PN1

THE COMMISSIONER: Good morning. Please be seated. I'll take the appearances in Sydney, and please feel free to remain seated.

PN2

MR T SEBBENS: For the CMIEG, if the Commission pleases, Mr Sebbens, initial, T, solicitor.

PN3

THE COMMISSIONER: Thank you, Mr Sebbens.

PN4

MR A THOMAS: If the Commission pleases, Thomas, initial A, from the CFMEU.

PN5

THE COMMISSIONER: Thank you, Mr Thomas.

PN6

MS A DEVASIA: If the Commission pleases, Ms Devasia from the AMWU.

PN7

THE COMMISSIONER: Thank you, Ms Devasia. Mr Gunzburg, you're in Melbourne?

PN8

MR D GUNZBURG: Commissioner, yes, Gunzburg, initial D, appearing with Mr Sebbens, Commissioner.

PN9

THE COMMISSIONER: Very well. Good morning to you as well. All right.

PN10

MR THOMAS: Commissioner, could I just interrupt for a minute. We can't see you, if that's a ‑ ‑ ‑

PN11

THE COMMISSIONER: That might not be a bad thing.

PN12

MR THOMAS: I understand that. It's a bit sort of funny.

PN13

THE COMMISSIONER: I understand.

PN14

MR THOMAS: We can hear a voice but not put a face to it.

PN15

THE COMMISSIONER: We'll see what we can do about that.

PN16

MR SEBBENS: The phantom of the opera.

PN17

MR THOMAS: I mean, if it's not possible then it's not a - there we go. Thank you, Commissioner.

PN18

THE COMMISSIONER: Right. Look, this feels a little bit like déjà vu, but I think we know why we're here. With the finalisation of the shutdown provision, one or more of the parties requested that we issue a consolidated or revised draft determination for comment, which of course is an entirely proper thing to do.

PN19

That's been done, but in order to bring this matter to a head I took the view on behalf of the Full Bench that firstly I should convene a conference so that we can in effect deal with any remaining issues alive, and secondly, I thought the best way to illustrate the draft determination was to produce an unofficial consolidated version of what clause 25 would look like.

PN20

You will have hopefully received with both an email and on the website a draft determination and a draft determination number 2, and I think the email that went with that explains why we revised the draft determination. So you should have in your hands a draft determination number 2 and a consolidated clause 25. What I'd like to do is hear from each of the parties about whether or not there are any remaining drafting and/or substantive issues associated with any of that. Who would like to lead off?

PN21

MR THOMAS: I'll lead off.

PN22

THE COMMISSIONER: Yes, Mr Thomas?

PN23

MR THOMAS: It's probably myself that initiated the proceedings today. We did so on the basis that the finalisation of the excessive leave provisions in the black coal award were pending the outcome of the shutdown provisions.

PN24

THE COMMISSIONER: Yes.

PN25

MR THOMAS: That has now occurred, and as you mentioned, Commissioner, the draft amendments to the black coal award for the excessive leave provisions have been distributed to the parties. The CFMEU has no objections to the content of the latest draft determination as it has been circulated, Commissioner, so in that sense it's short and brief.

PN26

THE COMMISSIONER: Very well. Thank you. Ms Devasia, do you want to comment on that?

PN27

MS DEVASIA: Nothing to add to the CFMEU's, Commissioner ‑ ‑ ‑

PN28

THE COMMISSIONER: All right, thank you. Mr Sebbens?

PN29

MR SEBBENS: We're equally happy with the draft determination number 2 that's been issued, Commissioner. Perhaps I'll just raise for consideration one very minor thing, and it's only become apparent on seeing the consolidated clause.

PN30

THE COMMISSIONER: Yes.

PN31

MR SEBBENS: That is that in what's now intended to be 25.13, items (g) and (h) refer to four weeks and two weeks. Elsewhere throughout the body of the clause there's been a corresponding reference to the number of hours that represents. Perhaps that similarly should represent - will be written as time, but that should perhaps similarly represent for four weeks, 140 hours, and for two weeks, 70 hours.

PN32

THE COMMISSIONER: All right. So as I understand it, the proposal would be to adopt the same approach that we have adopted in the other earlier clauses by naming the hours and then perhaps with the weeks in brackets.

PN33

MR SEBBENS: Yes.

PN34

THE COMMISSIONER: So that's in 25.13(g) and (h). So that would be 140 hours, four weeks.

PN35

MR SEBBENS: That's correct.

PN36

THE COMMISSIONER: And "70 hours (two weeks)".

PN37

MR SEBBENS: Correct. Thank you.

PN38

THE COMMISSIONER: All right. Does anyone have any concerns with that?

PN39

MR THOMAS: No, Commissioner. It's consistent with the rest of the order and the current award clause.

PN40

THE COMMISSIONER: Very well. The only drafting matter I just want to raise with the parties is that you'll notice in 25.12 - so this is the new shutdown provision, and probably the easier way to look at this is in the consolidated version. You'll see that at 25.12(a) is contained the words "despite the terms of 25.4 and 25.6" and then there is subclause (i) which confirms that "25.4 to 25.6 do not apply to a period of annual leave", et cetera.

PN41

At one level that may be a duplication, but at another level the Bench was concerned to clarify the relationship between the excessive leave provision and the shutdown clause, and so the expression "despite the terms" is something which appeared in an earlier decision of the Commission and subclause (i) just follows the normal sort of pattern of explaining the relationship. So for my part, I think arguably one of those might be otiose, but I don't know whether the parties have any concerns about that, about that duplication, or potential duplication.

PN42

MR SEBBENS: We noted that addition in (a), Commissioner, and we have no problem with it.

PN43

MR THOMAS: It's of no difficulty for us either, Commissioner.

PN44

MR GUNZBURG: Commissioner, if my memory serves me right, I think it may have been us in an earlier draft who raised the point that "despite the terms of" is one of those phrases which people use, but I've never quite understood what it means, to be quite honest.

PN45

THE COMMISSIONER: Yes.

PN46

MR GUNZBURG: I don't take a spiteful approach to any of the clauses of these awards. So I think the doubling might be because we thought it was clearer to say the clauses do not apply, so we don't need to take ‑ ‑ ‑

PN47

THE COMMISSIONER: Yes, all right. Does that lead to any concern about the "despite the terms" clause being left?

PN48

MR SEBBENS: No.

PN49

THE COMMISSIONER: All right.

PN50

MR GUNZBURG: No.

PN51

MR THOMAS: No.

PN52

THE COMMISSIONER: All right. As I understand the situation, with the minor amendment that we discussed to insert the hours as well as the weeks in 25.13, there's a common position that the draft determination should be issued. I will, of course, consult with the President and the Deputy President and have that draft determination issued as soon as possible. Obviously depending on the timing of that will dictate exactly when it comes into force.

PN53

All right. I think we're there. I appreciate the assistance of the parties and your attendance today. I think this was an efficient process. The Commission will be adjourned. Thank you.

ADJOURNED INDEFINITELY [9.12 AM]