PN1

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

PN2

MR J MURPHY: Murphy, initial J, for the Firefighters Union.

PN3

JUSTICE ROSS: Thanks, Mr Murphy, and in Sydney.

PN4

MR Z DUNCALFE: May it please the Commission, Duncalfe, initial Z, for the Australian Workers' Union.

PN5

JUSTICE ROSS: Thanks, Mr Duncalfe. Look, I put forward an agenda for today. It's not meant to be exhaustive. Do each of you have a copy of that?

PN6

MR MURPHY: I do.

PN7

MR DUNCALFE: Yes, your Honour.

PN8

JUSTICE ROSS: Not quite sure how to proceed since there's no representation from the MFB or any of the employer organisations. What I suggest we do is to go through each of the items, if each of you can clarify your position in relation to it. I think there is, at least, a measure of agreement between you in relation to, well from memory, item three, the rate of pay on annual leave and perhaps item two, but let's go through it and see how we go, and then what I would do is record any agreement, provide any other - I'll publish a report with the transcript of the conference and provide any interested party with an opportunity to comment within a set period of time, all right.

PN9

MR MURPHY: Okay.

PN10

JUSTICE ROSS: Well let's go to the first matter, the rate of pay for public sector employees on day work. I think clause 22.4 was inserted as a result of the previous Full Bench decision dealing with part time work, and the issue is what rate of pay should public sector day workers be paid and the issues encapsulated at paragraph three. Do you have a view about that, Mr Murphy? No, need to stand. It'll be easier if you just talk into the microphone.

PN11

MR MURPHY: No problem. We do. We haven't provided a written submission on this issue as yet but - - -

PN12

JUSTICE ROSS: Do you want an opportunity to do that? Well if you express the view now and we can perhaps provide seven days for something in writing. I can incorporate that in the report and then publish that.

PN13

MR MURPHY: That would be good, thanks.

PN14

JUSTICE ROSS: All right, and what is the view?

PN15

MR MURPHY: Our view is that day workers in the public sector should be paid the same amount as if they were working a 10/14 roster with no loss of penalty.

PN16

JUSTICE ROSS: Well perhaps you formulate also in your submission what you see as an appropriate award term giving effect to that submission and the reasons why you say that's the case, all right.

PN17

MR MURPHY: No problem. I can give a couple of basic reasons for that submission if you'd like.

PN18

JUSTICE ROSS: If you wish, yes.

PN19

MR MURPHY: One is that that would reflect what has always been the practice in the CFA, MFB and also in the private sector and, in fact, day workers are paid an additional allowance whilst working day work which, I believe, is to compensate for the fact that they're not able access overtime.

PN20

JUSTICE ROSS: When you say paid the same as the 10/14 roster, that's presumably the hourly rate that's applicable to the 10/14 roster for the ordinary hours they work between 7 am and 6 pm?

PN21

MR MURPHY: That's correct.

PN22

JUSTICE ROSS: Right, and they work - so I suppose, the argument is they also work Monday to Sunday, so they're seven days and they share that in common with the 10/14 roster and is that the basis for the argument that the loaded up rate with the relevant penalties, public holidays and the rest, are included?

PN23

MR MURPHY: Yes, and it's also that employees working day work would generally be doing so because they have family or carers responsibilities and we'd submit that it wouldn't be desirable to lower, effectively lower, their rate of pay whilst they're working those arrangements due to those responsibilities.

PN24

JUSTICE ROSS: Yes, all right. Does the AWU have any submission it wishes to make in relation to this issue? In particular, do you agree - - -

PN25

MR DUNCALFE: Yes, your Honour.

PN26

JUSTICE ROSS: Yes, sure, Mr Duncalfe.

PN27

MR DUNCALFE: We do agree with the UFU position on this and we're willing to put in additional written submission on why. I think there's additional reasons also. Just briefly, I think that would be consistent with the Full Bench Australian Industrial Relations Commission decision, which was 945 in 2009, which has been used and referred to a number of times throughout these proceedings which did say that they weren't, at the time, persuaded that public sector employer cannot, or should be prevented from, employing firefighters except on a 10/14 but the corollary there was that provided that the employee receives no less than they would have received on the 10/14 roster.

PN28

Additionally, I did have a look through the decision that gave effect to the changes to put the part-time provisions into the firefighting industry award and the reasons for the insertion of the part-time provisions did not address, and no submissions were made, on the rate of pay. It seems that the - not that I found, sorry, your Honour, but it seems that the wording from the part-time provision in the private sector has been applied to the part-time provision, or inserted to the part-time provision, in the public sector and I'm unsure if any consideration was given to that, especially in relation to the fact that the Full Bench of the AIRC is - what they came to in conclusion for the part-time or other than 10/14 roster, is inconsistent with that and also the other reasons that the decision traversed were flexibility, inclusion, participation in workforce and I don't think that a reduction in pay for people who would be undertaking part-time employment was either addressed nor deserved.

PN29

JUSTICE ROSS: All right. Let's go to the second issue. Well if each of you can provide whatever you wish to say by 4 pm next Friday and if you send it to the AMOD website marked Firefighting Award Conference. If we go to the second item, the AWU's has proposed an amended clause 10.4(b). Perhaps a short point is whether the UFU agreed with the proposed amended clause. This is at paragraph 14 of the agenda document.

PN30

MR MURPHY: All right, I have discussed the AWU's submissions with my friend and we both agree that the intention is the same, that the intention of our respective submissions was the same, just that the words are different.

PN31

JUSTICE ROSS: Do you think it would be - I don't mean to cut you off Mr Murphy, but I just wonder whether with further discussion between yourself and the AWU you may be able to formulate a set of words - because it didn't seem that the intent was different, but it may be that in the time frame that I've identified for the first agenda item, you may be able to have further discussions with Mr Duncalfe and submit an agreed - that is agreed between the two of you, form of amended clause.

PN32

MR MURPHY: Certainly.

PN33

JUSTICE ROSS: Well, let's proceed that way. Are you happy with that Mr Duncalfe?

PN34

MR DUNCALFE: Yes, your Honour.

PN35

JUSTICE ROSS: Rate of pay on annual leave. There appears to be an agreement between the AWU and UFU that all public and private sector employees on the 10/14 roster should be paid on the basis of their total weekly wage. Is that an accurate summation of both of your positions?

PN36

MR MURPHY: Yes, your Honour.

PN37

MR DUNCALFE: Yes, your Honour.

PN38

MR MURPHY: And we did discuss that this morning that we were on the same page there.

PN39

JUSTICE ROSS: All right, well as I've indicated, once I get your submissions I'll finalise a report and give the relevant employer an opportunity to comment on it and take their comments into account and any response you wish to make. That report and those responses will be provided to the relevant Full Bench and then we'll make a decision on the basis of the submissions put, unless any party seeks an oral hearing within the time frame provided for the filing of the written material. Anything further at this stage, no?

PN40

MR DUNCALFE: No, your Honour.

PN41

JUSTICE ROSS: Thank you both. I'll adjourn.

ADJOURNED INDEFINITELY [10.14 AM]