PN1

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

PN2

MS J MINCHINTON: Your Honour, my name is Minchinton, initial J. I appear today on behalf of the Australian Hotels Association, the Accommodation Association of Australia and the Motor Inn, Motel and Accommodation Association, may it please the Commission.

PN3

JUSTICE ROSS: Thank you - in Sydney?

PN4

MR BULL: If the Commission pleases, my name is Bull. I appear for United Voice.

PN5

MS K THOMSON: If the Commission pleases, my name is Thomson, initial K. I appear for ABI New South Wales Business Chamber.

PN6

JUSTICE ROSS: Thank you. Anyone else in Sydney? No? In Adelaide - - -

PN7

MR C KLEPPER: If it pleases the Commission, Klepper, initial C, for Business SA.

PN8

MR D KILDARE: If it please the Commission, Kildare, initial D. I'm here as an observer for Clubs SA.

PN9

JUSTICE ROSS: All right, thank you. If we can go firstly to the restaurant award and what I'm proposing to do is to go through the summary of submissions that's been prepared in relation to each of these awards and here a matter has not been addressed by another party inviting submissions by any party in relation to the particular issue. I'll deal with them item number by item number. The first item is one raised by United Voice, Mr Bull, and you'll see the comment indicates that clause 15.1(f) of the plain language exposure draft provides an employee must have a minimum of eight full days off work in a four-week period, and that entitlement is unaffected by the definition of rostered day off.

PN10

Having regard to that comment - well what do you say in respect of that comment, and also is there anything - - -

PN11

MR BULL: I'm happy to withdraw our concern.

PN12

JUSTICE ROSS: All right. Thank you. If we go to item 2, this is a proposal by Business SA, the observation in the note is that the submission seeks to distinguish between duty and work; ordinary hours, however, are referred to in terms of work, not hours of duty. What does Business SA wish to say, if anything, in response to that proposition?

PN13

MR KLEPPER: We're happy to withdraw that submission as well, thank you.

PN14

JUSTICE ROSS: Thank you. In relation to item 3 - this is again a Business SA one - this really deals with more of a machinery point, that you're referring to the particular part of the TOIL clause, and the point that's made is that really the entire clause is the relevant reference because it's the entirety of the clause that deals with time off in lieu of overtime payments, and it deals with the various restrictions on access, how you obtain access, et cetera. Is there anything you wish to say in relation to that observation, or anything further you wish to say in respect of the submission?

PN15

MR KLEPPER: Would it assist the Commission if I expand on our submission a little bit further?

PN16

JUSTICE ROSS: Certainly.

PN17

MR KLEPPER: The position Business SA was putting forward, reading through the exposure draft, was we noted that in some of the other facilitative provisions, the pinpoint reference for the exact provision allowing an agreement is referenced with them other paragraphs within that clause allowing modification to that initial agreement.

PN18

JUSTICE ROSS: Yes.

PN19

MR KLEPPER: So we were more proposing as a matter of consistency that the facilitative provisions table refer to the exact provision where the agreement is made, because then the following clauses, or surrounding subclauses, would then adjust that initial agreement. But with this in mind, we are in the Commission's hands. It's not something that we are wedded to.

PN20

JUSTICE ROSS: Okay. Is there anything anyone else wishes to say about item 3? No? If we go to item 4, you'll see that the table has been updated to reflect the point raised by Business SA. Is there any further comment required in relation to that? No?

PN21

MR KLEPPER: No, thank you, your Honour.

PN22

JUSTICE ROSS: In relation to item 5, Mr Klepper, I gather that it's the same argument here?

PN23

MR KLEPPER: Yes.

PN24

JUSTICE ROSS: On 5 and 6, it's your proposition about the pinpoint reference consistent with the others, and the response being the entire subclause is intended to be facilitative. But we can determine that on the basis of what you've said to date about it, and the Bench will just form a view one way or the other. So I think that deals with 5 and 6. In relation to item 7, the proposition put by ABI has been accepted. That's the location of a clause. Does anyone else have a different view? No? If we go to casual employment, this is United Voice's concern.

PN25

MR BULL: This was a general concern that we preferred the - I suppose that engaged, as such - the draft has a sort of, if you're not full-time or part‑time, you're casual. I can see the point. I'm happy to withdraw the concern.

PN26

JUSTICE ROSS: Thank you. If we go to item 9, what does Business SA wish to say about this issue given the explanation provided by the drafter?

PN27

MR KLEPPER: We're happy with the explanation provided by the drafter. We won't press that submission.

PN28

JUSTICE ROSS: Thank you. Item 10, I think the clause has been updated to reflect the concerns raised by Business SA. You'll see there the notation. There was a proposition to substitute, "where the law permits", for "if permitted under a law applying to the relevant place." Given that proposed change, is there any residual issue that Business SA wishes to press in relation to clause 13.4?

PN29

MR KLEPPER: No residual changes, thank you, your Honour.

PN30

JUSTICE ROSS: Thank you. In relation to item 11, it's proposed by Business SA that the clause 15.1(e) of the plain language exposure draft be replaced with the wording of the current clause 31.2(d). The basis for wanting to retain the current clause was the concern that the plain language draft altered the legal effect of the clause. The drafter has accepted the proposition to the extent that is indicated in the notes column that where the word, "work", appears in clause 15.1(e), that "ordinary hours" is inserted in lieu, and that change reflects the original clause, so to that extent the point is picked up. The drafter notes that it leaves unclear what the position is if overtime is worked immediately after finishing ordinary hours on one day, et cetera, and is the effective minimum rate reduced by the amount of overtime worked. Well, two propositions to you, Mr Klepper, first: Does the alteration to delete work and insert in lieu "ordinary hours" in the current draft address your concerns, and secondly, what do you say about the drafter's question regarding the uncertainty about the position if overtime is worked immediately after finishing ordinary hours on one day?

PN31

MR KLEPPER: With regards to the first proposition, that does address our concern. We were (indistinct) that the language of the current award was reflected in the plain language draft. With regards to the second concern, I'm unable to expand on that too much.

PN32

JUSTICE ROSS: Do you want an opportunity to think about it?

PN33

MR KLEPPER: Yes, please. If I could respond in writing, that would be good, thank you.

PN34

JUSTICE ROSS: All right. I'd extend that to any party to give consideration to the question that's raised in the notes to item 11 and provide whatever you wish to say about that in writing, perhaps by the end of next week, which would be by 4 pm on Friday 22 September. Is there anything else anyone wishes to say about this item or about the proposal to delete the word, "work", and insert "ordinary hours?" No? The next matter is item 12, which is a United Voice concern, and you see the response, which is it's put - - -

PN35

MR BULL: I'm happy to withdraw that concern, sir.

PN36

JUSTICE ROSS: Thank you. Item 13?

PN37

MR BULL: We've still got a concern with the drafting, in that the plain English draft talks about, I suppose, the employer doing something positive, where the provision is about taking a break, so it's the actuality of not having a break, if that makes sense.

PN38

JUSTICE ROSS: Let's just go to - - -

PN39

MR BULL: Because it says, "not allow", so the employer has to not allow the person. The current provision basically has this penalty, if you like, when just a break doesn't happen. It's a bit of a fine point, but the current drafting is a bit more - it is broader, and the intention of the provision is to ensure that people get breaks.

PN40

JUSTICE ROSS: All right, just bear with me for a moment.

PN41

MR BULL: Sorry.

PN42

JUSTICE ROSS: So it's the expression, "is not allowed", in 16.5?

PN43

MR BULL: That is the problem.

PN44

JUSTICE ROSS: What is the relevant clause in the current award?

PN45

MR BULL: I think it's 31.5(b). It says:

PN46

If the employer requires the employee to work more than - - -

PN47

MR BULL: I withdraw that.

PN48

JUSTICE ROSS: 32?

PN49

MR BULL: 32, sorry.

PN50

JUSTICE ROSS: Yes.

PN51

MR BULL: Yes.

PN52

JUSTICE ROSS: Which one in 32?

PN53

MR BULL: Hang on, I'm just trying to find it. Sorry, I'm looking at the hospitality award. That's why it doesn't make any sense, sorry about that.

PN54

JUSTICE ROSS: That's all right.

PN55

MS THOMSON: I think it's 32.3, your Honour.

PN56

MR BULL: Yes, sorry.

PN57

JUSTICE ROSS: Yes, so it currently says:

PN58

If an employee is not given - - -

PN59

MR BULL: So it's a bit more permissive, I suppose. The purpose of the provision is that if you don't get a break you have to pay the employee at a higher rate.

PN60

JUSTICE ROSS: Yes.

PN61

MR BULL: The draft is a little bit - it narrows it in the sense that it implies that the employer has to do something positive. It's not a huge point but it would be remedied by - - -

PN62

JUSTICE ROSS: I'm not quite following the argument because if 16.5 said, "If an employee is not given an unpaid meal break at the rostered time the employer must pay."

PN63

MR BULL: Well, that would be preferable.

PN64

JUSTICE ROSS: I gather that's your preference.

PN65

MR BULL: That would be our preference.

PN66

JUSTICE ROSS: I'm not sure what the difference is between, "is not given", as opposed to, "is not allowed."

PN67

MR BULL: I didn't draft this submission.

PN68

JUSTICE ROSS: Okay.

PN69

MR BULL: But that is the point - it's not a huge point.

PN70

JUSTICE ROSS: All right, I follow. Is there anything anyone else wishes to say about that? No? Let's go to 14 and this is an ABI concern. Is there anything you wish to say about that, having regard to the suggested - well, you'll see from the notes that the drafter has no objection to substituting, "make all reasonable efforts", for, "seek", in the clause. Does that address the concern?

PN71

MS THOMSON: Yes, thank you, your Honour.

PN72

JUSTICE ROSS: Okay. Anyone else have any issue with any of that? No, all right, let's go to 15. Business SA submits that table three should have all the relevant information for a particular classification. The response is the table will look very complicated if that is incorporated. What do you want to say about that, Mr Klepper?

PN73

MR KLEPPER: Business SA accepts the drafter's comment.

PN74

JUSTICE ROSS: All right.

PN75

MR KLEPPER: In reality for the reader of the award it wouldn't be too difficult, I think, to figure out - you hope - to figure out what pay rate applies for a classification at a certain level, so we're happy to withdraw that submission.

PN76

JUSTICE ROSS: All right, thank you. Item 16 - this is the United Voice - - -

PN77

MR BULL: I'm happy to withdraw that submission.

PN78

JUSTICE ROSS: Thank you, Mr Bull. Item 17 - this is an ABI point. Do you see the comment that's made in relation to this - to the proposition - - -

PN79

MS THOMSON: We're happy to withdraw that, your Honour.

PN80

JUSTICE ROSS: Okay, thank you. Annualised salary - there are a number of observations made by United Voice and by ABI. I had thought that - and I can check this - that the annualised salary clause in this award had been referred to a specially constituted Full Bench dealing with or reviewing I think about 12 annualised salary provisions in different modern awards. I thought this was one of them. Can anyone - I can check that.

PN81

MR BULL: That's correct. I'm pretty sure that's correct. We made submissions and put in variations for the restaurants award and the hospitality award.

PN82

JUSTICE ROSS: Well, I just wonder whether in light of that, we should defer consideration of any plain language drafting of this clause until such time as that other Full Bench has dealt with any substantive issues.

PN83

MR BULL: That would seem sensible.

PN84

JUSTICE ROSS: Does anyone have a different view?

PN85

MS THOMSON: No, your Honour, we're happy with that approach.

PN86

JUSTICE ROSS: Okay. All right, well, that would leave in abeyance, really, the items 18 and 19. Then we come to item 22. This is a United Voice - Business SA noting it's reserving its positioned regarding the allowance for distant work. What do you want to say about this, Mr Bull? I mean, I think we had put to the parties about this question in the plain language exposure draft about whether ordinary rate of pay included applicable penalties. I don't think that has been addressed by a number of parties.

PN87

MR BULL: I'm just trying to - sorry about this.

PN88

JUSTICE ROSS: No, that's all right.

PN89

MR BULL: I'll withdraw the concern.

PN90

JUSTICE ROSS: Yes. Well, that's fine, then if I can invite the parties to - you'll see in the revised plain language exposure draft at 24.6 the question is put that - parties are asked to clarify the meaning of, "ordinary rate of pay", and this is a different point to the second point that you've raised, Mr Bull, or that now you're withdrawing.

PN91

MR BULL: Well - - -

PN92

JUSTICE ROSS: Yes, that period of engagement is the period of engagement on distant work but let me come back to the other point, which is 24.6(a) provides that employees are to be paid at their ordinary rate of pay for time spent travelling, et cetera, between their residence and their place of work and it sets out the circumstances in which that applies. The question that's asked is, well, what does ordinary rate of pay mean for this purpose?

PN93

MR BULL: I assume it means what you get paid for the time, so - - -

PN94

JUSTICE ROSS: Yes.

PN95

MR BULL: - - - if you've worked a long day and you've gone into overtime, the ordinary rate of pay would be the overtime rate.

PN96

JUSTICE ROSS: Okay.

PN97

MR BULL: The other interpretation is, "ordinary rate of pay", is just the base rate of pay, but - - -

PN98

JUSTICE ROSS: Well, I suppose that's why the question is asked.

PN99

MR BULL: Well, I assume the intention of the clause is to compensate employees for distant work or the travel component of distant work. It's obviously not going to be particularly relevant at the commencement of the engagement but if someone is travelling home, I'd say ordinary rate of pay - it should be clear that it will mean overtime if overtime is applicable or an evening loading or that sort of thing.

PN100

JUSTICE ROSS: I don't think the question is directly addressed by others. Let me just - - -

PN101

MR BULL: So it could be cured just by a note, assuming that - ordinary rate of pay is a more expansive concept than the base rate of pay.

PN102

JUSTICE ROSS: Yes.

PN103

MR BULL: It's the ordinary rate of pay for the time that the work takes place.

PN104

JUSTICE ROSS: Yes.

PN105

MR BULL: I think that's what it means. To be honest, I get a bit lost in these arguments. They don't seem to ever end.

PN106

JUSTICE ROSS: Well, the current clause is sort of - isn't going to help. It provides, "The special rate to be paid to employees" - this is in 24.4(a):

PN107

- - - who work away from the employer's place of business for the time occupied in travelling between the employer's place of business and work or between the employee's residence and work will be at ordinary rates.

PN108

Can I invite the parties to give some thought to what if anything should be said, either by note or whether the expression, "ordinary rate of pay", should be something different and if you could file whatever you wish to say about that by 4 pm next Friday the 22nd. Anyone else wish to say anything about that at the moment? No? Let's go to item 23. This is - you can see the note. This is a Business SA proposition that the issue raised could be addressed by a new subclause after clause 26.3. It sets out what that proposed subclause could state.

PN109

This is intended to address the proposition that clause 33.3 of the current award is not replicated in the new clause. Clause 33.3 simply states in the current award that overtime worked on any day stands alone. I think the point is accepted that that's not - hasn't been picked up in the plain language draft and there is some suggested wording. Does that address the issue raised by Business SA, Mr Klepper?

PN110

MR KLEPPER: It does, thank you, your Honour.

PN111

JUSTICE ROSS: All right, anyone have anything they wish to say about that? No? If we go to item 24, this is a - some clarification about the heading of column three in table six and the drafter has indicated no objection to the change suggested by ABI. Does anyone else have anything they wish to say about the proposed change? No, all right - does that address ABI's concern?

PN112

MS THOMSON: Yes, thank you, your Honour.

PN113

JUSTICE ROSS: Thank you. At item 25 Business SA observes of the note accompanying table six in clause 25.2(c) is unnecessary. That's been accepted by the drafter and the note deleted. Anyone have a contrary view? No. We go to item 26, Business SA notes that the, "but for", statement should be reworded in the manner they've suggested. The proposition put has been accepted by the drafter and the clause is to be reworded with the addition of a comma after the word, "time." Is there anything else anyone wishes to say about that? No, all right.

PN114

If we go to numbered item 27 - just bear with me for a moment. What do the parties wish to say about that? Mr Bull? You'll see that there are various positions put. In response to a question that was asked at item 28.2, the question was parties were asked to clarify whether seven hours a shift in the third line of clause 26.2 should read, "seven days a week." I think that reference - - -

PN115

MR BULL: Is it 28.2, or - - -

PN116

JUSTICE ROSS: Yes, I think it must be, yes.

PN117

MR BULL: Sorry.

PN118

JUSTICE ROSS: Yes, I think it must be 28.2. This relates to the additional week paid leave to shift workers and 28.2(a) provides that that leave applies to an employee who is a shift worker regularly rostered to work on Sundays and public holidays in a business in which shifts are continually rostered 24 hours a day for seven days a week. Seven hours a shift - I see.

PN119

MR BULL: The business has to basically function - - -

PN120

JUSTICE ROSS: Yes, 24.7.

PN121

MR BULL: - - - continuously.

PN122

JUSTICE ROSS: Yes, now, let's just go to the current award for the moment. The annual leave clause is in clause 35.

PN123

MR BULL: I'm not quite sure - I didn't draft this response but I'm not quite sure - - -

PN124

JUSTICE ROSS: I see. Yes - - -

PN125

MR BULL: Sorry.

PN126

JUSTICE ROSS: Sorry, Mr Bull. The question is not - it might be perhaps inelegantly phrased. It arises this way - clause 35.1(b) of the current award seems to be - I think the question is inviting comment that the current award provision seems to be an error, because it says in 35.1(b) it's talking about people who are regularly rostered to work on a Sunday, public holidays. In a business in which shifts are continuously rostered 24 hours a day for seven hours a shift and that I think doesn't make much sense.

PN127

MR BULL: Yes, it should be seven days a week.

PN128

JUSTICE ROSS: Yes, well, I think that is the question that's being asked.

PN129

MR BULL: Sorry.

PN130

JUSTICE ROSS: Yes, and I think the response you've just given is evidently sensible. It would seem to refer to seven days a week, albeit - - -

PN131

MR BULL: It does odd that it's - I'm wondering how many businesses covered by this award are going to be operating continuously.

PN132

JUSTICE ROSS: Well, I agree with that.

PN133

MR BULL: Hotels obviously aren't covered by this award. Most restaurants do close.

PN134

JUSTICE ROSS: There would be the odd one that operates continuously. I suppose whether, you know, this might be sort of more in the nature of a fast-food-type operation but it's structured as a restaurant so it might fall within this award.

PN135

MR BULL: I suppose I'm just querying - why do you need the requirement that the business operates continuously?

PN136

JUSTICE ROSS: Except that it's in the current award, I suppose.

PN137

MR BULL: Yes.

PN138

JUSTICE ROSS: That's really a separate question, Mr Bull. I think the antecedent question is this: the current award talks about continuously rostered, 24 hours a day for seven hours a shift and that doesn't seem to make any sense. I think we all agree that it would - - -

PN139

MR BULL: Seven days - - -

PN140

JUSTICE ROSS: - - - but it's for seven days a week. So I think we'll deal with it on that basis. The question then arises - the point you've raised about, well, what is the relevance of that in this industry? That's really beyond the scope of the plain language exercise. I think if you want to change that then you're entitled to seek a change but you'd need to do that as a separate application, okay?

PN141

MR BULL: Thanks.

PN142

JUSTICE ROSS: All right, then there seems to be general agreement that seven days a week is the appropriate reference to reflect the intention of the current award and parties can reserve their position about whether they seek any change to that by way of separate application. Can I go to item 28? This really deals with the temporary close-down and the reference. The drafter comments is seeking further details of Business SA's submission. Is there anything you'd like to add, Mr Klepper, or are you content for the Bench to determine the question on the basis of what has been put?

PN143

MR KLEPPER: Yes. No, we do recognise the drafter's call for more details. We're now saying that we could have provided a bit more clarity. Yes, we did just note that the current award at 35.3 deals with this entire issue in one sentence, whereas we've now got three subparagraphs dealing with it. But I will just speak briefly to the first submission that we filed just recently. We did recognise that there does appear to be a change in the legal obligations imposed under the plain language draft.

PN144

JUSTICE ROSS: Yes. This is your submission of 5 September?

PN145

MR KLEPPER: Yes, that's correct. Would you like me to speak to that?

PN146

JUSTICE ROSS: Yes, I would. In what way do you say it expands or alters the legal effect?

PN147

MR KLEPPER: Yes, 35.3 of the current award just requires notice to be provided where as part of manual close‑down operations, the employer will require an employee to take annual leave. So the current award doesn't actually impose any requirement to providing notification, or an employee will not be required to take annual leave. There's only one obligation in 35.3, whereas under 26.4 in the plain language draft, the employers - have a look at 26.4(b) - affected employees - - -

PN148

JUSTICE ROSS: 26.4 - - -?

PN149

MR KLEPPER: Affected employees.

PN150

JUSTICE ROSS: Is it 26?

PN151

MR KLEPPER: I'm sorry, I'm in the revised exposure draft. It's - - -

PN152

JUSTICE ROSS: 28.4?

PN153

MR KLEPPER: I'm sorry, your Honour, I'm looking at the comparison document. It's 28.4.

PN154

JUSTICE ROSS: Yes.

PN155

MR KLEPPER: Yes, under 28.4(b) the employer needs to give affected employees at least four weeks' notice, with affected employees being those who are required to take leave.

PN156

JUSTICE ROSS: I follow. So if it said, "wishes to require affected employees to take annual leave", that would address your concern?

PN157

MR KLEPPER: Yes, it would.

PN158

JUSTICE ROSS: All right.

PN159

MR KLEPPER: One of the things I would also add is, in terms of the practice within industry, I imagine that it will be uncommon for employers to not notify their employees when there's meant to be a close‑down of operations. So yes, our submission wasn't that the change put in the plain language draft was incorrect or inappropriate; we just want to raise it as there has actually been a change in the legal obligation, and invite other parties if they wanted to make comment on it.

PN160

JUSTICE ROSS: I suppose if you look at the language in (c), that is, of the current revised exposure draft, 28.4(c), it refers to paid annual leave, and if that language was inserted in 28.4(a)(ii), that would on the face of it address the concern that you've raised that the clause proposed goes beyond 35.3 of the current award, which is confined to circumstances in which there is a temporary close‑down and the employer wants to direct an employee to take annual leave. I think if we use the language, "paid annual leave", that would seem to address the issue. Does that address the issue as far as the shift in legal effect goes, Mr Klepper?

PN161

MR KLEPPER: Yes, that would, thank you, your Honour. I'm just considering then what purpose paragraph (c) would serve, whether that could then be removed, if it's going to specify in (ii) that it's paid annual leave?

PN162

JUSTICE ROSS: I think (c) is really just your - yes, I think (c) reflects the employer's current entitlement, or current power to require an employee to take a period of paid annual leave during a temporary close‑down.

PN163

MR KLEPPER: Yes. Thank you, your Honour. I think the clause would definitely - it would sit well with just, yes, that change in (ii), and the rest can be left, from Business SA's position.

PN164

JUSTICE ROSS: All right. Thank you. Anyone else have any comments about that? No? Let's go to 29. This is in relation to 32.2 of the revised exposure draft, and the point made by Business SA is that the clause should include a reference to a section of the enterprise or workplace. If we go to the current Restaurant Award, and I'm assuming it would be in the public holiday provision in clause 38. As I understand the point, Mr Klepper, it is that the revised exposure draft provides for substitution of public holidays by agreement between the employer and the majority of employees at a workplace or a section of a workplace. I see, so the words, "or a section of the workplace", have been added to the revised exposure draft to address your concerns?

PN165

MR KLEPPER: Yes, that's correct, and we are happy with how it appears in the revised exposure draft. Thank you.

PN166

JUSTICE ROSS: Thank you. Item 30, this is an ABI point which has been reflected in the updated A3.8(c), and the words, "other cooks and kitchen employees", has been substituted for "kitchen employees." Does that address the concern raised by ABI?

PN167

MS THOMSON: Yes, thank you, your Honour.

PN168

JUSTICE ROSS: Okay. Then in item 31, there's a preference by ABI to reorder the indicative task list in schedule A5.3 to reflect the current award requirements whereby A5.3(g), (h) and (i), "an employee may perform these tasks." And what's proposed is noted in the comment that the issue may be dealt with by inserting a line before paragraph (3) stating, and I quote, "and who may perform indicative tasks such as." Does that address ABI's concern?

PN169

MS THOMSON: Yes, thank you, your Honour.

PN170

JUSTICE ROSS: Okay. So are there any other matters in relation to the plain language draft? No? In relation to the Restaurant Award. Then as I've indicated, the provision of the additional opportunity to provide further submissions on the matters for the two issues that have been raised by 4 pm on Friday 22 September, and once we've received those the Bench will determine any outstanding issues in respect of the plain language redrafting of the Restaurant Award. We'll deal with any outstanding issues on the basis of the submissions that have been lodged to date and any further submissions lodged by Friday of next week in relation to those couple of matters we've identified. Anything further in relation to the plain language redrafting of the Restaurant Award before I go to the Hospitality Award? No? Thank you. Well, let's turn to the Hospitality Award, where there are a larger number of items. I'll adopt the same process. If we go to item 1, this is an AHA point where - can I just make the observation that 1.3 - you're seeking the removal - - -

PN171

MS MINCHINTON: Actually, your Honour, we'd like to withdraw that.

PN172

JUSTICE ROSS: Yes, I was going to point out I think there's already been a Full Bench decision - - -

PN173

MS MINCHINTON: Yes.

PN174

JUSTICE ROSS: - - - that's dealt with that issue.

PN175

MS MINCHINTON: Yes. In fact, items 2 and 3 we're also seeking to withdraw.

PN176

JUSTICE ROSS: Okay, thank you. It might be quickest if perhaps sticking with the AHA for the moment and then I'll go to each of the other parties, if you can indicate in light of either the comment made or further consideration or when you've looked at some of the responses, which other items you're seeking to withdraw or not press.

PN177

MS MINCHINTON: In terms of item 4 - - -

PN178

JUSTICE ROSS: Yes.

PN179

MS MINCHINTON: - - - we still seek to pursue the matter relating to - - -

PN180

MR KLEPPER: Sorry, your Honour - we're having trouble hearing here in Adelaide.

PN181

MS MINCHINTON: Sorry.

PN182

JUSTICE ROSS: All right, if you wouldn't mind talking into the microphone, thank you.

PN183

MS MINCHINTON: Is that better?

PN184

MR KLEPPER: That's much better, thank you.

PN185

MS MINCHINTON: Okay, thanks - so in item 4 we raised a couple of matters. The two that we won't be seeking to progress relates to the change of word from, "designated", to, "appropriate", and the change of the word, "utilise", to, "make use of." We still press the concern with the exclusion of the casino gaming employee group from the definition of appropriate level of training.

PN186

JUSTICE ROSS: We might just - can you just clarify precisely what the concern is there?

PN187

MS MINCHINTON: Yes, certainly - the definition of, "appropriate level of training", in the current award doesn't exclude a casino gaming employee from that definition and in fact in the current award it already contains a definition of appropriate level of training in the schedule for the casino gaming. However, that definition hasn't been replicated in the exposure draft. In the definition in clause 2, it's excluded casino so in fact where there were two references to appropriate level of training for casino.

PN188

In the current award there are no references to appropriate level of training in the exposure draft and a number of the position classifications do refer to the employee requiring an appropriate level of training. We believe that's just an omission, your Honour.

PN189

JUSTICE ROSS: All right, so that issue is pressed, the others are withdrawn?

PN190

MS MINCHINTON: Yes, your Honour.

PN191

JUSTICE ROSS: If I can just clarify, in relation to that issue I think United Voice is reserving its position on the appropriate level of training matter. Is that - this is in your submission of the 22nd, Mr Bull. Do you want to - well, you've heard what the AHA representative has put. Perhaps if you can clarify United Voice's position and for that matter any other party who has a view about this remaining issue under item 4 and respond in writing by 4 pm on Friday the 22nd?

PN192

MR BULL: Thank you.

PN193

JUSTICE ROSS: Thank you, Mr Bull. Yes, I'm sorry, keep going.

PN194

MS MINCHINTON: Okay, so just working through the list, your Honour - - -

PN195

JUSTICE ROSS: Yes.

PN196

MS MINCHINTON: - - - the matters that we don't seek to press that weren't addressed as part of the revised exposure draft, I have marked them if you bear with me while I work through the documents. Item 21, item 26, 27 - - -

PN197

JUSTICE ROSS: Bear with me for a moment - 21 - - -

PN198

MS MINCHINTON: - - - 26 and 27.

PN199

JUSTICE ROSS: Yes.

PN200

MS MINCHINTON: 31 - - -

PN201

JUSTICE ROSS: Yes.

PN202

MS MINCHINTON: - - - and 32(a) - this one was just in relation to a suggestion that an additional word be included.

PN203

JUSTICE ROSS: Yes, the word, "there."

PN204

MS MINCHINTON: Yes, but we're not committed as to whether it is or not.

PN205

JUSTICE ROSS: Okay.

PN206

MS MINCHINTON: 44.

PN207

JUSTICE ROSS: Just in relation to 22, there is a change given the later submission.

PN208

MS MINCHINTON: Yes, your Honour - in our initial submissions of 13 June we had queried the use of the word, "rest break." We did not seek to progress that. However, we still have a concern with clause 16 with relation to the way it looks adds an entitlement in that was taken out as part of some proceedings in 2013 for employees who work between five and six hours, not receiving an unpaid break but having the ability to request a break.

PN209

JUSTICE ROSS: You refer to those proceedings in detail in the submissions, is that right?

PN210

MS MINCHINTON: Yes, that's correct, your Honour.

PN211

JUSTICE ROSS: Okay.

PN212

MS MINCHINTON: We've also further explained our concerns with clause 16.6 in the exposure draft in relation to the way that the penalty for not receiving the unpaid meal break is calculated and we believe that the way it's been written in the exposure draft imposes an additional cost on the employers.

PN213

JUSTICE ROSS: Okay, all right.

PN214

MS MINCHINTON: Okay, so continuing through the list, item 47 - - -

PN215

JUSTICE ROSS: What do you say about 38?

PN216

MS MINCHINTON: We're satisfied with the suggestion of the drafter.

PN217

JUSTICE ROSS: All right, thank you. I'm sorry, you were at para - - -

PN218

MS MINCHINTON: Actually what I could also add is that if you would like, your Honour, the clauses that we're comfortable with.

PN219

JUSTICE ROSS: If you wouldn't mind, yes, thank you.

PN220

MS MINCHINTON: Would you like me to start from the beginning?

PN221

JUSTICE ROSS: I'm sorry, yes - I should have asked for a clarification as we go through.

PN222

MS MINCHINTON: It may be that we can cross quite a lot off as part of that.

PN223

JUSTICE ROSS: Yes, I think that's probably right.

PN224

MS MINCHINTON: Okay, so in terms of clause 7 the facility provisions, we're comfortable with the changes that have been made.

PN225

JUSTICE ROSS: Yes.

PN226

MS MINCHINTON: The same with clause - my apologies - clause 19.

PN227

JUSTICE ROSS: Open 19?

PN228

MS MINCHINTON: In terms of - with respect to clause 11.4 regarding the payment only. We still have concerns with some other aspects of the redrafted clause.

PN229

JUSTICE ROSS: What are your concerns about the redrafted clause?

PN230

MS MINCHINTON: Specifically that relates to clause 11.1 and - - -

PN231

JUSTICE ROSS: I see, that's fine.

PN232

MS MINCHINTON: Yes.

PN233

JUSTICE ROSS: But that's another item number.

PN234

MS MINCHINTON: Yes, and - - -

PN235

JUSTICE ROSS: But that item number - sorry. The item number at item 19 has been addressed but there are other item numbers that relate to the clause.

PN236

MS MINCHINTON: Yes, that's correct.

PN237

JUSTICE ROSS: Okay.

PN238

MS MINCHINTON: Item 22, item 23 - - -

PN239

JUSTICE ROSS: Yes.

PN240

MS MINCHINTON: - - - item 26 and 26, which I have already mentioned - 31.

PN241

JUSTICE ROSS: Yes.

PN242

MS MINCHINTON: In relation to the item 38, 38(a), 44 - - -

PN243

JUSTICE ROSS: Bear with me for a moment.

PN244

MS MINCHINTON: Sorry.

PN245

JUSTICE ROSS: Yes, 38(a).

PN246

MS MINCHINTON: Yes - 44, 45, 46.

PN247

JUSTICE ROSS: Yes.

PN248

MS MINCHINTON: Though we do note with the matter for clause 23.5 at item 46 that we do still have - actually can I take a step back, your Honour?

PN249

JUSTICE ROSS: Yes.

PN250

MS MINCHINTON: Forty-six. Take that off the list. That's still an item for us.

PN251

JUSTICE ROSS: Yes.

PN252

MS MINCHINTON: Forty-seven.

PN253

JUSTICE ROSS: Yes. So that's out. Yes?

PN254

MS MINCHINTON: Fifty.

PN255

JUSTICE ROSS: Fifty, yes.

PN256

MS MINCHINTON: Fifty-four, 55.

PN257

JUSTICE ROSS: Yes.

PN258

MS MINCHINTON: Fifty-seven and 58.

PN259

JUSTICE ROSS: Fifty-seven, I think, is a United Voice.

PN260

MS MINCHINTON: Sorry, 58. Yes.

PN261

JUSTICE ROSS: Yes.

PN262

MS MINCHINTON: Sixty-six, 67.

PN263

JUSTICE ROSS: Just bear with me for a moment. Yes?

PN264

MS MINCHINTON: Sixty-eight.

PN265

JUSTICE ROSS: Yes.

PN266

MS MINCHINTON: Although with item 68 we have made a further suggestion for a couple of additional words to be inserted in line with the current award clause.

PN267

JUSTICE ROSS: So that's the proposition in your submission of 5 September this year?

PN268

MS MINCHINTON: Yes.

PN269

JUSTICE ROSS: So that bit is pressed but not the earlier bit? Yes.

PN270

MS MINCHINTON: Yes. Seventy-two, 74.

PN271

JUSTICE ROSS: I'm sorry, is the � no, that's all right. We'll come back to it. Yes, 74?

PN272

MS MINCHINTON: Yes. Seventy-five.

PN273

JUSTICE ROSS: Yes.

PN274

MS MINCHINTON: Seventy-six, 77.

PN275

JUSTICE ROSS: Yes.

PN276

MS MINCHINTON: Actually, my apologies, I'm getting ahead of myself. Not 77, but 76.

PN277

JUSTICE ROSS: Yes.

PN278

MS MINCHINTON: Yes. Seventy-nine. We have formally withdrawn number 80.

PN279

JUSTICE ROSS: Yes.

PN280

MS MINCHINTON: Eighty-one, because we believe it's resolved with the updating.

PN281

JUSTICE ROSS: Yes.

PN282

MS MINCHINTON: Eighty-seven, 88, 88(a), 89.

PN283

JUSTICE ROSS: Yes.

PN284

MS MINCHINTON: Ninety. And with respect to 91 the drafter has made the comments relating to the jurisdictions; whether the word contact of training or training agreement is utilised. We believe that those words should still be included, and if it would assist the Commission we're happy to provide details of the terminology that's used across the States.

PN285

JUSTICE ROSS: Yes. You're suggesting that � well, the drafter is saying that your suggestion is appropriate if there are jurisdictions that still refer to a contract of training.

PN286

MS MINCHINTON: Yes, which ‑ ‑ ‑

PN287

JUSTICE ROSS: From what you've said there are such jurisdictions.

PN288

MS MINCHINTON: Yes. That's correct, your Honour.

PN289

JUSTICE ROSS: Yes. No, it would be of assistance if you can provide those.

PN290

MS MINCHINTON: Yes. Ninety-two, 94.

PN291

JUSTICE ROSS: All right. Thank you. Mr Bull, can I go through the same process with you. If we deal with the matters that United Voice has raised.

PN292

MR BULL: I'm just looking.

PN293

JUSTICE ROSS: Yes.

PN294

MR BULL: These are ‑ ‑ ‑

PN295

JUSTICE ROSS: Sorry?

PN296

MR BULL: We haven't raised as many. I'm just going through it.

PN297

JUSTICE ROSS: I think that ‑ ‑ ‑

PN298

MR BULL: I withdraw 16. Sorry.

PN299

JUSTICE ROSS: No, that's all right. I'm just going through the same process myself.

PN300

MR BULL: Not stuff which you've ‑ ‑ ‑

PN301

JUSTICE ROSS: Forty-nine, I think is the � that seems to be about annualised salaries.

PN302

MR BULL: That's responded ‑ ‑ ‑

PN303

JUSTICE ROSS: So that's probably � we'll deal with the annualised salary issues on the same basis as we did in the Restaurant Award. I think then you go to 56.

PN304

MR BULL: Yes. I'm just looking at that. We've got a concern that this is an illegal deduction in terms of the Act, so I'd maintain that concern.

PN305

JUSTICE ROSS: Then we go to 57, I think.

PN306

MR BULL: So I think ‑ ‑ ‑

PN307

JUSTICE ROSS: What about the suggested amendment?

PN308

MR BULL: Hang on, we're at 59 or 56?

PN309

JUSTICE ROSS: I'm sorry, I'm at 57.

PN310

MR BULL: Sorry.

PN311

JUSTICE ROSS: Fifty-six. I � yes.

PN312

MR BULL: Yes. I agree with the drafter's comments, so on the basis of the drafter's comments I'll withdraw 57.

PN313

JUSTICE ROSS: Then I think we're 59.

PN314

MR BULL: I maintain that concern. If they're all purposes allowances they should be treated as wages for all award calculations.

PN315

JUSTICE ROSS: Sixty?

PN316

MR BULL: Retain that.

PN317

JUSTICE ROSS: Right. Then ‑ ‑ ‑

PN318

MR BULL: I think that's it.

PN319

JUSTICE ROSS: Yes.

PN320

MR BULL: Yes. Sorry.

PN321

JUSTICE ROSS: No, that's all right. Can I go to ABI? I think your first one is at 5, and you'll see ‑ ‑ ‑

PN322

MS THOMSON: Yes, I think the drafter has resolved that concern, your Honour.

PN323

JUSTICE ROSS: And 6?

PN324

MS THOMSON: Similarly resolved.

PN325

JUSTICE ROSS: Then 10?

PN326

MS THOMSON: Yes, resolved. Thank you, your Honour.

PN327

JUSTICE ROSS: Eleven?

PN328

MS THOMSON: I think that one is opposed by my friend.

PN329

JUSTICE ROSS: Mr Bull, you'll see the drafter suggests the omission of the words, "in accordance with an agreed hours of work arrangement", and amending the note so it reads:

PN330

Clause 15.1 sets out work arrangement options for working the required average of 38 ordinary hours per week.

PN331

MR BULL: I'm happy to withdraw our concern on the basis of the note.

PN332

JUSTICE ROSS: Okay. Then I think the next ABI one is 13. I think that's been accepted. Does that deal with that point?

PN333

MS THOMSON: Yes. Thank you, your Honour.

PN334

JUSTICE ROSS: This is the location of the provision. Then 24, and you'll see there's a suggested amendment proposed by the drafter.

PN335

MS THOMSON: Yes, I think that addresses our concerns; that amendment.

PN336

JUSTICE ROSS: Okay. Then if we go to 35, again, there's a suggested � yes, I'm not sure if that's � I don't know if that's directed at yours or not. What do you want to do with that?

PN337

MS THOMSON: Could we just perhaps park that one for a moment, your Honour?

PN338

JUSTICE ROSS: No. No, problem. Perhaps if you give some thought to that and you can clarify your position by 4 pm in writing, by 4 pm on Friday the 22nd.

PN339

MS THOMSON: Yes, your Honour.

PN340

MR KLEPPER: My apologies, which item was that in relation to?

PN341

JUSTICE ROSS: It was - bear with me for a moment.

PN342

MS THOMSON: 35.

PN343

JUSTICE ROSS: 35.

PN344

MR KLEPPER: Thank you.

PN345

JUSTICE ROSS: I think the next one is 48 about annualised salary, but I think we'll adopt the proposition put - unless there's opposition to it - that was put in the Restaurant Award that we'll revisit annualised salaries after the Bench that has been constituted to deal with those issues has finalised its case. Then I think the next point advanced by ABI - are there any others - any other matters put by ABI?

PN346

MS THOMSON: I don't think so, your Honour. I'm just checking. No, not at this stage, thank you.

PN347

JUSTICE ROSS: Okay. Then can I go to Business SA? Can we go through the same process in respect of the matters that you've raised?

PN348

MR KLEPPER: Thank you, your Honour. I think item 5, we have provided a submission and we're happy with the drafter's response.

PN349

JUSTICE ROSS: Yes, thank you.

PN350

MR KLEPPER: And the same for our submission on late item 6.

PN351

JUSTICE ROSS: Yes.

PN352

MR KLEPPER: Item 8, we've got a couple of submissions. It's the same issue as in the Restaurant Award.

PN353

JUSTICE ROSS: Yes, it is - yes, that's right. So that can be pretty much determined on the basis of what's before us. I'm sorry to interrupt you, Mr Klepper, but can I just take the AHA back to item 7? What was your position in respect of that?

PN354

MS MINCHINTON: We had some concerns, and they relate to some other clauses. The current definition in the award, your Honour, refers to the minimum rates in clause 20, and we believe that there should be reference to clause - I believe it's 18 in the exposure draft.

PN355

JUSTICE ROSS: Okay. So 7 is still alive as an issue?

PN356

MS MINCHINTON: Yes.

PN357

JUSTICE ROSS: All right. Yes, back to you, Mr Klepper. I understand what you say about item 8. I think, 9 - I think those amendments have been picked up, haven't they?

PN358

MR KLEPPER: I'm not sure that item is one of Business SA's submissions, your Honour.

PN359

JUSTICE ROSS: Yes, I'm sorry.

PN360

MR KLEPPER: I think our next one is item 12.

PN361

JUSTICE ROSS: It is. Yes?

PN362

MR KLEPPER: I'm just looking back over the drafter's response. Your Honour, Business SA, while we're looking at the plain language draft, so comparing the early subclauses in clause 10 to the equivalent in the current award at clause 12.2, we saw 12.2 as very clearly setting out who is a part‑time employee in terms of more of a definitional aspect, because I'm not quite certain whether the drafter's response fully covers our concern.

PN363

JUSTICE ROSS: No, that's fine.

PN364

MR KLEPPER: Maybe we could come back to that one?

PN365

JUSTICE ROSS: Yes. Then I think we're at 15?

PN366

MR KLEPPER: Yes. We still believe that one is an issue.

PN367

JUSTICE ROSS: Yes. And I think 18?

PN368

MR KLEPPER: We're happy to withdraw that one.

PN369

JUSTICE ROSS: Okay. Then 25?

PN370

MR KLEPPER: I believe this has been dealt with.

PN371

JUSTICE ROSS: Yes.

PN372

MR KLEPPER: Yes. We agree with the response given to ABI's submission.

PN373

JUSTICE ROSS: All right. Then I think it's 30?

PN374

MR KLEPPER: That's the remote location issue, if I recall.

PN375

JUSTICE ROSS: Yes.

PN376

MR KLEPPER: With respect to the invitation to provide a definition, we were unable to quite locate where this provision originally came from, and we weren't keen to pull a definition out of thin air, and so we are continuing to try and research this, but we're not sure whether this is something where possibly the Commission may have some information on where this clause came from.

PN377

JUSTICE ROSS: We can certainly undertake to look for the history of the clause and in the award modernisation process whether did this particular clause come from. We'll endeavour to do that and provide that to the parties. Then 32, I think there's been an amendment to seek to address Business SA's point. Does that satisfy your concern?

PN378

MR KLEPPER: Yes, it does. I think it's a similar issue or that (indistinct) arose, so what, yes, came up in the Restaurant Award.

PN379

JUSTICE ROSS: Okay.

PN380

MR KLEPPER: Yes, we (indistinct) to that ordinary hours and overtime issue.

PN381

JUSTICE ROSS: Yes. Then - - -

PN382

MR KLEPPER: 34?

PN383

JUSTICE ROSS: Yes. There's a proposal to deal with that.

PN384

MR KLEPPER: Yes, and I do apologise for the rather general nature of our original submission. I do believe that the drafter's proposal does satisfy the concern, although one point that I did note, looking through - I think there was one element which the drafter may have missed out in terms of carrying through.

PN385

JUSTICE ROSS: What was that?

PN386

MR KLEPPER: That the request must be in writing. I'm trying to find the equivalent clause. In the current award at clause 31.3(a), it states that the request must be made in writing no later than the commencement of the shift, and I don't think that requirement that the request be in writing has been picked up by the drafter.

PN387

JUSTICE ROSS: Yes. It would seem to be the case, because this is the new clause 16.2. They say, "no later than the start of the shift request", but you say to reflect the current award in 31.3(a) that that request should be made in writing?

PN388

MR KLEPPER: Yes. To reflect what we think is the current award provision, that would need to be in writing.

PN389

JUSTICE ROSS: Yes. No, I follow. Okay. Then 36, this is the same issue I think that's raised in respect of the Restaurant Award on a similar issue.

PN390

MR KLEPPER: Yes, so we're happy to withdraw that one.

PN391

JUSTICE ROSS: I think 37, the table has been updated.

PN392

MR KLEPPER: Yes, that appears to have been updated.

PN393

JUSTICE ROSS: Does that deal with your concern?

PN394

MR KLEPPER: Yes, it does, thank you.

PN395

JUSTICE ROSS: Then 42? Again the clause has been amended and the issue about proficiency payments has been agreed. Does that address your concern?

PN396

MR KLEPPER: It does, thank you.

PN397

JUSTICE ROSS: Okay. And I think 62, is that the next one?

PN398

MR KLEPPER: Yes, I believe it is.

PN399

JUSTICE ROSS: And there's a suggestion for how your concern could be addressed?

PN400

MR KLEPPER: Yes, I'll have a quick look at that one.

PN401

JUSTICE ROSS: That's all right.

PN402

MR KLEPPER: I believe that does address our concern. Maybe if I do identify an issue, and I could indicate it in our response on the 22nd.

PN403

JUSTICE ROSS: Yes.

PN404

MR KLEPPER: Thank you.

PN405

JUSTICE ROSS: Then, I think, 64.

PN406

MR KLEPPER: I think this is ‑ ‑ ‑

PN407

JUSTICE ROSS: Yes, that's the time dealt with standing alone.

PN408

MR KLEPPER: Yes.

PN409

JUSTICE ROSS: It's the same response that was made in the Restaurant Award.

PN410

MR KLEPPER: We're happy with that response. Thank you.

PN411

JUSTICE ROSS: Okay. Then ‑ ‑ ‑

PN412

MR KLEPPER: Item 70 is the next one on my list, your Honour.

PN413

JUSTICE ROSS: I'm sorry, item 70?

PN414

MR KLEPPER: Yes.

PN415

JUSTICE ROSS: Yes.

PN416

MR KLEPPER: We do have a slight issue with the drafter's response, so I'll just bring up their comparison. We believe that the draft still expands the entitlement when compared to the current Award.

PN417

JUSTICE ROSS: Perhaps if I could just get you to, in your response of the 22nd, to identify the way in which you say the response would extend the current provision. That's probably the easiest way.

PN418

MR KLEPPER: I could provide that very briefly now. It's a ‑ ‑ ‑

PN419

JUSTICE ROSS: That's fine. Yes, sure.

PN420

MR KLEPPER: Yes. So comparing clause 34.4 of the current award to ‑ ‑ ‑

PN421

JUSTICE ROSS: Just bear with me for a moment.

PN422

MR KLEPPER: Sure.

PN423

JUSTICE ROSS: 34.4. Yes.

PN424

MR KLEPPER: To what is now 30.5 of the plain language draft.

PN425

JUSTICE ROSS: 34.4, and, I'm sorry, it's 30.5; is that right?

PN426

MR KLEPPER: Yes. Specifically 30.5(a).

PN427

JUSTICE ROSS: Yes.

PN428

MR KLEPPER: Yes. So in the plain language draft paragraph (a) sets out that clause 30.5 applies to employees in � you know, "catering functions in primary schools, secondary boarding schools, residential colleges", whereas in the current award at 34.4 in the introductory statement it is talking about it applies to "catering functions in primary and secondary boarding schools or residential colleges".

PN429

JUSTICE ROSS: I see. So it's the word ‑ ‑ ‑

PN430

MR KLEPPER: The title for that ‑ ‑ ‑

PN431

JUSTICE ROSS: Yes. So rather than being a primary school; it's a primary boarding school.

PN432

MR KLEPPER: Yes. We think that that is backed up by the title for this subparagraph in the current award.

PN433

JUSTICE ROSS: Yes. No, I follow. It's about boarding schools and residential colleges.

PN434

MR KLEPPER: Yes.

PN435

JUSTICE ROSS: Yes, I see. So that concern would be addressed by inserting the word "boarding" between "primary" and "schools".

PN436

MR KLEPPER: Yes, that would address the concern. Thank you.

PN437

JUSTICE ROSS: If that expression read in 30.5(a), "primary or secondary boarding schools", then you would read it distributively, so it could be read as if it's a primary boarding or secondary boarding school. I think the intent is ‑ ‑ ‑

PN438

MR KLEPPER: That's correct.

PN439

JUSTICE ROSS: Yes. Sorry, Mr Klepper, I didn't mean to interrupt you.

PN440

MR KLEPPER: Nor are you, sorry.

PN441

JUSTICE ROSS: Yes. I think the essence of the concern is that the legal effect of the revised clause be that it applies to primary boarding schools, secondary boarding schools and residential colleges. There might be an issue about how that's expressed, but I don't think it's the � the drafter is not proposing anything different to what you're suggesting as to the legal effect; it's just how you achieve that is expressed differently, I think.

PN442

MR KLEPPER: Looking in the plain language draft we're just concerned that it doesn't specify there has to be a primary boarding school. So the drafter's response and the amendment to the exposure draft.

PN443

JUSTICE ROSS: I agree that the revised exposure draft does not deal with the issue, but if the revised exposure draft was amended to read, rather than saying, "catering functions in primary schools, secondary boarding schools or residential colleges", if it rather than that said, "catering functions in primary or secondary boarding schools or residential colleges", then I think that has the same legal effect as the current clause.

PN444

MR KLEPPER: That would appear to. Yes, your Honour.

PN445

JUSTICE ROSS: Then I think the next Business SA, or there is another one? No. Is that it?

PN446

MR KLEPPER: I think that's all of them. Thank you.

PN447

JUSTICE ROSS: All right. I'm a bit conscious, or more than a bit, conscious of the fact that now that we've clarified a number of issues; what's been withdrawn and where we're going with it, I think, given we started with more than 80 items, it might be better to adopt, and fairer to each of you to adopt a two-stage process on hospitality; that we'll provide an updated summary of the submissions and revised exposure draft which will pick up all of those items where a party has raised an issue, the drafter has come back with a proposed change and that's been accepted. Then we'll narrow by dent of doing that rather than doing it by, for example in the summary of submissions striking out what was the previous item, we'll simply have a one page which will note that the following items raised in the previous summary of submissions published on X date are now not being pressed, and it will set them out, and then we'll deal with what are the remaining items. And that can focus everyone's attention on those issues, and then we'll have a further conference to see where we're up to with that, rather than try to sort of do it on the hop as it were. It will also give each of you an opportunity then to focus on the proposition that's now pressed by a party, and if you can bear in mind that when we next come back, which will be in a few weeks, all I'm going to be seeking is the response of others to the proposition that's being pressed by a particular party, and we'll also see whether the drafter has any further comments they wish to make in relation to the items that are pressed, and if there are any then they'll be included in the notes section.

PN448

So I think it's probably, given the number of matters, it's probably best done by chipping away at it as we go through it. The Restaurant matter, I think, as I say, there are very few issues that remain. The position of the parties has been clearly expressed and we can go ahead and resolve those on the papers once we get the supplementary submissions put in on the 22nd, but I think in hospitality the sheer volume of the matters and the change in, and I don't say this pejoratively, I welcome the shift in position of parties having considered the question, is such that I think it'd be fairer if you can see what that looks like and what have we got left. Is everyone content to adopt that course?

PN449

MS MINCHINTON: Yes, your Honour.

PN450

JUSTICE ROSS: I don't want this to be a sort of trial by exhaustion really that we just sit here until we've gone through each of the 80. I think we may deal with it in bite size pieces, and it may be, once I see what's left, and I can make an assessment of, well, how much heat is there around each of those, that we might have two further conferences, and I'll identify specifically which items will be dealt with at each conference, and that way you can get whatever instructions you need to about those matters. Is everyone content to proceed with it on that basis?

PN451

MR BULL: Yes.

PN452

MS MINCHINTON: Yes, your Honour.

PN453

MS THOMSON: Yes, your Honour.

PN454

MR KLEPPER: Yes, your Honour.

PN455

JUSTICE ROSS: I raise it because I think some of the issues that we have picked up in, both the plain language and the technical redrafting stage of all of the awards reflects the fact that the award modernisation process was the subject of very strict timetables, and there perhaps wasn't, and this isn't a criticism of the Bench that was dealing with it, they were imposed timeframes and the award modernisation request was subject to a number of iterations, so I don't think there was any alternative, and I'm certainly not suggesting I would have done it differently. I don't think there was a choice. But we have the option now of providing a bit more time and consideration to these issues so that, as much as we can, we fix any of the issues that may have arisen from the process.

PN456

That's what we'll adopt. I'll await your further submissions on the items that have been identified, and we'll publish the further iteration and we'll just work towards a position where we clearly identify what are the remaining issues in the dispute, and give each of you an opportunity to say whatever you want to say about it, and then we'll make a final determination of those issues.

PN457

Thanks very much for your attendance today, and for your assistance in dealing with the matters in the way in which you have, and once we've received your further submissions we'll publish the next iteration and provide the dates for the further conferences. Thanks very much. I will adjourn.

ADJOURNED INDEFINITELY�� [10.57 AM]