PN1

THE VICE PRESIDENT: Could I have the appearances in Sydney, please?

PN2

MR M BURNS: Burns, initial M, for the CFMMEU Maritime Division.

PN3

THE VICE PRESIDENT: Yes, All right. Mr Crawford?

PN4

MR S CRAWFORD: If it please the Commission, Crawford, initial S, for the AWU.

PN5

THE VICE PRESIDENT: Yes?

PN6

MR S MAXWELL: If the Commission pleases, Maxwell, initial S, for the CFMMEU Construction and General Division.

PN7

THE VICE PRESIDENT: So two appearances from the CFMMEU.

PN8

MR MAXWELL: There may be three.

PN9

MS R BHATT: Bhatt, initial R, for the Ai Group.

PN10

THE VICE PRESIDENT: Thank you.

PN11

MR J ARNDT: Arndt, initial J, appearing for ABI New South Wales BCs, with me is Ms Hemberger.

PN12

THE VICE PRESIDENT: All right, thank you.

PN13

MS A AMBIHAIPAHAR: Ambihaipahar, initial A, on behalf of the CPU.

PN14

THE VICE PRESIDENT: Yes, thank you, Ms Ambihaipahar. Yes, thank you?

PN15

MR K BARLOW: If it please the Commission, Barlow, initial K for CPSU.

PN16

THE VICE PRESIDENT: Yes?

PN17

MR G MILLER: If it please, Miller, initial G, for the AMWU.

PN18

THE VICE PRESIDENT: Yes, Mr Miller.

PN19

MR I MCDONALD: Your Honour, McDonald, I, for APIA.

PN20

THE VICE PRESIDENT: Yes?

PN21

MR A BATTAGELLO: May it please the Commission, Battagello, initial A, for the Rail Employers.

PN22

THE VICE PRESIDENT: Yes?

PN23

MR A BAUMGARTNER: If the Commission pleases, Baumgartner, initial A, with the Motor Traders Association as our client.

PN24

MS N SHAW: If it please the Commission, Shaw, initial N, for AFEI.

PN25

THE VICE PRESIDENT: Yes.

PN26

MS N DAVIS: Davis, initial N, for the Australian Rail, Tram and Bus Industry Union.

PN27

THE VICE PRESIDENT: Yes?

PN28

MR M NGYUEN: Your Honour, Mr Nguyen, initial M, appearing for the Fight Attendants Association.

PN29

THE VICE PRESIDENT: Yes, all right.

PN30

MR S BULL: And bull for United Voice, sir.

PN31

THE VICE PRESIDENT: Yes, all right. Then we'll turn to Melbourne? Ms Wiles, third appearance for the CFMMEU?

PN32

MS V WILES: That's correct, your Honour.

PN33

THE VICE PRESIDENT: Yes, who else is appearing in Melbourne?

PN34

MS T POPOWICZ: Popowicz, initial T, appearing for (indistinct) Industries Australia.

PN35

THE VICE PRESIDENT: Yes.

PN36

MR W CUPIPO: Cupipo, initial W, appearing for the NTEU.

PN37

THE VICE PRESIDENT: Just hold on a sec.

PN38

MR CUPIPO: And Ms Gale, initial L, for the NTEU as well.

PN39

THE VICE PRESIDENT: Yes, all right.

PN40

MS C PUGSLEY: Pugsley, initial C, for the Australian Higher Education Industrial Association.

PN41

THE VICE PRESIDENT: Yes?

PN42

MR D CRUT: Crut, initial D, appearing on behalf of the Australian Nursing and Midwifery Association and also on behalf of the Health Services Union of Australia.

PN43

THE VICE PRESIDENT: Yes?

PN44

MR D HAMILTON: Hamilton, initial D, appearing for (indistinct).

PN45

THE VICE PRESIDENT: Yes, Mr Hamilton.

PN46

MS A LESSAGE: Lessage, initial A for the Group of Eight Universities.

PN47

THE VICE PRESIDENT: All right, thank you. Just hold on a second. Yes, all right, appearances in Canberra, please?

PN48

MS M ADLER: If it pleases, Adler, initial M, from the Housing Industry Association.

PN49

THE VICE PRESIDENT: Ms Adler. Ms Sostarko, for the MBA and Mr Rogers for the NFF, is that right?

PN50

Appearances in Adelaide?

PN51

MS K ROGERS: May it please the Commission, Rogers, initial K, for the Australasian Meat Industry Employees Union.

PN52

THE VICE PRESIDENT: Thank you, Ms Rogers. And in Perth?

PN53

MS D HUNTER: May it please the Commission, Hunter, initial D, and my colleague Miller, initial R, on behalf of the Local Government Associations.

PN54

THE VICE PRESIDENT: Right. In respect of the awards listed for this 9.30 directions hearing, first of all I might start off with what I'll describe as the watery awards, or the maritime awards. Mr Burns, what's the position with those, so they're the Ports, Harbour and Closed Water Vessels Award, the Marine Tourism and Charter Vessels Award, the Dredging Industry Award, the Port Authorities Award, the two diving awards, the Marine Towage Award and the Stevedoring Industry Award.

PN55

MR BURNS: Your Honour, the position is that (indistinct) from the papers. Additional submissions were filed by the MUA on 26 April, or for the MUA on 26 April but the Maritime Industry Association (indistinct) filed responses on 30 May and (indistinct) just recently.

PN56

MS WILES: Sorry to interrupt, we can't actually hear you in Melbourne.

PN57

MS ROGERS: Neither in Adelaide.

PN58

THE VICE PRESIDENT: Mr Burns, you might have to go the lectern and place yourself in front of a microphone.

PN59

MR BURNS: Thank you, your Honour.

PN60

THE VICE PRESIDENT: Is that any better in Melbourne now? I doubt it.

PN61

MR BURNS: Initial and reply to the submissions have been filed by the MUA and the MUA is happy to - for further matters to be dealt with on the papers, in relation to those awards.

PN62

THE VICE PRESIDENT: All right. Firstly, in Sydney, does anyone want to be heard in response to what Mr Burns has said, with respect to the Maritime Awards?

PN63

MS SHAW: Sorry, the ABI has no response and we don't need to provide written (indistinct) so we're content to have it heard on the papers as well.

PN64

THE VICE PRESIDENT: All right. In Melbourne, Mr Popowicz, can you hear us?

PN65

MS POPOWICZ: Ms, yes, I can hear you.

PN66

THE VICE PRESIDENT: Ms Popowicz, do you have any disagreement with the proposition that these matters can be finalised on the papers?

PN67

MS POPOWICZ: No, we agree to it being handled on the papers too, and that's the whole lot, the Marine Towage Award, Dredging Industry Award, (indistinct) Award and the Professional Diving Industrial Award.

PN68

THE VICE PRESIDENT: Look, I'm going to have to adjourn because the connection in Melbourne is making it unintelligible, so we'll try to fix that and then we'll resume.

SHORT ADJOURNMENT [9.43 AM]

RESUMED [10.00 AM]

PN69

THE VICE PRESIDENT: So I'm reliably informed the video link is working again. So, Mr Burns, do all the maritime players agree that the matter of those awards can be dealt with on the papers?

PN70

MR BURNS: Yes, your Honour.

PN71

THE VICE PRESIDENT: Well, that's fine, we'll deal with them on that basis.

PN72

Now, the Electrical, Electronic and Communications Contracting Award, what's the position? Who'd like to report about that? Ms Bhatt?

PN73

MS BHATT: I'm happy to deal with this first. We've reviewed the submission that was filed on 11 March, which expresses a view about the proper interpretation of the award. Ai Group does not agree with the position that's been taken by the ETU. That is, we disagree about how the award should be interpreted.

PN74

It's not clear, from this correspondence, whether the ETU or the CEPU proposes a variation to that award and if so what it should be. It's also not clear whether this is an issue that was dealt with through the exposure draft process, which there was some discussion between myself and your Honour about on the occasion, in general terms.

PN75

I'm not sure I can take it any further, it might be in the ETU's hands as to how they wish to have the matter progressed.

PN76

THE VICE PRESIDENT: All right, Ms Ambihaipahar, what's the position?

PN77

MS AMBIHAIPAHAR: So that's correct, sir. The CEPU failed two pages, on 11 March, outlining it's position that the casual loading is included in the all purpose rate for the purposes of calculating overtime. I have not heard any correspondence from other parties, such as NICA and Masters' Building Association, in respect of their position with that correspondence on 11 March, and I haven't had an opportunity to liaise with anyone from other parties, like AiG.

PN78

In respect of - the union doesn't believe that there is any requirement to seek a variation, given the drafting and the word of the contract in the award, because it's quite clear, on its plain reading, that the 25 per cent loading is inclusive. So the union is of the position of whichever approach, because I think AiG suggested taking another approach of having some discussions first and putting a proposal for them to put an application to vary the award.

PN79

THE VICE PRESIDENT: Just to be clear, you don't seek any variation to the award as it stands?

PN80

MS AMBIHAIPAHAR: No, your Honour.

PN81

THE VICE PRESIDENT: And you have no difficulty with the way it's been expressed in the exposure draft?

PN82

MS AMBIHAIPAHAR: No, your Honour.

PN83

THE VICE PRESIDENT: All right.

PN84

MS AMBIHAIPAHAR: So the CEPU is quite open to the process as to how to deal with this matter.

PN85

THE VICE PRESIDENT: All right. Can I just check, in Canberra, whether the MBA has any interest in this matter.

PN86

MS ADLER: No, not at this point in time.

PN87

THE VICE PRESIDENT: All right, thank you. Does any other party want to express an interest? No. Well, Ms Bhatt, do you want to take any action, in the circumstances?

PN88

MS BHATT: No. Just to be clear, I think there might have been some misunderstanding between myself and my colleague. The Ai Group does not seek any variation to the award.

PN89

THE VICE PRESIDENT: Okay. Well, I'll regard that matter as resolved. All right, the next is the Passenger Vehicle Transportation Award, Mr McDonald, what's the position with that?

PN90

MR MCDONALD: There's correspondence that is before the Commission, which you would have seen, your Honour, from APTIA, on 14 March and there was a response from the Transport Workers' Union, on 22 March. Our position is that the exposure draft should stand as it is and that there is no further issues relating to the issue about casuals.

PN91

THE VICE PRESIDENT: All right. Well, there's no appearance by anybody who wants to contradict you? All right, well, I'll regard that matter as resolved. Thank you.

PN92

All right, the Local Government Industry Award?

PN93

MS HUNTER: Thank you, Vice President. We refer to our submissions to the Commission on 5 June and 28 June. These submissions addressed the calculation of the rates of pay for casual employees when working overtime. In that submission we submitted some proposed wording to vary clause 6.5 of the exposure draft of the Local Government Industry Award.

PN94

THE VICE PRESIDENT: Could I ask you to speak up a bit, I can't quite hear you properly.

PN95

MS HUNTER: My apologies. We refer to our submissions to the Fair Work Commission, on 5 June and 28 June, and these submissions address the calculation of rates of pay for casual employees when working overtime. As part of that submission, the Local Government Associations have submitted some proposed wording to vary the exposure draft of the Local Government Industry Award, and this proposed wording has been supported by the ASU. There was a letter to the Commission, dated 2 July, for that variation.

PN96

THE VICE PRESIDENT: All right.

PN97

MS HUNTER: Thank you.

PN98

THE VICE PRESIDENT: Does anyone want to respond to that? All right. So I gather that the position seems to be that that variation you're happy for the Commission to determine on the papers, is that correct?

PN99

MS HUNTER: Yes, thank you, Vice President. In our view the wording just clarifies the current understanding of the Local Government Associations and the ASU. As part of any decision or statement of the Commission, we would be grateful if it would be possible to confirm that the proposed wording is simply confirming the current understanding of the parties. We simply sought the amendment to provide clarity on what it means.

PN100

THE VICE PRESIDENT: All right, thank you. All right, we'll see it on that basis.

PN101

The Rail Industry Award, who would like to report about that?

PN102

MS DAVIS: There has been some correspondence between the parties, on 8 and 11 July. The Australian Rail, Tram and Bus Union still submits that there has been a few situations where it is unclear when casuals receive overtime.

PN103

I have reviewed the submissions by my friend. We are actually on the same page, in regards to the entitlement. It is my intention, as well as a rail employer and in 2017 the Full Bench also said that, in clause 20, that they do - can I take you there, Vice President?

PN104

THE VICE PRESIDENT: Not now, but just - - -

PN105

MS DAVIS: Okay. That they do actually include casuals in receiving this overtime. The problem that has arisen is, over the last year or so members of ours have come to us with issues about how to clarify it. They are confused on the entitlement.

PN106

The issue that arises, in clause 23.5, that lists the definition of overtime, it only says to refer to clause 10.3, which doesn't actually stipulate the overarching entitlement to overtime, which is in clause 20. Therefore, we would like that, "Refer to clause 20", is also added into this definition of overtime to ensure that it creates a clearer and unified approach to - for overtime for casuals.

PN107

THE VICE PRESIDENT: Have you lodged a variation to achieve that end?

PN108

MS DAVIS: No, not at this stage, your Honour, just putting submissions forward on our position.

PN109

THE VICE PRESIDENT: So, Mr Battagello, what's your position?

PN110

MR BATTAGELLO: Your Honour, this is the first I've heard of the proposed variation. I agree with my friend that there's no disagreement between the parties as to the intended effect of the provisions. The Rail Employers position was that there was no amendment necessary to clarify the positions. If my friend is wanting to put that proposed variation in we will make submissions on the point, but otherwise the position is the Rail Employers say the provisions is clear, as is.

PN111

THE VICE PRESIDENT: Right. So, Ms Davis, what I'll so is I'll direct the RTBU to file any variation is seeks and a short outline of submissions as to why it's necessary, by 19 July. And, Mr Battagello, can you then give a response to that by 25 July?

PN112

MR BATTAGELLO: Yes, thank you, your Honour.

PN113

THE VICE PRESIDENT: I'll list the matter for hearing at 2 pm on 31 July.

PN114

MS DAVIS: Thank you, Vice President.

PN115

MR BATTAGELLO: Thank you, your Honour.

PN116

THE VICE PRESIDENT: All right. The Cotton Ginning Award? Mr Crawford?

PN117

MR CRAWFORD: Yes, your Honour. My understanding is it's agreed. The current meaning of the award, in terms of casual overtime, is agreed between us and ABI, so we don't consider any further action is needed by this Full Bench.

PN118

THE VICE PRESIDENT: So you're not seeking any change either to the current award or the exposure draft?

PN119

MR CRAWFORD: No, the current award is different to a lot in these proceedings, in that it has a specific provision which, seemingly, disentitles casual employees for a casual loading on overtime.

PN120

THE VICE PRESIDENT: All right. Mr Arndt, do you agree with that?

PN121

MR ARNDT: Certainly to the variations which we seek, which we'll come to, don't include the Cotton Ginning Award, so we won't seek any programing in that award.

PN122

THE VICE PRESIDENT: All right. We'll I'll go about that award as resolved.

PN123

As to the remaining awards listed for this morning, who wants to give a general report? Ms Bhatt?

PN124

MS BHATT: I'll endeavour to, Vice President. Can I, firstly, deal with the Vehicle Manufacturing, Repair, Services and Retail Award, which was identified as an award, in respect of which the AMWU sought a specific variation.

PN125

I've been advised today, by the representative appearing for the AMWU, that that draft determination is withdrawn. Mr Miller will correct me if I've misunderstood.

PN126

MR MILLER: No, that's correct, your Honour, we withdraw that application that was filed by draft determination, I think it was on 27 March of this year. I can provide further written confirmation to your Chambers if that would be convenient.

PN127

THE VICE PRESIDENT: No, that's fine. So can we regard there as being no remaining issue with that award, with respect to - - -

PN128

MR MILLER: That's correct.

PN129

THE VICE PRESIDENT: All right, so I will regard that as resolved.

PN130

MS BHATT: The only other specific awards I might mention very quickly are the Health Sector Awards that have been grouped together in the directions that were issued on 15 March, at point 3. It appears that a number of submissions have been filed and there doesn't appear to be any opposition to the proposition that that matter be dealt with on the papers, as has previously been proposed by the Commission.

PN131

THE VICE PRESIDENT: All right.

PN132

MS BHATT: As for the schedule B awards, if I can refer to them in that way. On the last occasion that we were before you, in February, there was some discussion about the extent to which there have been relevant developments, in respect of the exposure drafts, dealing with the entitlement of casual employees to overtime and, in those circumstances, how the appropriate rate should be calculated.

PN133

My understanding, at the conclusion of those proceedings, was that exposure drafts were scheduled to be published in May of this year, that parties would have a period of time, approximately 21 days, to review those exposure drafts to identify whether there remained any outstanding issue, in relation to the entitlement of casual employees to overtime, and we were to report back to your Honour today.

PN134

Those exposure drafts have not yet been published. So, to that extent, Ai Group is not in a position to advance that matter any further. Of course, in the intervening period, there are two parties that have filed material in respect of a number of awards that have been identified at schedule B of the directions that were previously issued, those being, ABI and the AWU.

PN135

If I can just respond to the material that's been filed on behalf of ABI and the New South Wales Business Chamber, there is a table attached to their material that identifies whether the relevant awards are clear or unclear as to whether casual loading is paid on overtime. The Chamber then goes on to express a view, I think, about what the award should say, or how it should be varied. We're concerned that that analysis does not take into account the developments that have occurred during the exposure draft process and that if the exposure drafts - rather, if this table were reviewed, in the context of the exposure draft, there may be an opportunity to refine that analysis and perhaps to reassess whether the awards that are identified as being unclear remain unclear.

PN136

I should also note that there are some awards in respect of which a view has been expressed that is inconsistent with discussions that Ai Group has been involved in, in the context of specific awards. It's our understanding that the relevant parties that have expressed an interest in that award today have not identified any ambiguity or uncertainty arising either from the award or the exposure draft.

PN137

In any event, we trust that we will have an opportunity to discuss the relevant issues with the Chamber and its representatives.

PN138

In respect of the material that's been filed by the AWU yesterday, the AWU refers to a decision of the Full Bench that relates specifically to the provisions of the Nurses Award. From my very cursory reading of that decision, it appears to turn on specific provisions of that award, unsurprisingly. Ai Group has not had an opportunity to formulate a position or form a view as to the potential implications, if any, that that decision has for the proper interpretation of other awards, which is what the AWU appears to seek to rely on that decision for.

PN139

I nonetheless note, though, that the AWUs material, filed yesterday, does not propose any variations to the relevant awards. It's ultimately a matter for the union, but if no variation is sought through this process, then there may be no need to deal with it further.

PN140

THE VICE PRESIDENT: Only that if not withstanding that if no variation is sought the parties have different views about what it actually means. That points to a problem in the way the clause is drafted, no doubt.

PN141

MS BHATT: The difficulty, from our perspective, is I'm not in a position, today, to be able to deal with the views that have been expressed. I should note that whilst that decision expresses a view about provisions that are drafted in a particular way, there are decisions that have been handed down in this review about provisions that are drafted in a relevantly similar way that it expresses a contrary opinion as to how the overtime rate for casuals is to be calculated and as to whether the overtime rate is be compounded on the casual loading.

PN142

There was a decision issued in 2018 about the Textiles Award, which Ai Group was involved in, which dealt with this very issue. I think the two decisions highlight the extent to which these matters turn on the drafting of the specific provisions, which is why we would say the decision about the Nurses Award, that's been handed down, in the context of an appeal, may not be of broader relevance. But, as I say, that's not something about which Ai Group has had an opportunity to give broader consideration, as yet.

PN143

THE VICE PRESIDENT: Well, on those submissions, should we set the matter down for a further report back at some stage in the period 29 to 31 July?

PN144

MS BHATT: Yes, Vice President. And, in the interim, we'll endeavour to have some discussions with the AWU.

PN145

THE VICE PRESIDENT: I'll see what ABI and the AWU say. Mr Arndt, what's your position?

PN146

MR ARNDT: Vice President, hopefully our position is relatively clear, from our 5 July correspondence. Very briefly, it's become apparent to us that the Commission's standing approach, in relation to casual employees working overtime, should be changed.

PN147

Just to clarify, I think there is some difficulty arising by the fact that our submission identifies things as unclear and clear and whether the exposure draft process will resolve the ambiguity. To be clear, what our submission does is propose variations to a number of awards, 46. Those awards being the ones where we say, on our view, are unclear whether an entitlement arises.

PN148

The variation we seek is to vary the awards to make it clear that the double loading wouldn't be applied. Where we say the entitlement is clear, that is 32 awards, no application is made.

PN149

So in terms of Ms Bhatt's comments about the - - -

PN150

THE VICE PRESIDENT: What was it, 32? What was that number you just said?

PN151

MR ARNDT: Thirty-two awards. And I can provide your Honour with a breakdown of our submissions, which essentially puts it into two lists, if that's helpful.

PN152

In terms of the relevance of the exposure draft process, I would only say this. The exposure draft process, to the extent it resolves ambiguities, may be relevant to the submission put by ABI. But to the extent that ABI are actually proposing variations to 46 awards, what the exposure draft process comes up with doesn't necessarily determine whether those variation applications fall or rise.

PN153

THE VICE PRESIDENT: What do you propose?

PN154

MR ARNDT: What I would see, from this morning is that the 46 awards which we identify relevant to our application are programmed in some way. Two points, or maybe one point of timing on that, the awards which are listed for directions at noon, specifically the hospitality awards, but other awards in that group, those awards and the hearing of those awards will ventilate issues relevant to our wider application.

PN155

Obviously timing means that the awards in the schedule, the 46 awards in the schedule, will have to be heard after those anyway, but it my be that the termination of those awards and the hearing of those awards can refine the issues that need to be determined for the awards that we seek variation of.

PN156

THE VICE PRESIDENT: Is an appropriate course that, in respect of the 46 awards for which you seek variations, that I set the matter down for a directions hearing at 10 am on 29 July, before the Full Bench, by which time you will have had an opportunity to confer with the other parties about these proposed variations and to have agreed upon the appropriate way forward, including directions that should be made or a program for the hearing of the matter?

PN157

MR ARNDT: I think that's appropriate. It would also allow both us and the other parties to cross-reference all of the submissions to work out exactly where everything falls and propose a way forward from that.

PN158

THE VICE PRESIDENT: All right. Thank you. Mr Crawford?

PN159

MR CRAWFRD: Your Honour, we're not opposed to a directions hearing being listed, as per what you just said, as the next step forward. I do have a list of awards here that I think could be excluded from these proceedings, on the basis that the position with the current award is clear.

PN160

THE VICE PRESIDENT: Have you cross-referenced this to ABI's two lists?

PN161

MR CRAWFORD: Yes.

PN162

THE VICE PRESIDENT: So which?

PN163

MR CRAWFORD: I thought we had undertaken that process, your Honour, but Mr Arndt wishes to go back and double check, so perhaps I can't proceed to have those awards removed. I mean they were genuinely awards whereby - - -

PN164

THE VICE PRESIDENT: Did you generally understand that these fall within the 32 that ABI said were clear?

PN165

MR CRAWFORD: Yes. And in most instances the award currently says the casual loading is part of the all purpose rate, so I would have thought there's not really any dispute about how the calculation works in those instances.

PN166

Your Honour, it doesn't appear that we can progress to a position where we're clearly agreed that any of the awards should come out of the list. It sounds like we may not be far off.

PN167

THE VICE PRESIDENT: Well, is it appropriate then that you continue to confer with the other parties and be in a position to give a report about that on 29 July at 10 am?

PN168

MR CRAWFORD: Yes, your Honour, I think it will probably assist if the parties meet in person in the near future, particularly the parties that are involved in a number of awards, to try and work towards an agreed way forward, in terms of awards being excluded and, potentially, the process going forward too.

PN169

THE VICE PRESIDENT: All right. So beyond that point I'll ask parties to report any specific award they wish to mention. So, Mr Barlow, do you want to go first?

PN170

MR BARLOW: Thank you, your Honour. Yes, several of the awards that the CPSU have an interest in are affected by those submissions of 5 July and the table that's just been discussed and referred to, where the parties of those awards had formed views that seemed at variance to what the ABI has just put on, on 5 July, and they include the Airport Employees Contract Call Centres Award, the Labour Market Assistance Award, and the Telecommunications Services Award, your Honour.

PN171

THE VICE PRESIDENT: So do you have any issue with the proposed direction?

PN172

MR BARLOW: No, your Honour, I have no issue with your proposed directions in those matters.

PN173

THE VICE PRESIDENT: Thank you. Does anyone else, in Sydney, wish to report on any specific award? Mr Nguyen?

PN174

MR NGUYEN: Your Honour, I just have a quick report about the exposure draft, for the Aircraft Cabin Crew Award. I've just had a look and I think it is in one of the tables, in the 5 July ABI correspondence, but I'm not sure whether that's part of their 46 or - that table has more than 46 awards in it, but I'm not sure if it's part of their 46.

PN175

We're comfortable with the text of the exposure draft, in terms of the clauses, however, when you turn to table where the calculations are made and the hourly rate for casuals is provided and the overtime rate for casuals is provided, that calculation is not in the form that we interpret the text of the award to mean. So it might be a more expedient process if we just have a quick round of submissions before they report back on the date proposed of 29 July.

PN176

THE VICE PRESIDENT: All right. Well, what I'll do is I'll direct the FAAA to file a submission about that by 19 July and then I'll hear a report back on the position in that respect, on 29th at 10 am.

PN177

MR NGUYEN: Thank you, your Honour. It might be useful if any other party disagrees with us, if they - - -

PN178

THE VICE PRESIDENT: Well, they can indicate that on the day.

PN179

MR NGUYEN: Okay, thank you, your Honour.

PN180

THE VICE PRESIDENT: Mr Bull?

PN181

MR BULL: Your Honour, the principle award which we have in the list on the schedule is the Children's Services Award. We have a few others - - -

PN182

THE VICE PRESIDENT: Is the what?

PN183

MR BULL: The Children's Services Award.

PN184

THE VICE PRESIDENT: Yes.

PN185

MR BULL: I note that in the ABL schedule they indicate that it's unclear - I suppose I should say, I haven't gone through, obviously, every single one in their schedule but the few I'm familiar with I can't accept their analysis of how the casual provisions and the overtime provisions interact.

PN186

So in the Children's Services Award they say that the casual loading is unclear as to whether it's paid with overtime. We say it's clear. The 15 per cent is plus and it's plus with overtime and so forth. So perhaps I agree, I think putting it over to the 29th is a good idea and we can file a brief submission of what we say, well, I suppose the variances with the ABL interpretation, if that would assist.

PN187

THE VICE PRESIDENT: I think it's sufficient to say the extent to which you disagree, identify the extent of your disagreement with the ABL.

PN188

MR BULL: Yes. Well, the one I've looked at I can see a few things I disagree with. There are four others, which are sort of subsidiary ones for us, and I'll have a closer look at that.

PN189

THE VICE PRESIDENT: All right, thank you. In Melbourne, does anyone wish to report on any specific award?

PN190

MS WILES: Vice President, it's Ms Wiles, for the CFMMEU, Manufacturing Division - - -

PN191

THE VICE PRESIDENT: I'm sorry. Ms Wiles, I forgot Mr Maxwell, before you - - -

PN192

MR MAXWELL: Thank you, your Honour. Your Honour, there's three points I wish to raise. One is, I note that in their reference to the Building and Construction Award the ABI includes a statement that says the position is otherwise reserved, and I'm not really sure what they mean by that, in regard to these proceedings.

PN193

In regard to the Joinery Award, the interpretation that ABI have put on the award, that the 25 per cent casual loading does not apply when calculating overtime for casual employees is incorrect, so we would seek some clarification from ABI as to whether they wish to seek to change the provisions in that award.

PN194

And, as you recall, from when this matter was last before you, there was an exchange between yourself, myself and Ms Regan, for the HIA, and the parties there agreed that they were on the same wavelength as to what the award meant.

PN195

Also, in regard to the Mobile Crane Hiring Award, the ABI, in their table, say that the position is unclear. Again, we say that's incorrect. In both the current award and the exposure draft, released in March 2019, clearly identify that the 25 per cent loading is paid in addition to the overtime loading. Commission pleases.

PN196

THE VICE PRESIDENT: Right. Thank you. Ms Wiles?

PN197

MS WILES: Thank you, Vice President. Look, in relation to the Textile, Clothing, Footwear and Associated Industries Award, in respect to ABIs submission and the table, they now say that it's unclear whether casual loading is paid on overtime. We strongly disagree with that position so in terms of that, that is in contest.

PN198

The other issue that has been really outstanding, really since the beginning of the review of the TCF Award in 2014 and 2015, does relate to at what rate overtime is payable under the TCF Award. This is the compounding versus cumulative issue.

PN199

In light of the recent Full Bench decision, the AMMF decision, we say that that matter is still in contest. You may recall, Vice President, that in a decision last year, in June 2018, in relation to Group 1 Awards, the Full Bench did come to a position, in relation to this issue, in relation to the TCF Award, however in light of the recent AMMF decision, we think that does create a level of inconsistency between two Full Benches.

PN200

I should indicate, in response to Ms Bhatt's submission, that the provision in the Nurses Award, which was subject to that decision, is in relatively identical terms to the equivalent provision in the TCF Award. So, from our perspective, we say that that issue is still in contest and really does need addressing.

PN201

THE VICE PRESIDENT: All right. But from the CFMMEU's perspective, is any variation required?

PN202

MS WILES: Look, we - you know, it's a good question. I mean we've consistently had a view that the casual entitlement should be calculated on a compounding rate. In some ways we're in your hands, Vice President. We say that in light of the AMMF decision we say the position is now clearer, but we're really in the Full Bench's hands as to whether it considers that an ambiguity still exists, in relation to that award.

PN203

THE VICE PRESIDENT: All right. In any event, there's a disagreement about it. All right. Do you wish to take issue with the proposition that that be the subject of a directions hearing at 10 am on the 29th, before the Full Bench?

PN204

MS WILES: No, we'd support that, Vice President.

PN205

THE VICE PRESIDENT: All right, thank you. All right, who wants to report next, in Melbourne?

PN206

MR D HAMILTON: I do, your Honour, Hamilton, initial D. With regard to Amusement, Event and Recreation Award, the AWU's submission of yesterday addresses the issue of cumulative versus compound and we've got no issues with AWU's submission with regard to the exhibition employees, under the Amusement Award only. We can't speak for the other sections of that award.

PN207

With regard to the Live Performance Award, your Honour, the issue of overtime for casuals is being addressed in the award review process and is with Sams DP at the moment. Likewise the Broadcasting, Recorded Entertainment and Cinemas Award, this issue is being addressed in the award review process before yourself next month. Commissioner pleases.

PN208

THE VICE PRESIDENT: So just to be clear, so you're position is that nothing further needs to be done in these proceedings, with those three awards?

PN209

MR HAMILTON: That's correct, your Honour.

PN210

THE VICE PRESIDENT: Can I just check, Mr Arndt, were any of those awards in your 46?

PN211

MR ARNDT: The answer is yes.

PN212

THE VICE PRESIDENT: Which ones?

PN213

MR ARNDT: Live Performance and Broadcasting.

PN214

THE VICE PRESIDENT: Well, they're, I think, dealing with issues before other Full Benches, in substantive matters.

PN215

MR ARNDT: The difficulty with - perhaps I might take some instructions on that, just to ensure that our list - perhaps I might take some instructions on that to ensure that the - the difficulty is, is that the - this is a variation application and speaking to some of the other submissions that have come from the Bar table, the position of ABI is not that there is ambiguity and we seek clarification of what it actually means, these 46 awards are seeking to be varied so, in that sense - - -

PN216

THE VICE PRESIDENT: Varied to have them expressed in a certain way, not varied as a merits case, to change what is agreed to be the existing position?

PN217

MR ARNDT: It's the latter.

PN218

THE VICE PRESIDENT: It is the latter?

PN219

MR ARNDT: We seek to advance a merit case. The merit case, in terms of the submission, is identified in our 5 July submission.

PN220

THE VICE PRESIDENT: Okay. Well, Mr Hamilton, do you want to respond to that?

PN221

MR HAMILTON: Well, I'm not sure what interests the ABI have in our awards. The Live Performance Award issue is being addressed at the present time, in the award review process, and there's agreement between the parties as to the way forward.

PN222

With regard to the Broadcasting Award, and this is only to do with the cinema section, that issue is before you in August of this year.

PN223

Like I said, with the Amusement Award, I only can speak for the exhibition employees, but they've got no objection to what the AWU has put yesterday.

PN224

THE VICE PRESIDENT: All right. Well, I'll direct ABI to confer with your clients and the AWU about the position and report back on 29 July.

PN225

All right, who wants to report next, in Melbourne?

PN226

MS LESSAGE: Your Honour, it's Ms Lessage, for the Group of Eight Universities. My client's interests are just in respect of the Higher Education Industry (General Staff) Award. Having reviewed the revised exposure draft that was published on 8 March, my client's position is that the ambiguity around overtime for casuals remains.

PN227

In summary, the exposure draft is silent on when an entitlement to overtime arises for casual employees and the applicable rate. It also doesn't address, clearly, the interaction between the casual loading and other penalties and loadings.

PN228

The Group of Eight have filed both submissions and a draft determination, on 18 December 2017, and it seeks a variation which is, essentially, a reinsertion of the pre-reform provisions, which address this ambiguity which has been identified. The NTU have also sought a variation, filed on 18 December 2017.

PN229

We've had a discussion, this morning, with the NTU and the AHEIA, and have conferred about a proposed approach. Given that there appears to be some agreement on the key aspects of both the NTUs proposed variation and the Group of Eight's proposed variation, we seek that the parties are given an opportunity to further confer and report back and advise whether a consent position or proposal can be reached.

PN230

THE VICE PRESIDENT: So is it appropriate that you report back at 10 am on 29 July?

PN231

MS LESSAGE: Yes, we would have no problem with that.

PN232

THE VICE PRESIDENT: All right. Ms Pugsley and Mr Cupipo, is there anything different you want to say from that?

PN233

MS PUBSLEY: No, thank you, your Honour.

PN234

MR CUPIPO: No, thank you, from us as well, your Honour.

PN235

THE VICE PRESIDENT: All right. So anybody else in Melbourne? No? All right. In Canberra? So Ms Adler and Ms Sostarko, Building Industry Awards, do you want to say anything?

PN236

MS ADLER: Thank you, your Honour. Just, briefly, in response to the comments made by Mr Maxwell and ABIs submission, we'd just like to take the opportunity to examine that document and provide any further comments in writing.

PN237

THE VICE PRESIDENT: All right. So are you content to report back on 29 July?

PN238

MS ADLER: Yes, your Honour.

PN239

THE VICE PRESIDENT: All right. Ms Sostarko, do you agree?

PN240

MS SOSTARKO: Yes, we concur with that, yes.

PN241

THE VICE PRESIDENT: Mr Rogers, do you want to report on any matter?

PN242

MR ROGERS: Yes, your Honour. Obviously we have an interest in the Agricultural Awards. Just on the Horticultural Award, I think that matter has been considered, at some length, by the Full Bench. I know that some parties would like to relitigate it, but we're not going to make an application at this time. So, depending on the views of AWU and the Ai Group, I think that matter can be treated as dealt with.

PN243

THE VICE PRESIDENT: Resolved.

PN244

MR ROGERS: Resolved, yes, your Honour.

PN245

The Pastoral Award, there seems to be some disagreement about the position. I'm not sure that we agree with the position taken by the AWU, I haven't had a chance to read that decision. Although, in general terms, I think, historically, the overtime rate hasn't compounded the casual penalty, so I think the appropriate position is for us to report back on the 29th and maybe have some discussions.

PN246

The Sugar Industry Award, similarly, we haven't had the chance to review the decision, the main Aged Care decision. I'm not sure what impact it might have on the interpretation to report back on the 29th would be appropriate, in our view.

PN247

THE VICE PRESIDENT: All right, thank you.

PN248

I think that leaves you, Ms Rogers, in Adelaide?

PN249

MS ROGERS: I'm sorry, was that Adelaide? I'm getting a bit of echo now.

PN250

THE VICE PRESIDENT: Yes, we are. Yes, Adelaide, Ms Rogers.

PN251

MS ROGERS: Thank you, very much, Vice President. The AMIEU has an interest in the Meat Industry Award and the Poultry Processing Awards. We had agreed with the assessment that there was a lack of clarity in those awards, particularly with respect to when overtime was payable so AMIEU had submitted a draft determination last year.

PN252

Some of those matters have since been clarified by the exposure drafts. We haven't made any submissions with respect of the draft determinations that we had filed last year so perhaps it would be appropriate for us to do so by, I think, the 19th is the date given to a number of other parties. In our view there are still some areas that lack clarity but certainly the exposure draft process has been of great assistance.

PN253

THE VICE PRESIDENT: All right. Well, can I ask you then to file, by 19 July, a note which, from your organisation's perspective, identifies what the outstanding issues are and then ask you to report back on the 29th?

PN254

MS ROGERS: Thank you, Vice President.

PN255

THE VICE PRESIDENT: All right. Have I covered everybody? So just going back to you, Mr Arndt, what my expectation is, and this will be confirmed in directions, but since you've lodged this 5 July document, that the onus is upon you to confer with other interested parties to identify, firstly, the extent to which there is disagreement about propositions you advance and, secondly, an appropriate scheme of directions by which that matter can go forward.

PN256

MR ARNDT: Yes.

PN257

THE VICE PRESIDENT: Does any other party wish to raise any other matter? All right. Well, I thank the parties for attendance. I apologise for the technical difficulties and I will formalise the directions that I've made today early next week.

PN258

We'll now call on the DP World matter, the parties are otherwise excused.

SHORT ADJOURNMENT [10.42 AM]

RESUMED [12.21 PM]

PN259

THE VICE PRESIDENT: I'll take appearances. Mr Bull?

PN260

MR BULL: Brian Bull, I appear for United Voice, with my colleague Ms Bolton.

PN261

THE VICE PRESIDENT: All right. Mr Ferguson and Mr Harrington, you appear for the AiG?

PN262

MR FERGUSON: Yes.

PN263

THE VICE PRESIDENT: Mr Arndt and Ms Hamburger, you appear for ABI? Yes. Mr Crawford, do you appear for the AWU?

PN264

MR CRAWFORD: Yes.

PN265

THE VICE PRESIDENT: Mr Barlow, you appear for the CPSU?

PN266

MR BARLOW: Yes, your Honour.

PN267

THE VICE PRESIDENT: Who else do we have here?

PN268

MS L PIKE: Pike, initial L, from Clubs Australia Industrial.

PN269

THE VICE PRESIDENT: Yes?

PN270

MR P RYAN: Ryan, initial P, for the Australian Hotels Association.

PN271

THE VICE PRESIDENT: Yes. Mr Delaney?

PN272

MR C DELANEY: Delaney, initial C, for ASIAL.

PN273

THE VICE PRESIDENT: Yes.

PN274

MS N SHAW: Shaw, initial N, for API.

PN275

THE VICE PRESIDENT: Right.

PN276

MS C BAILEY: Bailey, initial C, Association of Independent Schools of New South Wales, (indistinct) Association of Schools WA and in South Australia.

PN277

THE VICE PRESIDENT: Thank you, Ms Bailey. And in Melbourne we have Mr Odgers for the IEU.

PN278

MR A ODGERS: Yes, your Honour.

PN279

THE VICE PRESIDENT: And Ms Wiles for the CFMMEU?

PN280

MS WILES: That's correct, your Honour.

PN281

THE VICE PRESIDENT: All right. Now the purpose of today is the programming of the hearing, to commence in the week beginning 29 July. I'm sorry, Mr Harmer, I didn't take your appearance.

PN282

MR M HARMER: Yes, thank you, your Honour. Harmer, initial M, solicitor for the Australian Ski Areas Association.

PN283

THE VICE PRESIDENT: Actually, Mr Harmer, while you're on your feet, I was going to start with you. There's a discrete matter involving your organisation and the AWU.

PN284

MR HARMER: Yes, your Honour.

PN285

THE VICE PRESIDENT: How long do you think that will take to resolve, to hear?

PN286

MR HARMER: With the benefit of conferring with Mr Crawford of the AMEU, we estimate one day. There's one witness that we would request be allowed to give his evidence by video, from Canberra, given the ski resort's location.

PN287

THE VICE PRESIDENT: Yes.

PN288

MR HARMER: We're happy for that to occur later in the week, given that I understand there are other matters that might take priority early in the week. So any time from Wednesday through to the Friday of the week in question.

PN289

THE VICE PRESIDENT: All right. What about 9.30 on the 31st?

PN290

MR HARMER: May it please the Commission, that's satisfactory.

PN291

THE VICE PRESIDENT: I'll come back to that, but I'll pencil that in, depending what the others say for the rest of it, otherwise it might be on the Friday.

PN292

MR HARMER: Sure, thank you.

PN293

THE VICE PRESIDENT: Mr Crawford, do you agree with that time estimate?

PN294

MR CRAWFORD: I do, yes.

PN295

THE VICE PRESIDENT: Yes, all right. So let's do the other matters. Mr Bull, do I understand that, that the witness statement that you've filed relates to all the other awards that are to be the subject of a hearing?

PN296

MR BULL: It's general evidence. I suppose it relates, generally, to all the awards, in the sense that it's evidence of physiology that long durations of work can be harmful. So it's not industry specific.

PN297

THE VICE PRESIDENT: All right.

PN298

MR BULL: I understand that somebody wants to cross-examine - - -

PN299

THE VICE PRESIDENT: I was going to ask that. So who wants to cross-examine, it's Dr Murlik, is it?

PN300

MR BULL: Murlik.

PN301

THE VICE PRESIDENT: Who wants to cross-examine him?

PN302

MR ARNDT: ABI certainly do.

PN303

THE VICE PRESIDENT: All right. How long will that take?

PN304

MR ARNDT: We've been given an estimate of a maximum of two hours.

PN305

THE VICE PRESIDENT: Two hours?

PN306

MR ARNDT: I would say it would be on the short side to that estimate?

PN307

THE VICE PRESIDENT: All right. But if he's relied upon for all the applicants then, presumably, we have to somehow hear them all together. I had hoped that we could at least separately group the three hospitality awards, but that appears not to be possible.

PN308

MR BULL: We've had some discussions with the AiG group and my friend can interrupt me if I'm articulating something which isn't what the discussions were. We thought we might go first with the Hospitality Awards. We'll go first with the evidence. There's an economist witness, from AVL, Mark Frost. I can't imagine I would be very long with him.

PN309

THE VICE PRESIDENT: So just stop there. So Mr Frost is relied upon, with respect to what awards?

PN310

MR ARNDT: All the awards that we have an interest in. I should say his statement and the evidence he gives is very limited, so the cross-examination shouldn't take very long.

PN311

THE VICE PRESIDENT: So how long did you say, Mr Bull?

PN312

MR BULL: I've only read it a few times, but I can't imagine I'd want more than half an hour with the economist. What I was going to suggest is we have the witnesses, as you do, the evidence can go first, maybe then the hospitality and then we can start rearranging the other tranches, so to speak. I imagine we can most of it done on the 29th and have the next day as spill over.

PN313

THE VICE PRESIDENT: When you say, "most of it", you mean the evidence and the submissions on all the remaining awards, apart from the Alpine Award, is that what you're saying?

PN314

MR BULL: Yes, correct. Otherwise it's a matter of submissions, and no one was proposing - I don't particularly want to reply, at this stage, to the substantial submission that have been made by the two employer groups. It's perhaps best if that that's done after the hearing, in the context of, perhaps, written and oral submissions, that will be made with the benefit of being made at least hearing some of the evidence.

PN315

THE VICE PRESIDENT: All right. So is the proposal then, for example, that I would, apart from the Alpine Award, list the remaining awards for hearing on the 29th and 30th, starting at 11 am on the 29th?

PN316

MR BULL: That sounds good. Obviously there are some people who don't want to be here for the entire - - -

PN317

THE VICE PRESIDENT: Hang on. I was going to add that we would hear submissions, based on the order in which the awards appear in the notice of listing. Perhaps they could be grouped in a certain way.

PN318

MR BULL: But there was some understanding, and my friend can interrupt and correct me, that it may be useful to put the - because the disaggregation issue seems to be what's excited people.

PN319

THE VICE PRESIDENT: What's the disaggregation issue?

PN320

MR BULL: Whether the overtime loading and the casual loading are both paid when you get overtime. So the issue about absorption and so forth. So our application, in relation to the Hospitality Award, is to disaggregate the casual loading from the penalty.

PN321

THE VICE PRESIDENT: All right. So, Mr Ferguson?

PN322

MR FERGUSON: Look, we are going to suggest along those line that perhaps the common evidence be dealt with on the 29th, in the morning, then perhaps the hospitality group of awards for submissions in the afternoon then the remaining awards, which might involve a larger amount of parties, the next day, commencing from the morning. If you wanted to split that up further, perhaps - - -

PN323

THE VICE PRESIDENT: No, that would be fine.

PN324

MR FERGUSON: Although not everyone had to be here the whole time.

PN325

THE VICE PRESIDENT: All right. Well, I'll take that as being the proposal, for the time being. Does anyone want to say anything different. That is, that we'll hear the common evidence, beginning at 11 am on Monday, 29 July, submissions concerning the Hospitality Award, the Clubs Award and the Restaurant Award will be taken on the afternoon of 29 July and we would take submissions, concerning the remaining awards, on 30 July. Does any party want to indicate any difficulty with that potential program? No? Anybody in Melbourne? Ms Wiles?

PN326

MS WILES: Yes. I'm just following on from some comments made by Mr Arndt of ABI this morning, where he - from, as I recall, he said that some of these awards could also be affected by their position that they're taking, in relation to the other group of, I think 72 awards.

PN327

THE VICE PRESIDENT: Sorry, Ms Wiles, which award are you especially interested in, or are you saying that there's a general issue which may affect the others?

PN328

MS WILES: Well, the award that we have the interest in is the Drycleaning and Laundry Industry Award, which isn't in that original list. But I was just really, I guess, alerting the parties to earlier submissions made by Mr Arndt, and how that will be dealt with.

PN329

MR ARNDT: Perhaps I could just clarify, Vice President? None of the awards that are currently listed for this listing are affected by our other application.

PN330

THE VICE PRESIDENT: I think Ms Wiles is averting to the possibility I think you raised, that the decision as to these awards may be of relevance to the outcome for all the other awards. Is that what you were saying, Ms Wiles?

PN331

MS WILES: That's what I understood Mr Arndt was saying, but maybe I misunderstood him.

PN332

MR ARNDT: No, that's correct. But not the other way round.

PN333

THE VICE PRESIDENT: That may then, I suppose, open up who wants to make submissions at the July hearing, because if the outcome affects the remainder of the awards. In any event, we'll deal with that if somebody turns up.

PN334

Mr Odgers, did you want to say anything else?

PN335

MR ODGERS: No, your Honour.

PN336

THE VICE PRESIDENT: All right. Well, we'll proceed on that basis and the directions and program will be formalised early next week. But, in short, with respect to all awards, except for the Alpine Resorts Award, the hearing will commence at 11 am on Monday the 29th. On that day we will hear the comment evidence and receive submissions, in relation to the Hospitality, Clubs and Restaurants Awards and the remainder of the awards in the list, again with the exception of the Alpine Resorts Award, we'll hear submissions on Tuesday the 30th and the Alpine Resorts Award we'll deal with at 9.30 am on 31 July.

PN337

If there's nothing further we'll now adjourn.

ADJOURNED UNTIL MONDAY, 29 JULY 2019 [12.32 PM]