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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                       1056147

 

JUSTICE ROSS, PRESIDENT

 

AM2018/8

 

s.156 - 4 yearly review of modern awards

 

Proposed Norfolk Island Award

(AM2018/8)

 

Melbourne

 

1.04 PM, THURSDAY, 12 JULY 2018

 

Continued from 5/07/2018

 


PN100      

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

PN101      

MR N WARD:  Your Honour, I continue my appearance.

PN102      

JUSTICE ROSS:  Thanks, Mr Ward.

PN103      

MR T CLARKE:  Clarke for the ACTU.

PN104      

JUSTICE ROSS:  Thanks, Mr Clarke - and in Sydney?

PN105      

MR ROBSON:  Mr M Robson for the ASU.

PN106      

JUSTICE ROSS:  Thank you.

PN107      

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

PN108      

JUSTICE ROSS:  Thank you.

PN109      

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

PN110      

JUSTICE ROSS:  Thank you.  I issued a statement yesterday in respect of this matter and a background paper was published earlier today.  Before I go to the matters raised in the statement can I get a report as to the discussions between the ACTU and ABI - or ACC?

PN111      

MR WARD:  Your Honour, it may be best if I let Mr Clarke respond to that.

PN112      

JUSTICE ROSS:  Sure.

PN113      

MR WARD:  We gave had discussions.

PN114      

MR CLARKE:  Yes, thank you, your Honour.

PN115      

JUSTICE ROSS:  It's all right, you can keep your seat, Mr Clarke.

PN116      

MR CLARKE:  Sorry, yes, yes - so I've informed Mr Ward broadly that the application is to be opposed, on the basis that - well, there's three levels.  We don't think the Commission can make this interim award, we don't think it should make this interim award and if it does make one it shouldn't be in these terms.  We're a little bit at sea in relation to time.  Whilst it's not - I consider it's probably unlikely that we would call witnesses but we haven't excluded that possibility all together but we would think we would need sort of a week-and-a-half to two weeks to prepare for the case as put.  That is our present position.

PN117      

JUSTICE ROSS:  All right - anything you want to say about - arising from the discussions, Mr Ward?  No?

PN118      

MR WARD:  No, I've got comments in relation to your statement but about that.

PN119      

JUSTICE ROSS:  No, no - on the last occasion I think some of the parties in Sydney, particularly Mr Robson and Ms Rooke - were looking to clarify that the operation of the proposed interim award didn't impact on their particular interests.  Have you had a discussion with them about that?

PN120      

MR WARD:  I haven't, other than to say that - I think it might have been done off the record when we were talking trough the video link last time - their interests are excised out of the application.  I haven't heard back whether or not they're satisfied with the language we've used, though.

PN121      

JUSTICE ROSS:  All right.  Is there anything either Mr Robson or Ms Rooke wish to say about that at this stage?

PN122      

MR ROBSON:  Yes, your Honour - generally we are supporting the ACTU case.  I suppose our primary concern is that our members aren't affected by this application but I suppose more broadly we've been in contact with them and they have concerns about the impact of this application on the island.  We are considering whether or not to file witness evidence in any proceedings.

PN123      

JUSTICE ROSS:  All right.  Ms Rooke.

PN124      

MS ROOKE:  Your Honour, we have no opposition to the application.

PN125      

JUSTICE ROSS:  All right.  Well, unless there is anything else by way of prelim, let's go to the matters identified in the statement.  There are three, really.

PN126      

MR CLARKE:  Your Honour, I should add a question was asked by you on the last occasion about the Commonwealth's attitude to this.

PN127      

JUSTICE ROSS:  Yes.

PN128      

MR CLARKE:  Just for completeness I did reach out to the Commonwealth.  The only response I've had to date is that they are aware of the applications and are considering their position.

PN129      

JUSTICE ROSS:  All right.  Do you have anything to add to that, Mr Ward?

PN130      

MR WARD:  I will shortly, your Honour.

PN131      

JUSTICE ROSS:  Okay.  Well, there were three issues raised in the statement.  The first is at paragraph 9 and that is the further consideration of the section 154 point and whether that ought to be determined as a threshold jurisdictional issue.  The second and third are really just seeking to identify which version and which section is being relied on.  Mr Ward.

PN132      

MR WARD:  I understand that section 154 is a live issue.

PN133      

JUSTICE ROSS:  Can I perhaps just give you some context as to why I think it's worth considering the preliminary jurisdictional question and I suppose my view in relation to that has been reinforced by what we've heard this morning.  If the ACTU and certainly the ASU are thinking about witness evidence and they're looking at a time frame for that there is no reason why the jurisdictional issue can't be considered as part of a set of directions that also contemplates filing of witness evidence about merits.  So it's not as if it would necessarily result in any sort of longer time frame than might otherwise be the case.

PN134      

MR WARD:  No, no, our view is this;  that if the point is going to be taken - - -

PN135      

JUSTICE ROSS:  It looks like it is.

PN136      

MR WARD:  - - - with vigour - I think Mr Clarke and I spend a year-and-a-half arguing about the section previously and I'll give him my losing submissions.  It would be prudent to have it dealt with early.  If there is also another threshold issue, which is whether or not the Commission has power to make what is in effect an interim award I think that point is going to be taken as well.  That is my understanding.

PN137      

JUSTICE ROSS:  Well, let's just check that.

PN138      

MR CLARKE:  Yes, that point will be taken.

PN139      

JUSTICE ROSS:  Okay.  Well, is it really - sorry, Mr Ward - is it really - does it come down to just the descriptor argument?  That is it's being described as an interim award but - I'm just arising it with you but you could have an award that - an alternate to describing it in interim terms could be to provide it with a finite life and there have been award provisions that have been dealt with that way, as you're aware, during the award modernisation process.  I'm raising it now because I don't want it to come up during any debate about interim awards so that you've - then you have to address that issue.

PN140      

So can you - without going into your submissions - identify which parts of the application you say failed you to our jurisdiction?  It's all right, you don't need to get up.

PN141      

MR CLARKE:  It's essentially a construction point in an attempt to reconcile the general powers that the Commission has to make interim decisions versus the specific framework that governs the making of what are described as modern awards.

PN142      

JUSTICE ROSS:  All right.  Okay.

PN143      

MR WARD:  I think we take it that those two propositions are being advanced on the basis that the Commission cannot do what we want.

PN144      

JUSTICE ROSS:  I think that's what I've taken - - -

PN145      

MR WARD:  Yes, yes.

PN146      

JUSTICE ROSS:  - - - as opposed to, "should not."

PN147      

MR WARD:  And frankly, if those points are being taken - which I understand they are - let's dispose of them as quickly as we can.

PN148      

JUSTICE ROSS:  Well, let's just discuss for a moment - we'll come to the mechanics but it occurs to me that it would be useful if the Commission eat least frames some of we think are the issues that might arise in a jurisdictional sense - - -

PN149      

MR WARD:  Yes.

PN150      

JUSTICE ROSS:  - - - without expressing any view about them.  We then put that to - well, it will go on the website but principally to the main protagonist in draft form and then if there are other issues, because there may be other elements to the ACTU's case and we may as well get all the issues clearly upfront so you know what you're making submissions about rather than have matters come up in reply submissions et cetera.

PN151      

MR WARD:  Yes.

PN152      

JUSTICE ROSS:  It just makes it tidier.  So look, we'll look at that approach and these need not be formulated issues.  But to assist that, if by 12 noon tomorrow you can shoot in what you perceive to be the issues in the jurisdictional power sense we'll take those into account, prepare a draft, publish that either late on Friday or Monday morning and provide a short opportunity to add any issues that we might have missed or if there's something in the framing of the issue.  So in a very short period of time we can determine what the jurisdictional or power issues are.  So that's one issue.  Then if we move to - and we might also at the same time publish draft directions.

PN153      

MR WARD:  Yes.

PN154      

JUSTICE ROSS:  And I'll hear about that in a moment.  I've heard from Mr Clarke saying he thinks there needs to be a period of time for the filing of any witness material about the merits issue.  The directions can contemplate a process to deal with the merits.  It's a balance here between expedition and efficiency in the sense that you may as well start preparing your merits arguments but of course, you know, they may become moot.  So we'll try and deal with the jurisdictional questions as quickly as we can and any directions would take into account the need for some time to do that.

PN155      

How long - let's assume, let's work on the theory that you know the final issues.  You know some of them now but you'll know the final list of what we think are the issues collectively on Tuesday, when would you be - and look, I would propose that all parties file on one day and then all parties reply on another day and we'll come to - and probably a short oral argument after the second filings.  So we want to hear and - yes?

PN156      

MR WARD:  I was going to be mischievous and say if we get them on Tuesday I'll do it on Wednesday.  But yes, I - - -

PN157      

JUSTICE ROSS:  Yes, I think - - -

PN158      

MR WARD:  No, no, no, I think your Honour - - -

PN159      

JUSTICE ROSS:  You haven't seen the list of issues yet.

PN160      

MR WARD:  I suspect it will be reasonably robust.  Your Honour, is there any chance it could be programmed so that we have any hearing of the matter on Friday the 27th?

PN161      

JUSTICE ROSS:  I'll constitute the Bench shortly and I'll talk to them about that.  So we could - - -

PN162      

MR WARD:  That would give all but - well, I think it would give a couple of weeks.  It would certainly give a week and a half.

PN163      

JUSTICE ROSS:  Yes.  Well, look, we'll do the directions in draft form, provide an opportunity for people to comment, and we'd work around - work backwards from if not the 27th we'll endeavour to get a date that is near then.

PN164      

MR WARD:  Thank you, your Honour.

PN165      

JUSTICE ROSS:  I just can't speak for the other two members.

PN166      

MR WARD:  I appreciate that, your Honour.

PN167      

JUSTICE ROSS:  Indeed I don't even know what I'm doing on the 27th, so.

PN168      

MR WARD:  Can I just for present purposes just to assist your Honour, I can move anything from the 27th through to the 2nd.

PN169      

JUSTICE ROSS:  Okay.

PN170      

MR WARD:  If that helps.

PN171      

JUSTICE ROSS:  If we're looking at that timeframe, Mr Clarke is there anything you want to say about any of those dates?

PN172      

MR CLARKE:  I may seek an indulgence if it is to run on the - - -

PN173      

JUSTICE ROSS:  You may as well.  Mr Ward has.

PN174      

MR CLARKE:  On the 27th to maybe get an early finish.

PN175      

JUSTICE ROSS:  Look, I don't think the oral argument would necessarily take long.  It would probably be in Sydney because of the location of the other Bench members.

PN176      

MR CLARKE:  I see, yes.

PN177      

MR WARD:  Is it your birthday?

PN178      

MR CLARKE:  No, no.  Sorry, is this contemplated as the hearing of the interim award application or the hearing of the - - -

PN179      

JUSTICE ROSS:  No, it's contemplated as hearing of - it's short oral argument.

PN180      

MR CLARKE:  Yes.

PN181      

JUSTICE ROSS:  And it's likely to be more directed at questions from the Bench to the submissions.

PN182      

MR CLARKE:  Yes.

PN183      

JUSTICE ROSS:  Because you would have dealt with it on the jurisdictional issues only.

PN184      

MR CLARKE:  Yes.  Yes.  No, that's fine.

PN185      

JUSTICE ROSS:  Do you have a difficulty later on the 27th?  Is that the - - -

PN186      

MR CLARKE:  Yes I do.  Yes, I do.

PN187      

JUSTICE ROSS:  Because we could schedule it at nine, if that's?(sic)

PN188      

MR CLARKE:  I have an issue in the morning as well, but I could probably be there.

PN189      

JUSTICE ROSS:  Yes.

PN190      

MR CLARKE:  By around ten or 10.30 but, yes.

PN191      

JUSTICE ROSS:  I'm not sure you're going to have it both ways, that's the only problem.  Which of the two conflicting desires do you want to meet the most, an early finish or a later start?

PN192      

MR CLARKE:  In that case, probably a later start.

PN193      

JUSTICE ROSS:  All right.  All right, so the proposition is I'll talk to the other Bench members.  We'll list it for oral argument at some point between 27 July and 2 August.  If it's to be on 27 July it will commence at 11.  All right?

PN194      

MR WARD:  Can I, before I go to the question of the form of award sought and 156 and 157?

PN195      

JUSTICE ROSS:  Yes.

PN196      

MR WARD:  Can I just say this.  Assuming we get over that hurdle.

PN197      

JUSTICE ROSS:  Yes.

PN198      

MR WARD:  I just want to make sure we have clarity about - I don't want to end up with us running an interim case but them running fulling a case.  So we just need to make sure that we understand what we're doing.  If they're going to run their whole case at that time then I'm not sure what the point of doing it is.

PN199      

JUSTICE ROSS:  Yes.

PN200      

MR WARD:  So if all of a sudden people want to call six or seven witnesses, we're getting into the full case then.  So I just raise that as a concern because I don't want to end up being ambushed by running what I think is an interim case and the - - -

PN201      

JUSTICE ROSS:  No, no, I understand.  Look, I think the best way to - and we don't need to be - the Bench doesn't need to have an answer as to those questions.

PN202      

MR WARD:  No, no.

PN203      

JUSTICE ROSS:  Particularly at the moment because it's really what are the jurisdictional questions addressed to, and is it addressed - and I had assumed that it was addressed to the primary claim for a new modern award, the Norfolk Island Interim Award 2018.

PN204      

MR WARD:  Yes.

PN205      

JUSTICE ROSS:  Yes.

PN206      

MR WARD:  Yes.

PN207      

JUSTICE ROSS:  If that's the matter on which you want us to rule on jurisdiction then - - -

PN208      

MR WARD:  We don't need any more.

PN209      

JUSTICE ROSS:  You don't need any more.

PN210      

MR WARD:  Evidence at all.

PN211      

JUSTICE ROSS:  Well, you don't need any evidence on the jurisdictional - - -

PN212      

MR WARD:  At all.  Exactly.  Yes.

PN213      

JUSTICE ROSS:  Yes, yes, that's right.

PN214      

MR WARD:  Yes.

PN215      

JUSTICE ROSS:  And as to whether you seek - well, there are a number of possible outcomes to those proceedings.  It may be for example that we are persuaded by your argument save for the proposition that we can make an interim award.

PN216      

MR WARD:  Yes.

PN217      

JUSTICE ROSS:  In which case that determines the question.

PN218      

MR WARD:  Yes.

PN219      

JUSTICE ROSS:  Yes.

PN220      

MR WARD:  No, I've gone ahead of myself, your Honour.  I apologise.

PN221      

JUSTICE ROSS:  No, look, I'm - yes, I think for the moment what we would do is we'll issue directions for the filing of material in relation to the jurisdictional issues and the process for finalising the jurisdictional issues.  We'll give you the date.  We'll ask the parties to confer about directions in relation to the merit application or the merit hearing and you can report back on that at a mention or at any convenient time, or file consent matters, and at that point you could clarify.

PN222      

MR WARD:  Yes.

PN223      

JUSTICE ROSS:  Whether you're seeking interim or final, what the witness evidence is et cetera.  At this stage I think it's a bit difficult for Mr Clarke to know.

PN224      

MR WARD:  Yes.

PN225      

JUSTICE ROSS:  Because he's still consulting and working out which unions have an interest and what they intend to do, and I don't want us to put an artificial point in at the moment.

PN226      

MR WARD:  No, no, no.

PN227      

JUSTICE ROSS:  Okay.

PN228      

MR WARD:  Can I deal then with the questions arising.

PN229      

JUSTICE ROSS:  Yes.

PN230      

MR WARD:  I'll deal first of all with the form of award sought.

PN231      

JUSTICE ROSS:  Yes.

PN232      

MR WARD:  And, your Honour, in the statement it's suggested that we file the material in a different document.  With respect, I'm not sure it's materially different.

PN233      

JUSTICE ROSS:  That's a sort of - yes.

PN234      

MR WARD:  Yes.

PN235      

JUSTICE ROSS:  In the eye of the beholder.  I accept that, yes.

PN236      

MR WARD:  It's not (indistinct).  Can I just indicate this that we rely on the document we filed on 9 July.  I just make some very quick explanation and I'll do this with great care.  We've had communication in-confidence and off the record with what I'll describe as some potential industrial parties who put to us various propositions along the lines of "If you do this, we won't come" so a number of amendments were made to the - - -

PN237      

JUSTICE ROSS:  Presumably you don't want them to come.

PN238      

MR WARD:  I definitely don't want them to come.

PN239      

JUSTICE ROSS:  No, yes.

PN240      

MR WARD:  I also undertook not to say who they were.

PN241      

JUSTICE ROSS:  No, no, that's fine.

PN242      

MR WARD:  That resulted in some amendments to the issue of penalty rate phasing.  It also resulted two amendments to identifying superannuation funds and we've accommodated those amendments after talking to the Norfolk Island Chamber and them talking to their members about that.

PN243      

JUSTICE ROSS:  Right, I see.

PN244      

MR WARD:  We've also talked to the AHA who don't mind being named, Mr Ryan - - -

PN245      

JUSTICE ROSS:  Well, we'll find out.

PN246      

MR WARD:  Well, having just pointed to him, I hope I'm okay, and some amendments were made following him talking to some of his members on the island.

PN247      

JUSTICE ROSS:  Yes, I follow, okay.

PN248      

MR WARD:  Yes, so we rely on the 9 July document and lastly, there's an amendment in the document to provide for cargo ship leave and I wasn't aware of this until we had further discussions on Norfolk Island.  Apparently when the ship comes in, people are given leave, a large number of people, about 50 people, are given leave to go and help unload the ship and do all sorts of things with the ship and so we had to introduce this concept of cargo ship leave akin to sort of community service leave so that people could be allowed to just go and look after the ship.

PN249      

That's a very strange thing but apparently sometimes in bad weather the ship stays out there for a week but when it comes in it's kind of all hands to go and help, so we had to accommodate that as well.  Those were effectively the changes and therefore we rely on the document filed on 9 July.  That answers that question.

PN250      

Your Honour, then the statement asked the question as to whether or not we rely on section 156 or section 157 and in all candour, we have the view that section 157 was probably not available and we held that view because section 157(1) is constructed on the basis that it applies outside of the system of the four yearly review and our sense of it was, was that 156 and 157 are reconciled this way, when there is a review on - - -

PN251      

JUSTICE ROSS:  You can't access 157.

PN252      

MR WARD:  Fifty seven.  Look, it's really - - -

PN253      

JUSTICE ROSS:  I'm not sure it makes a lot of difference.

PN254      

MR WARD:  Right.

PN255      

JUSTICE ROSS:  It's really just for you to clarify which one it is.

PN256      

MR WARD:  It's 156, your Honour, so I didn't want another jurisdictional argument about 157.

PN257      

JUSTICE ROSS:  Yes, well sure, okay.  Can I raise one matter with you - - -

PN258      

MR WARD:  Please.

PN259      

JUSTICE ROSS:  - - - and on the last occasion we heard that in the public sector part of Norfolk Island they'd reached an agreement, et cetera, and I wondered whether consideration had been given to entering into enterprise agreements for the private sector, bearing in mind the terms of section 189?

PN260      

MR WARD:  Your Honour, in all candour I haven't had time to do that at this stage.  I'd love to have turned the clock back 18 months and had that consideration but I haven't at this stage.

PN261      

JUSTICE ROSS:  Well, it might be - - -

PN262      

MR WARD:  I'll take that on notice, your Honour.

PN263      

JUSTICE ROSS:  Yes, because look, in the event we get to the point, the modern award objective looks at the relationship with enterprise bargaining and I'm not sure it may - look, usually it's, at least on one level, simpler in the public sector because you have one or two dominant employers.  I don't know what the profile is of employers on the island but I wouldn't imagine there'd be that many and that may be a pathway as well.

PN264      

MR WARD:  Your Honour, can I just say there's a further affidavit filed on the 9th as well.  It could have been filed simply as a supplementary affidavit.  For completeness, it's been filed as a consolidated affidavit.  It - - -

PN265      

JUSTICE ROSS:  But does it replace the earlier affidavit?

PN266      

MR WARD:  It does.  It does, your Honour.

PN267      

JUSTICE ROSS:  Yes.

PN268      

MR WARD:  It doesn't contradict it, it just adds additional material.  It also includes the deponent's understanding of the answer to the question you've just asked, which is how many employers are on the island.  Your Honour, could I just say for completeness, we had indicated - sorry, I withdraw that, my client had indicated originally that it intended writing to the minister about the matter and I indicated on the last occasion hadn't done that.  I anticipate that it will now do so after today.

PN269      

JUSTICE ROSS:  All right.  Is there anything anyone in Sydney wishes to add or any questions you have about the process that's been outlined?

PN270      

MR ROBSON:  No, your Honour.

PN271      

JUSTICE ROSS:  I was going to say either the sound's turned off or there aren't any questions but no.  Did you have something you wanted to say?

PN272      

MR ROBSON:  I said no, your Honour.

PN273      

JUSTICE ROSS:  No, right, okay.  Anybody else?  No?

PN274      

MR CLARKE:  No, your Honour.

PN275      

MS ROOKE:  No, your Honour.

PN276      

JUSTICE ROSS:  All right.  Thanks very much.  Well, thanks for your attendance and assistance and we'll adjourn.

ADJOURNED INDEFINITELY                                                           [1.29 PM]