PN1

VICE PRESIDENT HATCHER: Yes, can I take the appearances please? Who's first in seating? Mr Clarke?

PN2

MR CLARKE: If the Commission pleases my name's Clarke, initials A V. I appear on behalf of the Registered Real Estate Sales Persons of South Australia.

PN3

VICE PRESIDENT HATCHER: Thank you.

PN4

MS BISBAL: If it pleases the Commission, Bisbal, initial A for the Real Estate - - -

PN5

VICE PRESIDENT HATCHER: Sorry, how do you spell your name?

PN6

MS BISBAL: Bisbal - B-i-s - - -

PN7

VICE PRESIDENT HATCHER: W-a-l?

PN8

MS BISBAL: - - - b-a-l.

PN9

VICE PRESIDENT HATCHER: B-a - Bisbal, yes.

PN10

MS BISBAL: For the Real Estate Employers' Federation, South Australia/Northern Territory.

PN11

VICE PRESIDENT HATCHER: Thank you.

PN12

MR PATERSON: If it pleases, your Honour, Paterson is my name from the Real Estate Employers' Federation.

PN13

VICE PRESIDENT HATCHER: Thank you, Mr Paterson. And the appearances in Queensland?

PN14

MR WATSON: Your Honours and Commissioner Gregory, Ken Watson of counsel. Now I am unsure whether I need to seek leave given that my organisation has previously been represented by counsel in earlier parts of these proceedings. If I do require to seek leave then I am prepared to address that matter.

PN15

VICE PRESIDENT HATCHER: Sorry, who do you appear for Mr Watson?

PN16

MR WATSON: I'm sorry, your Honour. The Queensland Real Estate Industrial Organisation of Employers, otherwise known as REEA - the Real Estate Employers Association.

PN17

VICE PRESIDENT HATCHER: Thank you. I'll come back to the issue of permission, Mr Watson.

PN18

MR WATSON: Thank you.

PN19

VICE PRESIDENT HATCHER: And other appearances in Queensland?

PN20

MR FRENCH: If it pleases, your Honour. French, initial T, representing the Australian Property Services Association.

PN21

VICE PRESIDENT HATCHER: Thank you. All right. Is that all the appearances? Does anybody oppose Mr Watson being granted permission to appear on behalf of his client?

PN22

MR FRENCH: No, sir.

PN23

VICE PRESIDENT HATCHER: All right. That permission is granted, Mr Watson.

PN24

MR WATSON: Thank you, your Honour.

PN25

VICE PRESIDENT HATCHER: All right. So, firstly, there was one statement of evidence filed in accordance with the directions. That was the statement of Mr Bruce Siebenhausen - S-i-e-b-e-n-h-a-u-s-e-n - do you tender that statement, Mr Watson?

PN26

MR WATSON: I do, your Honour.

PN27

VICE PRESIDENT HATCHER: Right. Does anyone object to the admission of that statement?

PN28

MR CLARKE: No, sir.

PN29

VICE PRESIDENT HATCHER: I take it he is not required for cross-examination?

PN30

MR CLARKE: Yes, your Honour. I have some questions.

PN31

VICE PRESIDENT HATCHER: Oh, you do have? Is Mr Siebenhausen available, Mr Watson, to give evidence?

PN32

MR WATSON: He is, your Honour, but we weren't told that he was going to be required for cross-examination but he's here. So there's no problem with that course.

PN33

VICE PRESIDENT HATCHER: All right. Thank you. Right, so Mr Siebenhausen, can I ask you to move to that witness box just at the end of the court room there? And if you could just stay standing for one second, Mr Siebenhausen? Mr Siebenhausen, can I just ask you to stand up and we'll administer the affirmation from Sydney?

PN34

THE ASSOCIATE: Mr Siebenhausen, can you please state your full name and address for the record?

PN35

MR SIEBENHAUSEN: Graham Bruce Siebenhausen is my full name, address is (address supplied).

<GRAHAM BRUCE SIEBENHAUSEN, AFFIRMED [10.08 AM]

EXAMINATION-IN-CHIEF BY MR WATSON [10.08 AM]

PN36

VICE PRESIDENT HATCHER: All right. Please be seated, Mr Siebenhausen? All right. Mr Watson?

PN37

MR WATSON: Since the statement has been received into evidence I don't have any questions. May it please, your Honour.

PN38

VICE PRESIDENT HATCHER: All right. Well, Mr Siebenhausen do you confirm that the statement is true and correct to the best of your knowledge and belief?‑‑‑Yes, I do.

PN39

And you have a copy of it with you?‑‑‑I do.

*** GRAHAM BRUCE SIEBENHAUSEN XN MR WATSON

PN40

All right. I will mark the statement of Bruce Siebenhausen dated 13 September 2018 as Exhibit BS.

EXHIBIT #BS WITNESS STATEMENT OF GRAHAM BRUCE SIEBENHAUSEN DATED 13 SEPTEMBER 2018

PN41

VICE PRESIDENT HATCHER: All right. Mr Clarke?

PN42

MR CLARKE: Thank you, your Honour.

PN43

VICE PRESIDENT HATCHER: And Mr Siebenhausen, can you just confirm? Mr Clarke is going to ask you some questions from Sydney so can you just identify immediately if you have any trouble in hearing what he has to say?‑‑‑Very well.

PN44

All right. Mr Clarke?

CROSS-EXAMINATION BY MR CLARKE [10.10 AM]

PN45

MR CLARKE: Thank you, your Honour. Now, in your statement you indicate that part time commission only sales people are quite prevalent in your State of Queensland. Am I correct?‑‑‑Correct.

PN46

Could you tell me please how the employers that you know that employ commission only part time sales persons how they keep a track of the actual hours worked by their employees? Do they keep a time book for example?‑‑‑Some of them do keep time books, your Honour, yes.

PN47

I beg your pardon?‑‑‑Some of them do keep time books, yes. Some do not.

PN48

And how do those who don't keep track or keep time books, how do they keep a track of the actual number of hours worked by their Commission only part-time employees?‑‑‑Well, I'm not at all sure that they do keep those hours at all. I don't think if any of them thought they were obliged to.

PN49

Have you ever done a survey of your members in Queensland who employ part-time commission only employees as to how many employers actually maintain accurate time and wages records for hours worked by their part-time commission only sales persons?‑‑‑No, I have not done that.

*** GRAHAM BRUCE SIEBENHAUSEN XXN MR CLARKE

PN50

Well, how do you know that any of them actually do keep a time and wages record of those part-timers?‑‑‑Well, I make that assumption. I can't recall. I had a number of conversations with people who do employ commission-only sales people but I can't record the detail of any of those conversations. I am assuming that those who do keep time records would have told me so.

PN51

But you have not actually asked specifically or being told specifically by any employer that you can recall that they keep time and wages records of the hours worked by their part-time commission only sales persons?‑‑‑No, I can't recall any such conversation now.

PN52

Right. Okay. Well, how does - are you aware as to how those employers calculate what hours for those part-timers they should be paid with respect to annual leave or parental leave or sick leave or long service leave?‑‑‑No, I don't.

PN53

Have you ever asked them?‑‑‑No.

PN54

Now in your statement you tend to indicate or seem to indicate that these retiring sales agents or sales persons who are commission-only working full time who might be parents, in particular, mothers I guess but not necessarily always the case would be prevented from continuing to work in the industry if this Full Bench didn't continue to allow part-time employment. Have I summed up your - - -?‑‑‑Yes.

PN55

- - -approach correctly?‑‑‑That's the approach taken by the people who responded to me when I surveyed them. So their views about the question of part-time employment for commission-only employees.

PN56

You would be aware of course that the award does allow for continued part-time employment on a wage basis if they're covered by the award? That is they could go from commission only and say, "Well, look I'd like to continue working a few hours a week" or whatever it might be, "I'd like to be employed on a part-time basis under the award or on the casual basis under the award."

PN57

The employee could seek to do that couldn't they?‑‑‑Yes.

PN58

And the employer could agree with it couldn't they?‑‑‑Yes.

*** GRAHAM BRUCE SIEBENHAUSEN XXN MR CLARKE

PN59

Is there any reason why they wouldn't agree to allowing one of their full time commission-only sales persons who is a mother, for example, wanting to work half time during the week to look after their child, is there any reason why an employer wouldn't allow them to become a part-time worker pursuant to the award on a wage?‑‑‑I can't think of any but you would have to ask each individual employer who wanted to do that.

PN60

I beg your pardon?‑‑‑I said I can't think of any reason because you'd have to ask each individual employer whether he was prepared to accept those consequences or those circumstances.

PN61

Yes. Have you ever discussed with your members, for example, those who have spoken to you - the subject of your witness statement - about well, look you can employ these people part-time or on a casual, on weekends, or whatever to keep their hand in the game and you still get the value of their expertise and past experience and client contacts but you just employ them under the award and pay them their hourly rate of pay. Have you ever said that to them? Your employers?‑‑‑I can't recall ever being asked the question because most people I've spoken to on that particular matter do prefer the usual circumstances under which commission-only people are employed. That is, no hours of pay and certain other conditions of the award that don't apply to them.

PN62

Yes. Can I put this to you? That basically the employers in Queensland that you represent who prefer to have part-time commission-only sales persons is simply because not that the employer can't employ them on a part-time or casual basis but they don't want to pay them the guaranteed minimum hourly rate of pay. Isn't that correct?‑‑‑That's the whole purpose of the establishment of commission-only employment in the first place isn't it?

PN63

I thought the whole purpose behind commission-only employment in the award was to remunerate in a better manner a higher rate of pay for those who are high performance who can achieve - - -?‑‑‑Yes.

PN64

- - - significant sales isn't that true?‑‑‑I agree with you. Yes, I agree with that.

PN65

Yes. So why would an employer not be prepared to utilise those skills, those list of contacts that a person approaching retirement age might - wants to keep the hand in the game - or a successful female or male who wants to go part-time for parental reasons why not simply employ them on an hourly basis and pay them by the hour?‑‑‑You'd have to ask each individual employer.

PN66

Yes, has any individual employer ever expressed a view to you that they wouldn't employ a person on such a basis?‑‑‑I'm sorry. I beg your pardon?

*** GRAHAM BRUCE SIEBENHAUSEN XXN MR CLARKE

PN67

Has any employer ever said to you, "No, I'm not prepared at all to consider employing some of my commission-only sales staff who want shorter hours in the week on a part-time basis or a casual basis where I have to pay them a minimum hourly rate of pay."?‑‑‑I can't recall.

PN68

No. So where's the fuss? Why are your members in uproar and so discontent that they have asked you to ask this Full Bench to reconsider its view with respect to banning part-time employment or casual employment for commission-only sales persons?‑‑‑Well, they have favoured the whole concept of commission-only employment since it was (indistinct) in the award.

PN69

Sorry, I can't quite hear you?‑‑‑And they continue to do so.

PN70

I put it to you again and you don't have to agree with this but I put to you that the employers in Queensland only opposition to the non-allowance, if I can put it that way, of commission-only - part-time commission-only sales persons is that the employers do not want and oppose vehemently paying people less than - working less than the week - a guaranteed minimum hourly rate of pay. That's really their opposition, isn't it?‑‑‑Well, that's your opinion.

PN71

What's your opinion?‑‑‑I don't agree with it.

PN72

Well, can you give me a reason as to why they oppose it?‑‑‑What I am here to do is to try to help our members who have been devoted to commission-only employment for a very long period of time, carry on the same circumstance with their employees who want to work on that basis but on a part-time basis. That's the reason we're here.

PN73

Well, just finally, I put this to you. There is no impairment for the people you say - want to work - commission-only people who want to work shorter hours than full-time that there is a route to part-time employment by being paid a guaranteed minimum wage. That's correct, isn't it?‑‑‑I would say that, yes.

PN74

Yes. And I put it to you, also, that your members have never seriously addressed that issue as to they could actually get people to work part time if both sides wanted it and pay them a minimum rate of pay and may be perhaps they don't pay a commission or not a great as commission as they might have otherwise done. Isn't that correct?‑‑‑I'm sure they would have addressed that issue.

PN75

I beg your pardon?‑‑‑I said I am sure they would have addressed that issue.

*** GRAHAM BRUCE SIEBENHAUSEN XXN MR CLARKE

PN76

But you don't know?‑‑‑Of course I don't.

PN77

And you haven't asked them?‑‑‑No, I haven't.

PN78

No further questions.

PN79

VICE PRESIDENT HATCHER: Is there anything else?

PN80

MR WATSON: No re-examination, your Honour.

PN81

VICE PRESIDENT HATCHER: Anybody else who wants to cross-examine this witness?

PN82

MR PATERSON: Yes, I'd like just a couple of questions, your Honour.

PN83

VICE PRESIDENT HATCHER: Are you going to cross-examine this witness?

PN84

MR PATERSON: Mr Siebenhausen - Paterson here in - - -

PN85

VICE PRESIDENT HATCHER: So, Mr Paterson? Are you going to cross-examine this witness?

PN86

MR PATERSON: I wanted to ask him a couple of questions in cross-examination, your Honour.

PN87

VICE PRESIDENT HATCHER: Well, you're aligned with his interest, aren't you?

PN88

MR PATERSON: Well, I am. And I wanted to clarify a few points that he made to - - -

PN89

VICE PRESIDENT HATCHER: Well, you should have done that before he was cross-examined.

PN90

MR PATERSON: If the Commission pleases.

*** GRAHAM BRUCE SIEBENHAUSEN XXN MR CLARKE

PN91

VICE PRESIDENT HATCHER: But anyway - you - no, Mr Paterson - just you ask a question and we'll see how we go.

PN92

MR PATERSON: Okay.

PN93

VICE PRESIDENT HATCHER: But I can emphasise that the questions must be non-leading questions.

PN94

MR PATERSON: Correct.

CROSS-EXAMINATION BY MR PATERSON [10.22 AM]

PN95

Mr Siebenhausen, has your organisation given your experience and your length of time in the industry, has your organisation had to confront a situation where one of your members has had a problem with a part-time commission-only employee?‑‑‑No, I can't recall any.

PN96

What would you say, given your experience in the industry, is the relationship between commission-only employment - whether it's on a full-time or part-time basis and the commission rate that the sales person can demand?‑‑‑Well, it was always an expectation, I think, for most commission-only people who were good at their trade who expect a reasonably high level of commission.

PN97

Thank you. No further questions, your Honour.

PN98

VICE PRESIDENT HATCHER: Does anybody else wish to ask questions of this witness? Mr Clarke, did you want to ask anything arising out of Mr Paterson's questions?

PN99

MR CLARKE: No, sir.

PN100

VICE PRESIDENT HATCHER: Right. Is there any re-examination, Mr Watson?

PN101

MR WATSON: No. Sorry for my premature intervention before but no I don't have any re-examination.

*** GRAHAM BRUCE SIEBENHAUSEN XXN MR PATERSON

PN102

VICE PRESIDENT HATCHER: All right. Thank you for your evidence, Mr Siebenhausen, you're excused which means you can return to the Bar table.

<THE WITNESS WITHDREW [10.24 AM]

PN103

VICE PRESIDENT HATCHER: All right. Submissions. Is there any agreed order, otherwise we'll just go across the Bar table starting in Sydney, I think. No? All right, Mr Clarke.

PN104

MR CLARKE: Your Honour, I have prepared a written submission in response.

PN105

VICE PRESIDENT HATCHER: Well, has this been made - - -

PN106

MR CLARKE: To the employer submissions.

PN107

VICE PRESIDENT HATCHER: Has this been made available to the parties in Queensland?

PN108

MR CLARKE: I'm just about - well, I've only just wrote them out on the weekend but I know Tom French has a copy. I've just handed out - - -

PN109

VICE PRESIDENT HATCHER: So Mr Watson and Mr French - Mr Clarke has provided us with a further written outline of submissions. Do either of you have copies of that?

PN110

MR FRENCH: Yes. French, speaking, your Honour. Yes, I do have a copy here. I have just handed it Mr Watson.

PN111

VICE PRESIDENT HATCHER: Mr Watson?

PN112

MR WATSON: Well, that answers that question, your Honour. No, I don't and it's never been supplied to my client.

PN113

VICE PRESIDENT HATCHER: All right. Well, you're going to speak to it, are you, Mr Clarke?

PN114

MR CLARKE: I am going to speak to it.

*** GRAHAM BRUCE SIEBENHAUSEN XXN MR PATERSON

PN115

VICE PRESIDENT HATCHER: All right.

PN116

MR CLARKE: Yes.

PN117

VICE PRESIDENT HATCHER: All right. Just hold on a second. Well, Mr Watson what we might do - Mr Clarke is going to speak to this document but we'll just adjourn briefly. A court officer will come around and arrange for a copy to be made for use so that you can follow it as we go.

PN118

MR WATSON: I'd appreciate that, thank you, your Honour.

PN119

VICE PRESIDENT HATCHER: All right. Well, we'll adjourn to allow that to happen.

SHORT ADJOURNMENT [10.26 AM]

RESUMED [10.37 AM]

PN120

VICE PRESIDENT HATCHER: Well, I'm sorry, Mr Watson we've had an IT failure which means we can't copy, among many other things, so if you can look on Mr French's copy that would be appreciated.

PN121

MR WATSON: Thank you, your Honour.

PN122

VICE PRESIDENT HATCHER: All right, Mr Clarke?

PN123

MR CLARKE: Thank you, your Honour. When I was drafting this up at the end of last week it was really on the basis of what was going to be my oral submissions so as I was typing it up I thought it would just be handier to give all members of the Bench and those at the Bar table copies of what I was going to say orally - that's all. There was nothing new in it in terms of what RRESA's position in its submissions sent to the Full Bench on the 14 September 2008. The document you have before you is more a response than anything else in terms of the written submissions put in by each of the employer organisations at that time.

PN124

I don't need to go through paragraph one, your Honour. That just simply recites how we got here today and the references of various decisions from the July 2017 through to the 29 March decision by this Full Bench. If I could summarise as I say at point two as I see it what the employer's written submissions to you, on the issues still in contention which is part time employment I say that REEF, their submission to you, seek the continuation of allowing employers to employ part-time commission-only sales staff on whatever hours are agreed between the employer and the employee and accepts there will be no pro rata rating of the MIT, either at the entry point or its continuation of the annual review of the employees' income.

PN125

They also support as a full-back position if their claim for part-time employment is unsuccessful, that a grand-parenting clause be inserted for existing commission only sales staff that were employed part-time.

PN126

The Queensland employers, point "B", they seek the continuation of part-time work without restriction as to the number of hours worked by the employee and they want the award to be varied to allow for the pro-rataing of the minimum income threshold, although it is not clear if they want pro-rataing to apply either at the entry point and at the 12 months review of income or just the latter.

PN127

The employers from South Australia and the Northern Territory, their submissions, they seek the continuation of part-time employment of commission only sales staff and the pro-rataing of the minimum income threshold at the 12-month review of the employee's income.

PN128

Now, at paragraph three RRESA states its opposition to all of the employer submissions and in the issue of pro-rataing of the minimum income threshold either at the point of entry or at the 12-month review of the commission-only employees' income, we say is an issue which should not even be debated before the Full Bench today. Whatever misunderstanding the employer parties had over the issue of the continuation of part-time employment for commission-only sales staff there can be no doubt that the issue of pro-rataing of the minimum income threshold had been discussed, been the subject of submissions by all parties and the Full Bench rejected the employer arguments for pro-rataing of the minimum income threshold at either end of the spectrum.

PN129

The employer and union parties made union submissions - sorry, made written submissions to the Full Bench in response to its invitation for parties to get their views on a number of issues raised by their 16th - sorry, 6 July 2017 decision. Amongst a number of issues there was the pro-rataing of the minimum income threshold for commission-only sales staff including point (a), REEF, in their submission the 16 August 2017 and all of these submissions were quite long and they dealt with issues of - not penalty rates - relativities between the different classifications beyond the property sales representative areas and various other issues.

PN130

At page 33, paragraph 3.1, the New South Wales REEF states, "The decision expressly states that the minimum income threshold is not to be pro-rataed on account of part-time or casual employment when determining an employers' eligibility to both enter into and remain on commission-only arrangement. That's their emphasis.

PN131

At pages 35 to 37, under the heading "Appropriateness of pro-rataing the minimum income threshold to assess continuing commission-only employment for part-time employees." They make submissions supporting the pro-rataing of the MITA with respect to the annual review of the employees' income. REEF further submitted as an alternative that part-time employment for commission-only employees could be regulated by a maximum of 24 hours per week that could be worked. That's at paragraphs 3.7 to 3.12.

PN132

REEFWA adopted the position of REEF New South Wales with respect to the pro-rataing of the minimum income threshold at paragraphs 36 to 38 of their submission of the 16 August '17. REEF South Australia and the Northern Territory, in their submission, also dated 16 August agreed with each of the abovementioned employer parties that pro-rataing of the minimum income threshold at the 12-month annual review should be allowed. We, that is, RRESA, in its submission dated 16 August 2017 supported the Full Bench's professional view that there should be no pro-rataing of the minimum income threshold at the annual review of an employees' income. And that was at paragraph 1(d) of our submission. APSA adopted the same view as RRESA.

PN133

Arising from the submissions of all parties which covered many more aspects of the proposed award then the part-time employment issue for commission-only sales staff - excuse me - a conference of the parties and the Chairpersonship of Deputy President Asbury on 2 November 2017 - a number of agreements were reached re wage relativities in the new award, broad banding and classifications, date of operation - et cetera.

PN134

The Full Bench issued its decision on all the outstanding matters on the 17 January 2018 after taking into account the conference before DP Asbury and stated the following at paragraph nine.

PN135

"The parties have discussed those provisions further and have agreed to their inclusion in the RREA awards subject to some minor modifications. Those provisions are as follows -

PN136

. Agreement to enter into commission-only arrangements. . Objective of commission-only employment and annualised minimum wage.

PN137

. Minimum requirements for entering into commission-only employment.

PN138

. Minimum commission-only rate and calculation of such rate.

PN139

. Minimum income threshold for entering into commission-only employment."

PN140

The next dot point wasn't applicable to commission-only. And then the last point on page two.

PN141

"Non-application of casual and part-time employment provisions to employees on commission-only agreements." When commission-only arrangements must cease and when such arrangements may resume after they have ceased. And if I could add of course that included the annual review at the 125 per cent and no pro-rataing of that amount with respect to commission-only part-time employment because he'd already ruled it out. That is commission-only.

PN142

The Full Bench that same day issued its determination and draft order which did not allow for the pro-rataing of the MITA with respect to anyone employed on a part-time basis and, indeed, was consistent with its decision of 6 July 2017. Specifically ruled out part-time and casual employment for commission-only employees.

PN143

In the Full Bench decision of 16 March 2018 it referred to a further opportunity for the parties to comment on a draft determination and in response RRESA, REEF New South Wales and REEFWA made submissions on various matters, none of which included pro-rataing of the minimum income threshold. REEFWA did raise the question of 125 per cent minimum income threshold as the entry point. And the rising from a further conference on 13 March 2018 of the parties before Deputy President Asbury agreement was reached on some more - some additional amendments of the draft determination. And they're referred to at paragraph seven to 12 of the 16 March 2018 decision.

PN144

RRESA's opposition to the submission of the Queensland and South Australian Northern Territory employer submissions currently before you with respect to their plea for pro-rataing the MITA for part-time employees, if allowed, putting aside the lack of merit, it is simply that the matter is from where - from how we see it it's done and dusted. All parties have already had the opportunity to put their case on pro-rataing and the Bench has consistently refused to move from its original decision of 6 July 2017. In our view it is an abuse of process for a party or parties that has had ample opportunity to argue the merits of their case and after losing it that continue to prosecute their claim at this time at the final stage of this four-year review of the award.

PN145

Paragraph four, the employer submissions and this is dealing with all of the employers' submissions as to the exclusion of part-time employment for commission-only sales persons can be as we see it summarised as follows. Current award provisions meets the Modern Award objective; (b) lack of cogent evidence to support a change; (c) strong safeguards in place which will prevent abuse; (d) added cost to employers if they have to pay any NES entitlements based on full award rate of pay even if commission-only sales person works less than a 38-hour week; (e) effect on current part-time commission-only employees, e.g. those with child-rearing responsibilities, retiring full-time sales persons who might like to earn some extra money in retirement and so on.

PN146

At paragraph five, "In response to these employer claims we say as follows. The current award and the one as put out in draft form by the Full Bench in January and March 2018 continues to allow part-time and casual employment for all waged sales persons. The only difference under the proposed draft is that the employee would not be employed on a commission-only basis. Rather, they would have to be paid the minimum award wage and other entitlements based on the hours actually worked subject to a three-hour minimum engagement if the employee is a casual. This group of employees do not receive" - and I am talking about the waged employees - "do not receive overtime and payments unless they work in excess of 38-hours without the express direction to the employer. They are not paid any penalty rates for working on weekends or after normal office hours, just like full-time sales persons and they receive if they are part-time pro-rata payment for their NES entitlements based on their actual hours worked. They also enjoy the protection of section 535 of the Fair Work Act, 2009 with respect to employer obligations (indistinct) in relation to employee records and pay slips."

PN147

Now, if I could draw the Bench's attention to Regulation 3.33 of the Act? This deals with records employers need to keep pursuant to section 535 of the Act in so far as pay. Regulation 3.33(1) refers to subsection 535(1) of the Act a kind of employee record that an employer must keep is a record that specifies the rate of remuneration paid to the employee, the gross and net amounts paid to the employee, any deductions made from the gross amount paid to the employee.

PN148

And then at sub-para (2) of the same regulation, "If the employee is a casual or irregular part-time employee who's guaranteed a rate of pay set by reference to a period of time worked the record must set out the hours worked by the employee."

PN149

But (3) - Regulation 3.33 - 3(3) if an employee is entitled to be paid - I won't go through them all. Just (a) an incentive-based payment - the record must set out details of the payment, bonus, loading rate, allowance or entitlement. It doesn't say hours of work.

PN150

With commission-only sales people when they receive their commission statements and when they have paid it, they get a pay slip, they are simply referred to commission, with respect to a particular property and it's been sold and settled, the employees share that commission and any deductions such as tax or superannuation shown. That is whether you are a commission - part-time commission-only sales person or a full-time commission-only sales person.

PN151

And as we have seen from the evidence from the employer-representative in Queensland whether any records at all are kept by an employer and it wouldn't be just Queensland - I'm not picking on Queensland where the evidence came from is that of course the employer wouldn't keep records of the hours worked by commission-only sales persons because they don't have to. They don't have to.

PN152

Every other award that I am aware of, of this commission for piece workers and commission-only sales persons are piece workers as defined, are guaranteed a minimum rate of pay, whether it was by the hour or an amount of what they produce or whatever. Whereas, commission-only sales people only earn an income if they happen to sell a property and it settles and the commission is paid to the employer and then they get their share.

PN153

The fact is and I go on in my paper, your Honour. The fact is that commission-only employment in the real estate industry is only allowed to exist because it has always been seen as a way to reward high performance sales persons and I refer you to clause 16.2 of the current award which came into force from 2 April dealing with the changes to commission-only sales people. The objective of commission-only employment states -

PN154

"The objective of commission-only employment arrangements is to provide a mechanism by which a sales person who meets the requirement set out below should achieve remuneration of 125 per cent or more of the annualised minimum wage that an employee working in the same sales level under this award would be entitled to be paid."

PN155

In return for allowing employees to be remunerated on a commission-only basis they in fact lose most of the other protections under the Award - a guaranteed minimum weekly wage, allowances of considerable value such as for motor vehicles and overtime and, effectively, the 38-hour week maximum.

PN156

Clearly, a sales person on a commission-only basis working less than 38 hours per week as comprehended in the evidence given by the Queensland employers - you're not talking commission-only working perhaps 35 hours. It's more like a few hours here and there on a weekend or because they know a mate somewhere who might be selling a property somewhere that they can utilise their contacts we say it's not expected to earn what one might call a living wage.

PN157

Contrary to the pleas from the employer groups that the Bench's decision to not allow part-time employment for part-time employees on a commission-only basis makes the award less flexible or disastrous for child-rearing parents. The fact is the award allows all those people to seek employment on a part-time or casual basis. The only opposition the employers have is that they don't want to have to pay for the hours actually worked.

PN158

The real estate employers, alone, amongst the whole of the rest of the Australian employers will be responsible for the first time to pay part-time sales persons the award wage if they want to employ them on that basis. In no other industry covered by an award in this country that has part-time or casual employees working for nothing on an hourly basis literally working for nothing except if they happened to sell a property and it settles.

PN159

And they could be handing out on one of these weekends at open inspections on - as they are now - on a part-time commission-only basis handing out brochures and so forth and talking to people about the attributes and particular property and the purchaser - the eventual purchase - it might have been someone who took that brochure but the following week goes into the office of the sales person and talks to the principal and signs a contract for sale with that person.

PN160

The part-time casual only employee has got no right to any share of that commission. They didn't sell it. They might have talked to the person who ultimately buys it but as we all know when you buy property it's very rare - very rare that you walk into a property, the sales persons hand you the brochure and you decide to purchase it there and then on the spot for that particular employee.

PN161

Now the simple fact is this is an industry which doesn't have incentive payments such as we have heard about during this case - over wages case of 50 per cent - depending I'm talking about waged employees and their wages are debited. The employer if they really want and the sales person really want to work casual or part-time can do so under this award, they get paid their minimum rate, if the employer is worried about "Oh, I've got to pay these three-hour minimums or something of that nature", well they might do it and not offer any share of commission. We just pay you by the hour. And the employee might be prepared to do that.

PN162

Or, "Yes, we're prepared to pay you a commission if you're the one who actually signs the contract or gets the sale but you're only working so many hours a week I'll only give you 10 or 15 per cent of the commission." Or, "Yes, I'll give you all of the commission but it's all debited - anything we pay you on a weekly basis will be debited like we do with our full-time staff against that commission."

PN163

Look the bosses in this industry enjoy the most relaxed labour relations laws in the country without a shadow of a doubt. They can make it work if they want to make it work and that the employee is prepared to accept it on that basis.

PN164

Now coming to the bottom of page four, paragraph two, REEF argues that there are strong safeguards in the award to protect abuse. Consider the following scenario. A sales person qualifies to be a commission-only sales person. In the following week the employer insists that he or she sign an employment agreement stating that there a part-time and work 19 hours a week. The employer tells the employee, "No worries. You can keep working as many hours as you like."

PN165

Then comes the time to pay out any NES entitlements, sick-leave notice period, all of them will be based on his or her 19-hour a week irrespective of the fact that they may work 38 plus hours per week. We don't really know how many hours they'll be working. Their employment agreement might say 19 but because the employer, if they have their way on commission only - part-time employment - they don't have to keep records of the hours worked. They'll just simply rely on the employment agreement that says it's 19 hours or it could be 10 hours a week. That's what the employment agreement might read. How do you prove otherwise unless an employer is required to keep a time book and they're not required by law to keep a time book.

PN166

And I refer to Regulation 3.3(3) again. I won't repeat that. Paragraph (iii) the employers say there is a lack of cogent evidence to support the provisional view of the Full Bench. Where is the evidence, we say, from the employers to seek to convince the Bench otherwise. I might say here not one employer is called as a witness. Not one part-time commission-only sales person is called to give evidence and submit to cross-examination to give facts as to the numbers of persons affected. What is the state of those employers'/ employees' knowledge regarding the alternatives open to them under the existing Award? Such as being paid a wage and entitlements for actual hours worked. Wouldn't that be an attractive option to a young mother knowing each week the number of hours you would be working and the wages she would receive for her work.

PN167

Now there was evidence - I wrote this prior to the Queensland representative appearing as a witness today but there was not one employer as in not a representative of employers but not one employer who's got into the witness box saying, "We need this." There's been references to them and I don't doubt the truth of the statement by the Queensland representative today and in that statement that he received those sorts of comments. But what you really need in the witness box is having an employer where they can be cross-examined about how do you keep your time and wages records? Do you keep them at all? How are you going to keep a track of these entitlements that people are entitled to be paid out? Because it's based on hourly rates of pay. And by the way have you ever mentioned to your staff members about the possibility of them going part-time or casual but we pay you the minimum award conditions and your commission rate may be higher or lower or not at all because we don't know whether you're going to directly bring in a sale.

PN168

The truth of the matter is commission-only is structured around people working full time at least working any of the seven days of the week and at various hours of the night to track down prospective listings of properties and selling them. You can't make a living wage without it working at least for full-time hours.

PN169

And that's the whole purpose behind commission-only. I don't like it personally but that's what we're with and this Bench has taken giant steps which it's to be congratulated on strengthening the safeguards. Don't get me wrong. We appreciate it greatly and we don't want to see it undermined.

PN170

Now we also say and I'll just jump and finish on these last two points. We say that the employer's approach are in part-time employment for commission-only sales first is contrary to the objects of the Act. I'd read them out, sir, but I've got them written down there for the Bench and you'd know them anyway so I won't go through the details but it's section 3(b) and (c) and the Modern Award objectives of section 134(1) and in particular paragraphs (a) and (d)(a). This is a safety net award and it's about making sure that agreements for part-time employment in an area where commission only, when they're not guaranteed any rates of pay for their labour or any of the expenses that they incur, such as running a motor vehicle can be abused. It is for always - designed around the high achievers - and you've brought in but you didn't agree and I understand why the 160 per cent limit that we wanted for commission only - that is the entry point - but the 125 per cent entry and the 125 per cent annual review is a major, major safeguard and we don't want it undermined by the introduction of part-time employment for commission only.

PN171

Lastly, I don't know - perhaps I could finish on this point but there is a matter dealing with commission only which at clause 16.3(a)(iii). I don't know if you'd want me to address that but just tidying up some of the grammar and wording.

PN172

DEPUTY PRESIDENT ASBURY: Is this in the exposure draft or the - - -

PN173

MR CLARKE: Both.

PN174

DEPUTY PRESIDENT ASBURY: Right.

PN175

MR CLARKE: Both. It was in an email, your Honours, and Commissioner that was sent on 30 July 2018.

PN176

VICE PRESIDENT HATCHER: What clause? Sixteen point what?

PN177

MR CLARKE: Mr Paterson has kindly submitted - he's got - if I can hand them up to you, sir? Clause 16 - - -

PN178

VICE PRESIDENT HATCHER: My Associate has gone walkabout, Mr Clarke, so you'll have to physically hand it up.

PN179

MR CLARKE: The current - as I say this is contained in an email sent by me and also copies sent to all of the parties have been involved with this award on 30 July 2018 and I haven't had any opposition to it. In fact support I would say from REEF. It relates to the current clause 16.3(a) and then (iii) which currently reads - this is for commission-only -

PN180

"The employee has been engaged in property sales or commercial, industrial or retail leasing as a real estate employee level two or"

PN181

And then there's - it goes straight into a -

PN182

"(with any licensed real estate agent) or was an active licensed real estate agent for at least 12 consecutive months in the three years immediately prior to entering into the commission-only agreement."

PN183

What we're suggesting is this and it should be replaced for the following words. "The employee has been engaged in property sales or commercial, industrial or retail leasing as a real estate employee level two or higher." The word "higher" is inserted. It was missed - no fault of the Full Bench. And then - (with any licensed real estate agent) - instead of (with any licensed real estate agent) - I'll explain the difference.

PN184

VICE PRESIDENT HATCHER: What was the corrected form? With any what?

PN185

MR CLARKE: Sorry?

PN186

VICE PRESIDENT HATCHER: What do you want us to change the words in brackets to?

PN187

MR CLARKE: You insert the word, after "employee level two" - - -

PN188

VICE PRESIDENT HATCHER: - - - "or higher".

PN189

MR CLARKE: - - - "or higher".

PN190

DEPUTY PRESIDENT ASBURY: Yes.

PN191

MR CLARKE: And then in brackets - instead of (with any licensed real estate agent) - insert "(with any licensed real estate agent)" - - -

PN192

VICE PRESIDENT HATCHER: That's the same.

PN193

MR CLARKE: That's - the difference - - -

PN194

DEPUTY PRESIDENT ASBURY: That's what's there.

PN195

MR CLARKE: There's a comma after that.

PN196

VICE PRESIDENT HATCHER: Oh, okay.

PN197

MR CLARKE: Yes. After the bracket.

PN198

VICE PRESIDENT HATCHER: Why are the brackets there at all anyway?

PN199

MR CLARKE: After the closed bracket.

PN200

VICE PRESIDENT HATCHER: Why are the brackets there at all?

PN201

MR CLARKE: Well, I suppose you don't need at all then.

PN202

VICE PRESIDENT HATCHER: Yes. Although - comma - or and then it reads the same does it?

PN203

MR CLARKE: Yes. "Or has operated his or own real estate business" instead of "Or was an active licensed real estate agent".

PN204

VICE PRESIDENT HATCHER: How would that person be an employee?

PN205

MR CLARKE: So it would read, "Or has operated his or own real estate business, for at least 12 consecutive months in the three years immediately prior to entering into a commission-only agreement.

PN206

VICE PRESIDENT HATCHER: So how was somebody operating their own real estate business an employee covered by this award?

PN207

MR CLARKE: Okay. What it boils down to is there could be some unintended consequences with the words "was an active licensed real estate agent" because it could extend the interpretation in certain jurisdictions as property managers for example are often licensed agents. In other words a query came up in New South Wales where somebody thought with that definition as it currently is could bring property managers within the scope of being employed on a commission-only basis because they are licensed.

PN208

And that I think they're now in the process in South Australia is also having to be licensed property managers. So it could extend it from the sales stream potentially into those other streams, strata title, property management which has never had commission-only.

PN209

And the absence of the comma after the altered phrase, we suggest in the (a) above is a grammatical error which necessarily needs correction for the sentence to have the intended meaning. That is, the consecutive 12-month qualification period over the last three years prior to entering a commission-only agreement applies to both employees in property sales and leasing and to a person who has operated his or own real estate business.

PN210

VICE PRESIDENT HATCHER: Yes. So how is a person operating their own business an employee covered by this award at all?

PN211

MR PATERSON: If I may, your Honour, just interject? The situation in this clause relates to someone who did own their own real estate business and has sold it and is perhaps staying on in the capacity as an employee on commission-only and it relates also - reference is also made further down in that clause under (vi) on page two of that document, "For an employee employed on a commission-only basis after 2 April 2018 the employee can establish with the present or past employer that he or she has achieved the minimum income threshold amount described." Et cetera. The last sentence says "Provided that the MITA will not have to be achieved in circumstances where the employee has operated his or her own real estate business within the last three years."

PN212

VICE PRESIDENT HATCHER: Right.

PN213

MR PATERSON: So it's consistent with that (vi) paragraph.

PN214

VICE PRESIDENT HATCHER: I see.

PN215

MR PATERSON: If that clarifies your Honour's question.

PN216

VICE PRESIDENT HATCHER: Yes, thank you.

PN217

MR CLARKE: Sorry, I should have.

PN218

VICE PRESIDENT HATCHER: All right. Have you finished Mr Clarke?

PN219

MR CLARKE: And that's - - -

PN220

DEPUTY PRESIDENT ASBURY: So is that intended to limit it to real estate sales? Because can you operate your own real estate business without the business being in real estate sales? I mean if the issue is having the potential for people to try and put strata title or property managers into commission-only arrangements well aren't some real estate businesses - - -

PN221

MR CLARKE: Yes, they are.

PN222

DEPUTY PRESIDENT ASBURY: Is it possible you could operate your own real estate business without being a sales person? You might have a real estate business that only has say a rental list or something.

PN223

MR CLARKE: A rental listing - - -

PN224

DEPUTY PRESIDENT ASBURY: Yes. I don't know if you're fixing the problem.

PN225

MR PATERSON: Your Honour has raised a very important point and one that I certainly hadn't considered and it's quite correct to say that there are some business owners who operate purely property management businesses.

PN226

DEPUTY PRESIDENT ASBURY: And they just might sell their rent roll.

PN227

MR PATERSON: Yes.

PN228

DEPUTY PRESIDENT ASBURY: So you need to put the sales in.

PN229

MR PATERSON: Yes. It might need some refining but the principle, I think, has merit and we might just need to tease out the proper way to address the problem.

PN230

VICE PRESIDENT HATCHER: All right. If I give the parties 14 days to make any further submissions - - -

PN231

MR PATERSON: Oh, yes.

PN232

VICE PRESIDENT HATCHER: - - - about the drafting of 16.3(a)(iii).

PN233

MR CLARKE: Thank you, your Honour.

PN234

MR PATERSON: Have you finished?

PN235

MR CLARKE: Yes.

PN236

MR PATERSON: Your Honour, Ms Bisbal has been very kind to allow me to take the second chair. So I should start perhaps by indicating our gratitude to the Bench for convening today's proceedings. We understand and appreciate the inconvenience that has been caused through our misunderstanding of the Full Bench's earlier decisions and its implications for this matter of part-time commission-only employment. So we are very grateful for the opportunity to at least articulate our position in relation to that preliminary view.

PN237

Obviously the parties were directed to file submissions on the part-time commission-only issue by 28 September and direction number two also addressed the prospect of a conference being convened to resolve any outstanding matters and I took it to mean that that was a reference to Mr Clarke's last matter which was the issue around clause 16.3(a)(iii).

PN238

Obviously interested parties filed submissions in relation to those directions and I won't seek to take up the Full Bench's time today to simply restate what is in the content of our submission but if I may before addressing the part-time commission-only dilemma I would just like to say a few matters in relation to that clause 16.3 if the Bench will allow me to do so. You have received a copy of that clause and Mr Clarke has given a fairly succinct explanation as to the motivation for the change. I never thought I would be addressing a Full Bench of this Commission talking about the merits of an Oxford comma but it seems quite evident to me and I think to Mr Clark that the absence of the comma in relation to this clause certainly changes the meaning or the potential meaning of the clause.

PN239

So as Mr Clarke has indicated there are three amendments that we believe are appropriately made to 16.3(a)(iii) the word "hire" has already been mentioned by Mr Clarke. The comma, we say, well Mr Clarke says the comma should appear after the current bracket, that your Honour has indicated that there's probably no need for those brackets and I would concur with that observation. So a comma before the word "or" and he also suggests a comma after the changed phrase that we just discussed a moment ago.

PN240

So whatever that phrase becomes with the refinement we will make there should be a comma that appears after that. So that it is clear to the reader that the last phrase relates to both the previous elements. The way it is currently it could be argued it relates only to the last element.

PN241

VICE PRESIDENT HATCHER: Yes.

PN242

MR PATERSON: If that makes sense? I would be fairly confident to say there would be no parties in these proceedings who would be opposed to that refinement taking place and we think it is important because there is clearly, certainly from our perspective, been at least one reader of the document who's interpreted it differently to the way we say it was meant to operate. So we think it needs to be unambiguous and clear and fulfil its intended purpose.

PN243

I move on, your Honours, and Commissioner to the part-time commission-only provision.

PN244

VICE PRESIDENT HATCHER: Well, can I just ask this question at the outset?

PN245

MR PATERSON: Yes.

PN246

VICE PRESIDENT HATCHER: Do I take it there is no interest or proposal for a casual commission-only agent?

PN247

MR PATERSON: No. I think that that prospect was abandoned, your Honour, some time ago. It's certainly - I think I made mention in this in a previous submission that - yes, we were anxious to pursue that but it was withdrawn as part of the overall negotiations and proceedings. We made mention of it in our submission following the Full Bench's first decision because your Honours and Commissioner asked question about how we would operate if there was commission-only and we addressed that in our submission. But we have abandoned that. We don't seek to pursue that in these proceedings.

PN248

As has been is fairly clear we don't seek to call any witnesses in relation to our submission. We rely upon the written document and also what I have to say this morning. I would like without restating the submission I'd like to highlight what we say are key issues that the Full Bench ought to consider in relation to this matter.

PN249

Now without taking up too much of the Bench's time I think it is worth briefly examining the history behind commission-only employment. Mr Clarke's made some pertinent comments - observations - about commission-only and its relationship to this industry but commission-only in the real estate industry has a long history.

PN250

If I go back to the pre-work choices regime when the industrial arrangements were regulated more under State regulation rather than federal regulation those states who had State awards had commission-only arrangements within them. The prospect or the possibility to employ someone on a commission-only basis. Whether that was on a full-time or part-time basis. I am talking, of course, about the States of New South Wales, Queensland - Tasmania also had a provision although it did have an underpinning safety net and South Australia as I understand also had commission-only arrangements.

PN251

VICE PRESIDENT HATCHER: And Western Australia was award-free.

PN252

MR PATERSON: Western Australia was award-free and as best as I understand the situation, being award-free, they had the capacity in that State to basically employ people on commission-only without any control. In New South Wales the control was the employee - commission-only employee had to be licensed. That was the control around the fact that it was never intended to be for new entrants into the industry or people who arguably hadn't shown any level of performance. They had to be licensed. So there was some controls even way back pre-work choices.

PN253

And then we entered a new era of work choices and there was a temporary hiatus in relation to this commission-only regime. It was lost for a short period. Yes, it was true that those who were already employed at the time work choices was introduced could continue to be employed on that basis but you couldn't employ new people on commission-only. And it was through the efforts of the employer parties and the unions to make a submission to the Australian Fair Pay Commission that we had commission-only reintroduced or re-established and that was from 1 October 2007.

PN254

Now the Fair Pay Commission undertook a very extensive review into minimum wage arrangements in the real estate industry and that tribunal, after a long consideration reinstated a new and pay classification scale. I think it was Australian Pay Classification Scale for commission-only employees in the real estate industry. And, of course, the Fair Pay Commission was the body who commenced to put barriers around or corralled around the commission-only regime to ensure there were protections there and that it was used only for employees who could demonstrate and show a higher level of performance. They set a minimum commission-only scale which exists into the current award.

PN255

Now the performance-based test has been modified by this Full Bench in its earlier proceedings which will make it arguably more efficient, clearer as to what has to be done for a person to qualify to be employed on commission-only. The Fair Pay Commission, however, did not disallow in its decision the engagement of commission-only employees on a part-time basis.

PN256

VICE PRESIDENT HATCHER: Did it deal with that issue?

PN257

MR PATERSON: It didn't. It dealt with the issue of casuals. It made it very clear in its decision that casuals would not be permitted to be employed on commission-only but there was no consideration in fairness to the issue of part-time.

PN258

We then come into the Modern Award era and certainly there were extensive negotiations and discussions between the parties who are here in these proceedings back in 2008-09 - and the Fair Pay Commission's commission-only arrangements were basically imported into the Modern Award and they continued, including the ability for part-time commission-only.

PN259

The only variation of note in relation to the Modern Award arrangements was the ability of the Award prescribing that a commission-only employee could have their NES entitlements paid as part of a higher percentage above the minimum which drags us, of course, into and I don't seek to pursue this very far - it into the Canavan realm which we have dealt with previously.

PN260

So that was the only variation that was made. So what we have got today is - sorry, back in 2010 was effectively what the Fair Pay Commission determined back in 2007 and your Honours and the Commissioner on this Full Bench have modified that somewhat in the proceedings that you conducted - the three-day hearing you had into this matter back in 2016.

PN261

Your Honours and Commissioner have determined in its 2017 decision - July 2017 - that part-time arrangements are neither relevant or useful in relation to this industry. Now we respectfully disagree with that observation. I would like to emphasise at this point Mr Clarke has to his credit acknowledged this but REEF is not arguing, we don't seek to put submissions to this Bench, in relation to the pro-rataing concept.

PN262

We accept the Bench's ruling and it's been consistent throughout - from the very first decision - through to the more recent decisions that there would be no pro-rataing irrespective of the hours that the employee works. Now the 125 per cent figure which the Full Bench arrived at equates in current terms to a figure around $54,578 a year. That's what that MITA figure translates to on annualised basis. So what we say, what we accept is that for an employee to qualify to get into the commission-only door they must be able to show that they reach that amount of remuneration in a consecutive 12-month period in the last three years - clear-cut. And the Full Bench introduced another important and quite significant protection when it introduced the annual review. So you no longer get into the house and stay there forever. You get into the house until you can - until it's shown that you can't earn that figure of $54,578 and if it shows that you can't you leave the house. No pun intended with the reference to the analogy of the "house" but I hope your Honours and Commissioner understand what I am indicating here? That there is now which we didn't have previously - even greater protection around what I will refer to as the "abuse" - but it's probably not the correct term.

PN263

But the incorrect application perhaps of commission-only employment because you want it to apply to the high performers, not to the new entrants, not to the "fringe-dwellers" but to those who can show a level of performance which justifies the engagement on this unusual arrangement.

PN264

Now, Mr Clarke takes exception to the idea that - well, there are other alternatives. We could, Mr Clarke, has made it very clear that well what's to stop an employer from simply paying them as a salaried part-time employee or a casual salaried employee. Yes, correct. There's nothing to stop it. The award allows it. But so would it allow a person who is a full-time commission-only employee to also be employed on a salaried basis but the election is not to do it that way. Not to do it that way. And we say - - -

PN265

VICE PRESIDENT HATCHER: So how is this going to work as a practical proposition is really the question I think?

PN266

MR PATERSON: Look, your Honour, that's a very relevant question.

PN267

VICE PRESIDENT HATCHER: I mean if you accept that the threshold amounts aren't going to be pro-rataed then any notion of some sort of retired person working down seems to go out the window because you're really talking about a super performer who can do a threshold designed for a full-time person in part-time hours. So this is some person who's performing at a very high level or is performing an unusually strong market.

PN268

MR PATERSON: Your Honour, I guess I'd respond somewhat simplistically, I suppose, is that it may not apply very well in many circumstances but it doesn't mean that it can't apply in some circumstances and there is nothing - you can form an opinion - an observation perhaps that "Oh, you have to work full-time hours", as Mr Clarke's indicated to make a decent living - a basic wage. Well, sorry, I disagree with that. It may be correct but it may not in every circumstance.

PN269

VICE PRESIDENT HATCHER: Well, I mean there will be some people, depending upon their skills and the market they're located in who might be able to achieve the threshold.

PN270

MR PATERSON: Correct.

PN271

VICE PRESIDENT HATCHER: In less than full-time hours and there will be other people who will take 60 hours a week to do it.

PN272

MR PATERSON: Correct.

PN273

VICE PRESIDENT HATCHER: But isn't the whole point of this system is that if you take more than 38 hours - if you take 50 or 60 hours you're not going - the employer doesn't have to pay any overtime.

PN274

MR PATERSON: Mm-hm.

PN275

VICE PRESIDENT HATCHER: It's up to the employee to get - to reach the threshold.

PN276

MR PATERSON: It is. And I come back to the point, your Honour, that this Bench has set now safeguards - very clear safeguards that if that part-time employee works for 12 months and they don't reach that safeguard they're out.

PN277

VICE PRESIDENT HATCHER: The other proposition is that in that context the notion of a person having any fixed hours of employment is a nonsense isn't it? They work when the work is on. If they haven't got much on the books and it's a weak market they'll not work any - - -

PN278

MR PATERSON: Yes.

PN279

VICE PRESIDENT HATCHER: - - - particular number of hours and if it's - the market is strong and it's the right time of year and there's lots of houses on the books they'll work God knows how many hours.

PN280

MR PATERSON: Mm.

PN281

VICE PRESIDENT HATCHER: I'm just struggling to understand how the concept of fixed hours per week, whether it's full-time or part-time or anything else can practically operate - - -

PN282

MR PATERSON: Yes.

PN283

VICE PRESIDENT HATCHER: - - - in that paradigm.

PN284

MR PATERSON: I think what we're trying to cater for here, your Honour, is a situation where an employee has determined that they don't wish to work full-time hours.

PN285

VICE PRESIDENT HATCHER: But they don't have to.

PN286

MR PATERSON: No, they don't. They don't. But if the Bench don't accept the employer's position in relation to this matter and there is a revocation of the part-time arrangements they will have to, at least, accrue NES entitlements at the full time rate. That's the implication. There's no implication - we accept and acknowledge - no implication in terms of rates of pay because they're not being paid by the hour. They're being paid by results. But the complicating factor here really comes down to annual leave, sick leave, and so on and so forth. And we would say that it is inequitable to say that someone who is only going to work two days a week to be paid or to accrue those entitlements at the same rate for someone who is working five days a week.

PN287

VICE PRESIDENT HATCHER: Or seven days a week.

PN288

MR PATERSON: Or seven days a week.

PN289

VICE PRESIDENT HATCHER: But how does that work practically? Is somebody going to record their hours?

PN290

MR PATERSON: Well - - -

PN291

VICE PRESIDENT HATCHER: If they work three days what happens then? If they sit towards the end of the year and they need a bump up of hours to meet the threshold who's going to control this?

PN292

MR PATERSON: The reality of the real estate business is it is very difficult to control anyone's hours, whether it's salaried or otherwise, because the employer won't always know when the employee is making a phone call.

PN293

VICE PRESIDENT HATCHER: Exactly. So, Mr Paterson, it seems to me - speaking for myself- that if somebody is advancing a serious proposition they want part-time employment in this area there's a whole host of consequences that must follow, including that there need to be some mechanism to control hours and to monitor, which means pay records, which means what happens if the hours are exceeded, which might mean some other payment or I don't know. But unless you want to walk into that whole regime of controlling what people do, which I'm sure you don't - - -

PN294

MR PATERSON: No, I don't, your Honour.

PN295

VICE PRESIDENT HATCHER: And with respect, speaking for myself, I just don't understand how this will work.

PN296

DEPUTY PRESIDENT ASBURY: And especially, Mr Paterson, in the context where there's normally when you have part-time it's part of something. There's the full-time that's got parameters around it.

PN297

MR PATERSON: Mm-hm.

PN298

DEPUTY PRESIDENT ASBURY: And a part-time is always less than that.

PN299

MR PATERSON: That's correct.

PN300

DEPUTY PRESIDENT ASBURY: Part-time arrangement is always less than that but what you seem to want is part-time of an unlimited - there's no limit on hours that full-time employees can work and so speaking for my part, if you're going to talk about this part-time concept, then you might be needing to walk into a whole lot of parameters for full-time employees which you mightn't want to walk into.

PN301

MR PATERSON: Well - - -

PN302

DEPUTY PRESIDENT ASBURY: Because part-time is meaningless unless you have an "X" amount that's full-time and you don't want that.

PN303

MR PATERSON: Well, I think we would say, your Honour, that full-time hours are 38 per week.

PN304

VICE PRESIDENT HATCHER: But that's purely notional.

PN305

DEPUTY PRESIDENT ASBURY: They're not.

PN306

VICE PRESIDENT HATCHER: I mean - - -

PN307

MR PATERSON: Well, that's what the Award says.

PN308

DEPUTY PRESIDENT ASBURY: But it doesn't. You're out of that once you're a commission-only - - -

PN309

MR PATERSON: Sorry. If you're out of - yes, commission-only.

PN310

DEPUTY PRESIDENT ASBURY: Yes.

PN311

MR PATERSON: Sorry, yes.

PN312

DEPUTY PRESIDENT ASBURY: So I don't see how you - you can't have it both ways. You can't have - and the other problem is that if they work more than whatever the part-time hours are what's the repercussion? It's a breach of the - there's nothing to say any hours have to be recorded at all for commission-only employees. You don't record them for full-time commission-only employees. You don't have any requirement to include what days of the week they work, when they work, what times they work between. There's nothing for full-time. So how do you introduce it for part-time?

PN313

MR PATERSON: Well, I think that contractually you can set days and hours of work.

PN314

DEPUTY PRESIDENT ASBURY: But they don't have to - - -

PN315

MR PATERSON: Well, you can - - -

PN316

DEPUTY PRESIDENT ASBURY: What they could say and let's be - for my part let me be really - put it directly to you.

PN317

MR PATERSON: Yes.

PN318

DEPUTY PRESIDENT ASBURY: What could happen here, go forth, work whatever you like and earn the minimum threshold but we're going to just give you your NES entitlements as if you only work two or three days a week. That's the repercussions of what you're submitting because that could happen without any difficulty at all.

PN319

MR PATERSON: Well, yes I accept that's a possibility but your Honour if everyone drove down the street at 60 k's an hour in a 60 zone we would have no need for police patrolling the streets. There will always be instances where people don't follow the rules.

PN320

So what I am saying is I'm not sure that because it could be used incorrectly that's justification for not having it in.

PN321

DEPUTY PRESIDENT ASBURY: But there are - - -

PN322

VICE PRESIDENT HATCHER: What are the rules?

PN323

DEPUTY PRESIDENT ASBURY: - - - no rules.

PN324

VICE PRESIDENT HATCHER: What are the rules?

PN325

DEPUTY PRESIDENT ASBURY: What are the rules?

PN326

MR PATERSON: Well, I'm saying the rules would be that the contract states that you are contracted to work two days a week - three days a week.

PN327

VICE PRESIDENT HATCHER: And then what does the employee do? Put down the pen - - -

PN328

MR PATERSON: Well - - -

PN329

VICE PRESIDENT HATCHER: - - - be halfway through a phone call and about to clench a sale. And the clock ticks over. You put down the phone and say, "Sorry."

PN330

MR PATERSON: Well, your Honour, that's probably no different to be fair. That's no different to what would happen with a salary salesperson is working outside their contracted hours.

PN331

DEPUTY PRESIDENT ASBURY: They don't have contracted hours.

PN332

MR PATERSON: Well, salaried people do.

PN333

DEPUTY PRESIDENT ASBURY: I have yet to - well, salaried people do.

PN334

MR PATERSON: Yes.

PN335

DEPUTY PRESIDENT ASBURY: But I am yet to see a commission-only agreement in all of my years of dealing with this award, and I go back to the Queensland version.

PN336

MR PATERSON: Yes.

PN337

DEPUTY PRESIDENT ASBURY: A long way.

PN338

MR PATERSON: Mm.

PN339

DEPUTY PRESIDENT ASBURY: Yet to see a commission-only arrangement that says you will work - even you will work any five in seven. You will work anything. They just don't refer to hours of work. They're just a payment system and there's nothing in this award that requires it for commission-only sales people.

PN340

MR PATERSON: Yes.

PN341

DEPUTY PRESIDENT ASBURY: So the quid pro quo is - - -

PN342

MR PATERSON: Mm.

PN343

DEPUTY PRESIDENT ASBURY: - - - really, if you want to have part-time you have got to define full-time and do you want to do that.

PN344

MR PATERSON: Well, one question - just putting that aside for a moment if I may. One matter that I did want to seek to address the Bench on was the issue of those employees who are already engaged on a part-time commission-only basis and we have no idea as to how many there are throughout the country but we do know from the evidence given that there are some. So what happens in relation to those existing contracts? They're lawful today but when the Bench - if the Bench makes a decision to eliminate this arrangement then tomorrow they're not.

PN345

DEPUTY PRESIDENT ASBURY: I don't know that they are.

PN346

MR PATERSON: Well - - -

PN347

DEPUTY PRESIDENT ASBURY: Because the NES has been around for some time now and, really, I don't know if push comes to shove that they would be.

PN348

MR PATERSON: Well, then - - -

PN349

DEPUTY PRESIDENT ASBURY: And what happens to them is they get their NES entitlements henceforth and there is no argument about it and they may have an entitlement prior to this coming into effect if it does.

PN350

MR PATERSON: Well, if your Honour is suggesting that there could be an existing problem because there working perhaps more than the contracted hours - - -

PN351

DEPUTY PRESIDENT ASBURY: Well, there could be a problem because there's no contracted hours. We haven't seen any contract. There's no evidence that there is any contract that says, "These are your hours for those part-time employees." I haven't seen anything - - -

PN352

MR PATERSON: Well, I would respectfully - well, I don't know but I'd respectfully suggest that if someone is going to be working on a part-time basis, whether they're salaried or commission-only there ought to be stipulated hours.

PN353

DEPUTY PRESIDENT ASBURY: Mm.

PN354

VICE PRESIDENT HATCHER: Well, that's a speculation.

PN355

MR PATERSON: Well, it is.

PN356

VICE PRESIDENT HATCHER: I mean we don't know anything about these alleged contracts.

PN357

MR PATERSON: Well, I don't know that it's anything other than that, that people don't have hours in their contracts.

PN358

VICE PRESIDENT HATCHER: Well, this means nothing.

PN359

MR PATERSON: Yes.

PN360

VICE PRESIDENT HATCHER: I mean the opposite scenario is the employer engages the employee with a bona fide intention that they only work three days but the employee then just works whenever they want to.

PN361

MR PATERSON: Mm.

PN362

VICE PRESIDENT HATCHER: And what's the employer going to say when the employee comes back and says, "Well, I'm going to take you to court because notwithstanding what my contract says I work 40 hours a week."

PN363

MR PATERSON: Mm.

PN364

VICE PRESIDENT HATCHER: And by reason of that fact I'm entitled to the NES full-time. There's no answer to that proposition.

PN365

MR PATERSON: Mm.

PN366

VICE PRESIDENT HATCHER: Unless you start issuing directions to them not to work certain hours and you can't do that unless you keep a record of hours.

PN367

MR PATERSON: Yes. Well, see - I understand what your Honour is putting to me. I'd simply respond by indicating that a part-time commission-only employee - the same as any other part-time employee is working those hours because that's what they want to work.

PN368

DEPUTY PRESIDENT ASBURY: Well, that brings you to the - if you're going to have a commission-only employee who has stipulated hours because they're part-time you can have that under the existing award - - -

PN369

MR PATERSON: Yes, you can.

PN370

DEPUTY PRESIDENT ASBURY: - - - because you can have a part-time employee with a commission or an incentive - - -

PN371

MR PATERSON: Correct.

PN372

DEPUTY PRESIDENT ASBURY: - - - on top.

PN373

MR PATERSON: Yes.

PN374

DEPUTY PRESIDENT ASBURY: So, essentially, if that's what your submission is because the submissions are replete with references to the safeguards because there are contracted hours.

PN375

MR PATERSON: Mm.

PN376

DEPUTY PRESIDENT ASBURY: Well, there's no evidence that that is what the contracts look like and if you want to make them look like that you already can. You can just send her into a part-time arrangement and you can pay an incentive or commission on top of that under the existing award.

PN377

MR PATERSON: The one difficulty with your Honour's suggestion there is that - and this shouldn't be overlooked - that Mr Clarke, in his submissions implied at least - I won't put it higher than that but implied that it's the employer who forces this issue. Now what we would say is that's not correct that commission-only is an arrangement that is appreciated and wanted by both employers and the employees. There is no doubt about that. I'm not sure that even Mr Clarke wouldn't cavil with me completely on that proposition.

PN378

And as I and as Mr Siebenhausen has affirmed and it's from my experience as well that the commission-only employee can command a higher rate of commission than a salaried employee because the risk has been moved ever so slightly from one to the other. So, instead of getting the 40 per cent commission as a salaried employee they might get 50, 55, 60, 70 per cent as a commission-only. So even the part-time person would have to be prepared to sacrifice something on the commission percentage. If they're going - if they can't be employed on commission-only they will have to sacrifice something there because of the change in the arrangement.

PN379

DEPUTY PRESIDENT ASBURY: Which is what they would have to do now if they wanted - - -

PN380

MR PATERSON: Yes.

PN381

DEPUTY PRESIDENT ASBURY: If they wanted to set their hours and say, "I've got children to pick up from school or I've got whatever - I only want to work these hours." Then that would be a part-time arrangement surely and then they'd negotiate an incentive or a commission on top of it.

PN382

MR PATERSON: Yes. For that - coming back to the issue, though, of existing contracts - I mean it's not possible - obviously - just to simply unilaterally vary the contract to reflect the fact that you can no longer be part-time. You're going to have to be full-time or have your NES entitlements accrued full-time.

PN383

VICE PRESIDENT HATCHER: But - yes, it's only about the NES.

PN384

MR PATERSON: Correct.

PN385

VICE PRESIDENT HATCHER: For the employee - they're at liberty to work out how many days they work, when they work, if they want to work two days a week or whether some of them pick up the kids from school in the afternoon. They can do all that.

PN386

MR PATERSON: Yes.

PN387

VICE PRESIDENT HATCHER: As a commission-only employee - - -

PN388

MR PATERSON: Yes.

PN389

VICE PRESIDENT HATCHER: - - - however you categorise it. The only issue is what they get paid for the NES.

PN390

MR PATERSON: And that's the point I made at the outset, your Honour. I totally agree with that.

PN391

VICE PRESIDENT HATCHER: Yes.

PN392

MR PATERSON: But is it fair?

PN393

VICE PRESIDENT HATCHER: Is it seriously being said to me that there's a bunch of employees out there who want to get less under the NES?

PN394

MR PATERSON: Well, no. And no one's suggesting that your Honour but what I am saying is, is it fair and proper that the person who only wants to work two days a week because they've got child-minding responsivities or they're entering retirement, should they have those entitlements accrue at the same rate as a full-time person?

PN395

VICE PRESIDENT HATCHER: Well, it may not be strictly speaking fair but then you have to come up with a system whereby you can demonstrate that they are only working two days a week.

PN396

MR PATERSON: Mm.

PN397

VICE PRESIDENT HATCHER: And you can't do that unless you introduce the whole regime of record-keeping.

PN398

MR PATERSON: Mm. Your Honour and the Commissioner have been very patient with me in relation to the submissions and I thank you for that.

PN399

COMMISSIONER GREGORY: Can I just ask one more question, Mr Paterson, I'm sorry - - -

PN400

MR PATERSON: Yes, certainly, Commissioner.

PN401

MR PATERSON: - - - to do so but just in terms of trying to achieve some balance if we leave the issue to do with recording of part-time hours to one side. If we're trying to find some balance between safeguards and enabling commission arrangements to be maintained for part-time employees what's the problem with employing a part-time employee under the award on an hourly rate based on the agreed number of part-time hours and then having some trade-off arrangement in regard to the commissions. Does that not provide some balance between safeguards and enabling commission to be maintained?

PN402

MR PATERSON: That would seem to be the logical alternative if the Full Bench determines to remove part-time commission-only. That's certainly a possibility but as I said we don't want to see the loss of the flexibility around this just because there's an alternative, because there is an alternative to employing someone on full-time commission-only, that is to pay them as a salaried employee. So if that answers the Commissioner's question.

PN403

COMMISSIONER GREGORY: Yes, I'm not - - -

PN404

DEPUTY PRESIDENT ASBURY: I don't see how the loss of flexibility follows because if you've got a part-time employee you can have part-time employment. There's the flexibility. They can work part-time. If they work in excess of the hours then the overtime provisions would apply and they can be paid an incentive or a commission. If you had your proposal with the contracted hours, I mean technically then, if there contracted part-time hours and the person worked in excess of them or outside of them it'd be a breach of the award.

PN405

So that's much less flexible, isn't it, than having a penalty provision that allows it to occur, plus an incentive arrangement if you want it which you could adjust to reflect the fact that now we have to give you NES entitlements.

PN406

MR PATERSON: Yes. That's very true, your Honour. As I said thought I don't want to harp on the issue but the only drawback to that is that the employee will have to accept a lesser rate of commission but addressing the Commissioner's question and your own - that's right.

PN407

DEPUTY PRESIDENT ASBURY: Well, if they're all such high income earners and able to negotiate I am sure they will be ably equipped to negotiate their commission.

PN408

MR PATERSON: Maybe they will. Yes. And maybe they will, your Honour. Yes. I don't think there's any need for me to say anything further in relation to the matter so I thank you for your time.

PN409

DEPUTY PRESIDENT ASBURY: Thank you.

PN410

VICE PRESIDENT HATCHER: Can you just hold on a second? Okay, thank you, Ms Bisbal.

PN411

MS BISBAL: Thank you. I won't take up too much of your valuable time, however you did raise a question with my friend, Mr Paterson, in regards to contracted hours. South Australia and the Northern Territory has got an established system in place whereby for commission-only employees stipulated hours of work are put into the employment agreement. So for full-time commission-only 38 ordinary hours is actually noted in the employment agreement and likewise for part-time the hours are actually noted. So we do have a practise of controlling that and managing the entitlements - NES entitlements accordingly.

PN412

VICE PRESIDENT HATCHER: So what's the system of ensuring that those hours are the hours that are actually worked?

PN413

MS BISBAL: There are additional clauses within our template employment agreements that we provide that actually say, "If you are required to work those additional hours you must seek the authority of the employer." So they are methods of actually controlling the hours worked by commission-only employees, specifically for part-time employees.

PN414

VICE PRESIDENT HATCHER: And what about full-time? What happens if they worked more than 38?

PN415

MS BISBAL: There's similar clauses in there but I don't think the practise is generally that full-time employees will come and seek additional hours.

PN416

VICE PRESIDENT HATCHER: No. Okay.

PN417

MS BISBAL: In terms of an example that Mr Clarke gave earlier of a sales person standing at a home with a brochure and a buyer or a potential buyer comes in and grabs the brochure off the sales person and then comes in the next day to the office when the sales person is not around and engages in the sales of property, that sales person then misses out on the commission. That is not true and that is not a correct example. The sales person who is actually listing - - -

PN418

VICE PRESIDENT HATCHER: Mr Clarke, don't interrupt.

PN419

MR CLARKE: Sorry.

PN420

MS BISBAL: The person who was listing the property is actually entitled to a commission. It's on the Board itself (indistinct) as the agency agreement. So that person does not miss out on a commission. So that's an untrue statement.

PN421

In terms of the pro-rata of the minimum income threshold amount REEF South Australia and Northern Territory seeks the pro-rata of commission for part-time only - only for the 12-month review purpose. We believe that the threshold will be a burden for existing part-time commission only employees do actually meet.

PN422

Now the existing test before you go on commission-only we believe is fair and appropriate because only high performance tend to be able to go onto a commission-only arrangement, however, a full-time commission-only person or a full-time sales person who wishes to go then on commission-only may at a later stage in their life have whatever responsibilities. Caring, parenting, or retirement and they wish to then phase down the hours of work and move to part-time. As a result that 12-monthly review if they still have to meet a full-time test will be a very high burden compared to what they're actually doing.

PN423

And I think the view taken is that commission-only employees are being somehow coerced into going into commission-only which is not true. High performers tend to go into commission-only and just because they're at a stage of their life where they wish to now do only part-time hours and sell three or four properties a year they shouldn't also have to meet the full-time test. Commission-only employees tend to be free and they tend to go about their own business, their own way, with very little control from the principal.

PN424

I won't repeat it but I agree with my friend, Mr Paterson, that in return for being on commission - being on commission-only instead of wages, the commission is generally at a higher rate for commission-only sales person. So there is a give and take situation in this situation.

PN425

Mr Clarke has also said that the employers have not called any witnesses. No one part-time commission-only employee or employer, however, on the other hand neither has he. On the basis of what we have submitted, your Honours, part-time commission-only should be permitted to continue. There has been a history of it. There is a current system within South Australia and the Northern Territory to manage commission-only sales people including their leave entitlements. And essentially there will be an abolishment of part-time commission-only and if that's the case we would strongly suggest that a grandfathering provision be put in place. That's all your Honours.

PN426

VICE PRESIDENT HATCHER: Thank you. Mr Watson?

PN427

MR WATSON: Thank you, your Honour. There are three issues, may it please, your Honours and Commissioner Gregory also. The first one is in relation to the minimum income threshold amount for a part-time employee. We also support what has just fallen from the representative for the South Australia and Northern Territory employee association that logically there should be a pro-rataing after - on the 12-month review - to put Mr Clarke's mind at rest. We're not suggesting that the pro-rataing would apply at the time of the initial engagement on a part-time basis but only on the subsequent 12-month review and thereafter.

PN428

It seems logical to us that to borrow the phrase that your Honour - Vice President Hatcher - used that you'd have to be a "super sales person" on a part-time basis to achieve that minimum threshold and it is the threshold. It's the threshold moving into commission-only employment - or, sorry - having moved into commission-only employment being employed on that basis after the 12-month review.

PN429

VICE PRESIDENT HATCHER: Mr Watson, can I ask you the same propositions that I directed Mr Paterson? That is - - -

PN430

MR WATSON: Yes.

PN431

VICE PRESIDENT HATCHER: - - - what's the mechanism to ensure that we are talking about true part-time employment? That is how does one go about setting this up unless there is some system of recording of hours? Both for full-timers and part-timers? And then - - -

PN432

MR WATSON: Your Honour - - -

PN433

VICE PRESIDENT HATCHER: - - - a consequent breach of the award if those hours are exceeded?

PN434

MR WATSON: Yes. Well, putting aside the breach of the award it's the very issue I was about to go into.

PN435

VICE PRESIDENT HATCHER: Right.

PN436

MR WATSON: Your Honour, we embrace the question of some sort of mechanism to prevent exploitation. We take on board what Mr Clarke has said. We accept what the regulations say. So therefore there must be a mechanism that will satisfy the Commission that persons are not going to be exploited because the legitimate question is "Well, if there's no recording of hours or anything like that well why couldn't you just employ them on a full-time basis on the commission only?

PN437

So that, your Honours and Commissioner Gregory, we accept that there has to be an obligation and probably it would be upon the employer to record any additional hours and that if necessary they be paid for those hours. To give you an example, to borrow from what Mr Clarke has said, supposing you have somebody who is going to work 10 hours a week on a part-time basis, any additional hours may be required to be paid for at the ordinary rate because they're actually working outside those agreed hours for which they're only going to be remunerated on a commission-only basis. So we don't - - -

PN438

VICE PRESIDENT HATCHER: Mr Watson if you want us to consider that as a serious proposition I think you're going to have to file a draft award variation which will give effect to all that because there's some major concepts in that. There's a concept of recording hours which doesn't arise from the Act and the regulations and then there's a concept of some notional overtime rate on whatever concept. And they're major propositions and I think we need to see what the proposal actually is.

PN439

MR WATSON: I understand what your Honour has said and we're prepared to do that to actually put forward such a proposal. But there's no point, your Honours, Commissioner Gregory of doing that if the whole concept is being rejected.

PN440

VICE PRESIDENT HATCHER: Well, Mr Watson we've had this hearing for the purpose of allowing parties to put their positions. You're putting a position which is, with respect, radically different from that of Mr Paterson which involves some major changes to the concept of commission-only employment which might make part-time employment a practical proposition but I think if you're going to propose something which speaking for myself seems to be fairly radical I think you should file a well-developed award variation and then let other parties have a chance to comment upon that because I think some other people might be somewhat surprised at the propositions you're now advancing.

PN441

MR WATSON: Well, your Honour, it's the first time I've been described as "radical" but I am prepared to embrace that, your Honour. I know you gave - I can't recall now what it was - I think it was 14 days - - -

PN442

VICE PRESIDENT HATCHER: Fourteen days.

PN443

MR WATSON: - - - to somebody. Is that the sort of timeline that your Honour had in mind here?

PN444

VICE PRESIDENT HATCHER: Yes. If you could do that in 14 days and then I would think I would allow any other party to make a submission in response to your proposal within a further 14 days after that.

PN445

MR WATSON: All right. Your Honour was it contemplated that once those proposals were exchanged that there might be a conference or something like that? I am just conscious that obviously this matter has been around a long time so far as the award review is concerned and it's not my intention or my desire to try and extend this any longer than needs be.

PN446

VICE PRESIDENT HATCHER: Well, I mean that's a matter for you, Mr Watson. You have advanced these proposals. I think we're hearing them for the first time today. If you want us to seriously consider them I think it will need the sort of timetable we're talking about. That is, advance the proposal, and then allow the other parties to comment.

PN447

MR WATSON: Yes.

PN448

VICE PRESIDENT HATCHER: It may be that all the other parties think it's a fantastic idea in which case we can move forward. Perhaps it's just more likely that they won't think it's a fantastic idea but if you want us to seriously consider this you need to, I think, flesh it out and give the other parties a fair chance to respond.

PN449

MR WATSON: Thank you, your Honour. Can I say that I wouldn't have advanced it unless I was serious about it.

PN450

VICE PRESIDENT HATCHER: Yes, of course.

PN451

MR WATSON: So we can do that.

PN452

VICE PRESIDENT HATCHER: All right. So I will allow you 14 days to file that proposal in the form of an award variation and then I will allow any other party which wishes to respond to it to file a further submission in response within a further 14 days after that.

PN453

MR WATSON: Does your Honour contemplate that it would be in the same way that the submissions have been filed by lodging them on that web site, award review? I'm not being very technical I know.

PN454

VICE PRESIDENT HATCHER: Any proposals, submissions of that nature are posted on the website only because this is not a party situation. This is an instrument that regulates the whole industry and we need to allow anybody who is not currently participating in the proceedings to have an opportunity to comment upon something that might affect them.

PN455

MR WATSON: Yes. And so that - excuse me, your Honour - if my proposal is put on that website then that will satisfy what your Honour has in mind.

PN456

VICE PRESIDENT HATCHER: Exactly.

PN457

MR WATSON: Thank you. The only other thing I wanted to say, your Honours and Commissioner Gregory was this notion that commission-only is part of the award. At the present time it applies to what's been entitled as full-time persons. Really, in my submission, what we are discussing here or what's at issue is the way in which people are being remunerated.

PN458

Mr Clarke has raised questions about debit, credit, getting commission-only - sorry, being paid commission on top of a weekly wage. And I think it was Mr Paterson who said, "Well, look those arrangements would apply to full-time persons who could be on commission-only. We endorse that. They're my submissions.

PN459

VICE PRESIDENT HATCHER: Thank you. Mr French?

PN460

MR FRENCH: Thank you, your Honour. Our submission was very, very brief and support Mr Clarke's submission but the unions remain opposed particularly to pro-rataing which has been the subject of the employers' submissions today and we can see no reason that the union and, in fact, we know it is occurring with some of our members, they are being paid on an hourly rate and debited against the provisions by agreement. I have no further submissions, your Honour.

PN461

VICE PRESIDENT HATCHER: Right, thank you. All right. We thank the parties for their submissions. Mr Clarke was there - - -

PN462

MR CLARKE: Do I get a reply?

PN463

VICE PRESIDENT HATCHER: No. You're not a moving party so you just - everyone's on a fairly equal status here. So we propose to reserve our decision once we have received the further note in relation to clause 16.3(a)(iii) and the parties have 14 days to supply that, hopefully in an agreed form, and then with respect to Mr Watson's client's proposal he is to file that in the form of a proposed award variation within 14 days. And then any other party has an opportunity to comment upon that by way of a further submission within 14 days after that. We will now adjourn.

ADJOURNED INDEFINITELY [12.07 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

GRAHAM BRUCE SIEBENHAUSEN, AFFIRMED........................................ PN35

EXAMINATION-IN-CHIEF BY MR WATSON................................................ PN35

EXHIBIT #BS WITNESS STATEMENT OF GRAHAM BRUCE SIEBENHAUSEN DATED 13 SEPTEMBER 2018................................................................................................. PN40

CROSS-EXAMINATION BY MR CLARKE..................................................... PN44

CROSS-EXAMINATION BY MR PATERSON................................................. PN94

THE WITNESS WITHDREW............................................................................ PN102