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Fair Work Act 2009                                       1055615






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Pastoral Award 2010




9.32 AM, FRIDAY, 9 FEBRUARY 2018


JUSTICE ROSS:  Good morning.  Could I have the appearances please?  Firstly in Sydney, just keep your seat Mr Duncalfe.


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


JUSTICE ROSS:  Thank you, and in Canberra.


MR B ROGERS:  Rogers, initial B, for the National Farmers Federation.


JUSTICE ROSS:  I'm having trouble hearing you, Mr Rogers.


MR ROGERS:  It's Rogers for the National Farmers Federation.


JUSTICE ROSS:  Just bear with us for a moment.


MR ROGERS:  Rogers for the National Farmers Federation, your Honour.


JUSTICE ROSS:  Yes, no, we're just having a bit of trouble with - I can hear you but it's very faint.  We're just going to try and do something about that.


SPEAKER:  Apologise, your Honour, is this the award review for the Supported Employment Services?


JUSTICE ROSS:  No, this is the Pastoral Award.


SPEAKER:  Pardon me.


JUSTICE ROSS:  That's all right.  Can you try that again, Mr Rogers?


MR ROGERS:  Rogers, initial B, for the National Farmers Federation.


JUSTICE ROSS:  Right.  Can you hear me all right?


MR ROGERS:  I can, yes, it's very loud.


JUSTICE ROSS:  Yes, that's right.  Can you speak into that one?


MR ROGERS:  Rogers, National Farmers Federation.  The registry's going to - sorry, your Honour, the registry just said she's going to try and address it with IT.


JUSTICE ROSS:  Yes, I think when you speak into it that way it's picked up.


MR ROGERS:  Is it?  Is that better, your Honour?


JUSTICE ROSS:  Only marginally.  I can hear you but in any event we'll make a start and we'll see how we go.  If at any stage you're having trouble hearing me let me know.


MR ROGERS:  Thank you, your Honour.


JUSTICE ROSS:  Now ABI has provided correspondence in respect of the conference indicating its views and I think both parties have been copied into that, and that they don't intend to appear.  I've also had circulated an agenda for the conference, setting out some six items.  Might we just go through that in order and if we deal firstly with the provision of the saddle proposition.  I note that the NFF opposes the proposition that where an employer doesn't own a saddle and must purchase one, the employee is to reimburse the cost of the saddle.


The AWU has some issues arising from the provisional view as well.  I just wanted to float with each of you a proposition that may - I note the AWU's no longer pressing its earlier application, and really the provisional view was in response to your earlier application.  I want to, in any event float his idea with you, that if the Exposure Draft was amended such that it reflected the terms of the clause 29.1 of the current award, that is:


Where a station hand is required by their employer to find their own horse and/or saddle, the employee will be paid a weekly allowance of $7.11 for the horse and a weekly allowance of $5.68 for the saddle.


If that is translated into the current award or into the Exposure Draft, that there is no express provision dealing with the circumstances where the provisional view, that is that we don't expressly deal with the circumstances where a station hand is required to provide their saddle and then has to buy one and it's reimbursed, that's the concern of the NFF, we retain the current award provisions around the tool and equipment in the same terms as they are in clause 17.2(a) of the award, and we don't change anything.


MR ROGERS:  I think we're comfortable with that position, your Honour, although I note that I think the Commission expressed some concern there might be some confusion between when 17.2(a)(i) operates and when clause 29 operates.  I mean I think it's relatively clear.  I think clause 29 operates where there's a saddle and 17.2 is more general and operates where there are other tools.


JUSTICE ROSS:  Well, I suppose in some ways there may be a degree of ambiguity but the AWU may take the view that a saddle falls within the reimbursement of tools and equipment, but that's a matter that can be - I'm a bit conscious that we're sorting of using a sledgehammer to crack a walnut now.  The issue and the focus arose arising from a position put by the AWU that it no longer presses and in those circumstances I'm just wondering whether you could simply say in clause 17.2 or at some place in clause 17, that where - for example, where an employee is reimbursed for the - you could, sorry let me back up a bit.


You could say in the special allowances that the weekly allowance of $5.68 does not apply in circumstances where the employee is reimbursed for the cost of the saddle.


Now in terms of the NFF's position that doesn't - that's a different proposition to one that says where the employee must get a saddle they must be reimbursed.


MR ROGERS:  I'm sorry, your Honour, the volume's just gone.


SPEAKER:  You can't hear this?


MR ROGERS:  It's gone very quiet.




MR ROGERS:  I think that's corrected it, thank you, your Honour.


JUSTICE ROSS:  Can you hear me?


MR ROGERS:  I can, thank you.


JUSTICE ROSS:  Right.  The conundrum we're now in is in responding the AWU's position we've expressed a provisional view that relates to that.  That's now agitated another issue and now the AWU's no longer pursuing it.  I'm just - reading all this I'm sort of left with well, how can we get a simpler solution to this issue.


MR DUNCALFE:  My understanding, your Honour, is that our initial position was that the reimbursement and the allowance were payable together.




MR DUNCALFE:  So when the provisional view did come out we accepted the provisional view that if an employee was reimbursed for the cost of a saddle they would no longer be entitled to the allowance.




MR DUNCALFE:  But then the issue that I agitated was that if we remove the allowance altogether, then the employee who may not be entitled to reimbursement on the provisional view, which was an employee that does not already own a saddle will then not be entitled to the saddle allowance at all either.




MR DUNCALFE:  So we accepted that it is an either or approach with the allowance or the reimbursement but I still think there's an issue surrounding whether 17.2(a) does allow for a saddle that is bought by an employee to be reimbursed by the employer, and if that is the decision that's arrived at I would probably push for maybe some kind of clarity around that provision for that purpose.


JUSTICE ROSS:  What I'm putting to each of you is this  for you to consider as a resolution to it.  If we go to - bear with me for a moment.  Go to the current Exposure Draft then the expense related allowances issue is dealt with at 10.2.  10.2(a) is broadly in the same terms as 17.2 of the current award, right.  Then is we go to special allowances, I think the issue that's arisen is in the translation about decision into the Exposure Draft.  In 25.1 what I'm proposing is that you see there the strikeout of (a) and (b), that you reinstate (a) and (b) and also - so that 25.1 reads:


Where a station hand is required by the employer to find their horse and/or saddle, the employee will be paid weekly allowances of; (a) $7.26 for the horse and $5.80 for the saddle.


There would be an additional note or an additional sentence that says:


Where the employee is reimbursed for the cost of purchasing a saddle, the terms of this -


Or -


25.1(b) does not apply.


MR ROGERS:  I think I'm comfortable with that, your Honour.


JUSTICE ROSS:  Does that meet your - that reinstates the allowance as it is now.  Now the thing it doesn't address in the AWU's submission is whether, and I think you need to think about whether you want to press that proposition, is whether 10.2, which deals with tools and equipment, whether that covers saddles.  Now, the NFF has expressed a view, no, it doesn't.  You say differently.  It's really whether you're content for that to be just tested if it arises or whether you want the award varied.


MR DUNCALFE:  I believe that the former would probably be more realistic.




MR DUNCALFE:  The reason I re‑agitated that point was just because of the provisional view not being shared by NFF, the way that that clause operates.  If the saddle allowance was removed from 25.1 - - -


JUSTICE ROSS:  No.  I follow the problem with that, yes.


MR DUNCALFE:  Yes.  The only reason I re‑agitated that was because of that issue and now that 25.1 has been reinstated with the saddle allowance, then that issue for us dissolves.


JUSTICE ROSS:  All right.  If the NFF is content with that approach, as well, we will circulate a re‑drafted 25.1.  I will endeavour to do that later today.  If you can confirm early next week - I'll put in a few days - that you're content that that resolves that issue, then we can deal with it on that basis.  Are each of you happy to deal with it that way?


MR DUNCALFE:  Yes, your Honour.


JUSTICE ROSS:  Okay.  So it will give you a little bit more time to - I understand you're provisionally content with the solution, but it will give you an opportunity to see it, confer with your colleagues and then just confirm that that is what we will do with it.  Okay?


MR ROGERS:  I would like to just talk to my members about it - confirm they're comfortable with that - if that's okay, your Honour.


JUSTICE ROSS:  No, that's fine.  I mean, bearing in mind that what you'll be putting to them is really what the current award provides.




JUSTICE ROSS:  With the additional protection, if you like, for them that if an employee - and, look, despite what the award says, an employer may choose to reimburse an employee for the cost of purchasing a saddle.


MR ROGERS:  I understand, your Honour.


JUSTICE ROSS:  Yes, okay.


MR ROGERS:  Thank you.


JUSTICE ROSS:  All right.  Well, let's go to item 2.  This deals with the potential conflict between clause 10.3 and clause 30.  We raised this in the July decision when we noted that clause 10.3(f) which provides that:


All time worked in excess of mutually arranged hours will be overtime for a part‑time employee -


whereas the overtime provisions in clause 31 appear to only apply to farm and livestock hands.  Station cook appears to be excluded from the overtime provisions of clause 31.  Overtime rates for station cooks - rates, that is - are provided in clause 30.3 and are paid where the employee works more than five and a half days in one week.  It's unclear what a part‑time station cook would be paid.


The AWU has made a suggestion as to how that can be addressed and we noted that in our decision.  The Full Bench expressed a provisional view that the AWU's views be accepted and the NFF have submitted they have got no objection to the provisional view.  On that basis, I think we would give effect to the provisional view unless either of you have any different position in relation to that.


MR DUNCALFE:  No, your Honour.


MR ROGERS:  In giving effect to the provisional view, your Honour, does that mean there are going to be amendments made to the award or are we just going to leave the award as it currently stands; because if there are amendments to be made, I'd just like to have a look at the amendments before we kind of give our consent or - - -


JUSTICE ROSS:  Sure.  Well, I think we note that there was no objection to the provisional view and we would vary the - there would be a revised exposure draft.  There would be a final opportunity to comment on that.


MR ROGERS:  Okay.  Thank you, your Honour.  We're comfortable with that position.


JUSTICE ROSS:  All right.  Item 3, public holidays for piggery attendants.  A potential conflict had been identified between clause 26.2 and clause 38.3.  The AWU had made a submission arguing that there was no conflict for the reasons that they set out.  The Full Bench expressed a provisional view that the AWU's submission be accepted and that would mean that we wouldn't take any further action in relation to what had been regarded as a potential conflict.  The NFF submitted they had no objection to the provisional view.


Well, on that basis there would be no further amendment to the revised exposure draft and we would just accept the position that has been put by the parties.  Anything further in relation to that?


MR ROGERS:  No, your Honour.




MR DUNCALFE:  No, your Honour.


JUSTICE ROSS:  All right.  I should have just checked with you, Mr Duncalfe.  Giving effect to your provisional view that there is no conflict, do you think any amendment is required to the revised exposure draft?


MR DUNCALFE:  For this issue of piggery attendants, I don't think so.  No, your Honour.


JUSTICE ROSS:  Okay.  Let's go to meal breaks and allowances.  This is to do with clauses 17.2(c)(ii) and 36.10.  There is a joint submission by the AWU, the NFF and ABI.  Bear with me for a moment.  I've got the position in relation to continuous work, but I just don't have in front of me the joint position in respect of this issue.  Is it the position that the parties haven't reached agreement in relation to issue, but they've reached agreement on the process and the directions?


MR DUNCALFE:  Correct, your Honour, yes.


JUSTICE ROSS:  That is that they are to file by 4 pm, Monday, 5 March, any written submissions and evidence regarding the intended operation of clause 17.2(c)(ii) of the Pastoral Award and, in particular, when the second meal should be supplied or allowances payable after working overtime; and the operation of the meal allowances provision in clause 36; and the operation of clauses 10.2(d) and 32.7 of the exposure draft.  Then there are submissions in reply by 4 pm on 19 March.  Unless any party seeks an oral hearing, the matter will be determined on the papers.


MR DUNCALFE:  That's correct, your Honour, yes.


JUSTICE ROSS:  Okay.  You're content with that proposal, as well, Mr Rogers?


MR ROGERS:  We are, your Honour, yes.


JUSTICE ROSS:  I'll probably end up giving you a little more time, only because the Full Bench is likely - well, I won't promise that.


MR ROGERS:  That's unfortunate.


JUSTICE ROSS:  I'll have a look at the dates you propose.  The only thing I will say is that I won't bring them forward, okay?


MR ROGERS:  Thank you, your Honour.


JUSTICE ROSS:  I just need to look at the availability of benches and if it is that a bench won't be able to get to it until later, then we'll give you more time.  That's all.  The only thing I put you on notice about is if you're going to file evidence, then perhaps if you could discuss amongst yourselves whether those witnesses are going to be required for cross‑examination and the like.  Okay?


There's the continuous work matter which is agenda items 5 and 6. In respect of those I do have the - there's a document from the AWU indicating that it's supported by the NFF and ABI, and those are directions which are in - bear with me for a moment.  That in absence of in principle agreement being reached at the conference, the parties table further discussions and subsequently file a joint proposal.  Is that the - - -


MR DUNCALFE:  Yes, your Honour.


JUSTICE ROSS:  Have you had any further discussions with ABI as they're not here or - - -


MR DUNCALFE:  We haven't since the conference we arranged that was the subject of that submission but when we were in discussions we did believe that we probably weren't going to land too far away from each other.  We probably aren't there - we're probably close already.




MR DUNCALFE:  We thought that perhaps if we could discuss the major issues and what we propose as the more ideal solution in conference, then perhaps we could narrow that gap.


JUSTICE ROSS:  All right, well let's do that.  What do you see as the way forward in respect of this matter?


MR DUNCALFE:  The AWU still maintains its position by replacing the definition of non-continuous work with non-successive shifts.  We believe that to be the more ideal option to just deleting the non-continuous work definition and reverting back to the current award provisions.  Mainly because by having that definition there it allows the - it kind of reflects the intention of the award modernisation team in simplifying the expression of what allowances apply when and where, and allows that table to still remain where it is at clause, I believe, 31.5 of the Exposure Draft.




MR DUNCALFE:  If we were to revert back to clause 35.9 of the current award, I believe it is a little bit convoluted, although the essence of what it says is exactly what we want to be brought across into the Exposure Draft, we don't want any changes.  I believe that the intention of the AMOD team was to simplify that and put that into a table, and by putting in the non-successive shifts' definition or amending the non-continuous work to non-successive shifts to make it an actual - an accurate definition, we would be able to maintain that table rather than bring across - - -


JUSTICE ROSS:  The language.


MR DUNCALFE:  - - - the language of the current award.


JUSTICE ROSS:  Where is it set out in the current award?


MR DUNCALFE:  The current award's at 35.9.


JUSTICE ROSS:  So it sets up a scheme whereby if you work on successive shifts, that is at least five successive afternoon or nightshifts or the six on the other pattern for at least the number of ordinary hours of work, if that's your pattern, if you're working successive shifts then you're paid the shift allowance of 15 per cent.  If you're working - you work an afternoon or a nightshift but it's not part of a successive shift pattern, which you've characterised as non-successive shifts, then you're paid at the overtime rate effectively.


MR DUNCALFE:  That's right, yes.




MR DUNCALFE:  Also with having the definition of non-successive shifts I note that in the schedules another limb of this is clause - sorry, schedule B42 and B45.


JUSTICE ROSS:  Yes, that's right.


MR DUNCALFE:  Also use that same terminology.


JUSTICE ROSS:  They do.  They use non-continuous whereas you'd used non-successive.


MR DUNCALFE:  Non-successive.


JUSTICE ROSS:  Well, bearing in mind that the definition says, "which does not continue", for - and it is referring to successive shifts, that's the force of your argument I gather.


MR DUNCALFE:  Correct, yes, your Honour.


JUSTICE ROSS:  Yes.  Well, Mr Rogers, what's your concern about this?


MR ROGERS:  Our concern and we agree with the AWU that the redraft that the Commission's prepared properly creates more confusion than it resolves, but our concern is that the provisions as they currently are operate fine, everyone understands how they work and I'm not aware of there being any dispute about how they actually operate.  So my introducing new definitions and new language we just sort of open the way for the further disputes or unforeseen consequences.  It's operating fine as it is, I'm not entirely clear on why the change was made.  Why change it, if it ain't broke, don't fix it.




MR ROGERS:  That's our view.


JUSTICE ROSS:  Yes, I follow.


MR ROGERS:  I think we're on - we agree with the way that they operate and we agree with the way that - - -


JUSTICE ROSS:  Yes, yes.  No, no, I follow that and there's no intent to change the operation of the current clause.  Can I suggest this, rather than putting the parties to written submissions around it given that it's essentially a drafting question.


MR DUNCALFE:  It is, your Honour.


JUSTICE ROSS:  You're agreed that there's no intent to change 35.9 and the way it operates, I might take this - I propose to take this 35.9 to the plain language expert that we've engaged to work on the plain language projects and put it to him and see what he can come up with.  Then put that to the parties and give you an opportunity to consider that.  I think it's the shift in this language and the descriptor of non-continuous work that has caused the issue between you.  Having said that, I think there's some force in the AWU's point that the current provision, whilst you understand how it works, it is a little - in 35.9 it's a bit clunky, it's not as simply expressed as it could be.  So there may be a mid-path between what's already been drafted by the award section and put into the Exposure Draft.  It may be that there's a simpler solution to this and I'd just like the opportunity to see if we can find one and then put that to you before we embark on a process of written submissions.  I take the point that whilst there's been an attempt to create a simpler provision, it may create more anxiety because of language it uses.  So let's see if we can come up with something different.  Are you content to give us the opportunity to do that and then of course your rights are reserved, you'll be able to comment on it.  If you don't like it you can argue for an alternate.


MR ROGERS:  Yes, thank you, your Honour, we're happy with that.


JUSTICE ROSS:  Are you content with that?


MR DUNCALFE:  Yes, your Honour, we're happy with that, yes.


JUSTICE ROSS:  All right.  Well, I think that then leaves essentially the one issue and that is the intended operation of the meal allowance and overtime issues which you'll do written submissions on.  I'll undertake to get to you the redrafted version of 35.9, you'll be able to comment on that, and I'll send you this afternoon the allowances issue that we discussed in item 1.  I think then we've got a path forward with each of the outstanding issues.  Was there anything further either of you wished to say?


MR DUNCALFE:  Not for the AWU, your Honour.


JUSTICE ROSS:  Thanks, Mr Duncalfe.  Mr Rogers?


MR ROGERS:  Not on our part, your Honour, no, thank you.


JUSTICE ROSS:  Right.  Well, thanks very much for your attendance and your assistance and I'll send you that proposal on the saddle issue shortly.  Thanks very much, we'll adjourn.

ADJOURNED INDEFINITELY                                                        [10.03 AM]