PN2370

THE COMMISSIONER: I'll take the appearances, thank you, firstly in Sydney.

PN2371

MR T CLARKE: Trevor Clarke for the ACTU.

PN2372

THE COMMISSIONER: Thank you, Mr Clarke.

PN2373

MR M NGUYEN: Mr Nguyen, initial M, for the Australian Manufacturing Workers' Union.

PN2374

THE COMMISSIONER: Thanks, Mr Nguyen.

PN2375

MR B FERGUSON: Ferguson, initial B, for the Australian Industry Group, and with me is Ms Bhatt, initial R.

PN2376

THE COMMISSIONER: Thanks, Mr Ferguson. So that's Sydney. Anybody else?

PN2377

MR ROBSON: No, Commissioner, I'm not making the appearance.

PN2378

THE COMMISSIONER: Thank you. We'll go to Melbourne, thank you.

PN2379

MS K BIDDLESTONE: Biddlestone, initial K, appearing for the SDA.

PN2380

MS R LIEBHABER: Liebhaber, initial R, appearing for the HSU.

PN2381

MS D WILES: Wiles, initial D, for the Textile, Clothing and Footwear Union.

PN2382

THE COMMISSIONER: Thank you, and Canberra?

PN2383

MR S HARRIS: Harris, S for the Pharmacy Guild of Australia.

PN2384

MS K PEARSALL: Pearsall, initial K for the National Farmers Federation.

PN2385

THE COMMISSIONER: Thank you. We'll go to Adelaide, thank you.

PN2386

MS K VAN GORP: Van Gorp, initial K, for Business SA, and with me, Klepper, initial C, also with Business SA.

PN2387

THE COMMISSIONER: Thank you, and in Brisbane?

PN2388

MR W DAVEY: Good morning. I'm simply observing, but it's W Davey from the Australian Hotels Association.

PN2389

THE COMMISSIONER: Take a seat there at the Bar table then, Mr Davey. And in Newcastle?

PN2390

MS K THOMSON: Thomson, initial K, for ABI and NSW Business Chamber, Commissioner.

PN2391

THE COMMISSIONER: Thanks very much, parties. You've seen the statement that was issued by the Full Bench in late March, and we have just half a clause to deal with today. There is also the opportunity, if the parties wish to, to explore what's been put with respect to the other clauses - we're dealing with the standard clauses. We might have some satisfaction that we're not going to be dealing with the common clauses in this sort of format. The statement's been made that they be dealt with by an award‑by‑award basis.

PN2392

If we are dealing with the remaining clause on consultation about major workplace change, I think the idea is to try and get to as much a consent position as the parties can, but there are about two pages worth of - - -

PN2393

MR KLEPPER: Apologies, Commissioner, we're having trouble hearing you in Adelaide.

PN2394

THE COMMISSIONER: Anyone else having problems hearing me? No, just Adelaide? Is that any better?

PN2395

MR KLEPPER: That's better, thank you.

PN2396

THE COMMISSIONER: All right. I will project my voice. Who wishes to speak first on the issue - are there any preliminary matters that we need to deal with, or are we going straight to the remaining clause?

PN2397

MR FERGUSON: No.

PN2398

THE COMMISSIONER: Well, Mr Clarke, do you wish to speak first on this issue?

PN2399

MR CLARKE: Sure, thank you. I don't think this was a matter that we discussed at the last conference, but nonetheless the version we were working from from the last conference has changed compared to what's in the statement, so I'm working off attachment B of the statement that was released on 27 March. I assume I'm doing that correctly. There were two issues with how the clause was expressed in that statement. The first is the bracketed part in the first subclause, "Excluding changes otherwise provided for by this award". Is that exclusion - or an exclusion in similar terms provided, where this award makes provision for the alteration of any of these matters, used to be a qualifier on the definition of significant effects rather than on the obligation to consult in its entirety, and the concern is that by shifting it around - you're highlighting that there has been some change, and the concern is that one might now read these awards slightly differently and say all right, well this award has a redundancy clause in it, therefore there is no obligation to consult, and we'd like to guard against that type of presumably unintended effect - I don't imagine that anybody from any side would say there's no obligation to consult in relation to redundancy, for example - so we'd want to sort of guard against that kind of outcome.

PN2400

THE COMMISSIONER: If you go back to the table where the old or the existing provisions are, isn't it the last sentence of 22.1(a)(ii)?

PN2401

MR CLARKE: That's right. It was a qualifier and a definition of "significant effects" in the original formulation, rather than a qualifier on the clause in its entirety. Whether or not that makes a difference is perhaps not so much of an issue as whether or not the relocation of it causes people to take a different view about how this clause interacts with other things that might happen. One thing that occurs to me, perhaps, and I imagine that this is a bit contentious, is that to a large extent, that exclusion for many awards is a bit of a relic, because pre‑modernisation and pre‑simplification in the early 1980s or mid‑1980s when these clauses were arrived at, awards were quite prescriptive in relation to particular matters: you had an industrial dispute, for example, about some kind of a restructuring exercise, and the industrial dispute was resolved by way of an order that was an award variation that said how this thing was going to be dealt with.

PN2402

So my thesis, I suppose, is that the number of awards that provide specific procedures to deal with the implementation of these types of issues are probably lesser than they once were, so it might be better to, for the purposes of a standard clause, to say something like excluding dot dot dot, and for the purposes of certainty then identify in each of the awards any of the types of things in the award that are in fact excluded, or alternatively, try and come up with some other way of dealing with it. But we would just not want to open up the awards, the interpretation, that there's a reference in this award in some other clause somewhere to do with something, and therefore it means there's absolutely no obligation to consult about it. That's the risk that I'm trying to guard against in relation to this point.

PN2403

THE COMMISSIONER: Isn't it simply putting it up the front so that the employer can read that and say well I'm not bothered by this clause?

PN2404

MR CLARKE: Yes, and that's the concern, because it says, "excluding changes otherwise provided by for this award", and if there's a clause that says redundancy, redundancy is this, or redundancy's provided for in the NES, you say all right, well I don't know anything about award history, I just opened a caf� 18 months ago, but this sings as I don't have to consult where there's some other provision in the award, and there's a provision in the award that says something about redundancy so I don't have to consult. That's not the way - - -

PN2405

THE COMMISSIONER: Is the problem with the word, "changes", then?

PN2406

MR CLARKE: I'm sorry?

PN2407

THE COMMISSIONER: Is the problem with the word, "changes?"

PN2408

MR CLARKE: I'm not sure that that's what the problem is. It was expressed differently previously - "provided that where this award makes provision for alteration of any of these matters the alteration is deemed not to have a significant effect" - is - - -

PN2409

THE COMMISSIONER: Is it that perhaps the link is lost between the existing clause you can read above, but there's no link perhaps in what is being proposed here?

PN2410

MR CLARKE: Yes - - -

PN2411

THE COMMISSIONER: There's no link back to B.5.

PN2412

MR CLARKE: The significant effects definition?

PN2413

THE COMMISSIONER: Mr Nguyen, you're agreeing there, are you?

PN2414

MR NGUYEN: I think that's right because it says - like, the list of significant effects includes the words like, "alteration of hours of work", and then the exclusion also uses the word, "provided that where this award makes provision for alteration of any of these matters", so it's kind of clear that really it's referring to the alteration of hours of work, and not the redundancy and major change which Mr Clarke's referring to.

PN2415

MR CLARKE: The options appear to be to try and come up with the type of broad‑based words that would work in all cases, or as many of them as we can identify today, or alternatively say that look, we recognise that there needs to be an exclusion for things that the award otherwise regulates, and for the purposes of clarity then go through and exercise and nominate in each award where those alternative processes exist so that the employer or the union or the employee can pick up and read it and say, I don't have to consult about clause 38 but I do have to consult about everything else. Sorry if that's a bit long‑winded. Others may be able to express it more clearly than me, or tell me I'm completely wrong.

PN2416

THE COMMISSIONER: Well, do we need to look at what the existing clause means to understand what needs to perhaps then carry‑over.

PN2417

MR CLARKE: Mm.

PN2418

THE COMMISSIONER: So what does, "provided that where this award makes provision for alteration of any of these matters and alteration is deemed not to have significant effect", what does that mean?

PN2419

MR CLARKE: If there was a clause that enabled some promotional procedure, for example, which you won't find in awards anymore, then that might be read as covering the field, if you like, about what happens in that situation.

PN2420

THE COMMISSIONER: If there's an example of a clause that does deal with the transfer of employees to other work locations, then that clause deals with it, so therefore this clause is impotent and there's no requirement to consult because the other clause deals with it.

PN2421

MR CLARKE: Mm.

PN2422

THE COMMISSIONER: How can that be carried across to the new version without it being too broad for your liking, Mr Clarke?

PN2423

MR CLARKE: I'm not in a position to express that without going through all of the potentialities. I mean, I had an informal discussion this morning with Mr Robson about some matters in awards in which his organisation has an interest that do provide particular powers for people to be moved or for people to do particular things in redundancy situations, but the clauses are crafted on the assumption that they co‑exist with the obligation to consult. So yes, you consult, but if it happens, these other things happen as well. So the risk is if you try and create a one size fits all rule that those types of situations where the clauses are envisaged to operate together might be interfered with.

PN2424

THE COMMISSIONER: Do they currently work together, or does this clause render those clauses more important? And I'm trying to understand what the current provision is. It says that where another clause deals with those matters, well then it's not a significant effect.

PN2425

MR CLARKE: Mm.

PN2426

THE COMMISSIONER: So it misplaces this, doesn't it?

PN2427

MR CLARKE: I think that the heart of the consultation obligation is a qualification, if you like, on managerial prerogative. There are other clauses in awards that give employers particular rights to shift people around, or promote them, or demote them, or these sorts of things, but to the extent that they still preserve an element of discretionary decision‑making within that, there's still a role for consultation in the activation or implementation of those clauses. It's problematic to sort of have a hard and fast rule that says if there's something else somewhere in the award that mentions the word, "skills", then that's the end of it, you don't have to consult. That's the difficulty.

PN2428

THE COMMISSIONER: Can it be said though that if somewhere else in the award there is a provision for the alteration of any of those matters that are addressed above, then the award quite clearly says that it's deemed not to have significant effect? I mean, you can have a dispute about it, but ultimately that may be where that dispute ends if that other clause is king.

PN2429

MR CLARKE: Yes. There will be situations where another clause is king, but there may also be situations where another clause requires consultation about how the rights provided for it are implemented, and there may be situations where there's some cross‑referencing already, saying that, you know, after consultation - or the employer can do x, y and z after consultation, and you wouldn't want to lose that kind of concept of the two clauses working alongside in those situations through a sort of one size fits all arrangement.

PN2430

THE COMMISSIONER: If the program of this Bench is to get to the same position but with plainer language, and if there is no agreement as to what the existing terms mean, then how do we move forward to draft the appropriate words that mean that there is no speculation about what they mean?

PN2431

MR CLARKE: One thing you might do is revert to wording more similar to what was used in the initial clause and locate it back in the definition of "significant effects", and give parties the option to say well you can have this carve‑out, or alternatively, tell us before x date which clauses are the ones that are carved out - which clauses are king. And so then you might have some awards where there's perfect clarity about it, because a standard clause will be tailored to identify exactly which clauses are the king clauses in that award in relation to these issues.

PN2432

THE COMMISSIONER: I don't think that there could be that particular specificity. If there's some doubt as to what the existing words mean then it's helpful to try and get to where there can be some consent as - but if you don't agree, and I'll hear from Mr Ferguson shortly, but I don't necessarily agree with you, Mr Clarke, there that those other award matters might need to be read in conjunction with this. If it's read on its plain meaning, if those other clauses canvas the alteration of those matters addressed earlier, then perhaps this clause has no effect.

PN2433

MR CLARKE: Yes.

PN2434

THE COMMISSIONER: And those other clauses - - -

PN2435

MR CLARKE: Well, even the language is important: "canvass" is different to "make provisions for the alteration of" - you know, herein lies the difficulty. But I mean, I'm in a peak council and I'm more remote from the day‑to‑day jobs of applying this clause and those that interact with it at the workplace than perhaps others at the table around the country are, who might - - -

PN2436

THE COMMISSIONER: Do any of the other unions have anything to say about that before I hear from the employers?

PN2437

MS WILES: Commissioner, it's Ms Wiles here. I think Mr Clarke has raised an interesting issue, and I think the coupling of the exclusion from the definition of "significant effects" could possibly have the unintended consequence that he's alerted the parties to, so I think it is an issue. In terms of the best way to proceed - I mean, it's interesting, isn't it, because if you look at the effect of the exclusion, that could potentially apply to (e), which is, "Alteration of hours of work", and yet there's a separate obligation under the consultation about changes to rosters and hours of work. So I think Mr Clarke has raised an issue about the history of these awards where once they were very prescriptive about certain processes that needed to take place, and you know, the awards have developed over time, including the model consultation clause three years ago. From our perspective, we agree that the ACTU has identified an issue. We don't have a firm position as to how best to proceed with that, because we hadn't identified it ourselves, but I think it is important to look at.

PN2438

THE COMMISSIONER: Did the consultation about changes to rosters or hours of work come about as a change to the legislation?

PN2439

MS WILES: Yes, and only a few years ago.

PN2440

MR CLARKE: Yes.

PN2441

THE COMMISSIONER: All right. So at the time - - -

PN2442

MS WILES: That's correct, yes.

PN2443

THE COMMISSIONER: At the time of it being drafted, significant effects wouldn't have contemplated that what now is - well 22.2 might mean that perhaps 22.1 doesn't apply when it's with respect to rosters or hours of work.

PN2444

MR CLARKE: There's hours of work, and there's regular rosters and ordinary hours of work, which is - - -

PN2445

THE COMMISSIONER: So it may or may not apply?

PN2446

MR CLARKE: Yes.

PN2447

THE COMMISSIONER: But that's one example where the award has overlapped because of legislative change.

PN2448

MR CLARKE: Mm.

PN2449

THE COMMISSIONER: If the concerns are that - is it simply that something is then said at B(v), that significant effects includes (a) through to (g) but does not include something?

PN2450

MR CLARKE: Yes. That would be more consistent with the way the issue is approached now, but as I say, if the ultimate goal of this exercise is clarity, you might give part of the opportunity to say well here are the ones where the clause does otherwise provide, so rather than have the wording, you can actually nominate what they are - what the carve‑outs are, and then everybody would be clear on what the carve‑outs are. I'm not saying you have to do that for everybody, but if the opportunity was open you might - for those who do go through that process, you might end up with a much clearer obligation at the end of the day.

PN2451

THE COMMISSIONER: We're trying to withstand a clause that could be inserted in I assume almost every award, so to then have to go through and have parties appear and try and then argue and debate as to what could be called an alteration of those other matters, that would be a huge contest, wouldn't it?

PN2452

MR CLARKE: I don't know. Let's hear what - - -

PN2453

THE COMMISSIONER: All right, well we'll hear from Ai Group?

PN2454

MS BHATT: If I may, Commissioner - it's Ms Bhatt for Ai Group - if we were to return to the words that appear in the current clause 22.1(b), they quite clearly refer to the alteration of any of these matters, that is, those that are listed in 22.1(a)(ii). I think we can accept that the way this has been re‑drafted in the most recent iteration of this provision, there's a disconnect between the exclusion that we find at B.1 and the significant effects that are listed at B.5, and so to the extent that the unions are seeking that that be remedied by, for instance, providing for that exclusion at B.5, or perhaps a new clause, B.6, for our part we would have no difficulty with that.

PN2455

I have to confess I am still grappling with the matters that Mr Clarke has just raised, but to the extent that there's any suggestion that a model clause should provide a list, for example, of the specific terms that would form part of this carve‑out, I think one of the obvious difficulties that arises is that that would require a very careful consideration of the issues on an award‑by‑award basis.

PN2456

It may or may not be contentious when we look at it, but to the extent that, for example, a relevant provision were left out inadvertently, that would have the effect of limiting this exclusion; it would have the effect of requiring consultation in circumstances where such consultation is not presently required, and so unsurprisingly, that is an obvious anxiety that we would have. Certainly for our part, we're not aware of any confusion, ambiguity or disputation that has arisen from the words as they are presently in the award.

PN2457

THE COMMISSIONER: I'm mindful of the job that we're here to do is not to overstep or overreach, and we're just simply here to not change the legal effect but just to make it clearer. As I suggested earlier, and Ms Bhatt, it aligns with what you're saying is: should B.5 say significant effects includes (a) through to (g), but does not include whatever the words are then agreed, and that's where it should live - it's better‑placed there? I think what the draft is we're trying to do is get it upfront so as not to require an employer to have to go through this and then ultimately decide that they don't need to consult. But it does need to have an appropriate place, and then it needs to say something to the effect of where the matters, B.5(a) through to (g), are provided for elsewhere in the award; then it is deemed not to have significant effect. I mean, you need to reach that place eventually to then rule out - I don't know that going back to looking at each award clause is going to happen. I can't imagine that that's what the Bench is going to agree upon.

PN2458

MR CLARKE: Yes.

PN2459

THE COMMISSIONER: That's my view.

PN2460

MS BHATT: One way of dealing with this might be - I'm obviously trying to come up with a form of words on my feet - but if a new clause, B.6, were inserted and it said: "Where this award makes provision for alteration of any of the matters identified at B.5, such alteration is deemed not to have significant effect".

PN2461

THE COMMISSIONER: So you're using largely the words that currently exist?

PN2462

MS BHATT: I am.

PN2463

THE COMMISSIONER: What's the unions' views on almost the status quo of that sentence?

PN2464

MR CLARKE: Well, I mean, based on the sort of case management issues that you've raised it's probably the best we can do. It doesn't make things any more or less clear than it otherwise would, but it's better than what's on the sheet of paper in front of us.

PN2465

THE COMMISSIONER: So the proposed wording in B.1 is too broad, you say?

PN2466

MR CLARKE: Yes.

PN2467

THE COMMISSIONER: It does more things than what you say the current provision provides for?

PN2468

MR CLARKE: Mm‑hm.

PN2469

THE COMMISSIONER: It could lead to confusion and a lack of consultation where it is required?

PN2470

MR CLARKE: Yes.

PN2471

THE COMMISSIONER: And if the words can get to as close as possible as the last sentence in 22.1(a)(ii), then you're, Mr Clarke, at least comfortable with that?

PN2472

MR CLARKE: Yes, but have those words in the form of an exclusion to significant effects, rather than exclusion to consultation.

PN2473

THE COMMISSIONER: Yes. I mean, they need to live somewhere, and my preference is that they live at the end of B.5, or even in a new B.6.

PN2474

MR CLARKE: Yes, and I think that was where it was proposed.

PN2475

THE COMMISSIONER: I think we get back again to the draft; again, the employer reads it, and only at the end of the clause do they then conclude that they don't need to consult.

PN2476

MR CLARKE: Well, they can put the definition of "significant effects" at the top.

PN2477

THE COMMISSIONER: Anybody else have views on that issue? Anyone interstate?

PN2478

MS BIDDLESTONE: Commissioner, it's Ms Biddlestone from the SDA. I think we would agree with that approach discussed. We think it is more appropriate that that wording be linked with B.5, rather than linked with B.1.

PN2479

THE COMMISSIONER: Thank you. Anyone have any differing views to that?

PN2480

MS VAN GORP: No, Commissioner.

PN2481

THE COMMISSIONER: All right. Mr Clarke, I'll let you lead, and then we'll move on to others.

PN2482

MR CLARKE: All right. In relation to paragraph (b)(i), so: "As early as practical begin to discuss with affected employers and any representatives, if any, the changes to be made", it's a minor point, but where the clause used to refer to the introduction of the changes, the concept of consulting about the introduction of the changes is not just what the nature of the changes are but how it is that they will be introduced. That word, "introduction", encompasses both concepts, and so if the obligation is to discuss the changes to be made, you're losing that element of how the changes are going to be implemented. So I think that to continue to refer to the introduction of the changes covers that, where you keep the faith with the breadth of what was initially there.

PN2483

THE COMMISSIONER: Doesn't the existing 22.1(b)(i) - it's a three step process, so there will be the introduction of the changes, the effects they're likely to have - - -

PN2484

MR CLARKE: Yes, the introduction.

PN2485

THE COMMISSIONER: - - - and then the mitigation?

PN2486

MR CLARKE: Yes.

PN2487

THE COMMISSIONER: That's what B.1(b)(i) does, isn't it - the changes, the likely effect, and then the mitigation?

PN2488

MR CLARKE: Yes, it's the changes rather than the introduction of the changes, and my point is that the expression, consulting about the changes, is perhaps a little narrower than consultation about the introduction of the changes, because if you're consulting about the introduction of the changes, you're not only saying what will change but how that change will be introduced. There's perhaps some temporal sort of issues brought in when you're talking about the introduction; not just the nature of the change but how it will be introduced.

PN2489

THE COMMISSIONER: Isn't how it's meant to be introduced dealt with in the existing wording with the effects the changes are likely to have on the employees, which is then replicated at B.1(b)(ii)? You like the word, "introduction"; you want to hang on to that, don't you?

PN2490

MR CLARKE: Yes, but it's not just, you know, because of some kind of, you know, football team allegiance or something; it's because I think it covers a broader concept. Rather than just the change is that penalty rates are going down by 25 per cent, it's that we're going to change the penalty rate from this to this, and the first workers who are going to experience that change are going to be the ones based out in Cranbourne. Once we're finished Cranbourne, then we're going to go over to, you know, Hornsby, and then we're going to go - do you know what I mean? So that concept of introduction talks about not just what you're doing, but how you do it. And the important thing, and as we all know in all these consultation disputes - we've all been to a thousand of them in this joint - is that often the employees are not really successful at all in changing the ultimate outcome, but they are successful in changing the way in which a particular change is introduced: to have it occur over a longer period of time, to have some transitional arrangement, to get additional information to employees about what their options are in the face of these changes. And these are all implementation issues about how the changes are introduced - not the ultimate outcome but, you know, the West Sydney branch of Walton's is going to close - it's yes, it's going to close, but it's how we get to that point, which is really where the negotiation and the operational sort of stuff gets fixed - wouldn't want to lose that.

PN2491

THE COMMISSIONER: All right. Any of the unions disagree with what Mr Clarke is saying or wish to say something in support?

PN2492

MS WILES: Commissioner, it's Ms Wiles here. The unions in Melbourne support Mr Clarke's submissions.

PN2493

THE COMMISSIONER: All right, and for the employers?

PN2494

MS BHATT: If I may, Commissioner - it's Ms Bhatt again. I think that the way B.1(b)(i) is drafted, it is potentially broad enough to cover the types of issues that Mr Clarke has just described, but I can accept that the use of the word, "introduction", in the current clause is potentially clearer in the sense that it makes express, the requirement does discuss an introduction of the changes, and to that extent we wouldn't have any difficulty with the word being reinstated in the way that it appears presently.

PN2495

THE COMMISSIONER: So you would consent to it saying at (b)(i), "the introduction of the changes to be made?"

PN2496

MS BHATT: Yes.

PN2497

THE COMMISSIONER: Any other employers have a view on that proposal?

PN2498

MR HARRIS: Commissioner, it's Harris, the Pharmacy Guild. We've got not issue from our point on that side.

PN2499

THE COMMISSIONER: So everybody's comfortable with the word, the "introduction?"

PN2500

MS THOMSON: Commissioner, it's Ms Thomson. Just wondering whether or not if re‑introducing the word, "introduce", which I don't have a problem with on the face of it, we're then taking away the discussion around the substance of the change. So just the way that that's reading then: "As early as practicable begin to discuss with affected employees and their representatives the introduction of the changes", and then you kind of lose that, "the changes to be made", concept.

PN2501

MR CLARKE: May I address that point?

PN2502

THE COMMISSIONER: Sorry, where do you say the changes to be made - - -

PN2503

MS THOMSON: I might be misunderstanding where we're going to put the word, and if that's the case then I apologise.

PN2504

THE COMMISSIONER: I think "the changes to be made" is there so that we don't have to then go back up to something else, which the existing clause requires one to do. I think, "of the changes to be made", is much clearer rather than having to re‑reference.

PN2505

MR CLARKE: Can I - - -?

PN2506

THE COMMISSIONER: Yes, Mr Clarke.

PN2507

MR CLARKE: If you just went with the good old, the introduction of the changes as the (i), as I say, consulting about the introduction of the changes to my mind involves both the changes themselves and the means by which it is proposed that they be introduced, or that the decision is to introduce. In subclause (ii), when it talks about the information that's being given, it's got you need to give information about the nature of the change, and that is true to form with what we have at the moment. So I think the introduction of "the changes to be made" sounds a little - not great, but if you were just to say, "the introduction of the changes", I think you'd nail it, from our perspective.

PN2508

THE COMMISSIONER: I note that (a) is, "give notice of the changes".

PN2509

MR CLARKE: Yes.

PN2510

THE COMMISSIONER: It's one or the other, isn't it? Is there any party relying on the words, "to be made?" I would have thought the employers would prefer that because it gives a clearer impression that this is the definite decision, but if it's unnecessary and it's not used above, does it need to be in (b)(i) if it's not in (a)? I think - although 2(b) also means that they haven't been made, so there's still the sniff there from the employees that they might get a chance to influence that. Does any party wish for, "to be made", to remain in this proposed clause, or is there ambivalence about it? Speak up or I'll consider there's ambivalence.

PN2511

MR CLARKE: Happy for it to go.

PN2512

THE COMMISSIONER: All right. Nobody particularly cares about the words, "to be made?"

PN2513

MR CLARKE: Sorry, our review is not that we don't particularly care, but that we prefer them to go.

PN2514

THE COMMISSIONER: Yes, I understand that.

PN2515

MR CLARKE: Yes.

PN2516

THE COMMISSIONER: The question is does it need to be in there. All right, thank you. Mr Clarke?

PN2517

MR CLARKE: I have no other comments in relation to this clause.

PN2518

THE COMMISSIONER: All right. Do any other of the union parties have anything else to say?

PN2519

MS BIDDLESTONE: Commissioner, Ms Biddlestone from the SDA; I just had one query in relation to B.5, and that's the inclusion now of the word, "and", at the end of each subclause. It says, "includes any of the following", so I'm not sure that it's clear that it then goes on to say, "termination of employment, and major changes, and (indistinct) a reduction in", because it could be "and" - - -

PN2520

THE COMMISSIONER: Do you think it should be "or"?

PN2521

MS BIDDLESTONE: - - - and/or.

PN2522

THE COMMISSIONER: Do you think it should be "or"?

PN2523

MS BIDDLESTONE: I think that would be - it could be "and/or". That's saying putting "and" in‑between may make - even though it says, "includes any of the following", including the word "and" in‑between each might lead to some confusion about whether all of them need to apply.

PN2524

THE COMMISSIONER: Yes.

PN2525

MR CLARKE: I think there's a point about that in the - - -

PN2526

THE COMMISSIONER: In the guidelines?

PN2527

MR CLARKE: - - - guidelines to Esperanto or whatever they're called.

PN2528

THE COMMISSIONER: I'm sorry, Mr Clarke?

PN2529

MR CLARKE: Pardon me. The guidelines say something about "ands" and "ors" and - - -

PN2530

THE COMMISSIONER: Yes, the idea was to make it clearer with the "ands", but it may be that that "and" might be better off with an "or".

PN2531

MS VAN GORP: Commissioner, the guidelines, arising out of the decision that last dealt with them, did note that even though in the first sentence you might say, "including" - as this clause does - - -

PN2532

MR CLARKE: Yes, 5.5 suggests it should be an "or".

PN2533

MS VAN GORP: But the "or" should be instead of the "and", I think. I agree.

PN2534

MR CLARKE: Yes.

PN2535

MS VAN GORP: But it can be in both places according to the guidelines.

PN2536

THE COMMISSIONER: So 5.5, Mr Clarke has said of the guidelines - - -

PN2537

MR CLARKE: For those who don't have it, it says:

PN2538

To indicate that a series of paragraphs or subparagraphs is intended to be exclusive, insert the disjunctive "or" at the end of each paragraph or subparagraph other than the final one in the series.

PN2539

If there are three or more paragraphs in the series, also use the expression "any of the following" or similar in the text leading to the paragraphs or subparagraphs.

PN2540

So I think the guidelines would - each one of those is of its own a significant effect.

PN2541

THE COMMISSIONER: Yes, you don't need to have - - -

PN2542

MR CLARKE: I presume that's what he means by exclusive, so the guidelines would suggest that it would be an "or" rather than an "and", I suspect.

PN2543

THE COMMISSIONER: All right. Anybody else have any differing views on that? It's just a matter of going to the plain language team and asking if they think it's an "or" rather than the "ands". All right, good pick up there, Ms Biddlestone. Anything else from the union parties?

PN2544

MS WILES: Commissioner, it's just one other potential issue - sorry, it is back in B.1(b) - just the use of the term, "begin to discuss with those affected employees". It just kind of raises the issue of well that's the obligation to begin to discuss, but then what happens after that?

PN2545

MR CLARKE: My memory of it is that it was to capture the notion of an obligation to commence discussions as soon as practicable, because I think the concern expressed - Brent, it may have been you or someone else that said well if the obligation is to conclude the discussions as soon as practicable - that's actually probably not helpful in making sure you can sell properly, to make sure that you rush through it - but I think they used "begin" because for whatever reason the drafter didn't like "commence", which is the existing word.

PN2546

MS BIDDLESTONE: Okay, because that's the current term.

PN2547

MR CLARKE: Is "commence".

PN2548

MS BIDDLESTONE: Well, maybe it's the same. I think the issue - sorry - is that in the current award that the two points are actually separated out. So is 22.1B(i) - it talks about "must discuss" and the sub‑brackets (ii) where it refers to when they must commence, so in the current plain language draft those two issues have been brought into the one clause, so we don't have a separate clause that talks about "must discuss;" the two issues have been brought together, so it could potentially raise some issues in terms of changing the legal effect of the current award.

PN2549

THE COMMISSIONER: What do the current provisions do? They say that the employer must discuss those things; they "must commence those discussions as early as practicable, and then provide in writing" - that's all they do. Doesn't B.4 in the proposed wording take it a step beyond, that doesn't currently exist?

PN2550

MR NGUYEN: No, it's at the bottom of B.1.

PN2551

MS BIDDLESTONE: And it currently exists at 22.1(b)(v), the very last - - -

PN2552

THE COMMISSIONER: Where, sorry?

PN2553

MR NGUYEN: B.1, the last sentence.

PN2554

THE COMMISSIONER: B.1: "We must give proper consideration" - okay, so that does the same thing. I mean, the words get to the place where this mirrors the current obligations. So if the proposal is that they must, "as early as practicable begin to discuss", what's the concern there? How do you say that changes the current obligation?

PN2555

MS BIDDLESTONE: I suppose it puts the emphasis on the obligation to begin to discuss, rather than the overall, ongoing discussion, which is - - -

PN2556

MR CLARKE: Yes, I think it's a change in emphasis. Whereas the whole clause says you have to discuss all of these things and you start that discussion at this point. The drafting has been pressed so that the obligation is not to discuss but to begin to discuss. I think that's the concerns being expressed here.

PN2557

THE COMMISSIONER: But the proposal is that you begin to discuss; you confirm it in writing, and then you, at B.4, need to properly consider the matters raised. Do you say that there could be a premature stopping of the discussions?

PN2558

MR CLARKE: It's just that the - for potentially, but yes, the nature of the obligation has changed from an obligation to discuss to an obligation to begin to discuss.

PN2559

THE COMMISSIONER: Yes.

PN2560

MR CLARKE: I think that's how, I think, what we might have got wrong in attempting to fix the old problem. There was a different problem. Last time they suggested - - -

PN2561

MS WILES: It's Ms Wiles here - sorry - I think Trevor's right. Currently we've got a stand‑alone obligation to consult, or to have those discussions, and then there's an additional thing which says that you must commence those discussions as early as practicable after a definite decision's been made, and I think, yes, the conflating of those two things is potentially a narrower obligation.

PN2562

THE COMMISSIONER: All right. For the employer parties, as I understand it the concern there is the insertion of the words, "begin to". Is there any clinging to those words? There is?

PN2563

MS BHATT: There is, Commissioner, to this extent: if those words weren't there, then the issue that had previously been raised by Ai Group would present itself once again, and that is that the obligation would then be to as early as practicable have the relevant discussions with affected employees; it wouldn't be to simply begin those discussions. So if the words, "begin to", weren't there, it seems to suggest that the discussions, in total, must be completed as soon as practicable, and I think there might be some acceptance, at least from Mr Clarke, that that's probably not desirable from anyone's perspective, which is why we had submitted that the word, "commence", should be re‑inserted, and I can see that the drafts person prefers the words, "begin to". I hear what's been said about the union's concern. I'm not certain that it arises, but if we were to consider a form of words that reinstates an express obligation to discuss generally, and then there's a subclause that describes in a temporal sense when they must begin, we wouldn't have any difficulty with that.

PN2564

MR CLARKE: Yes.

PN2565

MS BHATT: But would reflect the current wording; we accept that.

PN2566

MS BIDDLESTONE: We would be happy with that proposal.

PN2567

THE COMMISSIONER: All right. What do you say it might look like?

PN2568

MR CLARKE: You could just put in a clause that says the discussions under whatever it is must commence as soon as practicable after a definite decision has been made to make the changes.

PN2569

THE COMMISSIONER: What would you do to B? "As early as practicable?"

PN2570

MR CLARKE: Just begin it with the word, "Discuss".

PN2571

THE COMMISSIONER: So you'd remove, "begin to?"

PN2572

MR CLARKE: Yes. Remove "as early as practicable".

PN2573

THE COMMISSIONER: Remove that, sorry - - -?

PN2574

MR CLARKE: Yes, and then B.2 would become B.3, and you'd have a B.2 that said: "The discussions" - under whatever it was, pardon me - "must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in" - whatever it was.

PN2575

MR FERGUSON: That's right.

PN2576

THE COMMISSIONER: We're going back to the future, are we?

PN2577

MR CLARKE: We are. No flux capacitor required.

PN2578

MR FERGUSON: It had a certain clarity.

PN2579

THE COMMISSIONER: Would you perhaps say B looks like - commencing with, "Discuss with affected employees and their representatives" - and then (i) to (iii) - "such discussions commencing as early as practicable after a definite decision has been made by the employer". So you like those words in 22.1B to - - -

PN2580

MR CLARKE: Yes.

PN2581

THE COMMISSIONER: But the parties are comfortable with removing, "begin to" - you think that there's some legacy in, "commence discussions", which means that they commence but they don't necessarily end just by that notification?

PN2582

MR CLARKE: Mm.

PN2583

MS BHATT: The award currently doesn't require that the discussions must be commenced and completed as early as practicable; it just requires that they be commenced as early as practicable, and if the word "commence" or "begin to" are not there, then that's the concern that we've got.

PN2584

THE COMMISSIONER: Yes, but do "commence" and "begin" mean the same thing?

PN2585

MR CLARKE: Yes.

PN2586

MS BHATT: Yes.

PN2587

THE COMMISSIONER: Do they?

PN2588

MR CLARKE: I hope so.

PN2589

THE COMMISSIONER: So it could be either?

PN2590

MR CLARKE: I think it probably could. If it's an exercise in giving every kiddy a prize so the drafter doesn't feel completely abandoned by us, there is a way we could work with, "begin to".

PN2591

THE COMMISSIONER: If you think that they mean the same things, can B.1(b) say, "as early as practicable commence discussions with affected employees?"

PN2592

MR CLARKE: No. Sorry, if you put that in B.1, the concern is we still - I think the anatomy of the - the views that I'm hearing are that the obligation is to have the discussion; never mind anything else in the clause, the obligation is that the discussions will happen, one, and that the discussions will begin or start as soon as practicable. And so if we confine B so that it only says that the discussions will happen, you then need to put the bit about when the discussions will begin or commence or start somewhere else.

PN2593

THE COMMISSIONER: What was wrong with what I just now suggested: "As early as practicable commence discussions with affected employees?"

PN2594

MR CLARKE: Because if you do that there's no obligation to actually have discussions anymore. The obligation is to commence discussions, and I think that what everybody would like to achieve is a clause that says you have to have the discussions and you have to commence those discussions as early as practicable. If you sandwich it together and just say your obligation is to start discussions as soon as possible, then you haven't got the obligation to actually have discussions; and if you have an obligation that says your obligation is to discuss as soon as practicable, you force people to finish the thing as soon as practicable, which isn't actually going to really result in good outcomes for anyone.

PN2595

So I think the proposal of commencing B with: Discuss with affected employees and their representatives (i), (ii), (iii), and then have a new thing in the terms that I described that was met with some nodding, at least up here in Sydney, was that: "The discussions under" - insert reference - "must commence" - or "begin" - "as early as practicable after a definite decision has been made by the employer to make the changes referred to in" - insert reference.

PN2596

THE COMMISSIONER: All right. So if you had B start with, "Discuss with affected employees", and carry on?

PN2597

MR CLARKE: Yes.

PN2598

THE COMMISSIONER: And then perhaps insert a (c), noting that it leads off with:

PN2599

The employer must commence the discussions as early as practicable after a definite decision has been made by the employer to make the changes.

PN2600

MR CLARKE: Yes.

PN2601

THE COMMISSIONER: Going back to the old wording.

PN2602

MR NGUYEN: I think we need to repeat the definite decision part - sorry, at the beginning of the sentence.

PN2603

MR CLARKE: Yes.

PN2604

THE COMMISSIONER: All right. So what might (c) look like? "The employer must commence" - - -?

PN2605

MR CLARKE: Discussions as early as practicable.

PN2606

THE COMMISSIONER: - - - "the discussions as early as practicable". Is that clear to a layperson?

PN2607

MR CLARKE: I don't think we have any laypersons available today, Commissioner. There were some students in the galleries.

PN2608

MS BIDDLESTONE: Sorry, I think they're asleep at this point.

PN2609

THE COMMISSIONER: Well, I guess none of you had too many concerns, did you, with the earlier wording of (b) where it said "as early as practicable?" You thought that that meant as soon as an employer had made a definite decision; is that your thinking there, Mr Nguyen?

PN2610

MR NGUYEN: I think so. I think that's what it means. But that's clear - I mean, if it happens at the same time that's clear. Instead of practicable, we'll just say as soon as the employer has made a definite decision they must begin discussions.

PN2611

THE COMMISSIONER: All right, but if there were to be a new subclause (c), and it says, from the top, the employer must commence the discussions as soon as practicable - - -?

PN2612

MR CLARKE: Or as early as practicable, yes.

PN2613

THE COMMISSIONER: Does it sound right to end on that word?

PN2614

MS BHATT: I have to confess, for my part I think it's much clearer if the clause describes as soon as practicable from what, or after what, and so for that reason if the words, "after a definite decision has been made by the employer", were included, I think the provision would be clearer.

PN2615

MS PEARSALL: We would support that too.

PN2616

THE COMMISSIONER: Who was that, sorry?

PN2617

MR NGUYEN: I'm fine with that as well.

PN2618

MS PEARSALL: Pearsall from the National Farmers' Federation.

PN2619

THE COMMISSIONER: Thank you. So you say - - -

PN2620

MR KLEPPER: Business SA would - apologies - Business SA would also support Ai Group's suggestion there.

PN2621

THE COMMISSIONER: But it's not appropriate to leave practicable as the last word in that sentence?

PN2622

MR KLEPPER: Yes.

PN2623

THE COMMISSIONER: Because it leaves one hanging?

PN2624

MR KLEPPER: Yes, that's correct.

PN2625

THE COMMISSIONER: So might it read: "Commence discussions as soon as practicable after a definite decision has been made by the employer to make the changes?"

PN2626

MS BHATT: For our part, we'd be content if the sentence ended with, "has been made". I think it's clear that it's the decision to make the changes when it's read with the preamble at B.1.

PN2627

THE COMMISSIONER: Is everyone else comfortable with that?

PN2628

MS VAN GORP: Yes.

PN2629

MS BIDDLESTONE: Yes, Commissioner.

PN2630

THE COMMISSIONER: All right then. Thank you. Any more concerns from union parties? All right. We'll open it to the employer parties now.

PN2631

MS BHATT: Thank you, Commissioner. I'm not sure of the extent to which it's necessary to address you on matters that have been amended in this most recent iteration of the clause, but I'll deal with them briefly if it assists.

PN2632

THE COMMISSIONER: Yes.

PN2633

MS BHATT: Clause B.1(b), the word, "affected", before "employees", didn't appear in the previous version and Ai Group made a submission that in its absence it appears to expand the obligation to discuss to any employee that might be affected, as opposed to those who are in fact affected. I think that there was some degree of agreement between the parties, and it might be, as a reflection of that, that that word has now been inserted in the most recent draft.

PN2634

THE COMMISSIONER: Well, B.1(a), the obligation is there to give notice to the employees who may be affected by the changes.

PN2635

MS BHATT: Yes.

PN2636

THE COMMISSIONER: And B would then require discussion with affected employees.

PN2637

MS BHATT: That's correct, Commissioner.

PN2638

THE COMMISSIONER: So what's your concern?

PN2639

MS BHATT: There isn't a concern now. With the insertion of the word, "affected", the issue that's been raised by Ai Group has been remedied. I don't understand there to be any difficulty with that, but I just raise that in case there is.

PN2640

THE COMMISSIONER: All right. Is there any party that objects to the word, "affected", at B.1(b)? No? All right.

PN2641

MS WILES: Commissioner, it's Ms Wiles here for the TCFUA. I'm just thinking about this practically and in terms of what happens, you know, commonly in workplaces; I mean, sometimes it's not really clear the total group of employees who may be affected. So I mean, B.1(a), I guess, is broader - that could be a broader group than the group of employees in B.1(b), so there is a bit of a disconnect between (a) and (b), I think, or potentially, because if the larger group of people who may be affected, they may not be able to determine with real clarity how they're affected until they get further information, if that makes sense.

PN2642

THE COMMISSIONER: In the existing clause it talks about the employer must notify the employees who may be affected, and that's covered by the proposed wording at (a).

PN2643

MS WILES: Yes.

PN2644

THE COMMISSIONER: And then the employer's obligation to discuss the change in the existing terms is to the employees affected, not employees who may be affected; it's to those who are affected. So doesn't that simply mirror the existing terms? You couldn't expand it. You couldn't expand (b) to employees who may be affected, because that might take it too far.

PN2645

MS WILES: Yes, I understand the point you're making, yes. In practice sometimes when there's a change, it might on face affect x number of employees on a shift, but the change in the shift structure then may have an inadvertent effect on somebody else on another shift, in terms of the way that the structure, the hours, are then managed over a 24‑hour period, for example. But I know what you're saying that potentially the current clause - that could be an issue with the current clause.

PN2646

THE COMMISSIONER: All right. I think that's probably as far as we can take that one then.

PN2647

MR NGUYEN: I think Ms Wiles raises an important point in relation to B.2, because the word, "effects", it has been added there as well, and the equivalent original clause didn't specify that they had to be affected, only just that they had to be concerned. So in terms of what Ms Wiles has raised, I think practically you have to have the information to know if you are going to be affected, so for the purpose of B.2, which is about giving the information, the information should go to all those who may be affected so they can actually determine whether they want to engage in the discussions.

PN2648

MS BHATT: But that's not what the current clause requires. At 22.1(b)(iii) is the provision that requires information in writing to be provided, and the start of that subclause reads: "For the purposes of such discussion" - that discussion being the discussion that's referred to at (i) and (ii) - "and such discussion must occur only with employees who are affected."

PN2649

MR NGUYEN: That's right, but it says, "For the purposes of the discussion", which indicates the practical timeline that Ms Wiles has raised, which is that you need to get the information before you determine whether you are relevantly engaged in the discussions.

PN2650

MS BHATT: I don't think it does. I think it makes clear that the obligation that arises to provide information is limited, in the sense that it relates only for the purposes of those discussions, and those discussions are to occur with a particular group of employees, those being the ones that are affected.

PN2651

THE COMMISSIONER: I think the current clause at (i) expands about who may be affected, but following that, nowhere else does it introduce the concept of, "may be affected". The terms aren't great, but at (b)(i) you have, "the employees affected", and then at (iii) you have, "employees concerned". But I think it would be quite a step to suggest that that would cover people who may be affected.

PN2652

MR NGUYEN: But how do people determine if they may be affected if they don't have the information about the changes?

PN2653

THE COMMISSIONER: Have any of these matters come before the Commission?

PN2654

MS THOMSON: We've already - sorry, this is Ms Thomson - they've already been given notice about the changes in B.1(a), so that's the mechanism by which they've made that assessment or determination about whether they're likely to be affected; and then if you are affected then you get further information which allow you to properly participate in the conversations or the discussions referred to at (b).

PN2655

THE COMMISSIONER: That may not be the case though. I mean, it may be that the employer puts their foot down and says you're not an affected employee, I'm not going to have any further discussions with you, I'm not obliged to; and the person says well what you're doing on afternoon shift affects me. The current provision doesn't require the employer to have those consultations with people who the employer doesn't think is - that they're not affected employees. This must have come before the Commission at some point in time. Yes?

PN2656

MS WILES: Commissioner, it's Ms Wiles. The current clause doesn't expressly say that it's the decision of the employer as to who's affected. It says that there's an obligation on the employer to do certain things that affects the employees, but it's not expressed that it's their determination as to who an affected employee is.

PN2657

THE COMMISSIONER: Yes, but if the employer says I think it's narrowed to groups A, B and C, and it's then contested, well that would come before the Commission as a dispute, for somebody to say well group D is also affected.

PN2658

MS WILES: Yes, I appreciate your point.

PN2659

THE COMMISSIONER: So I mean, that situation could arise now. I don't see it being any different to the words that are being proposed where the only expansion is at (a), but there being a narrowing beyond that to affected employees as to those with whom the discussions need to be held. I think that that mirrors the current provision, and if people say well I am an affected employee and I haven't had discussions, well then, again, that would become a dispute.

PN2660

MR NGUYEN: What about B.2, Commissioner? Do you think that that's - - -?

PN2661

THE COMMISSIONER: Again, I think that's the same. I think the current provision only provides for that expansion at 22.1(a)(i), and then beyond that, at everything at (b) and below, where the responsibility is to discuss the change, it only talks about affected employees or employees concerned. My view is that the proposed wording provides no more or less than what is currently there. I understand the concerns of the union parties, saying that that might mean that people who think they are affected won't be consulted with, but I think that that would arise now. Isn't it open to employees, if they think they are affected, to then notify the dispute?

PN2662

MS WILES: It's Ms Wiles - yes, it is, yes.

PN2663

THE COMMISSIONER: The problem is the Commission might be limited under the award to only providing recommendations, or views, but not arbitrating the matter. Is that a concern? That would currently exist anyway.

PN2664

MR CLARKE: That's a longstanding concern for some of us, yes, but I don't think plain language is going to be the solution to that one.

PN2665

THE COMMISSIONER: My view is that I don't think what's being proposed does more or less than is the current provision by the insertion of those words, "affected", at B.1(b) and B.2.

PN2666

MR NGUYEN: When does the information get given to the employees about the change?

PN2667

THE COMMISSIONER: To the affected employees?

PN2668

MR NGUYEN: Yes, because what I understand the AiG are saying is that in the original clause 22(b)(iii), the information is only provided for the purposes of the discussion, which is what I would agree with as well, because you need to have the information before you have the discussion. So on the one hand they're giving notification - so these two things are both happening before the discussion - giving notification to employees who may be affected, which includes apparently nondescript information, and then they're doing another round of communication of information to employees who are affected, the more prescriptive set of information, and then the discussions happen. Is that the practical effect of what the clause is?

PN2669

MS BHATT: The clause itself does not appear to prescribe the time at which written information has to be given to affected employees. So it might happen at the same time that the discussions are held; it might happen before the discussions are held.

PN2670

MR NGUYEN: But it's an ongoing - - -

PN2671

MS BHATT: It may be provided on and on - yes, that's right. But I have to say I don't think any of the concerns that Mr Nguyen is raising arise from the redrafting of the provision.

PN2672

THE COMMISSIONER: You say it preserves the status quo?

PN2673

MS BHATT: Yes.

PN2674

THE COMMISSIONER: Well, it's a good point, Mr Nguyen, but do you concede that the redrafting is effectively the status quo of the current provision?

PN2675

MR NGUYEN: Well, I mean, I guess it depends on whether there's a difference in the word, "affected", and "employees concerned". The employees can be concerned if they may be affected, but then they might not be concerned when they find out that they're not affected.

PN2676

MR FERGUSON: I don't think it means worried, if that's what you're suggesting.

PN2677

MR NGUYEN: Well, it could mean that.

PN2678

MR FERGUSON: I don't think it does.

PN2679

MS BHATT: No, I don't think it does.

PN2680

MR FERGUSON: It's a bit ludicrous.

PN2681

THE COMMISSIONER: What does "employees concerned" mean?

PN2682

MR NGUYEN: It could be referring to the employees in B.1, or it could be referring to the employees who may be affected.

PN2683

THE COMMISSIONER: Is it more likely to be, given construction of the clause, in reference to B.1, rather than A.1?

PN2684

MR NGUYEN: Well, you would think that, but then they should have used the same words, which is you would normally use the same words if it's not an intention to change the meaning. You would have used, "affected employees", again.

PN2685

MS BHATT: I think the word, "concerned", has to be read in its context, and that clause, as I've already said, refers to, "for the purposes of such discussions", that is, the discussions referred to in B.1 and B.2, and so in that context, "the employees concerned" is simply a reference to the relevant employees, the relevant group of employees with whom discussions are to be held. So I think for that reason the use of the word, "affected", now in B.2 is perfectly appropriate. It properly reflects the current clause.

PN2686

THE COMMISSIONER: Yes, I take your point, Mr Nguyen, that if it - - -

PN2687

MR NGUYEN: I accept the point that the dispute could happen currently under the existing clause, so there's no change.

PN2688

THE COMMISSIONER: All right. But you say if they meant "affected" they should have said "affected", remembering that these were done in a very short period of time, but I think there's more strength in the employer's argument that it should reference the employees who are affected at B.1, and that it couldn't mean the employees who may be affected at A.1, because it's relevant to the discussions. But I still note your concern there, Mr Nguyen. Anything else there, Ms Bhatt?

PN2689

MS BHATT: I only have one other issue to raise and that is clause B.4, which reads:

PN2690

The employer must promptly consider any matters raised by the employees or their representatives about the changes.

PN2691

Commissioner, if we look above at what used to B.3 but has now been struck out, it previously said at the end about the changes in the course of the discussions under clause 27.1, noting the incorrect cross‑reference. That clause properly, in our view, required an employer to promptly consider any matters that are raised by employees or their representatives in the context of the discussions that are required by this provision. The difficulty with the redraft at B.4, as we see it, is that there is no link between that clause and this provision more generally, and the discussions that it requires, nor is there any sort of temporal limitation. So on one reading, if an employer makes a definite decision, implements the change, having been through the process that this clause requires, and three years later an employee or its representative raises an issue, this clause requires the employer to promptly consider the matters raised, and we think that that is a substantive change to the current wording, which can be found at 22.1(b)(i) towards the very end. We think that the relevant words there have to be read in the context of the clause as a whole, so the clause first requires the employer to have these discussions with affected employees, and then says that prompt consideration must be given to the matters raised. Read in its context, we think that means matters raised during the course of those discussions, not matters raised some many months or years later.

PN2692

THE COMMISSIONER: It's an interesting concept. What do you the union parties say about that?

PN2693

MS WILES: It's Ms Wiles here. The current clause says it must give - this is at 22.1(b)(i) -

PN2694

It must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

PN2695

So the term is, "in relation to the changes", which potentially is a broader set of things, in our view.

PN2696

THE COMMISSIONER: I guess the issue that the Ai Group's raising is that 22.1(b)(i), it's a very long sentence; the entire subclause is one sentence. So it's linked to the discussions that are being had, so there's the context. Is it your proposal then, Ms Bhatt, that it read as per the earlier B.3, that:

PN2697

The employer must promptly consider any matters raised by the employees or representatives about the changes in the course of the discussions.

PN2698

MS BHATT: Yes, and I think it should refer to the relevant clause, and I'm just trying to identify what that would be. I think it would be B.1(b), instead of the 27.1(b) that's in this document. I think probably also, rather than "discussion" it should say "discussions", plural.

PN2699

THE COMMISSIONER: Yes. Is there any union objection to that concept?

PN2700

MS WILES: Commissioner, it's Ms Wiles, just on this issue of whether it's a discussion or discussions, again, reading the current term and its context, clause 22.1(b)(ii) refers to discussions.

PN2701

THE COMMISSIONER: Yes, well Ms Bhatt's saying there that it should read, "discussions", plural.

PN2702

MS WILES: Sorry, I misheard that. I thought she was submitting it should be "discussion".

PN2703

THE COMMISSIONER: So if B.4 read: "The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussions under clause B.1(b)", would there be any party objecting to that?

PN2704

MS WILES: It's Ms Wiles - I think it's still narrower than the current clause.

PN2705

THE COMMISSIONER: The current clause provides the prompt consideration to matters raised, and the proposal is that the employer must promptly consider any matters raised. Where do you say the difference is there?

PN2706

MR NGUYEN: There doesn't appear to be a time limit on when - I mean, this is the issue that Ai Group's raised, is that there's no time limit on when employees can raise their concerns, but the original clause doesn't seem to place a strict time limit on when the concerns are raised as well, and concerns may be raised arising out of discussions which - you know, when do the parties define the discussions as having ended is not clear.

PN2707

THE COMMISSIONER: But isn't it tied again back to the introduction of the changes, the effects, and the mitigation, and the concept that 22.1(b)(i) is that the employer will hear what's been said and give prompt consideration to those concerns?

PN2708

MR NGUYEN: Before it's implemented?

PN2709

THE COMMISSIONER: Yes.

PN2710

MR NGUYEN: Yes. I think everyone would agree that all that is supposed to occur, but the clauses, the old one and the new one, doesn't really say that, or that's supposed to occur before the change is implemented.

PN2711

THE COMMISSIONER: Once a change is implemented, whether it's the employer's original or a variation to that, doesn't this clause have no further effect? So the concern of Ai Group is that if the proposed B.4 were in the clause that it could enliven other things in months or years to come?

PN2712

MS WILES: Commissioner, it's Ms Wiles here, but in practice it's not unusual to have some sort of implementation agreement with affected employees and unions about how change is going to be implemented over time, and part of that may be an agreement that, you know, the change is reviewed after three months, for example.

PN2713

THE COMMISSIONER: Yes, but that would be something reached by consent, wouldn't it, between the parties? Would the award have any work to do there? I mean, would the current 22.1(b)(i) have any work to do?

PN2714

MS WILES: You're right in one sense, although if such an agreement was reached by consent, that may well be arising from the obligation around mitigation, so the award maybe still would have work to do, because that sub‑agreement is part of the mitigation obligation.

PN2715

MS BHATT: If I may, Commissioner - we're not seeking to argue that such an arrangement cannot be put in place, or that an employer is under the current provision or should be prohibited from raising an issue later if that becomes necessary in relation to a major change; this is about an obligation that is created on an employer as to how and when they give consideration to that issue. That doesn't preclude the types of arrangements that Ms Wiles is referring to. I think what's important here is that the obligation that the award creates must be grounded in the discussions that are required by the award, and by disaggregating that obligation from the requirement to have the discussions in the redrafted provision, that link is now lost. That's why this issue arises.

PN2716

THE COMMISSIONER: All right. Well, B.3, is it your submission there, Ms Bhatt, that it read:

PN2717

The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussions under clause B.1(b).

PN2718

MS BHATT: I think it would be clause B.4, Commissioner, but the words you've read out, yes.

PN2719

THE COMMISSIONER: So you'd like that to replace what is proposed at B.4?

PN2720

MS BHATT: Yes, Commissioner.

PN2721

THE COMMISSIONER: All right. And some of the union parties have concerns with that?

PN2722

MR CLARKE: Just an observation. If the sort of driving force of that is that under the previous drafting of the clause in awards, all of this came under the heading, "Employer to discuss change", so that there was this contextual link that everything needed to be attached to the discussions, if that's the sort of principal basis upon which we make this change. You'd need also to make a corresponding change to B.3 so that the protection against the employer to not disclose confidential information was also something entirely restricted to what happened in discussions. Because that falls clearly into the same category, if that's the conceptual basis in which we're proceeding. For the purposes of such discussion in the old clause, dot dot dot, employer not required to disclose confidential information. It should only be limited to the discussions.

PN2723

MS BHATT: I hear what Mr Clarke's just put but I'm not sure that any change to B.3 would be necessary, because it refers to the provision itself, so it's necessarily only dealing with information that an employer would disclose by virtue of, for example, the discussions that it's having as required by this clause. I'm just not sure that any change would be necessary.

PN2724

THE COMMISSIONER: If this clause becomes clause 5, for example, of an award, it would read: Clause 5 does not require an employee to disclose. So that would be relevant to everything that is being done here, Mr Clarke, is that - - -?

PN2725

MR CLARKE: That's right.

PN2726

THE COMMISSIONER: Right.

PN2727

MR CLARKE: Because you look at - you know, we've had this sort of messy situation where first you give notice, then you have discussions that commence early, and for the purposes of that discussion you have some other bit of paper. Well, why should B.3 be an insulator in relation to the first part - give notice of the changes to all employees who may be affected and their representatives, if any. There's no confidentiality protection in the existing provision in relation to that first step. There ought not be here.

PN2728

MS LIEBHABER: Commissioner, Ms Liebhaber here from the HSU. I just notice one other issue, which is B.3, which is about not requiring any further to disclose confidential information. In the exposure draft, that's limited to what the employer must provide in writing, and then here, this seems like it's expanded now more generally.

PN2729

THE COMMISSIONER: Is that running off the back of your concern then, Mr Clarke, that - do you say the existing limitation is that it's only in relation to the discussions?

PN2730

MR CLARKE: The stuff that happens in the discussions and the notice, the written notice.

PN2731

THE COMMISSIONER: And the written communication?

PN2732

MR CLARKE: Yes. So that's what I'm saying; if you want to group everything that's limited to for the purposes of such discussion and things that fall out of that, things that facilitate that, then the promptly consider and the confidentiality thing fall into the same category.

PN2733

MS BHATT: Commissioner, I have to confess that I might have misunderstood what Mr Clarke had previously put, and I think I have to accept having regard to 22.1(b)(iii) that this issue about confidentiality is limited to the discussions that an employer has with affected employees. So if some set of limitation to that effect were put on B.3, so long as it properly reflects the award, we wouldn't oppose that.

PN2734

THE COMMISSIONER: So it's the discussions and the provision of written material?

PN2735

MR NGUYEN: It's only B.2.

PN2736

THE COMMISSIONER: Do you say it's only the written material, Mr Nguyen?

PN2737

MR NGUYEN: That's the concept that it's connected to currently.

PN2738

MR CLARKE: Yes, it's an exclusion to what goes in the written notice actually, yes. Yes, for the purposes of the discussion, put stuff in writing, provided that the stuff you're putting in writing - - -

PN2739

THE COMMISSIONER: Would B.3 read: Clause B.2 does not require - - -?

PN2740

MR CLARKE: Yes.

PN2741

THE COMMISSIONER: Is everybody comfortable with that?

PN2742

MR CLARKE: Yes.

PN2743

THE COMMISSIONER: Just one moment then.

PN2744

MS BHATT: The reference is to clause B.2?

PN2745

MR CLARKE: Mm.

PN2746

MS BHATT: I think we'd accept that that's consistent with what's currently in the award.

PN2747

THE COMMISSIONER: Yes, all right. Does anybody object to that, that B.3 read: Clause B.2 does not require an employer to disclose, et cetera?

PN2748

MS BIDDLESTONE: Yes, Commissioner, we're comfortable with that in Melbourne.

PN2749

THE COMMISSIONER: Great, so everybody's in agreement that reflects the current provisions. Very good.

PN2750

MS BHATT: There's nothing else that I thought to raise, Commissioner. Thank you.

PN2751

THE COMMISSIONER: All right. Any other employer parties with any other concerns?

PN2752

MS VAN GORP: No, Commissioner.

PN2753

THE COMMISSIONER: For the union parties, anything else that's arisen out of what we've been discussing? Anybody's free to jump in; otherwise I'll take it that you're reasonably happy with what's been drafted. All right, very good. Anybody have any concerns about the annexure to the statement that you wish to address now and explore?

PN2754

MS WILES: Commissioner, it's Ms Wiles here. Do you mean the attachment there to the decision - to the statement?

PN2755

THE COMMISSIONER: Yes, the annexure to the statement of - - -

PN2756

MS WILES: The other clauses?

PN2757

THE COMMISSIONER: - - - 27 March, yes.

PN2758

MS WILES: In the IFA's clause, at 8.1(e), the word "annual" has been deleted before leave loading, and it's not clear to us the rationale for that. We think it's clearer if it - - -

PN2759

THE COMMISSIONER: Sorry, where is it? Where are you - - -?

PN2760

MS WILES: I'm dealing with the individual flexibility arrangements clause.

PN2761

THE COMMISSIONER: Yes.

PN2762

MS WILES: And then at 8.1(e), the word "annual" has been deleted from annual leave loading, and what we say is that we think it's actually clearer if the word "annual" is retained.

PN2763

MR CLARKE: Ms Wiles, it says leave loading in the current clauses, doesn't it?

PN2764

MS WILES: I was just responding to the fact that "annual" had been deleted, yes.

PN2765

THE COMMISSIONER: Yes, I accept your point. Anything else?

PN2766

MR FERGUSON: I might raise some issues in relation to this clause.

PN2767

THE COMMISSIONER: Yes?

PN2768

MR FERGUSON: In relation to the note, while we're not necessarily convinced it's necessary, we're not strongly opposed to it either, but the underlining may have some significance, and we do have the concern that that's intended to reflect hyperlinks to other clauses. We can't tell from the attachment, but if that's the case we would have some reservations, the obvious one being that a hyperlink from words, "hours of work", may go to multiple award clauses dealing with hours of work, and if it didn't go to every single award clause dealing with hours of work, it may narrow the operation or suggest to the reader that it's narrowing the operation of this clause, and from a practical perspective - my technological skills are not great - but I don't know how you could have a hyperlink going to multiple clauses dealing with the same issue. The other point that strikes me is, for example, rostering arrangements. Not all awards will include rostering arrangements in them, so if we are dealing with a standard clause and there are hyperlinks, I'm not quite sure where that will take you. So it seems somewhat problematic, perhaps, to include the note, certainly problematic to include it with the hyperlinks.

PN2769

THE COMMISSIONER: Thanks. If there was an inclination of the Bench to include hyperlinks and a particular award didn't have such a clause, we would say that.

PN2770

MR FERGUSON: And sorry, if it was a standard clause you'd have to amend it for each award to remove that word, the words, "rostering arrangements", and the hyperlink, but that doesn't defeat the first problem, which is that hours of work might actually trigger multiple clauses.

PN2771

THE COMMISSIONER: Yes.

PN2772

MR FERGUSON: But that's a hyperlink problem more than a wording problem, and I readily accept that you could tailor the standard clause to suit each individual award if that's what the Full Bench wants to do.

PN2773

THE COMMISSIONER: I'm sure we'll come back to you on that issue then.

PN2774

MR FERGUSON: Yes. Another issue, I suppose of a technical nature, is in relation to clause A.8(b) and (c). It talks about the agreement, in essence varying the award terms and effect. These agreements don't vary the terms of the award; they actually, if you talk about the language of the Act, they vary the effect of the award terms. But the way this clause has been written, and written in the past, is it talks about the agreement varying the application of the terms. I think we could suggest some minor drafting amendments to make it a draft in a manner that's consistent throughout, and that's in relation to A.8(b), and say: "Identify the award term, or terms, the application of which is to be varied;" so you'd be inserting the words, "the application of which is". In relation to (c), you'd say: "How the application of the award term, or each award term, is varied." So you'd be inserting the words, "the application of", again, just aimed at making sure the clause doesn't suggest the award terms themselves are varied, given that wouldn't be legally correct in terms of the operation of the Act.

PN2775

THE COMMISSIONER: Do you say that that's consistent with the (indistinct) at 4.1, where it says, "The employee may agree to vary the application of?"

PN2776

MR FERGUSON: Yes.

PN2777

THE COMMISSIONER: Did the parties need to have put submissions in already in respect to these proposed - - -?

PN2778

MR FERGUSON: I think what's happened is we've advanced written submissions, we've had the conference, and then they've been revisited in light of what we've put during the conference and presumably in light of the written material. We're not certain what the next steps are, but it may be that this process enables the Bench to, with the help of whatever drafting team's assisting, reach a more finalised, if I can put it that way, set of clauses that it may, on a provisional basis, think are suitable, and I had understood from the statement though that the Bench had fully intended the parties to - or interested parties to be given a further opportunity to comment.

PN2779

THE COMMISSIONER: That's right. At paragraph 9 of the statement:

PN2780

This conference will of course deal with the consultation clause. The parties may also raise issues in relation to the standard clauses as set out in attachment B following the conference. Revised standard clauses will be published and interested parties will be given the opportunity to comment.

PN2781

MR FERGUSON: What we're endeavouring to do is just where we've picked up issues or perceived there to be issues, we thought this would be a useful arena in which to ventilate those in the hope that maybe that could result in a clause that was more acceptable to most people and might circumvent the need for another round of strongly contested submissions.

PN2782

THE COMMISSIONER: I know it's on the hop, but does anybody have any view at this point in time or concern about what Ai Group are proposing there, that the insertion of the words to the effect of, "the application of?"

PN2783

MR CLARKE: It's necessary to actually make it legally correct, but the whole - you know, it's not really plain language, but you can't do it plain language because the Act itself is a bit of a bodge in how it provides for individual arrangements without calling them that. So the language is - we're captive to the legislation. I think what Ai Group have proposed is true to the Act. It's as good as it can get.

PN2784

THE COMMISSIONER: All right then.

PN2785

MR FERGUSON: Trying to do as little violence to the overall clause as well, but using the term, "application of", so we're just trying to keep using it, and trying to keep the same structure.

PN2786

THE COMMISSIONER: I can see the pain in your face there, Mr Clarke, having to agree with that.

PN2787

MR CLARKE: No, just the pain in my face is the terms in which this whole scheme is expressed for these arrangements.

PN2788

THE COMMISSIONER: All right. Anybody else? I will take up that suggestion and give that some consideration there, Mr Ferguson.

PN2789

MR FERGUSON: Thank you.

PN2790

THE COMMISSIONER: Anything else that stands out?

PN2791

MS BHATT: If I may, Commissioner, regarding clause C, "Consultation about changes to rosters or hours of work", just one issue that arises from C.3(b), which requires that:

PN2792

For the purpose of consultation the employer must invite the employees and representatives referred to above to give their views about the impact of the proposed change upon affected employees, including any impact on their family or caring responsibilities.

PN2793

The concern is this: it seems that this provision now requires an employer to invite an employee to give their views about the impact of the proposed change on any affected employee. So the employer must invite an employee to express their views about the impact on their family and caring responsibilities of another employee, which we don't think is the intended effect of the current clause, and on one view is, if I can say, a somewhat ludicrous outcome, and for that reason we think that the words, "affected employees", shouldn't be included. We think that the intention is for the employees to provide views about the impact of the proposed change on them.

PN2794

THE COMMISSIONER: Yes, but isn't it linked to the representatives as well? The representatives are not affected but they are invited to give views about the impacts on the proposed change on affected employees.

PN2795

MS BHATT: I understand the point you're putting, Commissioner. I'm just trying to think through.

PN2796

THE COMMISSIONER: No, so (a) - because didn't the parties want them to cover so as we don't have to repeat, "provide to the employees and representatives?" So then, doesn't (b) mean - doesn't "them" mean employees and representatives?

PN2797

MS BHATT: I think that's right, Commissioner.

PN2798

THE COMMISSIONER: We spent some time on this last time.

PN2799

MR FERGUSON: Yes.

PN2800

THE COMMISSIONER: And I think the parties just said well "them" just means them above.

PN2801

MR FERGUSON: Mm.

PN2802

MS BHATT: Maybe we can give some further thought to that. I hear what you're saying. The concern was that having now had these words put before us, that is, the affected employees, the potential that employees are then required or invited to give views about the potential impact on other employees, but I understand that part of the purpose of putting those words back in was to have regard to the fact that representatives were also invited to express views. But perhaps whatever further process is put in place is an appropriate time for us to give that some further thought.

PN2803

THE COMMISSIONER: I think today is a canvassing of anything that particularly stands out, and try and iron out any glitches that are now in place; the parties have this all in one consolidated version. But from memory, I think that that was where that stemmed from, but I hear what you say, but I think it was the parties' initiative to include them. If you think that poses a further problem, then how can it be resolved that one employee doesn't get involved in another person's drama but their representative surely can.

PN2804

MS BHATT: Yes. We'll give some further thought to that and whether there's an alternate form of words that might address all of the issues that have been raised to date.

PN2805

THE COMMISSIONER: You might consider whether or not C.3, "The employer must", and maybe encapsulate that the reference to employees and representatives above, so that it then flows on in (a) and (b), but I'll leave that for your consideration.

PN2806

MS BHATT: If it pleases.

PN2807

THE COMMISSIONER: Anything else?

PN2808

MS BHATT: Nothing in relation to that clause.

PN2809

THE COMMISSIONER: Well, keep going.

PN2810

MS BHATT: One matter that arises from the dispute resolution procedure, and that is D.7, which refers to a party to the dispute, whilst the current clause refers to an employer or employee. Again, there was some discussion about this last time, and I think it was left on the basis that, if I recall correctly, that the Commission might give some consideration to an issue that was raised by another party. We've given this some further thought and we have concerns about the reference to an employer or employee being removed, if there is any risk that the words are party to the dispute are read to be anything more or anything broader than an employer or an employee, for example, if those words are interpreted to include a union that is representing its members. Of course, the underlying premise of this exercise is to make these provisions simpler and easy to understand, and so to the extent that this redrafting is introducing any ambiguity in this regard, then we say that that in and of itself means that those words should be replaced with a reference to an employer or employee, as they currently appear at clause 23.5.

PN2811

THE COMMISSIONER: Was that raised by Ai Group last time?

PN2812

MS BHATT: I think it was raised by one of the other employer parties, and my reading of the transcript suggested that it would be given some further consideration. We didn't speak to it at the time, but we've had the benefit of some time now.

PN2813

THE COMMISSIONER: So your preference is that it read, "an employer or employee?"

PN2814

MS BHATT: Yes. I'm raising this in part because last time, during the last conference, there was some suggestion from at least some of the unions that D.7 either could or should as a matter of merit extend to unions. That quite clearly isn't the case under the current wording, and so it's in that context that we're raising this specifically.

PN2815

MS WILES: Commissioner, it's Ms Wiles here. We would oppose the submissions of the AiG. We say that that would then narrow the application of the dispute resolution procedure, and we wouldn't support that.

PN2816

THE COMMISSIONER: Have you had a look at clause 23.5?

PN2817

MS WILES: That clause is about representation. It's not about who can bring a dispute in their own name under a dispute resolution clause to the Commission, and we understand this is a live issue in a number of proceedings that the Ai Group are involved in elsewhere outside of these proceedings.

PN2818

THE COMMISSIONER: Isn't the proposed D.7 almost a replication of 23.5?

PN2819

MS WILES: To be clear, we're happy with the current D.7, a party to the dispute. As I understand it the AiG are wanting - - -

PN2820

THE COMMISSIONER: Yes, but - sorry - with the change proposed by Ai Group where it would read, "an employer or an employee", that would then make it identical to the current 23.5. So where it's proposed to read, "a party to the dispute", that changes the existing terms.

PN2821

MS WILES: Does it do so at the end though? There's some alternate wording at the end.

PN2822

MS BHATT: I think that the re‑wording that's occurred there arose because there was some anxiety expressed by employer associations and unions alike as to the meaning of the word, "body", and a general preference, if I can call it that, for using the terms, organisation or association; I think they reflect the terminology that's been used in the Act. We would see that as a separate issue.

PN2823

THE COMMISSIONER: But the existing 23.5 finishes with, "to represent them for the purposes of this clause", and then the proposed D.7 does something more than that. It says, "or process". So does the inclusion of, "or process", under clause D limit a union's ability to make application in its own name on behalf of its members?

PN2824

MS BHATT: This provision relates specifically to an ability to appoint someone to represent you, and Commissioner, as you've pointed out, there is a change in the words towards the end, but I think that - well I assume that the words, "discussion or process under this clause", are intended to cover, (a) the discussions that happen at the workplace level, and (b) the process might be intended to cover where the matter's referred to the Commission. Of course there's still the issue under the Act as to whether or not a party has to seek leave to be represented, but I don't think that that re‑wording either resolves or creates any other difficulty arising from the matter that we've raised.

PN2825

THE COMMISSIONER: Well, I think it may with the additional words of, "or process", under clause D. Ms Wiles, am I right in saying that your concern is that you are worried this might limit the union's ability to make application in the union's own name?

PN2826

MS WILES: In the union's own name, that's correct. I mean, it might not do that, but look, we probably want to have a more detailed look at the clause as a whole, but yes, that is our concern.

PN2827

MR CLARKE: Is it contended from the Ai Group that unions no longer be permitted to notify disputes in their own name? Is that the result you seek? And then at least we can figure out where the dispute is.

PN2828

MS WILES: No.

PN2829

MR FERGUSON: I don't think it's our intention to change what the status quo is in any respect. Our concern is in part that 23.5 doesn't expressly permit a union - it only talks about what an employer or an employee may do. If you reference a party, the way parties have been referred to under the clauses that currently stand, I think it actually captures employers and employees, rather than unions as such.

PN2830

THE COMMISSIONER: All right. I hear both parties. I am concerned about a party to this view, and it's my preference that it should read, "an employer or an employee", but I'm also then concerned about the additional words, "process", under clause D, and I wouldn't want to see that limit any rights that the unions say that they are free to currently exercise.

PN2831

MR FERGUSON: But is there a view that references to "parties" in the current dispute resolution provisions captures more than employers and employees?

PN2832

MR CLARKE: Well, it could, if you look at some of the - where it's talking about in consultation clauses where representatives have given rights to participate in consultation. If you had a rogue employer, for one reason or another, and he said well I'll talk to my employees but I'm not letting the union rep in, and the union rep will say hang on a minute, this award says I'm allowed to be here, they want me to be here, you're not letting me in; I've got a dispute.

PN2833

MR FERGUSON: And I'm just speaking openly with the unions drawn out - but if that was the case, isn't there a difficulty that 23.1 imposes certain obligations on the parties?

PN2834

MR CLARKE: Yes.

PN2835

MR FERGUSON: But an award that doesn't cover a union can't possibly impose an obligation on the union. It just can't.

PN2836

MR CLARKE: It imposes an obligation on the employer towards the representative, the employee representative.

PN2837

MR FERGUSON: That's right, so if it's purporting to impose obligations on persons, certainly you would assume it's intending to impose obligations on people it can actually regulate, and you'd think that the parties there were intended to capture employers and employees. That's entirely consistent with the wording of 23.5 currently, which talks about an employer or employee, and all we're saying is put the wording back so that there's no risk that expanding the existing obligations and entitlements - and I suppose they're reinforced in that concern by the fact that unions seem to say it should expand that entitlement in some way. If we put the words back, we can't be deviating from the status quo. And it's a broader question about whether or not unions have standing in their own right to file disputes, one which probably doesn't arise from this process in which, to be frank, we hadn't intended to grapple with today. The point is the clause doesn't necessarily empower it.

PN2838

THE COMMISSIONER: I don't think it's for this Full Bench to make law on that issue.

PN2839

MR FERGUSON: No.

PN2840

THE COMMISSIONER: When there are matters, you say, contested by parties. As I've indicated, my leaning is that it should be an employer and employee at D.7, but there should be some consideration to what does the additional words of, "or process", under clause D do. So I'll take that back to the other members and I'm sure we'll provide some further views on that.

PN2841

MS BIDDLESTONE: Commissioner, it's Ms Biddlestone, if I could just make one point. I think the clause all the way through refers to "a party" in D.4, D.3, so all the way through it refers to "a party", but it's not defined what "a party" is, and that's where there may be concerns about them going on to use the word, "an employee and employer", in D.7.

PN2842

THE COMMISSIONER: At 23.1 of the existing clause it talks about resolving the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor, so that's who the parties are, and then this D.7 talks about who can represent, for example, employer association isn't a party.

PN2843

MS BIDDLESTONE: Yes, I suppose my point is that then does that mean that that person who is a person, organisation or association who are appointed become a party to the dispute for the purposes of the other clauses.

PN2844

THE COMMISSIONER: I think D.7 might stand alone, in that it says what it says - it's the employer or the employee may appoint somebody.

PN2845

MS BIDDLESTONE: To represent them.

PN2846

THE COMMISSIONER: I don't think it does any more or less than that. But we'll leave that. You'll be welcome to make some written submissions on that, I'm sure, when we issue some further directions to the parties. But I take your point there about "a party" being all the way through the clause.

PN2847

MR FERGUSON: I'm just not sure what's being queried there. Is there a contention that the parties include people other than employers and employees?

PN2848

MS BIDDLESTONE: Well, yes, potentially.

PN2849

MR FERGUSON: Do you contend that the obligations in 23.1 that apply to a party actually have any force over a union?

PN2850

MS WILES: It's Ms Wiles here. I mean, certainly some awards contain obligations which give certain unions rights, and if those obligations are breached, then in our view the union has a right to bring a dispute in its own name to the Commission about that issue.

PN2851

MR FERGUSON: But separate issue, does 23.1 require the union to endeavour to resolve the dispute in a timely manner in an enforceable way? If you don't, are you in breach?

PN2852

MS WILES: Well, if the dispute relates to rights of the union, then the dispute resolution procedure would need to be followed.

PN2853

MR FERGUSON: I'm just ventilating these issues really. If you're intended to be captured as a party, isn't it odd that you don't have to actually comply with the obligation?

PN2854

MR CLARKE: What obligation are you talking about, sorry?

PN2855

MR FERGUSON: If the discussions do not resolve the dispute, the parties will endeavour to resolve the dispute in a timely manner.

PN2856

MR CLARKE: Yes.

PN2857

MR FERGUSON: If the parties were the employer and the employee, they'd both have to do that, and of course they could be represented by their union in that, but the union wouldn't have a role to play as such beyond being a representative. If the union is a party, it just strikes me as odd that this wouldn't actually be enforceable against them. It seems to suggest that the intended parties are the employer and employee and they can be represented.

PN2858

MS WILES: I understand that that's the AiG position, but that's the position.

PN2859

MS BIDDLESTONE: I think though if you look at, as an example, the consultation about changes to rosters or hours of work, the obligation on the employer is to provide to the employee or employees affected and their representatives any information. So if an employer then provided information to the employees and not to their appropriate representative, then the union should be able to use the dispute resolution procedure to bring an application to the Commission. The union is a party to the dispute in that case, not just the employees.

PN2860

MR NGUYEN: Commissioner, I think this raises like a broader issue about - well the one thing's like the Ai Group is trying to translate the current legal effect of the current clause over, but there's issues being raised about whether the current clause actually meets the requirements of the Act which say that there has to be a dispute resolution procedure for all matters under the award, and the example that people are describing is a type of dispute that might arise if a representative isn't being provided information, or a union's not being provided information that they're required to be given under the award. Then according to Mr Ferguson's interpretation, the current dispute resolution procedure clause doesn't actually satisfy the requirement that it be broad enough to encompass all the types of disputes which may arise.

PN2861

MR FERGUSON: Perhaps this is all a distraction in any event, because the issue we're actually raising is that the clause quite clearly now only requires that an employer/an employee may appoint another person. It doesn't enable some other party, nor person who may be a party, to appoint someone else; it just doesn't, and all we're saying is put it back. Some parties seem to be objecting to that because they would like it to extend to unions, but if we'd approached this with some degree of integrity surely we would just retain employer and employee.

PN2862

MR NGUYEN: I don't accept that criticism about integrity. I'm just suggesting that it raises a broader issue because section 146 requires that there's terms about settling disputes, and it says that this term has to be a procedure for settling disputes about any matters arising under the award, and we've just discussed that there's a type of matter that might be in dispute where it's not between an employer and an employee.

PN2863

THE COMMISSIONER: The job of this Full Bench is to translate and not affect the legal meaning that is currently in play. Clearly it's a matter that is an issue between the parties, because there's underlying things going on, and perhaps it's being tested elsewhere as to whether unions can bring applications in their own name. I've certainly seen it before. If it's a matter that's now of significance and being tested, well, it will be - - -

PN2864

MR FERGUSON: I might clarify we're not aware that there is a matter of significance being tested. It may be a matter the unions view of significance, but I'm simply, in all candour, suggesting to you that I'm not aware of what those proceedings are.

PN2865

THE COMMISSIONER: So there aren't employers saying that unions can't bring applications in their own right?

PN2866

MR FERGUSON: I don't know is all I'm saying. I think Ms Wiles raised this issue about it being before this Commission in other proceedings. I am not aware of what those proceedings are, and perhaps Ms Wiles can provide the Bench with greater detail, but I'm not aware that it is some underlying significant issue.

PN2867

THE COMMISSIONER: Okay. We're not going to resolve it today. You'll be welcome to put material before us. The Full Bench is made up of the President and Hatcher VP, so there will be some clear understanding of how far we can take this clause once it's translated, and that's our job to do that and nothing beyond that that will affect the legal meaning.

PN2868

MR FERGUSON: I think the focus there should be on what is intended to be caught by parties in this clause, rather than a consideration of what it should be called.

PN2869

THE COMMISSIONER: All right. Do the parties have a lot of material, or shall we break for lunch or not?

PN2870

MR FERGUSON: I have a small number of items but they might give rise to some discussion. I'm happy to press on till 1 and see how far we get, in the hope - - -

PN2871

THE COMMISSIONER: And for those interstate, are there many matters that you wish to raise?

PN2872

MS VAN GORP: No, Commissioner.

PN2873

MR KLEPPER: Nothing from ourselves, Commissioner.

PN2874

MS PEARSALL: And nothing here, Commissioner.

PN2875

THE COMMISSIONER: For the union parties in Melbourne?

PN2876

MS BIDDLESTONE: Commissioner, I just had a couple of minor sort of drafting issues to raise.

PN2877

THE COMMISSIONER: I think we'll just have a five-minute convenience break and we'll resume shortly thereafter.

SHORT ADJOURNMENT�� [12.31 PM]

RESUMED�� [12.40 PM]

PN2878

THE COMMISSIONER: All right, Mr Ferguson?

PN2879

MR FERGUSON: Yes. I think the next clause is, "Termination of employment and redundancy". The first suggestion, hopefully just a minor one, in relation to note 2, we suggest that the words, "including changes that involve redundancy", should be deleted. Redundancy as a concept isn't actually captured in that other clause, although undoubtedly many of the circumstances that clause does deal with would be associated with redundancies, but the concept itself is technically different and we think it's probably just confusing to include that redundancy reference there. The note is otherwise helpful anyway, because it talks about requirements to consult about major workplace changes, which is what the clause is actually about. So we propose to delete the additional words. I can go further and explain that, if anyone opposes - - -

PN2880

THE COMMISSIONER: Which words? The words, "that involve redundancy?"

PN2881

MR FERGUSON: "Including changes that involve redundancy."

PN2882

THE COMMISSIONER: Why do you think that would be helpful?

PN2883

MR FERGUSON: I don't think redundancy as a concept as such is actually caught by that other clause, that clause about consultation and major workplace change. That clause is actually about changes that have a significant effect on employees. A redundancy is a situation where, and there may be different definitions, but essentially a role is no longer required to be performed; that's separate to the effect that may flow to the employee. We just think it's probably over‑complicating it by introducing the concept of redundancy there.

PN2884

MR CLARKE: It's a Venn diagram issue.

PN2885

MR FERGUSON: Yes.

PN2886

MR CLARKE: Sorry, just to test that I've understood what's being put is that a redundancy may have a significant effect on the employee, but it might not amount to a major change in program, organisation, structure or technology, so there will be some that will necessarily require consultation and there will be some that don't - we'd always recommend that people go through the process anyway - but in any event, is that the point that you're raising?

PN2887

MR FERGUSON: That's right, yes. In some redundancies, yes, consultation will be enlivened, and in some theoretically not, or perhaps not in practice, and it's probably just not helpful to include, or accurate, to include that additional wording, and it's only a note in any event and I think the main point is that there's a reference to consultation about major workplace change anyway.

PN2888

THE COMMISSIONER: Mr Clarke, you're not opposed to what's being put by Mr Ferguson?

PN2889

MR CLARKE: I'm not fussed either way, frankly.

PN2890

THE COMMISSIONER: Are there any other parties that have any objection to what's being put by Mr Ferguson?

PN2891

MS BIDDLESTONE: Not here in Melbourne, Commissioner.

PN2892

MR NGUYEN: Are you saying delete the whole thing, or just the - - -

PN2893

MR FERGUSON: No, just the words, "including changes that involve redundancy".

PN2894

MR NGUYEN: Okay.

PN2895

MR FERGUSON: So there would still be a note, which would - - -

PN2896

THE COMMISSIONER: It would finish at, "to consult after major workplace change", full stop?

PN2897

MR FERGUSON: Yes.

PN2898

THE COMMISSIONER: All right.

PN2899

MR FERGUSON: Then in relation to (e), if there is to be a note referencing the relevant section that sets out the entitlement, section 117, there should probably also be a reference to the section that talks about when it does not apply, but we're suggesting that it should say, "see section 117 and section 123", just to ensure that no one is misled into thinking that it might apply. Section 123 is the section that talks about employees who are not covered by this division of the Act that sets out the obligations in relation to notice and payment in lieu thereof. In relation to 17, there is also a note referencing section 123, but it seems a bit odd to send someone to the legislation to then follow a note to send them to another section. If you're going to have the note, and I don't think we've called for it, but if you are, put both sections in. Again, it's a very minor suggestion.

PN2900

THE COMMISSIONER: Are you saying that gives the employer a heads‑up, that pursuant to section 123 they're the situations where they wouldn't need to follow this table?

PN2901

MR FERGUSON: That's right.

PN2902

THE COMMISSIONER: Any objection to, I understand, the proposal to insert, "and section 123?" All right, there being no objections, move on.

PN2903

MR FERGUSON: The next point is in relation to E.1(c). We're much happier with the wording that has been inserted there, but it provides that if an employee fails to give the period of notice required under paragraph (a), the employer may deduct from any money due to the employee on termination, under this award of the National Employment Standards, the amount that the employee would have been paid in respect of the period of notice not given. Under the old wording in many awards, it enabled a deduction of an amount not exceeding the amount that the employee would have been paid in respect of the period of notice. Those words aren't being included, which means that all this now enables is a deduction of the full amount that would have been paid, and so we suggest that after the close of the brackets it should include the words, "an amount not exceeding", and then read, "the amount". It is subtly different as it's currently worded, in our submission, and it would remove the option of an employer to not make the full deduction, if they were to generously - - -

PN2904

THE COMMISSIONER: You're looking out for the employee here, Mr Ferguson?

PN2905

MR FERGUSON: I am always, Commissioner. It may suit some employers.

PN2906

THE COMMISSIONER: Any objection to what's being proposed by Mr Ferguson?

PN2907

MS BIDDLESTONE: Not in Melbourne.

PN2908

MR CLARKE: Rather than the amount the employee would have been paid, it would say, "an amount not exceeding the amount that the employee would have been paid?"

PN2909

MR FERGUSON: Yes.

PN2910

MR CLARKE: Okay - yes, I get you.

PN2911

MR FERGUSON: We wouldn't want an employer to be generous and then technically in breach.

PN2912

THE COMMISSIONER: All right, next?

PN2913

MR FERGUSON: That then takes me to G, "Transfer to lower paid job on redundancy" - I don't know if anyone wanted to raise anything about redundancy before we get there? We're happy with the change.

PN2914

THE COMMISSIONER: We'll deal with your concerns first.

PN2915

MR FERGUSON: Yes, so transfer to lower paid - we have some concern with the restructuring of the clause in general, but we have a concern now with G.1 being redrafted so that it applies when the employer no longer requires the duties being performed by the employee in a role, so the replacement of the word, "duties", for "job". Our broader concern is that this used to apply when an employee was transferred to lower paid duties by reason of redundancy, whereas now it's this narrower definition of when it will apply.

PN2916

We had in our previous submissions sought to align the circumstances when this would apply with the definition of redundancy, if you will, under the Act by bringing in provision where it might apply, or not apply, where it occurs due to the ordinary, customary turnover of labour, but I think there was some significant dispute between ourselves and the ACTU about what redundancy means. I don't know if their position has evolved at all in relation to that issue, but it seems that the whole of G.1 is quite problematic now.

PN2917

I haven't suggested alternate wording, but we would seek something that mirrors the Act more closely, and in that sense I take the Commission to section 119(1), which talks about the situation where redundancy doesn't include the ordinary, customary turnover of labour. But I don't know if the preferred way is to adopt the wording currently in awards that just talks about where an employee is transferred to lower duties by reason of redundancy and then doesn't define redundancy. That's not our preference, but clearly the current wording is very problematic.

PN2918

THE COMMISSIONER: Are these new concerns of Ai Group?

PN2919

MR FERGUSON: The duties is, yes. We had old concerns that we'd raised that don't appear to have been picked up, which we still press, but there's now - they no longer require the duties being performed, which I think is probably different to job. The Act talks about a job, rather than just duties, which might be a broader concept.

PN2920

THE COMMISSIONER: Do you say that duties is very new; it's in the latest direction of the - - -

PN2921

MR FERGUSON: Yes. It's just come in. I'm not sure of the rationale for that.

PN2922

MS BIDDLESTONE: Duties is actually the terminology used in the current award.

PN2923

MR FERGUSON: The current award says where they're transferred to lower paid duties by reason of redundancy, and the words that by reason of redundancy have come out. Redundancy has a meaning.

PN2924

MS BIDDLESTONE: Yes. We actually agree in relation to the concern about the award suddenly defining redundancy where it hasn't done before, so yes, we agree with that concern.

PN2925

MR FERGUSON: I think more clearly our concern is that it's defined in redundancy in a way that's inappropriate, and it's inconsistent with the Act. We wouldn't necessarily be opposed to some greater definition around what is the meaning of redundancy for the purpose of the award, but the one that's been proffered is inappropriate, in our view. It is a common problem that people don't know quite what is meant by the term, redundancy, and industrial instruments, and it can have different meanings in different agreements or in awards. We have a thought that aligning it to the Act was probably aligning it to the underlying test case standard and appropriate, but I think the ACTU has a view that within different awards, the meaning "redundancy" may mean different things, which - I mean, I don't want to have the argument now - - -

PN2926

MR CLARKE: Well, we had it last time.

PN2927

MR FERGUSON: I think we did.

PN2928

MR CLARKE: That's why the clause has changed.

PN2929

MR FERGUSON: Yes, but now it's just changed the duties. So I think we've neither of us got what we wanted.

PN2930

THE COMMISSIONER: The heading is different from the current heading: "Transfer to lower paid duties" versus "Transfer to lower paid job on redundancy". So is there trouble with the heading as well?

PN2931

MR FERGUSON: I don't just see that we would have a problem with the heading.

PN2932

THE COMMISSIONER: Isn't it trying to - - -

PN2933

MR FERGUSON: I think the heading might be - - -

PN2934

THE COMMISSIONER: It's trying to paint the picture, isn't it?

PN2935

MR FERGUSON: - - - trying to paint the picture.

PN2936

THE COMMISSIONER: Yes.

PN2937

MR FERGUSON: That it's a redundancy. I don't know - - -

PN2938

THE COMMISSIONER: Well, it's doing more than what it's currently done: Transfer to lower paid duties. An employer might pick that up and just go I can just transfer people to lower paid duties.

PN2939

MR FERGUSON: It may be that the heading is better, but it's a problem if the substantive terms of the clause - - -

PN2940

THE COMMISSIONER: What do you propose to solve this?

PN2941

MR FERGUSON: Well, we haven't put together a form of words which we could put, but it would be around, in all likelihood, the definition in the Act, which I think will be contested by the ACTU. So it may be that this is an issue that has to be resolved ultimately by the Full Bench.

PN2942

THE COMMISSIONER: What do you say it should say, Mr Clarke?

PN2943

MR CLARKE: The definition in the Act is a definition for the purposes - for entitlement to redundancy pay. There's been some litigation about this, including there with that MUA case recently, which has resulted in everybody who is made voluntarily redundant wanting to be made forcibly redundant because of the different tax treatment of it. But it serves to illustrate the point that what redundancy means in a particular context is variable, and so we wouldn't want to constrain the definition of redundancy to those circumstances. What's missing from this, I suppose, is the fact that - I mean, the old clause used to refer to being transferred by reason of redundancy, whereas this doesn't refer to the reason being redundancy.

PN2944

THE COMMISSIONER: It applies the scenario where the employer would have made the employee redundant but has found the employee other duties?

PN2945

MR CLARKE: Yes.

PN2946

MR FERGUSON: I think one of the issues is under the old wording; I think the issue we took with the wording in the previous iteration of the model clause was that we said it should be altered to not apply where the job was no longer required to be done by anyone because of the ordinary and customary turnover of labour. So that's an exception to what is a redundancy under the Act and under the old test case, sort of standard. We said look, if you're going to define in the structure of the clause what is a redundancy, so when this would apply, do it in a way that is consistent with the Act, and our submission, and I appreciate this is contested, was that that is consistent with the origins of these award clauses, and I might note that if you looked in the modern awards now there's a clause titled, "Redundancy", and it says redundancy pay is provided for in the NES, and then it uses the term, redundancy, in the transfer to lower paid duties provision in that clause. So it does suggest some consistency, but I accept that's probably just a product of the way these awards have evolved. I think the difficulty is we just oppose, and the ACTU and Ai Group are going to be completely opposed in the approach that should be taken. We think the definition of redundancy, or the definition where this clause applies, should mirror the Act, if you will.

PN2947

THE COMMISSIONER: We're moving towards the pointy end of these conferences.

PN2948

MR FERGUSON: We did suggest alternate wording in our previous submissions. We could provide some further wording that reflects the updated draft, but we'd be putting it back to what it was and I think that would just be opposed - happy to do that if that facilitates the Bench giving consideration to a final proposed clause.

PN2949

THE COMMISSIONER: As you know, we're trying to get as much consent as possible and then we'll give some consideration to those consent views. If you're very far apart, people are going to have to start proposing some words.

PN2950

MR FERGUSON: Yes, so what I could do is undertake to give some further consideration to what's been raised by the ACTU, and after doing that, if we still propose specific words that are different to what I suspect the union might support, we'll put something forward to the Commission. Is that (indistinct)?

PN2951

MR CLARKE: Yes - no, I think that's sensible.

PN2952

THE COMMISSIONER: For everything else you might await a statement by the Bench, but I think you should put yourself to work on this issue here if you're very far apart. But if anybody has a view in relation to G, you might wish to file a set of views on that and then await any subsequent statement of the Bench. You may as well get cracking on those.

PN2953

MR FERGUSON: The next issue that really arises is in relation to G.2. There was a reference to the minimum period of notice, which has just been removed now, so the employer may give the employee notice of the transfer of the same length as if it were a notice of termination given by the employer, and it seems very unclear to us what the length of notice now is, and we suggest that the appropriate length of notice is that which the employee would be entitled to under section 117, which is the notice that the Act requires. I say that in the context of awards currently, providing that notice of termination is provided for in the NES, and then they go on to make reference to notice of termination, and we say that the intention, or the way in which references to notice of termination should be understood is in a consistent manner, so that they're always understood to be a reference to notice of termination as required under the NES. I understand from the transcript last time that there might be some different view from the other parties, but we can suggest wording which would rectify this, but the intent would be to align G.2 to the amount of notice that the Act requires for termination, and I don't know if anyone opposes that. Because at the moment it's just not clear what - - -

PN2954

THE COMMISSIONER: Do you want to send somebody to the Act, or do you want to send them to the termination clause?

PN2955

MR FERGUSON: I was going to suggest to give the employee notice of the transfer of the same length as the employee would be entitled to under section 117 of the Act, if it were a notice of termination given by the employer. I hadn't thought about the clause. There may be some merit from a plain English drafting perspective of going to the clause, yes. The difficulty with that is that the award just directs people to the Act in any event, so we're talking about entitlement of the employee's notice here, whereas the award only really deals with notice of termination by an employee. It otherwise just includes a new reference to section 117.

PN2956

THE COMMISSIONER: The note at B.1 assists, doesn't it?

PN2957

MR FERGUSON: It does, but I think - I'm just thinking this through - but I wonder if it's really that helpful to direct the reader to clause B, when clause E then just refers them to the Act in any event.

PN2958

THE COMMISSIONER: Isn't G.2(a) notice that the employer would have to give?

PN2959

MR FERGUSON: There may be numerous sources of obligation on an employer in terms of the notice they have to give. It may be contractual, it may be something in the Act. All I'm saying is I think it's the notice that they have to give under the Act, and not some longer view.

PN2960

THE COMMISSIONER: Right, and that E.1 isn't helpful because that's notice that the employee needs to give?

PN2961

MR FERGUSON: Yes, that's right, Commissioner. If we simply directed them to the amount the employee would be entitled to under section 117, if it were a notice of termination given by the employer, that gets us there.

PN2962

THE COMMISSIONER: Would you just add, "notice given by the employer pursuant to section 117?"

PN2963

MR FERGUSON: It would be after the words, "length", "as the employee would be entitled to under section 117 of the Act if it were a notice of termination given by the employer".

PN2964

THE COMMISSIONER: Whilst you might not play with the words as such, is there any objection by the parties to that concept that will assist the employer with understanding their obligations there? From Melbourne?

PN2965

MS WILES: Not here - no, we're not opposed to the concept.

PN2966

THE COMMISSIONER: All right, well let's see what we can do with those words there.

PN2967

MR FERGUSON: The next issue is in relation to G.3 and the two references to ordinary rate of pay. It seems somewhat unclear to us what is meant by the phrase, ordinary rate of pay, and we suggest it should say, "the ordinary hourly rate of pay", which will be a defined term under the modern awards, which - and Ms Bhatt will correct me if I'm wrong with this - but my recollection is that it's the minimum hourly rate of pay, plus the all-purpose allowances. We are concerned that if the reference to ordinary rate of pay is retained, people may read that, or assert, that that includes other amounts that might be payable during ordinary hours, such as shift allowances or penalty rates on public holidays and so forth, and we say that's not the proper intent of these clauses. If I cast my mind back to the 2004 redundancy case, I think it talked about this applying in circumstances, or (indistinct) entitlement, by reference to their classification's rate of pay. We say it was never intended to pick up all those other sorts of payments, and indeed, if it were it would be extremely problematic in trying to work out how and which amounts to apply, because of course during the period of notice, if you will, the employee may sometimes be a shift worker and sometimes not; it just couldn't work. We could have argued for the minimum rate of pay - - -

PN2968

THE COMMISSIONER: The current wording is the ordinary time rate of pay.

PN2969

MR FERGUSON: And that wording, in the context of some awards, I will suggest to you is the subject now in the exposure draft process of significant contest between the parties, because there was, for example the Manufacturing Award, a proposal from a Full Bench that (indistinct) constituted to replace that with the words, "applicable rate of pay", and that's unearthed a great dispute between Ai Group and other employers and certain unions, because some parties contend that this wording should capture shift allowances and so forth. The wording of this clause is - - -

PN2970

MR CLARKE: And it should.

PN2971

MR FERGUSON: The wording of this clause is an issue that is in dispute between the parties and I think - Ms Bhatt will correct me again if I'm wrong - the decision was made that this would be dealt with by the plain English drafting Full Bench, so it is a matter for this Full Bench to decide. I apologise for that. But it is ludicrous to think that you've got to somehow work out the shift allowances that might apply during the period of the notice, because of course that could change, and the employer could change that. No one has been able to explain to me, and there's been discussions between the parties, how that could possibly work in practice. I don't want to ventilate it here, but we're suggesting we could push for the ordinary hourly rate, which is just the classification rate, and on one view consistent with the old redundancy case. We're saying we would accept ordinary hourly rate, which would include all‑purpose allowances.

PN2972

THE COMMISSIONER: Do we know what it said before the modernisation?

PN2973

MR FERGUSON: I think it said ordinary time rate of pay, which we have said just means what we're now saying, but other parties have suggested it means something far more generous.

PN2974

THE COMMISSIONER: Right, so it's not a new concept? It's something that pre‑dates 2010?

PN2975

MR FERGUSON: This clause is not new by any means. It flowed out of the test case standard, and we say when you looked at that decision it's very clear that it means the classification rate, which must mean the minimum rate of pay. It doesn't talk about the rate including shift allowances and so forth, but I know - - -

PN2976

THE COMMISSIONER: So Ai Group says it's base plus all‑purpose allowances?

PN2977

MR FERGUSON: Yes.

PN2978

THE COMMISSIONER: Is it Ms Wiles, are you - - -?

PN2979

MS BIDDLESTONE: Sorry, Commissioner, it's Ms Biddlestone. My only concern with that is that not all awards operate on the basis of using an all‑purpose allowance, and taking the Pharmacy Award as an example which is currently going through the process of being plain‑languaged, the references to minimum rates and ordinary rates will need to be considered in the construct of this clause, because if the idea is that on termination someone is paid the ordinary rate, which is what they would normally receive had they worked their normal roster, then that would have to incorporate the penalty rates which are contained in the award, for example, if they're working on the Saturday or Sunday as part of their normal roster. I haven't got the most recent plain English draft in front of me so I apologise for that, but we would need to ensure that the wording captured not just the minimum rate contained in the award but also any penalty rates.

PN2980

MR FERGUSON: Can I say in response to that, one valid point that has been raised there is that the wording of this standard clause we'll probably need to vary between awards, based on whether or not there are all‑purpose allowances. Where there are, our suggestion that it be ordinary hourly rate of pay would work, in our submission, but where there are no all‑purpose allowances, the phrase should be the minimum hourly rate. We would strongly contest any contention that somehow this clause picks up penalty rates and so forth. It is not consistent with the history, a significant increase in the entitlements, and one that would be frankly unworkable, in our submission.

PN2981

MR CLARKE: Yes, but you're now moving to a situation in hospitality, for example, where you get different penalty rates depending on how you're classified, do you know what I mean? Like, if you grade someone down to hospitality level 1 or whatever it is, they don't get - like, they've had their penalty rates cut but the other ones haven't, do you know what I mean, so they're sort of - the landscape has changed a bit.

PN2982

MR FERGUSON: But we just say penalty rates aren't part of it, because we say - - -

PN2983

MS BIDDLESTONE: If you actually look at the current Pharmacy Award, the ordinary hours clause are any hours worked Monday to Sunday, 7 am till midnight, so if those hours are ordinary hours and that is what has to be paid, then that includes hours that are worked when the penalty rate is attracted.

PN2984

MR FERGUSON: I get that it includes those hours.

PN2985

MS BIDDLESTONE: Sorry?

PN2986

MR FERGUSON: I accept that it includes those hours, but our contention is that the phrase, ordinary time rate of pay, it isn't intended to capture the separately identifiable penalties that might attract during ordinary hours.

PN2987

MS BIDDLESTONE: Why wouldn't it?

PN2988

MR FERGUSON: There's a long history to this, and the first point we'd make, and I don't have it in front of me, is that the relevant redundancy case talked about the classification rate. It didn't talk about the classification rate plus all applicable loadings and penalties, and how would you even work it, because during the period of notice the employer could just change, under some awards, whether somebody is working on shift work or working on public holidays and so forth, so you couldn't actually work out the amount that would have to be applied.

PN2989

MS BIDDLESTONE: That's not all awards, and I think the classification rate is a separate issue to the ordinary hourly rate. The classification refers to what level the employee's employed at and what rate is set for that particular classification.

PN2990

MR FERGUSON: That's my point.

PN2991

MS BIDDLESTONE: Whereas the ordinary hourly rate is the hourly rate that you get depending on what hour that you are working in that classification.

PN2992

THE COMMISSIONER: All right, parties, well - - -

PN2993

MS BIDDLESTONE: They are two separate points.

PN2994

THE COMMISSIONER: What sections of the Acts help out with some definitions?

PN2995

MR NGUYEN: The section about notice of termination provides that notice of termination is paid at the full rate of pay.

PN2996

MR FERGUSON: And that's absolutely no help, because that legislation came in well after these clauses were drafted and significantly changed the status quo in relation to those issues. Full rate of pay is entirely a new issue.

PN2997

MR NGUYEN: I'm just raising it because you won't include the reference to that section for G.2(a), but then you say oh but employers can't actually calculate what the notice of termination would be if they wanted to pay them out. But it actually doesn't apply - - -

PN2998

THE COMMISSIONER: So what we have, section 16 is base rate of pay?

PN2999

MR FERGUSON: Yes.

PN3000

THE COMMISSIONER: And then 18 is full rate of pay?

PN3001

MR NGUYEN: Yes, which includes all the shift penalties.

PN3002

THE COMMISSIONER: Right, but we don't know what ordinary rate of pay means?

PN3003

MR NGUYEN: Well, that's an award‑specific thing.

PN3004

MR FERGUSON: That's award‑specific, and these clauses have come out of - and they've had a history that well pre‑dates the current legislative framework.

PN3005

MR CLARKE: There's a difficulty just going and grabbing a relatively recently‑introduced concept, being the full rate of pay, and suggesting that that's what the longstanding wording of award clauses mean.

PN3006

MR FERGUSON: It's different where the legislation itself has been developed by reference to the test case standard. That's a different situation.

PN3007

MR CLARKE: Yes.

PN3008

MR FERGUSON: And that's what I am talking about in other - - -

PN3009

THE COMMISSIONER: Are the parties wanting the Full Bench to clarify what ordinary rate of pay - or would you prefer to leave it with that and then you fight it out in years to come?

PN3010

MR CLARKE: I think what Brent's saying is that ordinary hourly rate of pay is something that he's quite comfortable with, but ordinary rate of pay is something that he's not comfortable with.

PN3011

MR FERGUSON: No, that's right.

PN3012

MR CLARKE: And you've got this sort of bolt from the legislation whereby the thing that this operates on is an entitlement that has changed, so that, you know, this clause is about compensation referable to the notice periods provided in the legislation, but the notice periods provided in the legislation are now operable on full rates of pay. So there are multiple different options here.

PN3013

MR FERGUSON: That would clearly be a substantive change, and I understand there might be a case for that you could advance, but if we're redrafting, all we've got to think about is what was the intended rate of remuneration underpinning this.

PN3014

THE COMMISSIONER: Yes, but I think the Full Bench has said that we won't try and affect the legal meaning, but if there's uncertainty about it then it's best to get it clarified.

PN3015

MR FERGUSON: Yes. Of course, just because unions proffer a generous interpretation, that doesn't mean it should be accepted it's uncertain, but I take that point. We think it should be clarified, because here's the difficulty: if you leave it saying ordinary time rate of pay or something like that in an award that now defines the concept of an ordinary hourly rate of pay, other parties who haven't been privy to these discussions may well think that they're intended to mean different things and that they're intended to capture all entitlements that might flow during ordinary hours of work. So that's where we have a level of discomfort with just leaving the wording as it is. Going forward we think, because we're going through this process, you've probably got to decide is it the ordinary hourly rate of pay and the minimum hourly rate of pay, or is it something different, and express what it is. We have a very strong view that it is intended to be, depending on the award, either the ordinary hourly rate of pay or the minimum hourly rate of pay that is appropriate, and we've put on detailed submissions, from memory in relation to the Manufacturing Award, and ultimately this would be a matter that we'd want to contest if the other parties disagreed. But we're not trying to grab - and I appreciate what my friend from the ACTU has put that there might be a case for changing this clause, and we don't accept that, but you could advance one to say that this should be changed in light of legislation changing, but that would be a change to substantive entitlements.

PN3016

MR CLARKE: But I think what Katie's saying in Pharmacy isn't a substantive change. She says you've got an existing clause that talks about the ordinary time rate of pay, and the way it operates in the Pharmacy Award is what you were paid during ordinary time, which might be any time between 7 am and midnight and might have a whole lot of penalties associated with it. So the way it operates now is that you've got a higher rate than the base rate.

PN3017

MR FERGUSON: And I won't quibble with you. I'm not in a position to talk about what that award specifically provides for, but this is a - as it stands, I had thought that this clause was relatively uniform across the system, and it had flowed out of a test case - - -

PN3018

MS BIDDLESTONE: I think though you've just highlighted the issue, and the issue is that this may have to be dealt with on an award‑by‑award basis. In order to ensure that we're not standardising the clause, to have the effect of changing the legal effect of each award, this issue may have to be dealt with on an award‑by‑award basis.

PN3019

MR CLARKE: I suppose the Full Bench would make a call on whether they want to preserve the compensation rate or whether they want to align the compensation rate with the NES, or whether they want to do something in‑between. So option 1 is to make it the same as it is in every award; option 2 is to lift everything up to the NES, irrespective of what the current awards say; or option 3 would be to have some hybrid thing, which is base plus all‑in allowances or whatever it is.

PN3020

MR FERGUSON: We would be concerned about this Full Bench entertaining the proposition that it should somehow align this with the NES, because this is about plain English drafting, not about just upping all the employees' entitlements. There may be an issue around whether the clause means different things in different awards. We'll have to think through that. But I suspect that currently it's a model term, and that it's intended always - I mean, if you look at its history - to have had the same meaning. There may be some unintended interaction with other clauses if there is a definition for ordinary time rate of pay in some awards. I don't want to advance that too much further today because these are new issues that have been ventilated. Theoretically, I suppose, it's possible that the clause might mean different things in different awards. I think that unlikely given the origins as in the test case standard, but these are issues the parties could ventilate and might want to put if there's disagreement, I suppose, but this isn't one that we're likely to move on in terms of moving any further than what we have, which is to suggest that the ordinary hourly rate might be appropriate and bring in all‑purpose allowances, even if that wasn't historically accepted.

PN3021

THE COMMISSIONER: The fourth option, Mr Clarke, is just to leave it as it is and let parties bring applications to the Commission to argue that out on a case‑by‑case basis. But, all right, I hear what each party is saying there.

PN3022

MR FERGUSON: And that seems a bit less palatable, just because we're making all the other changes.

PN3023

THE COMMISSIONER: That's right. Yes, it wouldn't be my first option. My preference would be to see something settled.

PN3024

MR FERGUSON: And we're not sure that this has really been a matter that before this process there's a review process more broadly that started has ever been the subject of serious dispute between the parties. It just seems that it's arisen.

PN3025

THE COMMISSIONER: Well, it is now, isn't it, because it had earlier been worded as full rate of pay, and it wasn't until the last conference that it reverted back to ordinary rate of pay.

PN3026

MR FERGUSON: But that's only because the draftsmen put full rate of pay in.

PN3027

THE COMMISSIONER: That's right.

PN3028

MR FERGUSON: Sorry, I'll try and move swiftly. That takes me to H, and in relation to H.2, it now says that the employee is entitled to receive the benefits and payments they would have received under this award or the National Employment Standards had they remained in employment until the expiry of the notice, and that follows a preceding clause which talks about the employee being able to terminate their employment during the notice period. We don't think that the intention here was to enable an employee to terminate during the notice period without giving the required period of notice that the award otherwise requires, and to then remove an employer's ability to withhold moneys from that employee. We think that all this clause should protect is the amount of redundancy pay that the employee would get.

PN3029

THE COMMISSIONER: I think we ventilated this at the first conference, didn't we?

PN3030

MR FERGUSON: We did, and I think we were going to think about this further, and we would suggest an amendment to H.2 that says the employee's entitled to receive the redundancy pay that they would have received under the National Employment Standards, had they remained in employment.

PN3031

THE COMMISSIONER: But doesn't H.3 help you out? Is it the benefits that - - -

PN3032

MR FERGUSON: It helps you out, but if the employee doesn't give notice, sufficient, in the course of what they're required to give, you should be allowed to withhold an amount from, say, annual leave entitlements; otherwise you're - I think our initial concern had been perhaps that you should have been able to make the deduction from all amounts, including redundancy pay.

PN3033

THE COMMISSIONER: So an employee's made redundant; they're told that it will happen in five weeks; they say thanks, I've got a job already and I'm off, and you want to do what?

PN3034

MR FERGUSON: If they don't give the requisite period of notice, you should be able to make a deduction for a corresponding amount of money from any entitlement they have under the award or the NES, apart from any entitlement to redundancy pay, and if I take you to the wording in current awards, it talks about:

PN3035

The employee is entitled to receive the benefits and payments they would have received under this clause had they remained in employment until expiry of the notice, but not entitled to payment instead of notice.

PN3036

And of course the origins of that is that it comes from a time when this clause was a redundancy clause that entitled people to severance pay or redundancy pay, so it may be that the history suggests that it was always to protect the severance pay of an employee when they leave early, because they get another job, but I don't think you could suggest the intention was always to protect all other entitlements of employees under the award or the NES, especially since the NES wasn't in force at the time. And I mean, I could be cute and say that if you're looking at the current award, the award clause doesn't provide any benefits or payments. They're actually contained in the legislation, so a literal reading of the current award wouldn't give the employee any protection, but I accept that that's probably unintended. All we're trying to do is maintain what we understand to be the intent, that an employee's severance pay is protected, and also they're given an entitlement to that, bearing in mind that this employee hasn't terminated; they've resigned, and so they wouldn't otherwise have an entitlement.

PN3037

THE COMMISSIONER: Do you think 21.3 was you can resign early, you won't get paid notice, so we'll go after you as well and you have to pay us back the four weeks' notice that you didn't give?

PN3038

MR FERGUSON: What the intent was clearly to do was to give people an entitlement to severance pay when they wouldn't have otherwise had it because they resigned, right, and on one view that's all it was entitled to do. That would mean that an employee who doesn't give the requisite period of notice could have an amount deducted from their severance pay.

PN3039

THE COMMISSIONER: By virtue of other provisions, not this clause?

PN3040

MR FERGUSON: That's right, because as I've said it's obviously quite unfair to an employer if an employee's given notice and so forth in the usual manner, then just ups and leaves them in the lurch, but what we've said as well, it may be appropriate that this be amended so that the employee retains their redundancy pay, but if they don't give the required period of notice they may forego other amounts that are payable under the award, be that annual leave or be that some other amount, and it's very hard to see how the wording of the current award could provide for some other outcome. I mean, we've already gone to the less extreme interpretation, given that it only talks about entitlements that they would have received under the clause. It doesn't in any way talk about protecting the National Employment Standards entitlements, which is what the redrafted version does.

PN3041

THE COMMISSIONER: Well, this has been ventilated before. Is there anything else that the parties want to say about that?

PN3042

MR NGUYEN: There's nothing in the clause which says that if an employee two weeks into being given notice of a redundancy decides that they have found a job that they should then have to pay back a period - like, if they were required to give four weeks' notice, that's suddenly they have to pay that period of four weeks' notice. It's clear that they should be entitled to terminate their employment during the period of notice given by the employer, and that they're entitled to payments they would have received had they remained in the employment until the expiry.

PN3043

THE COMMISSIONER: Isn't it Ai Group's submission that other factors then come into play - other clauses or - - -?

PN3044

SPEAKER: I think that the termination clause would come into play.

PN3045

MS BIDDLESTONE: Commissioner, I think that the clause is intending to do a couple of things.

PN3046

MR CLARKE: Yes.

PN3047

MS BIDDLESTONE: I think one of the things it is trying to do in the first sentence is providing an entitlement to an employee who was being given notice that they are being made redundant to have the ability during that notice period to terminate their employment, so that is one right that they are given under this clause. I think the rest of the clause then goes on to say that if the employee does that, that the employer is not obligated to pay them a payment instead of working that notice. The intention of this clause is not to be punitive on the employee, and that is what the AiG are suggesting the clause should do.

PN3048

MR FERGUSON: We're not suggesting it's punitive.

PN3049

MR CLARKE: Can I just clarify this? My view, rightly or wrongly, and somebody on either side might get upset about this, is that the way this thing works is that if somebody said all right, you're going to be made redundant and I'm giving you five weeks' notice, you know, because that's how long you've been here, and guess what, in three weeks' time you click over to being an employee who's served for nine years instead of eight years, so you get more redundancy pay. So if the worker wants to leave early because they've got another job or for whatever reason, you still calculate their redundancy pay as if he had stayed there for eight years so that he doesn't lose those extra - and I say that's what this bit about had they, you know, received the payments they received under this clause, you know, going back to the time when the clause actually said how much redundancy pay you get, as if you'd remained in employment till the expiry of the notice. So you were going to stay on for the full x weeks of the severance pay period, then you would have clicked over to being an eight or nine‑year employee so you've got to get the bigger package. So you still get the bigger package, even though you put your hand up to go early, but the consequence of putting your hand up to go early is that you can't insist on well I'm only working two weeks out of the notice period so you have to pay me the other three. The boss says well no, I'm not going to pay you the other three, that's it; and in that situation, because the employer is in no way obliged to make a payment in lieu of notice, they lose their rights to deduct from that payment.

PN3050

THE COMMISSIONER: Mr Ferguson, you'd agree with most of what Mr Clarke has said there in relation to that's the intent of the clause with respect to the eight versus the nine years, the employee walks away after two weeks versus the five, but the last bit is where you take exception, because you say there's work of another clause that entitles the employer to then go after the employee of three weeks' worth of something?

PN3051

MR FERGUSON: From somewhere else.

PN3052

THE COMMISSIONER: But not their severance?

PN3053

MR FERGUSON: Not their severance, but although in a reading of the actual award, one problem is that it only really protects entitlements under the clause, and of course there is no entitlement to severance pay under the clause. But put that aside, if we were to accept that severance pay is what is intended to be protected, our view is well, the clause entitles someone to severance pay in circumstances when they wouldn't have been, because they're actually resigning, not being terminated, and on one view it protects that severance pay, but it doesn't protect entitlements under the National Employment Standards of a different nature, and it's hard to see how it could have ever been intended to, given this was all implemented well before that legislation. This was only ever about redundancy pay entitlements, in our view.

PN3054

THE COMMISSIONER: Yes, but you say, don't you, that an employer could then go to that employee and say you failed to give five weeks' notice, you only gave two; we're going to take three weeks' worth of wages out of whatever - - -

PN3055

MR FERGUSON: Whatever is payable under the award or the NES, apart from redundancy pay.

PN3056

THE COMMISSIONER: I think it will be up to the Full Bench to decide what that clause means, as to whether it's a forgiveness clause to allow people to go out and be forgiven for leaving early.

PN3057

MR FERGUSON: And we say it is.

PN3058

THE COMMISSIONER: Yes?

PN3059

MR FERGUSON: In the sense - we just don't think it's quite as generous as the unions do. We think it's about entitlements under this clause, which are redundancy entitlements which are being protected.

PN3060

THE COMMISSIONER: But you're in agreement as to what the clause does, but you are saying that another clause will kick in and you should be able to enforce that?

PN3061

MR FERGUSON: Yes. I also haven't heard one union explain how any of the words in the current clause would operate to protect employee entitlements of a different nature. It only talks about the employee receiving the benefits and payments they would have received under this clause, and that clause is a redundancy clause. There's nothing to do with other entitlements.

PN3062

MS BIDDLESTONE: That's not correct, because under some awards currently there are other entitlements under the redundancy clause. In any event, we oppose the submissions of the Ai Group.

PN3063

MR FERGUSON: What awards are they?

PN3064

MS BIDDLESTONE: I haven't got it here, but I'm pretty sure the TCF Award refers to other benefits.

PN3065

THE COMMISSIONER: All right, parties, I think we know where everyone stands on that issue. It's not the first time we've canvassed that in these conferences. It's 1.30. How much further do we have to go?

PN3066

MR FERGUSON: I only have one more.

PN3067

THE COMMISSIONER: And then we have a few more from - - -

PN3068

MR FERGUSON: The union parties.

PN3069

THE COMMISSIONER: - - - the union in Melbourne.

PN3070

MR FERGUSON: Ours is in relation to H, the job search entitlement. It's a similar issue that's been ventilated before. There are references to the period of the notice. Before, it was proposed to be the minimum period of notice. That's come out. It seems unclear what the period of notice is now being referred to, and we again say that it should be the period of notice of termination that someone's entitled to under the Act under section 117, which I think was acceptable in another context to all parties. We can include a reference.

PN3071

THE COMMISSIONER: Sorry, what's your concern?

PN3072

MR FERGUSON: It's in paragraph 1.3.

PN3073

THE COMMISSIONER: Yes. There's a whole chunk that's been deleted.

PN3074

MR FERGUSON: Deleted, I think. So (indistinct) referred to the minimum period of notice, which I think was intended to be the period of notice you were told was section - - -

PN3075

THE COMMISSIONER: I see, yes, because if somebody is given extended notice you had concerns that if they given - - -

PN3076

MR FERGUSON: Well, for years, you might be receiving a job search entitlement. We say the intent is that it be the statutory period of notice.

PN3077

THE COMMISSIONER: And it was objected to last time, wasn't it? I'm sure Mr Nguyen would - - -

PN3078

MR CLARKE: I think there was issue about when you get the first day and when you get the second day was the thing that was throwing us into a spin last time.

PN3079

MR FERGUSON: I think someone might have opportunistically proffered the view that you do get that entitlement for years.

PN3080

THE COMMISSIONER: I think, Mr Nguyen, it was you. You were quite keen on that, weren't you?

PN3081

MR FERGUSON: If the employer does the right thing and gives someone years of notice, they'd have to pay years of entitlements.

PN3082

THE COMMISSIONER: All right. Well, parties, I understand the views of the parties. We won't canvass any further. We'll probably go looking for submissions there. Unless there are any concessions that the unions wish to make that it should be in relation to the minimum period of notice? Mr Clarke, you look a bit keen to make such a concession?

PN3083

MR CLARKE: I didn't raise the point.

PN3084

MR FERGUSON: Come on, just concede.

PN3085

MR NGUYEN: I am still baffled by the fact that an employee has to give notice of the day of termination that's longer or past the date that the employer has given notice of termination. It's on the previous clause.

PN3086

MR FERGUSON: I mean, I'm saying this not for the benefit of just Mr Nguyen; it talks about notice of termination in awards now as being provided for in the NES. It seems consistent that whenever the awards deal with notice of termination they probably intend to deal with notice under the safety net. Otherwise what is the entitlement?

PN3087

THE COMMISSIONER: That's at H.4. It's Ai Group's view that the one day off each week should be limited to effectively the NES statutory period. Does any union party have a view that it should be for whatever the negotiated or agreement period of notice is?

PN3088

MS WILES: Commissioner, it's Ms Wiles here. We would want to reserve our position on that and have a further look at it.

PN3089

THE COMMISSIONER: All right then. Thank you. Anything else, Mr Ferguson?

PN3090

MR FERGUSON: Just the wording, it says in that sentence: "paid time off without loss of pay". We could probably delete the word, "paid", given the inclusion of the words, "without loss of pay". So it would just say, "time off without loss of pay".

PN3091

MR CLARKE: Yes, it introduces the possibility of having paid time off with loss of pay.

PN3092

MR FERGUSON: Yes, it does.

PN3093

THE COMMISSIONER: All right then, I'll hold you to that, Mr Ferguson, if there's nothing else from you.

PN3094

MR FERGUSON: No, there's not.

PN3095

THE COMMISSIONER: This is not the last chance. We have plenty of time for written submissions and I'm sure a further conference perhaps before the Full Bench. Okay, out of Melbourne, there were a number of - I think, two concerns?

PN3096

MS BIDDLESTONE: Commissioner, I was just going to raise the point about paid time off without loss of pay as well, but I just also wanted to make the comment that in the redrafting of changing from I to H.4, there's just some cross‑referencing issues with the last four subclauses.

PN3097

THE COMMISSIONER: Yes, thank you.

PN3098

MS BIDDLESTONE: But that's just a minor detail.

PN3099

THE COMMISSIONER: Any other parties wish to raise anything? As I said, it won't be the last chance. It's just a chance today to ventilate a bit further.

PN3100

MS VAN GORP: No, Commissioner.

PN3101

MS BIDDLESTONE: No, thank you, Commissioner.

PN3102

THE COMMISSIONER: Thank you everybody for your involvement today. I'm sure that we'll do some further work and pursue a further statement, and we're getting closer and closer. Thank you. We will adjourn.

ADJOURNED INDEFINITELY�� [1.38 PM]