDAY, 12 JULY 2018 [1.28 PM]