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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                                    

 

JUSTICE ROSS, PRESIDENT

 

 

 

s.156 - 4 yearly review of modern awards

 

Four yearly review of modern awards

(AM2016/8)

Payment of Wages

 

Sydney

 

10.01 AM, THURSDAY, 4 MAY 2017


PN1          

JUSTICE ROSS:  Just for the record we might deal with the appearances, just starting here.

PN2          

MR A THOMAS:  Thomas, initial A, from the CFMEU Mining & Energy.

PN3          

JUSTICE ROSS:  Yes.

PN4          

MR S MAXWELL:  Maxwell, initial S, for the CFMEU Construction & General Division.

PN5          

MR T CLARKE:  Trevor Clarke, ACTU.

PN6          

MR S BULL:  Bull, initial S, for United Voice.

PN7          

MR B FERGUSON:  Ferguson, initial B, for the Australian Industry Group.

PN8          

MR L IZZO:  Izzo, initial L.  ABI/NSWBC, but also mentioning an appearance for the AHA, and with continuing permission.

PN9          

JUSTICE ROSS:  What does mentioning an appearance mean?

PN10        

MR IZZO:  Mentioning appearance means that they were unable to attend today, your Honour, and I broadly have instructions about what their motives are.

PN11        

JUSTICE ROSS:  All right.

PN12        

MR IZZO:  But it may be that I need to get further instructions.

PN13        

MR BULL:  I didn't catch what Mr Izzo's - who he said he appeared for.  Could he repeat that?

PN14        

MR IZZO:  ABI/NSW Business Chamber, and I'm mentioning an appearance for the AHA.

PN15        

MR BULL:  Okay, but your previous ‑ ‑ ‑

PN16        

JUSTICE ROSS:  We can deal with that (indistinct).

PN17        

MR BULL:  Sorry.

PN18        

JUSTICE ROSS:  I'll just get appearances.

PN19        

MR R CALVER:  Calver, initial R, for the National Road Transport Association, your Honour.

PN20        

MS M ADLER:  Adler, initial M, for the Housing Industry Association.

PN21        

JUSTICE ROSS:  All right.

PN22        

MS T WALTON:  Walton, initial T, for the Transport Workers' Union.

PN23        

MS A DEVASIA:  Devasia, initial A, for the AMWU.

PN24        

MR Z DUNCALFE:  Duncalfe, initial Z, for the AWU.

PN25        

JUSTICE ROSS:  Anybody else?  Anyone interstate?

PN26        

MS RODGERS:  Good morning, your Honour.

PN27        

JUSTICE ROSS:  Good morning.

PN28        

MS K RODGERS:  In Adelaide, Rodgers, initial K, for the Australasian Meat Industry Employees Union Federal Office.

PN29        

JUSTICE ROSS:  Thank you.

PN30        

MS V WILES:  In Melbourne, your Honour, Ms Wiles, initial V, for the Textile, Clothing and Footwear Union.  I indicated to your associate earlier that Ms Dooley for the CFMEU FFPD Division was intending to appear but an urgent matter has come up for her.  She's still hoping to appear at some point, but I just thought I should put that on the record.  Thank you.

PN31        

JUSTICE ROSS:  Thanks.

PN32        

MR M GALBRAITH:  Good morning.  Galbraith, initial M, for the SDA.

PN33        

JUSTICE ROSS:  Thank you.

PN34        

MS K PEARSALL:  Pearsall, initial K, for the National Farmers' Federation.

PN35        

JUSTICE ROSS:  Thank you.  I'm sorry if you're ending up seeing my back, but it's just easier to do it this way.  Is there anything else you wanted to ask?

PN36        

MS WILES:  Your Honour, it's Ms Wiles in Melbourne.  Your voice is very faint so we can't actually hear what your Honour ‑ ‑ ‑

PN37        

JUSTICE ROSS:  I think someone is bumping a microphone.  I don't think it was us.

PN38        

MS WILES:  We can hear you now, thank you.

PN39        

JUSTICE ROSS:  Just be careful when you touch the microphones.  Can you hear me now, Ms Wiles?

PN40        

MS WILES:  We can, thank you, your Honour.

PN41        

JUSTICE ROSS:  All right.  Look, it may be that this is an exercise in optimism and we just have to go ahead and determine the issue, and we'll do that if we need to.  I want to make sort of an opening observation.  It may have no impact on you and may not be able to deter your behaviour in any event, but it does seem to me that each of you is approaching this issue from the perspective of defending what you've currently got in your award position, and you're entitled to do that, it's just that's not what we're here for.

PN42        

There will be a phase where in the event we determine a common term that you'll have the opportunity to argue about that, but the position of each of you is influenced by what you currently have in and wanting to retain the best of what you've got in, depending on what your perspective is, and that's going to, I think - if you maintain that, that's fine, you may as well tell me now and we won't pursue the conference any further, because if you do I just don't think there's any prospect of any agreement, because each of you are sort at the polar ends and we'll just decide the issue.

PN43        

At some point you'll then have an opportunity to argue there are particular features of your award that warrant a different approach.  I get, and the Full Bench gets, that that that's the case, that in a number of areas there are particular features, a history, a context that needs to be looked at, but I think you have to bear in mind that your interests are relatively narrow.

PN44        

You focus on not the majority of awards that don't have any provision and I think there's a risk that by focussing on what is currently there in a minority of awards the position in respect to the vast majority of awards doesn't get dealt with, because there is no provision dealing with what's paid on termination in the majority of areas and that can't be a position that is allowed to remain.

PN45        

So the question becomes, well, what do you put there?  So perhaps if you start with if you don't have anything, is there any agreement around the base minima that ought to be in there?  There is the issue of accrual.  I know there will be a debate about that, but the fact is most awards don't provide for it at all.

PN46        

So I think going to either end of the spectrum about, "We think accrual should be weekly," or, "It should be by every minute," isn't probably going to be that helpful.  I think we have to bear in mind that for most awards there's just no clarity at all and the strict legal position might be that if you're paid weekly and you only work for part of the week and your employment comes to an end, you may not have any entitlement to be paid for the part of the time that you've worked.

PN47        

I don't think that anyone is contending that that's a fair outcome, so if it's not a fair outcome then how can we deal with it?  So I think we do sort of have a choice, and the purpose of the conference is to give you an opportunity to exercise that, about whether there's some prospect for agreement on those issues, but if there isn't, I mean, we'll decide the issue.  That's what we get paid for, and we've got your submissions.

PN48        

We can talk about whether you want to put in any further submissions or material on the general questions, excepting that - not the award by award specific.  We understand that we'll need to deal in some way with a model term.  You'll need to see what that looks like in a provisional way in each award and then we'll see where are the awards that parties want to contend for a different outcome.

PN49        

It's not suggesting where there's an existing provision that there's some presumption or anything of that nature.  You'll have the opportunity to argue it, but the simple fact is that there won't be an argument for a large number of these awards, because most of you are not engaged in most modern awards, is the truth of it.  We come down to about 20 or 30 where there's furious debate and I see the same faces at every one of these things, but for the vast majority not so much.

PN50        

So, look, with that, it's really around clarifying firstly what's in the statement and what is the measure of agreement, is this an accurate depiction of where we are at, and then what do you say about moving the matter to conclusion, because it's going to move one way or another.  It's really which pathway do you want to take.

PN51        

So if we go through the statement - and I'd propose just almost do it paragraph by paragraph.  If we go to paragraph 6 - yes?

PN52        

MR CLARKE:  Before we get to that, I don't know that the notion that - that it's quite that binary between agreeing - you know, that there's a sort of a binary choice between people who have a concern about preserving existing arrangements and in arbitrating a model clause.

PN53        

Like, it need not be such a sort of polar distinction.  We might be able to work to have - you know, there seems to be a measure of agreement as the statement outlines, that a series of issues need to get dealt with, and one could probably come up with a framework or an almost model clause that maybe doesn't have numbers in it that talks about how those issues are dealt with in a conceptual sense and ‑ ‑ ‑

PN54        

JUSTICE ROSS:  That's really what the statement does.

PN55        

MR CLARKE:  ‑ ‑ ‑ the fight is really about the numbers.  Yes, okay.  All right.

PN56        

JUSTICE ROSS:  Yes.  No, that's really what this statement is trying to do.  We're trying to test out what are the limits of agreement.  The problem for me is that you read the submissions and they all conflate the circumstances of their particular award with the general and so what we've tried to do is extract the most optimistic assessment of the measure of agreement, but I wanted to make the opening statement so you're clear that - and I understand that, you know, everyone sees it through the prism of what they're trying to ultimately achieve in the awards they have a particular interest in.

PN57        

It's not that you are going to be prohibited in any way from having those arguments - and you just have to look at the sweep across the awards system that payment on termination are going to be a bit contextualised by what's in the award.  Accrual might be affected by the structure of the award.  Whether it's daily hire, all these issues might affect all of that, but we need to come up with some broad template that says, "Here is what has to be covered.  The particular circumstances of an award not requiring a different outcome, this is what we'd be looking at type of approach."

PN58        

So that's what this does try to do.  It tries to do it by topic matter and when we get to the topic matters then we'll look at what's the spectrum of view about it.  I think, look, from our perspective - and as I say, everyone looks at it from their own, I'm looking for simplified decision‑making, so it would be easier for me if we get to that point - for example, if we get to a point where we think, yes, a model term - or however one frames it, the time between the end of a pay period and when payment is due, if it's generally agreed, yes, there should be something that says something about that - I think ABI had a slightly different view and we've expressed something about that, but leave that aside - then what's the range of views about what that time period should be?

PN59        

At that point it would assist us if there's some collaboration amongst the employer interests and the union interests to say, "Here's what we think collectively," otherwise it just becomes a morass and all of you on each side have who have a raft of different views - bearing in mind here we're not talking about what goes in your award, we're talking about as a general proposition conceptually what should it say absent something that warrants on merit a different approach.  So let's see if we can get to that point.

PN60        

MR FERGUSON:  In that context are you thinking about grappling with some of the detail of the wording or the contents of provisions?

PN61        

JUSTICE ROSS:  I want to try and push an agreed position as far as possible, and to the extent - look, the simple fact is the extent to which both broad interests can reach some agreement or narrow the scope, you're increasing certainty for yourselves and you've got more control over the outcome, because you won't have any control once we're arbitrating it.

PN62        

MR FERGUSON:  I say that because I envisage there may be situations where say the necessity to do something isn't entirely endorsed by a party, but if there is ‑ ‑ ‑

PN63        

JUSTICE ROSS:  You can frame it however you ‑ ‑ ‑

PN64        

MR FERGUSON:  ‑ ‑ ‑ a desire to shape ‑ ‑ ‑

PN65        

JUSTICE ROSS:  And I appreciate everyone's got constituency issues as well, and how it's framed might be that, you know, whilst it might not be your primary position, you accept that, et cetera.  I don't mind how you manage those issues, but as I say - you know, ultimately I can't speak for the Bench.  I'm not suggesting they'd be bound by your agreement, but with one or two exceptions, broadly in this process where there's been a broad measure of agreement that's what we've gone down the path of.  If we're not going down the path of you will be put on notice about it.  So you will know if there's a difference, or if there's a prospect of a different view we'll go through a process.

PN66        

So I think if you see it in that framework it gives you collectively more control over an outcome both broadly as to conceptual matters dealt with and secondly as to the range, and the closer you are in the range - and that's where I think it has to be some iterative process between the two interests.  You want to try and narrow it, because the broader you are, well, you may as well not worry about it.  We may as well just make the decision.  Okay.  So that's the framework we're in.

PN67        

MR BULL:  I can indicate that United Voice agrees with your Honour's position of essentially having the traditional approach of determining a model position and then there being a tailoring process, and we're mindful that that is what you are suggesting as applying in this process.

PN68        

JUSTICE ROSS:  Yes, but it's probably a bit different, Mr Bull, in the sense that I think it's different to say the annual leave process where you're dealing with a more complicated regulatory environment.  For example, the cashing out, you've got the NES framework.  There were some decisions made about additional safeguards.  If you want to depart from that, whilst it's a provisional view, it goes in all - I think in practice the barrier was reasonably high.

PN69        

Here there's a level of complexity about these issues, even though there's general agreement about we've got to grapple with them, your reaction probably much the same as mine initially when looking at the accrual.  I thought, "That can't be right," and then you think, "How do you deal with it?" and then you just get a headache.  So I think there's  a recognition that payment on termination, people should know what it is they're entitled to be paid, what it is they're to be paid out and some idea about when.

PN70        

It is just about trying to avoid litigation, provide clarity and come up with something that's workable in the circumstances.  So I think there is agreement about some of those issues.  It's when you then move to the next stage of - and that's why the statement is sort of structured that way, broad level of generality, then we move to conceptual, and then, as you say, we might move to within that frame what's the range of tolerance on both sides?  It may be expressed as a position preference, however one puts it, but it will give us a better idea - because I'm conscious that I don't want to launch into these issues in a sort of uninformed way and run the risk of some unintended consequences.

PN71        

So this will take a little time, and I know your other commitments as well, so we're likely to have this conference, give you the time you need to come back.  It will be well after the annual wage stuff has finished and penalty rates, part‑time casual.  All that will have probably washed out and we'll come back to this in the second half of the year and then we'll see how we go.

PN72        

MR IZZO:  Your Honour, may I just clarify, in terms of coming to an agreed position is it envisaged that we might be able to work to a model clause - that's the general principle, and then if someone has a particular objection in a particular award then there may be an opportunity for that to be heard?

PN73        

JUSTICE ROSS:  There'd certainly be an opportunity for that to be ventilated - not only may be, there will be.  The process will provide - as we've done consistently, it will provide for a model provision.  The model provision is the one that you would expect to go into awards with nothing.  So I think that would be a reasonable - there'd still be an opportunity, we'd still publish it as a provisional variation, et cetera, but the expectation would be where there's nothing, that's what you'd get.

PN74        

Even there, there's still an opportunity, but more particularly where there's something then there's going to be a debate about, "What goes in this award?"  That debate will cover a couple of things:  (1) does the current award provision include all of the conceptual elements of the model term?  To the extent it doesn't then you might expect the conceptual elements it doesn't have would go in.  Where it does - for example, the time period on payment of termination moneys, day of termination, five days out, where it's got something different then there has to be an opportunity for people to run an argument about what is the appropriate position there?

PN75        

Look, I mean, I don't think onus is a particularly helpful conceptual frame in which to view these things, but where you've got an existing provision that says within three days and the default says within five, or whatever we end up with, that's a current award term and there'd need to be an argument that that's creating some problem or tension or practical issue, and that cuts both ways.  It can cut the other way as well, that if it currently provides for seven days and it's five in the award, what's the rationale for shifting it?

PN76        

MR FERGUSON:  But adopting that approach - because there may be provisions where they're quite restrictive and say within three days.

PN77        

JUSTICE ROSS:  No, sure, but that's your argument then.  That's your merit argument, it's too restrictive.

PN78        

MR FERGUSON:  I understand that, and I agree that onus probably isn't that helpful, because on one view the current award term would be for those that are arguing for a more flexible model provision, but adopting that approach you might say the current framework in many awards isn't prescriptive at all and where's the basis for saying that that's given rise to any problem?

PN79        

JUSTICE ROSS:  No, sure, but I think the key thing is you have to provide for something, and we think that's a reasonable thing to provide, but then in others, see, we don't know - if you take construction, daily hire might have an odd intersection with all these things.  I don't know how people are paid there, and it may be that there it works, a framework that says a lower amount.

PN80        

I think the other issue is where it's been in an award for some time the extent to which it's creating the sort of practical problems and restrictions is something we're going to want to hear about.  Because it's been there, there's been no application to remove it, it's historically applied, so it does raise a sort of question.  I don't know that it's more than that in either side of the divide, but you've got a current provision.  It's got a history that we're going to want to know about.  It's got some purpose, presumably, and it has some impact.

PN81        

We're going to want to look at that and we're going to want to provide parties with an opportunity to bring things forward to tell us, "Here it is.  This is why it's there and this is why it's important," or, "This is why we say it's too restrictive," and then we make an assessment about whether we're satisfied that either the current provision or as varied meets the modern award objective, because it's a review context, but I don't think you'll be able to - I don't want to suggest that you'll be able to come along and say, "The model term provides for that, therefore that's what it should be."  I think the argument is going to have to be a more focussed one than that.

PN82        

MR FERGUSON:  I understand that, and I don't think that's what you're suggesting, but if it's just going to devolve into a situation where there's a high degree of flexibility now, we insert the model provision in but where there's a more restrictive provision now there has to be a significant advanced to get something ‑ ‑ ‑

PN83        

JUSTICE ROSS:  Sure.  Maybe, but ‑ ‑ ‑

PN84        

MR FERGUSON:  But it's argument for, I understand, another day.

PN85        

JUSTICE ROSS:  It is, and, look, the proposition that there's flexibility now is sort of, on one view, unarguable.  On the other, well, it's just that no one's turned their mind to it and you've had different regulatory regimes. You've had a capacity for the arbitration of industrial disputes so if there was a dispute someone would bring it in or it's dealt with through another mechanism.

PN86        

Now we're in a very different legislative environment where these are safety net minima, regulatory instruments, and you've got that intersection with the time and frequency of payment stuff, you've got the intersection with the NES, and I think it's more that - I certainly haven't found any detailed arbitral consideration of whether an award should have an accrual provision.  It just hasn't been something that people have turned their mind to.

PN87        

So I think in that sense it's a bit different to the annual leave issue where there's an argument about it, there's a statutory framework, there's a determination, and you go down that path.  Here I think it's a bit more open when you get to the award stage, and whilst consistency is desirable, certainly in broad sectors - you know, if it was construction it would be handy to have the construction awards as a whole singing off the same sheet of music.

PN88        

I think that's an objective I gave away a number of years ago, but you can see how at least sectorally, transport, construction, that there's some logic to if you're going to do something, make sure you do it all at once.  The same with services, et cetera, what's the consistent feature, and, look, all these things change when you get the argument and it's run, but at least my initial impression is that this is a different, more nuanced discussion and there is a need for closer examination, and we've seen that - probably transport and construction raise it most starkly, that they've got different payment arrangements so how does all that work?

PN89        

Hospitality raises similar issues.  You've got high turnover, high levels of casualisation.  How does it work with casuals?  So I'm not sure onus is going to be useful.  I think we're going to want to have almost the inquiry into an award about what is the go here?  Whatever is there at the moment, what's the rational for that?  What are the reasons?  If you want to have a different outcome, why do you want that?

PN90        

I don't think it's more than that, and I think, look, much spilt ink is spent on onus and those sorts of things, but I think it ultimately comes down to what's the best merit outcome based on the material we've got and one consideration is that's in there at the moment and is that causing any issues?  Then you look at that, you look at why is it in there, where did it come from, and you look at the context of the industry and you hear the argument.

PN91        

A lot of these things ultimately, once you get to that point, the direct parties have an opportunity to sort it out as well, and it's not unusual for them to sort it out, as they have during the award review process.  There's the initial sort of hands up in horror about the proposition, but then over time they'll actually at the end point - and that's been true of all the technical drafting issues.  I don't know whether it's just a process of exhaustion at the end of conferences, but parties initially react by opposing everything their opponent says and then over time they start to talk about the issue, not the proposal, and they work out a sensible solution to it, and that's usually been the one we've adopted.

PN92        

MR BULL:  If I can make a general conceptual comment, it seems that the broad divide between the employers and the representatives of the employees is that they conceive of this problem as a cash flow issue for business and we conceive of it as payment of wages to people that perform work.

PN93        

The other matter which has perplexed me about this process is that it appears that the employers are essentially arguing for extra time and what is termed flexibility and that seems to be disengaged from what are manifest developments in technology, in that it has never been easier to pay someone now than it was before because of the prevalence of electronic transfer of funds, electronic payrolls and all these things.

PN94        

So there's an inherent, I say, empirical contradiction in what the employer parties are arguing for, in that times have changed.  So there's the reality of it's more - it is in reality more flexible and they want legal flexibility in addition to the reality of it's never been easier to pay people.

PN95        

So I just make that point, and I make the broader conceptual point - or this is, I suppose, a putting of United Voice's position, in that wages are ultimately the property of the employee, and I'm sure my friends are not motivated by these desires, but, you know, hanging onto money for as long as possible is not, I think, something that should be a subject of our attention in this process.

PN96        

JUSTICE ROSS:  We'll get to the merit based arguments, but that will be further down the track.  I think it's not unusual for parties to mount an argument based on the impact on their constituency, but the technology argument goes the other way as well.  There's resistance to any removal of payment by cheque or EFT and all those things from some union sides.  The fact remains that until the issue had been raised about the restrictions on the payment on termination, no union had advocated the inclusion of a payment on termination in the myriad of awards that have no termination provisions.

PN97        

So it's, I think, you know, we'll try and focus on conceptually where we are.  I'm sure we'll end up with a debate about the timing and that'll be dealt with as we go through it.  Probably the only issue that has occurred to me around the timing is bearing in mind that the employer doesn't determine all terminations, that employees resign, a proposition that they should be immediately paid all their termination payments on resignation, that is, at that moment, if you strictly apply it, well, on the face of it, it does seem a bit tricky.

PN98        

Accepting what you say, even someone who has a complete payroll system; you've had an employee that's been there for a number of years and they resign, then you have to transfer immediately all their termination – on the strict reading of some of provisions.

PN99        

MR BULL:  I agree with you.  Speaking from personal professional experience I have done work for New South Wales Health, and if you have a junior doctor who starts as a junior doctor and then ends their career as a staff specialist and has accumulated a year-and-a-half of leave, and is resigning on $385,000 salary, it's an issue.  We're, under this process, wanting to be reasonable, but our members are not on $385,000 a year.

PN100      

JUSTICE ROSS:  No, no, and that's why it is a contextual thing depending on what's the payment method and the structure of that industry.  That's why those issues need to be looked at.  But there will be some; the Pilots Award, for argument sake, that might be a different context and it's well to say that, "Oh, the award requires they have to give so much notice", well, if they don't, what do you do?  Take them out and shoot them.  I mean, once they've gone, they've gone, and their employment is terminated, so what follows from it?  So I think, look, it's within that band there has to be some discussion, and the point you raised can depend on the award.  Some award areas will have higher penetrations of more sophisticated payroll, be able to do it; their employment patterns are such that, yes, that's fine.

PN101      

MR BULL:  But we need good faith.

PN102      

JUSTICE ROSS:  Yes, sure.

PN103      

MR BULL:  You know, and your Honour raised the issue of, you know, immediate payment and I agreed with you.  But, you know, to balance that there are provisions about directing people to take leave.

PN104      

JUSTICE ROSS:  Yes.

PN105      

MR BULL:  Which are entrenched in the system, so it becomes an issue of – there are mechanisms to deal with that problem there, so we need balance and good faith, and not just a sort of bland rhetorical approach where things are just opposed and one-sided arguments are put.

PN106      

JUSTICE ROSS:  We'll see how far we can get down with the conceptual argument, but, you know, whilst I'm relatively optimistic I'm not as optimistic to think that we're not going to get to a point that in some awards we're going to have a fairly polarised debate, but so be it.  I don't want to preclude how you run your cases when you get to that point.  It really is up to you.  We'll sketch out the broad – we'll be influenced by the merit and on the material we've got, having regard to all the things that I've spoken about, but I think where we start from though is an acknowledgement that in many awards these issues are not dealt with at all, and that's a problem I think.  So let's just start with going through the structure of the statement.

PN107      

MR CALVER:  Your Honour, may I ask a question in that regard?

PN108      

JUSTICE ROSS:  Yes, sure.

PN109      

MR CALVER:  My understanding from hearing previously in this matter would be that if we go through this statement and get areas of agreement then perhaps revisit paragraphs 34 which contains the model term and the one for termination of employment in the decision of 1 December, and ‑ ‑ ‑

PN110      

JUSTICE ROSS:  I'm not sure we'll get to that point today.

PN111      

MR CALVER:  Okay.  Right.

PN112      

JUSTICE ROSS:  Yes.

PN113      

MR CALVER:  From the point of view of reaching agreement that would be an ideal process.  In relation to – I mean, I put in an individuated submission merely to flag where there were differences but I'd like to emphasise the similarities that are articulated by yourself and other members of the Full Bench in that decision where you say, at paragraph 32, there doesn't appear to be an apparent rationale for the differences in frequency of payment, pay days, payment of arrears, the types of payment that are expressed to regulate and other differences in the wording of the provisions which in fact reflect the very characteristics of the enterprises covered by those awards.

PN114      

JUSTICE ROSS:  Yes.

PN115      

MR CALVER:  And we're agreeing with that proposition.  We're here to ventilate agreement about those matters.  If nothing else to get a consistency in terminology part of the reason that I put that submission in writing was not merely to show that the Transport Awards were different but just to show something as fundamental as the difference between the Manufacturing Award and the Transport Awards in the everyday expressions that are used, and there is no rationale whatsoever for those differences.  It's merely the original draftsman of the awards when they were artefacts of disputes have come up with different terms to express the same concept, and so, your Honour, if nothing else, I proffer that in the interest of building the relationship so that we can have agreement about those matters before we go to the award specific issue, and if it does appear from that submission that I lodged that I was carving out territory, that was not the principal object; it was merely to illustrate the point that's being made at paragraph 32 of that decision, your Honour.

PN116      

JUSTICE ROSS:  Okay.

PN117      

MR CALVER:  Thank you.

PN118      

JUSTICE ROSS:  No, that's fine.  So at paragraph 6 there are the three propositions that seem to be generally agreed.  The first is that clarity would be important, so that those covered by an award clearly understand their obligations and their rights for that matter; that there are benefits of uniformity but that the circumstances of particular awards may mean that not all elements of the common approach are appropriate in a particular award.

PN119      

Is there any dissention from that proposition?  No?

PN120      

MS WILES:  Not in Melbourne, your Honour.

PN121      

JUSTICE ROSS:  Yes, okay.  The second sort of comes from (i).  Whilst it's generally acknowledged that consistency is desirable there's broad support for an award by award approach, and that regard be had to the existing terms of the award, the historical context, and the circumstances pertaining in the relevant industry.  That tries to balance the two ideas; that those awards do currently regulate, to some extent, the issues we're looking at.  You need to look at that on an award by award basis.  All awards will be looked at on an award by award basis, but particularly where we've got an award that does regulate currently some of these issues in some way, then you have to look at the existing terms of the award and the context in which they came about.  You also have to look at the circumstances in the relevant industry - and that can embrace arguments about, well, it's working; it's not working; it hasn't been a problem; it's restrictive.  You can embrace all of that within that rubric.

PN122      

But we're really saying that where parties have got a provision that deals with these things in some way the Bench wants to know more about that.  We want to know, well, where did that come from, and how did it work?  What's the context?  How does it fit within the rest of the award, because there might be other award provisions that deal with payment of wages and allowances?  How does it all – what's the context.  And you look at that and you probably get broad agreement around those things, and then you look at, well, where does that take you, and that's then the merit argument.  It may take you to an argument, well, overwhelmingly employees in the industry use electronic payroll.  There's not an issue.  Overwhelmingly they don't.  There are particular considerations like the health ones or the pilot ones that warrant some difference in approach and let's have that debate then.

PN123      

So within that conceptual framework, that hopefully we'll get to agreement about, that such a term should address these issues.  Leave aside how they're addressed.  Then if an award does address one of those, well, let's have a look at that, so, on that basis, any issue around (ii)?  No?  Okay.

PN124      

MS WILES:  Not in Melbourne, your Honour.

PN125      

JUSTICE ROSS:  Okay.  It does seem that there's broad support for the concepts.  I think we might deal with each one at a time rather than trying to capture it in a general statement.  But that was the impression that at least some of the concepts seem to have a measure of support.  The differences were around where you fit on the continuum.  But let's not focus on (iii).  Let's turn to the particular provisional model terms.  As we say in (vii)there was a provisional view that a timing of payment of wages term was desirable.  It was desirable that all modern awards include a term providing for the method and frequency of payment, as well as placing some limitation on payment in arrears.  There seemed to be, in paragraph 8, general agreement that such a term, a payment of wages term, should specify the duration of pay periods, that is, weekly, fortnightly; do they make provision for monthly; do they not, et cetera; the time between the end of the pay period and when payment is due; the payment methods; cash, cheque, EFT, et cetera, or some different arrangement; and deal with what we've referred to as the public holiday weekend issue, that is, when a payment that is due falls on one of those days I think there was general agreement that the proposition of the Acts Interpretation Act should somehow be brought in in that framework. But let's just go, and from the December decision, Mr Calver, what was the paragraph?

PN126      

MR CALVER:  Paragraph 34, your Honour.

PN127      

JUSTICE ROSS:  Thirty-four.  Thank you.  Right.  Yes.  Just bear with me for a moment.  My copy didn't print.

PN128      

MR IZZO:  May I just raise one mater, at this moment, your Honour?

PN129      

JUSTICE ROSS:  Yes, sure.

PN130      

MR IZZO:  I think there's, and I'm happy for others to correct me if I'm wrong, I think the parties are willing to work towards a model term.  Just in relation to this concept that there be a model term included or that all awards deal with payment of wages, I think we're willing to try and reach agreement on what that model term should look like.  I'm not sure whether, for some of the employer parties, where an award is silent there, that we're necessarily willing to agree, for instance on the record, that a modern award should include a payment of wages term where there isn't one at the moment.  But having said that we are willing to work towards what a model term is that then the Commission can consider ‑ ‑ ‑

PN131      

JUSTICE ROSS:  Yes.

PN132      

MR IZZO:  ‑ ‑ ‑on an award by award basis.  So just if we get to a question about consent here I think we don't want to appear obstructive, and we want to work on the model term with the other parties, I don't know if we can agree that on a carte blanche basis ‑ ‑ ‑

PN133      

JUSTICE ROSS:  That's fine.  We can proceed on the basis that if there were to be a model term then this is what is ‑ ‑ ‑

PN134      

MR IZZO:  Precisely.

PN135      

JUSTICE ROSS:  Because we haven't, unlike the position of the timing of payment on termination where we've confirmed our provisional view.

PN136      

MR IZZO:  Yes.

PN137      

JUSTICE ROSS:  So there will be.

PN138      

MR IZZO:  Yes.

PN139      

JUSTICE ROSS:  It's really a question of the detail.  In this one we haven't gone to that point yet, so really you can – and as I say the second process will be that, well, here's what we think a model term dealing with the timing of payment of wages looks like.  The next step is we're going to publish draft variation determinations in respect of all awards, and then we will move into an award phase, and we'll seek - sort of the process will probably be initial responses to determine whether it's opposed, and for those that are not opposed, then we would look to proceed to vary those awards, and then you gradually move down to where's the scope of the argument?

PN140      

MR FERGUSON:  Yes.  It may be that it's a bit too far to put it that we are so supportive of regulation of all these specific sort of issues, but we see the merit or futility in working through what that regulation might look like.

PN141      

JUSTICE ROSS:  Yes.

PN142      

MR FERGUSON:  Yes.  If I could put it that way.

PN143      

JUSTICE ROSS:  Look, it will depend on your interest, and the interest of those covered by many of these awards, and it's difficult to predict that now until you know what the term looks like.  So I think let's get to what a term might look like, and there will be a process in which parties, where there's nothing in there at the moment, the Salt Industry Award, always springs to mind in these circumstances.  It probably only covers two employers, and I don't think they could care less what's in the award, but it'll be published, and it's  unlikely that where -  having said that they'll probably read the transcript and it'll start a whole new raft of ‑ ‑ ‑

PN144      

SPEAKER:  I've actually dealt with a salt mine in Port Hedland.

PN145      

JUSTICE ROSS:  I sometimes feel I'm working in one, but there are some areas where, because of the nature of their arrangements, where it's a highly limited number of employers covered by enterprise agreements either side is not going to get too excited about what's in it, and they won't raise anything.  So I think we'll find that we'll still be back with the awards that we usually have, but I understand that you don't want to commit to tapping the maths basically on ‑ ‑ ‑

PN146      

MR IZZO:  That process, from an organisation's self-interest perspective ‑ ‑ ‑

PN147      

JUSTICE ROSS:  It's much easier.

PN148      

MR IZZO:  ‑ ‑ ‑means we're not consenting to it going in, but if someone hasn't opposed, well, it's different from a blow back perspective.

PN149      

JUSTICE ROSS:  Exactly right.  No, no.

PN150      

MR FERGUSON:  It's also difficult to necessarily envisage all the practical difficulties that might arise.

PN151      

JUSTICE ROSS:  Of course.  Of course.  That's why this process will be a little different and we'll see, but ‑ ‑ ‑

PN152      

MR FERGUSON:  Try to uncover them, but ‑ ‑ ‑

PN153      

JUSTICE ROSS:  Yes, but, look, my expectation will be we'll still be looking at a smaller cohort later.

PN154      

MR FERGUSON:  Yes.

PN155      

JUSTICE ROSS:  And of course if you don't have anything then it's perhaps a little trickier to argue that you should continue to have nothing.  You'd sort of raise the question, well, what have you got at the moment, and it may be they have other arrangements, and they can run an argument, but – yes.  No, there'll be an opportunity to do that.

PN156      

Let's look at, if there is to be a model term, then what is to be the constituents of it?  If we look at paragraph 8, do we agree that such a term would deal with those issues conceptually?

PN157      

MR FERGUSON:  I think the issue amongst those that gives us some reservation is (ii), the time between the end of the pay period and when the payment is due.  I think the decision ‑ ‑ ‑

PN158      

JUSTICE ROSS:  Hang on sec.

PN159      

MR FERGUSON:  Yes, coming to paragraph 8(ii).

PN160      

JUSTICE ROSS:  Yes.

PN161      

MR FERGUSON:  The provision dealing with the issue of the time between the end of the pay period and when the payment is due, and I think one of the decisions made the observation that in many, in most awards, that's an issue that's not necessarily dealt with currently.

PN162      

JUSTICE ROSS:  That's right.

PN163      

MR FERGUSON:  While ‑ ‑ ‑

PN164      

JUSTICE ROSS:  But if you don't tell them when the payment is due what ‑ ‑ ‑

PN165      

MR FERGUSON:  So we concede, you know, the thoughts of the proposition that there might need to be some obligation for when the payment is due, but I think there's a need to think through balancing that against what disruption to the current arrangements that might cause and against the proposition that, well, is this really causing difficulty at the moment in any event, and I raise that firstly in the context of existing award provisions.  So, for example, there may be awards, well, there are awards, that have annualised salary provisions.

PN166      

JUSTICE ROSS:  Yes.  There are about 15.

PN167      

MR FERGUSON:  Yes, pay averaging arrangements; provisions that might provide for RDOs and averaging ordinary hours and so forth that might traverse beyond a pay period, or by other amounts that might not actually be payable in that pay period.

PN168      

JUSTICE ROSS:  I'm struggling a bit with why annualised salaries creates a problem for specifying the end of a pay period, because the award still provides, for example, you get paid fortnightly, and your salary is annualised so it's averaged over the year, why is that a problem?

PN169      

MR FERGUSON:  I think that's right in that the annualised salary provisions have the effect of altering what might be payable in that pay period, so that you can – an amount might ‑ ‑ ‑

PN170      

JUSTICE ROSS:  Yes, but we're not dealing here with what's payable; we're dealing here with the how and the when they're paid.

PN171      

MR FERGUSON:  Yes.  But if an amount falls due within, say, a week, and it's a fortnightly pay period, it may be that that amount is not paid by a particular employer within seven days of the end of that pay period because it's smoothed out through some sort of annualised salary or pay averaging type arrangement.  I think where awards have got annualised salary provisions, and I don't have one to hand, the clause might rectify that issue by enabling the annualised salary to be paid so that over the course of the year all amounts that fall due are paid if you will.

PN172      

JUSTICE ROSS:  But isn't that a tailoring issue that we'd look at the award by award and you'd need to look at, well – and it goes, I suppose, the content of the term, and the accrual issue, and how you're deciding what is to be paid, and it may be that, you know, it's all wages due by the end of the pay period having regard to clauses X and Y.

PN173      

MR FERGUSON:  We say there's a reservation because it may be there are many resolutions to this that in the individual clauses within the award there could be some amendments that in short that doesn't contravene this.  It may be that annualised salary type provisions, or that this clause could rectify this issue, but I'm not sure, for example, that, given this obligation has existed in the past, that there's necessarily been an examination of every award, whether there should be an annualised salary provision that enables payments to be smooth if you will.

PN174      

JUSTICE ROSS:  There's an annualised salary Full Bench and it's dealing with the 15 applications and ‑ ‑ ‑

PN175      

MR FERGUSON:  It is, but, might I say, I appeared in that proceeding.

PN176      

JUSTICE ROSS:  Yes.

PN177      

MR FERGUSON:  This is a change that wasn't contemplated in the context of those proceedings.

PN178      

JUSTICE ROSS:  Sure.  But I don't think we're going to launch off into inquiring about whether every award should have annualised salaries.  It's ‑ ‑ ‑

PN179      

MR FERGUSON:  And I'm not sure we necessarily want to track down that path either, but that's why I'd say we have some reservation about the instruction that might flow from this and whether we can accommodate some sort of arrangement that enables ‑ ‑ ‑

PN180      

JUSTICE ROSS:  I suppose the issue becomes here is that there's a bit of regulatory gap, and it's not like annualised salaries because that might suit the circumstances, and the case will raise more questions than we currently have answers for, but where you have cyclical work and you want smooth payments, so that's why you have that.  They're driven by that sector; whether it's agriculture; whatever it happens to be, and it raises questions about well, what happens if someone's employment is terminated over the annualised period after the peak time and how do you deal with all of that?

PN181      

MR BULL:  Could I make a comment?

PN182      

JUSTICE ROSS:  Yes.

PN183      

MR BULL:  It does seem to me that disruption is a part of life and is a sort of a pejorative way to characterise change.  Some of the matters that Mr Ferguson has put to this meeting concern – you know, mistakes will always happen in managing a payroll, and that's not a reason not to have a certain provision in an award which gives a standard upon which behaviour should take place.  So, you know, you're going to have, you know, with annualised salaries there's a lot of provisions where they get a day in lieu and so forth.  That will be missed on occasions and so forth and it'll get picked up.  As we noted in some of our submissions there's an absence of litigation in the civil penalty litigation concerning these mistakes that routinely occur, and they're almost always fixed up by practical and sensible negotiation between employees and employers.  So I don't know whether – we're looking at a temple of perfection, a standard which I don't think is really helpful in determining what I believe that we've agreed to do.

PN184      

MR CLARKE:  Can I just take this back a step?  This idea that having a model clause recognising that that doesn't, you know, foreclose what people might say they want in their particular award for a particular reason; whether it's what they've currently got, or whether it's the model term, or something else completely.  I hear what you say, Brent, but I don't think that that should limit your capacity to say in the overall sense in which you opened the discussion that for the purposes of putting together a model term that this issue can be dealt with.

PN185      

If it gets to the point where there's a model term that does deal with the time between the end of a pay period and when payment is due that is incompatible with another arrangement in an award, there's a clear conflict, then that's something that's capable of being dealt with, but one of the reasons for me suggesting that some of these conferences might need to be conducted sensitively is that I suspect what your real concern is, is that there's a whole lot of annualised salary and pay averaging arrangements happening in workplaces at the moment that aren't based on award based arrangements.

PN186      

MR FERGUSON:  We would not be shy about it.  There are two concerns.  There was the direct inconsistencies with award provisions where there are pay averaging arrangements endorsed in a part of the sector.

PN187      

MR CLARKE:  Yes.

PN188      

MR FERGUSON:  That is one issue, and it's issue of tailoring, is it not?  There is a secondary, in that in probably a great number of industries there would be some persons employed on arrangements that would adopt an annualised salary type approach or a pay averaging approach that may embrace an overall component that is in satisfaction beyond that particular pay period.

PN189      

MR CLARKE:  Yes.

PN190      

MR FERGUSON:  If you were putting in place an arrangement like this it might have implications for the operation of those existing contractual arrangements.  It could be that in one pay period you now have to top up, so to speak, but you're not relieved of the obligation of providing any higher obligation in other pay periods.  I could think of examples.  There are a raft of industries where there would be people in certain classifications that, you know, they'd be paid above award, but not to the point of ridiculousness, but sufficient to cover the obligations, but this wouldn't be admissible any more.

PN191      

MR CLARKE:  If the small business owner, he says, "This is all too hard for me.  I know you're supposed to be paid $18.90 an hour, but I'll just pay you $25, whatever you work, and cross my fingers and hope for the best", now, I guess that ‑ ‑ ‑

PN192      

MR FERGUSON:  Or as the supervisor that falls within the award coverage.

PN193      

MR CLARKE:  But that's probably going to happen ‑ ‑ ‑

PN194      

MR FERGUSON:  But gets paid almost like a professional employee ‑ ‑ ‑

PN195      

JUSTICE ROSS:  Yes, yes, yes.

PN196      

MR FERGUSON:  ‑ ‑ ‑without the rigors of the application of all the award clauses and it's entirely appropriate, and no-one is worse off over the course of the period, and that's a ‑ ‑ ‑

PN197      

JUSTICE ROSS:  Or maybe they should look at an IFA.

PN198      

MR FERGUSON:  I understand it, and we've explained that as a reservation.

PN199      

MS WILES:  It's Ms Wiles here in Melbourne, sorry.  I was just wondering whether the parties at the Bar table just speak up a bit more.  We're just finding it a bit hard to hear.

PN200      

MR FERGUSON:  I'll speak a bit louder, with the proximity of everyone, not wanting to yell.  I understand that but because of this, it's come out of, not out of the blue, but out of some of the vacuum in terms of the examination of all of the practical issues.  I mean, I know from my own experience, and I'm sure other employer representatives would, those arrangements are in play, and it's not news to you, Trevor.  Where that's not necessarily operating inappropriately it's just whether or not this is causing an unintended consequence.

PN201      

MR CLARKE:  Yes.  We ‑ ‑ ‑

PN202      

MR FERGUSON:  But I started this with the proposition that we understand the force of the argument that there should be temporal obligation around when it applies.  We don't have the answer to that, and it may be, you know, we have some ideas floating around, but maybe over the course of this process something could be considered.

PN203      

MR CLARKE:  Yes.  But it may be some of those arrangements are compliant now.  It may be some of those arrangements are non-compliant now.  It may be some of the arrangements that the model term would make what is compliant now non-compliant in future, but we should have a frank discussion about what's actually happening to make sure that the people who are operating the business, and the people who are being paid, can have some confidence that, you know, these types of issues are being considered and the Commission has either made a decision that they're okay or they're not okay, and everybody knows what their obligations are.

PN204      

JUSTICE ROSS:  It may go to not just the examination of the award by award issue, but how you transition, and it may be that you provide more prospectivity with these sorts of changes, and we say, well, this will come in from this period, and it's at some future time.  But the challenge here, look, I accept that there are a whole raft of arrangements going on out there.  The problem is that for some of them they don't comply with the legal framework and the payment of loaded rates is the classic.  There's underpayment throughout hospitality and retailers.  They say a third, and it's probably much higher when you take out the majors from that.

PN205      

MR FERGUSON:  Yes.

PN206      

JUSTICE ROSS:  Because they're by and large going to be compliant, so the non-compliance amongst the small business sector in those areas is enormous, and the main reason for non-compliance is they're paying a loaded rate that doesn't compensate for all the penalties, and I understand why they pay a loaded rate for the reasons that Trevor has articulated, but it doesn't get away from the fact that it's not compliant.  We have to try and find a regulatory framework that's simple, easy to understand, and people know what their obligations, their rights and responsibilities are.  That may mean a bit of a shift for some of them, and at least an examination of whether they're going to continue with their arrangements, and if they do, then they have other avenues by which they can do that.  They'll have an IFA; they can have an agreement.  They can – you know.

PN207      

MR FERGUSON:  I understand the force of what you're saying, your Honour, and I think I used the term we need the balance that consideration against other considerations, and that's ‑ ‑ ‑

PN208      

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

PN209      

MR FERGUSON:  So we need to think through some of these issues because, you know, certainly where I've come across some of these arrangements, and it's not in those sectors necessarily, they're not arrangements that are not beneficial to employees, but some of the consequences that flow from this change which was not in anyone's contemplation could be somewhat unfair.

PN210      

JUSTICE ROSS:  Yes.

PN211      

MR FERGUSON:  So we raise it to be frank so that that's an issue that we can think through because we do see the force of the argument that there should be temporal obligation around when these payments are due.  It's just when you're filling a vacuum all of these other consequences might not be apparent and have to be weighed up, so I raise that just to ‑ ‑ ‑

PN212      

JUSTICE ROSS:  All right.

PN213      

MR FERGUSON:  Yes.

PN214      

JUSTICE ROSS:  But with the reservation about the need to look at these issues on an award by award and what's in the award and the current arrangements, I think that applies to each of the issues.  If you look at the four conceptually if we'd have a common term dealing with the payment of wages issue, would it cover those four?

PN215      

MR BULL:  Does that also deal with the accrual issue?

PN216      

JUSTICE ROSS:  No.  I'm dealing with accrual separately.

PN217      

MR BULL:  I apologise for this.  United Voice tuned out of this process a bit.

PN218      

JUSTICE ROSS:  No.

PN219      

MR BULL:  And I've reviewed the material over the last day or so, and ‑ ‑ ‑

PN220      

JUSTICE ROSS:  No, no, accrual is dealt separately later in the statement.

PN221      

MR BULL:  Right.  But on some levels it should be dealt with, I would have thought, under (ii).

PN222      

JUSTICE ROSS:  It may be.  It's not in awards that ‑ ‑ ‑

PN223      

MR BULL:  Between time and – anyway.

PN224      

JUSTICE ROSS:  Yes.  Ultimately it will be addressed one way or another.  Where it goes in a particular award might depend on the award structure and some awards currently deal with some accrual issues and some don't, but it's really come out of the timing of payment of wages.  If we start with those four, do we agree that those four are conceptual matters that should be dealt with if there's to be a model term?

PN225      

MR FERGUSON:  Yes ultimately.  Yes.

PN226      

JUSTICE ROSS:  All right.  Then I think within that if we get down to – let's just go through the rest of it and we'll come back to the detail, because I think the detail is probably going to be something I'd prefer there was more bilateral discussion about, and it may be possible – because, look, in that context, there's at least the capacity for some give and take around the issue.  Your concern around casuals; your concern around some of the other issues, and I think you'd probably be able to resolve the public holiday weekend issue between you.  So rather than sort of get into a binary thing on each issue I'd rather look at a process that allows you to have those conversations and see where you get.  At least if you can't get a measure of agreement agreeing that those are the conceptual framework, if you can't get a measure of agreement within them at least give me a range of where your positions line up, and at the end of it I'll be looking for – and I'll have another conference just to clarify that we're all on the same sheet of music.  At the end of it I'm going to want to know, well, for example, the duration of pay periods; I think it's likely there's going to be some gap between you.  What's the process for us determining that at a conceptual level?  And just step it out again so you know in advance where we're going with it.  Do you want further written submissions and an opportunity?  Do you want us to decide on the papers?  How do you want us to deal with that issue, accepting that the award by award will follow that?  So it's the two things.

PN227      

At this meeting we'll try and get the conceptual agreement, and then at the end of the conference we'll have a discussion about, well, how much time do you need, and we'll have a short break then, so you can go away and talk to your various constituents, and including on the video.  We'll work out how we do that, so you can talk to the NFF but not the unions when you're talking.  You can talk to the unions in other states.  But I think that's probably going to be more productive at this stage.  I think if we get down to the detail too early we're likely to, you know, start bumping heads, and there's not going to be a capacity for flexibility.  So let's do it that way.  So I think agreement about those four broad issues.  There are various ways that are put forward about dealing with the Acts Interpretation Act issue and how all that intersects.

PN228      

If we then move to the timing of payment on termination.  We've dealt with this in the December decision, and confirmed the provisional view, so you were at a slightly different point than where you are on the other.  Again, there's utility in – it's not really doing more than reflecting what you agree; that there's utility in uniformity but there's an acceptance that each modern award must be reviewed, and the only difference here is that, well, there'd have to be sound reasons for departing because termination is one of those things that, on the face of it, people should be entitled to be told what they're going to be paid out on termination, and when they're going to get the money.  But it's in the same broad frame.

PN229      

In 15 there appears to be broad agreement there should be clarity around the timing of payments and the amount that must be paid, but that issue of the amount that must be paid requires further examination, and this is the accrual point, and there's the joint submission from Mark Irving and Andrew Stewart that wages accrue on a day-to-day unless there's an industry requirement, for example, for hourly, et cetera.

PN230      

If we go to the termination.  Where's that?

PN231      

MR FERGUSON:  117.

PN232      

JUSTICE ROSS:  117.

PN233      

MR BULL:  I might add we haven't made a written submission in relation to that.  We made submissions prior to the decision, and I suppose, with the reservations made in our earlier material, we're probably able to live with what the Commission is proposing as a model term.  I make that broad statement.

PN234      

JUSTICE ROSS:  I think the next step is really to look at that further process and to look at the accrual issue.  I think everyone has made submissions about the model term content and we can determine that unless you want a further process or further discussion, or a further opportunity for an iterative process between the two main bodies.  How do you want to deal with that?

PN235      

MR CALVER:  Your Honour, the submission by Irving and Stewart is that a small change to paragraph 117, the insertion of the word "accrued" before the word "wages" at clause (a)(i).

PN236      

JUSTICE ROSS:  Yes.

PN237      

MR CALVER:  We just endorse that that would be suitable as a way to deal with issues they've raised in their submission.  I think that's the best part of their submission rather than the detail of the (indistinct) and the like.  The simple suggestion at the commencement of their submission which they proffered as a way to solve the problem that they go into the same detail, so I would suggest that I would get the ball rolling by saying that we can agree that the addition of the word "accrued" there – and that, just checking the accounting standard, as to what the accountants will do in that context, it would be considered to be a liability within the accounting and therefore payable so that the common practice would be to treat it as a liability by way of accrual and clearly it would, once those words were added, be compliant with accounting standard AASB137, which I can provide your Associate.  That might help.

PN238      

JUSTICE ROSS:  Would we need to though also pick up their point, to simply insert that word wouldn't you need "wages accrue on a day-to-day basis" somewhere?

PN239      

MR CALVER:  You would need the basis upon which they accrued in the manner of the South Australian legislation that's been pointed out by the Full Bench, but wages could accrue consonant with the pay period unless the awards being examined would best lend itself to a different view of the accrual.  For example, as you said earlier, if it's a daily hire it accrues on a daily hire; weekly pay, it accrues on a weekly basis, but the provision does say, "an incomplete pay period on termination", and therefore that would cure the issue that you've just accommodated, so I believe ‑ ‑ ‑

PN240      

JUSTICE ROSS:  So an incomplete pay period wages would accrue day-to-day?

PN241      

MR CALVER:  It would be accrual in respect of that incomplete period that indication would be, so I don't believe that anything further would be required other than what Irving and Stewart have suggested given that current wording, and I did look at that before I came.

PN242      

JUSTICE ROSS:  Okay.  Isn't the problem with that, that if the award, depending on its context, says wages accrue weekly or daily with daily hire, let's take the ones that accrue weekly.

PN243      

MR CALVER:  Yes.

PN244      

JUSTICE ROSS:  Then simply putting "accrued" in the termination provision doesn't sort of deal with the problem, and the problem is that incomplete pay periods where wages are assumed to accrue weekly, but there's no explicit – someone who works four days out of the five doesn't get paid anything, so it's really their whole submission is directed at, well, how do you overcome that inequity and you overcome it and there's, you know, various unions have come the other way and said, well, it, you know, minute by minute, let's look at the extreme end of it, but arguing for a lower basis, but at least accruing day-by-day addresses part of the – and I accept that minute by minute would address it absolutely then it's a question of retention and regulatory burden and all the other issues but ‑ ‑ ‑

PN245      

MR CALVER:  Your Honour, it seems that with the pay period the word "accrues" occurs in the context there and then it says, "for any complete or incomplete pay period" then the notion of when the time period for accrual occurs, it doesn't need to be answered in that context.  I would imagine that's why they've suggested that that simple addition would cure the problem, with respect, your Honour.

PN246      

MR FERGUSON:  May I ‑ ‑ ‑

PN247      

JUSTICE ROSS:  Yes, but the tricky thing is that we're dealing with payments on termination and we're in this sort of regulatory morass in that you accrue leave under the NES on an hourly basis.

PN248      

MR CALVER:  Yes.  Yes.

PN249      

JUSTICE ROSS:  So your payout on accrued leave is done hourly but your payment of your actual wages might be done – you wouldn't get anything unless you've done a completed week.  That's also against the background, I might say, where I don't think there are too many employers out there who are taking the legal point.  But it's better to be clear about what they are obliged to pay.

PN250      

MR CALVER:  To respond to your point, if I may, about the accrual of annual leave, that's dealt with in section 90 subsection (2).

PN251      

JUSTICE ROSS:  Yes.

PN252      

MR CALVER:  That is a complete code about that; that particular payment.

PN253      

JUSTICE ROSS:  No.  That's right.  I'm just pointing out the contradistinction between it's sort of odd that it's a payment that'd be made on termination, your accrued leave, right, and it's calculated on a particular basis, and yet wages, which are a significant income source for employees, there's nothing.

PN254      

MR FERGUSON:  Yes.  But there are ‑ ‑ ‑

PN255      

MR CALVER:  Before I turn to Mr Ferguson, I would suggest that the clause not essentially deal with those issues at all other than mention them.  For example, the New South Wales Long Service Leave Act, for example, says that if you resign and you're entitled to long service leave you are deemed to immediately be on long service leave which is the trigger for that.

PN256      

MR FERGUSON:  A payment.

PN257      

MR CALVER:  Rather than accrual.  That is something that awards should not deal with in my respectful view.

PN258      

JUSTICE ROSS:  They can't deal with long service leave.

PN259      

MR CALVER:  Yet that's been raised by the ACTU as an issue.  I think that going back to the simplicity that's required if Irving and Stewart and proffered that as a means of solving the problem then I believe, having looked at the issue, that they have come up with a simple solution to a very complex problem made themselves by the enterprise, so ‑ ‑ ‑

PN260      

MR FERGUSON:  No, no, I just – I mean, we didn't wish to raise any particular issue about the model clause in this regard because we anticipated there might be ‑ ‑ ‑

PN261      

JUSTICE ROSS:  No, it's really only the accrual point.  I think we're ‑ ‑ ‑

PN262      

MR FERGUSON:  On the accrual point, I think ‑ ‑ ‑

PN263      

JUSTICE ROSS:  Yes.

PN264      

MR FERGUSON:  I think it might, some small number of awards where a divergent approach is required, and my mind goes to the Transport and Long Distance Award where there ‑ ‑ ‑

PN265      

MR CALVER:  Yes, cents per kilometres.

PN266      

MR FERGUSON:  Well, more than cents per kilometre.  There's a minimum fortnightly payment which applies under that as a sort of safety net which is very much the concept that applies, from my recollection a weekly or fortnightly basis.

PN267      

JUSTICE ROSS:  So what happens if someone leaves within the fortnightly pay period in transport?

PN268      

MR FERGUSON:  I hesitate to say it because I don't have it in front of me, there are arrangements that deal with absences and so forth.

PN269      

JUSTICE ROSS:  Yes.

PN270      

MR FERGUSON:  I say this that there are clauses like that in other awards where payment on a weekly basis is probably the norm because of the nature of the work and I'm thinking of the sub-professional.

PN271      

JUSTICE ROSS:  Yes.

PN272      

MR FERGUSON:  So we don't want to raise it now.

PN273      

JUSTICE ROSS:  No, no.  Let's just think about, well, how do we deal with it.

PN274      

MR FERGUSON:  Yes.

PN275      

JUSTICE ROSS:  Each of you have made you submissions about the provisional model term.  You have put in the stuff.  We can make a decision about that.  What you don't deal with in your argument is the response to this accrual point and the point that Irving and Stewart have raised and that's the issue.  There are two questions for you.  One, on that issue, it seems to me you should be given an opportunity to say what you want to say about that and we can deal with the timing at the end of this, but there was a bit of a ships passing in the night.

PN276      

They put in their stuff and some of you addressed it, some of you didn't.  I just want to make sure that everyone has had an opportunity to say what they want to say about the accrual point.  That's point number one.  Point two is, accepting that you have put in your material on the model term and we can decide it on the basis of what you have put in and what you have argued.  Do you want a further opportunity to have a collective discussion between the two groups to see if there is any capacity for you to narrow where you were up to?

PN277      

MR IZZO:  If I might just address that briefly, your Honour.  From our perspective, the issue with the model term, the Commission provided to all parties a provisional term for consideration.  We actually had a hearing.

PN278      

JUSTICE ROSS:  Yes, yes.

PN279      

MR IZZO:  We pushed for a certain cause, the unions pushed for a certain clause and then the Commission came down with its decision.  So I think we would be reluctant to reopen the entirety of whether this model clause should go in or whether the period after termination should be seven days or the pay cycle because we've kind of made that argument.

PN280      

JUSTICE ROSS:  No, no.  It may be that - and it was certainly only raised because of the accrual issue and there doesn't seem to be - that's the issue where there is incomplete argument.  So, no, that's fine.  Let's look at then - I don't want to reopen an issue that's been resolved, but the accrual point hasn't been.  How do we deal with that?  I don't think just from what we've heard we are going to get much agreement on it.  So then if that's the case, even apparently on agreement about whether we have a period of accrual other than the change suggested by Irving and Stewart which, of course, only begs the question:  if it refers to accrued, well, how do you accrue and how do you answer that?  So how do you want to deal with that?

PN281      

MR IZZO:  Your Honour, in relation to that, my understanding from Mr Ferguson said, and I'm happy for him to correct the position as I understand it, but we were going to advance a position that from ABI NSWBC perspective, we do not have a concern with a provision clarifying the basis upon which wages accrue and nor for it accruing on a day to day basis, subject to there being, if there is a particular issue in any award, we'd have to look at that and that's your road transport, et cetera.  So I think - - -

PN282      

JUSTICE ROSS:  Yes, and it may be other awards.

PN283      

MR IZZO:  So, I mean, that's the position we're advancing.  I haven't yet seen in any of the submissions an employer advance a different position.  So if all employers are generally comfortable with day to day basis subject to the handful of awards where there might be an issue, then we may be in a position that we can almost reach a consent if the unions are also happy with day to day basis.

PN284      

JUSTICE ROSS:  What do you say about casuals?  Because normally a full-timer or part-timer is employed on a particular basis for a day or at least, you know, some minimum.  But casuals, the nature of their work, it is almost hourly engagement model.

PN285      

MR IZZO:  There's some subtlety to that, though.

PN286      

JUSTICE ROSS:  Is almost, but, yes.  No, sure.

PN287      

MR IZZO:  I think we might have to think about that.

PN288      

JUSTICE ROSS:  You might have to think about that.  Yes, well, that may provide a basis for an agreement between the two parties subject to, you know, the reservations you've got about, well, in a particular sector we think it's different.  But we're here dealing with whether or not particular award-specific circumstances might warrant a different approach.  We're here looking at the vast majority where there's really not much clarity at the moment.  In those cases, well, perhaps I put it forward as something for you to think about and then have your direct discussions about it and see if that's a basis for going forward.  If it's not, then articulate what your respective positions are and we'll then finalise that decision and get on with it.  But the proposition is this, that we pick up the Irving and Stewart suggested change to the clause.  We identify that wages are accrued.  We'll come up with something.  Wages are accrued on a - - -

PN289      

MR CALVER:  You have, your Honour, already paragraph 133, with respect.  Pardon me, that might seem to be an interruption, but I took my comments from that the model paragraph is intended to insert a wage claim to accrue under the award by the end of each pay period.  A point that I made earlier.  So I was merely emulating the conclusion that the Full Bench expressed, I say that not to be impertinent.

PN290      

JUSTICE ROSS:  No, no, no.  But the accrual point is - and it may be for you to think about that in respect of full time and part time employees, accrual daily, and in respect of casuals, accrual hourly, and see whether that is a basis on which you can go forward.  Bearing in mind that there is certainly some union interests who prefer accrued by the minute for all employees and from your perspective, you know, you will be wanting to know - wanting to look at, well, what does it mean for casuals.  You can think about that and I don't want you to respond to it now.  So just think about is there going to be an agreed basis on it.  If there isn't, then work out a process, put in what you say and we'll make the decision.

PN291      

MR BULL:  Can I make a comment about accrual?

PN292      

JUSTICE ROSS:  Yes.

PN293      

MR BULL:  I will just say that these are provisional thoughts.  In terms of dealing - it's a drafting nightmare to try and have a model clause where you deal with casuals because there is all sorts of different casuals.  There's regular casuals.  But the concept of having a standard of a daily accrual is a compromise which would perhaps resolve some of the draft principles with casuals.

PN294      

JUSTICE ROSS:  Yes.

PN295      

MR BULL:  And I can't say we agree to it because I haven't consulted, but it's something where I think if there is good will in this process having daily accrual and it's only the crystallisation of the obligation.  You don't have to pay them every day.

PN296      

JUSTICE ROSS:  No.

PN297      

MR BULL:  It seems to me a reasonable pragmatic compromise and casual employment - because obviously the problem with casual employment, you have people who are truly casual who work one or two days and never work again.  Then you have people who are, in effect, well, I use the term "regular employees".  I just make that comment.

PN298      

JUSTICE ROSS:  I think the problem becomes where given there's an absence of clarity about accrual in awards and if a presumption is made that an award currently provides employees are paid weekly, if following the Irving/Stewart argument, well, the assumption then is that they accrue weekly.  Well, for casuals who only work occasionally, you know, might only work a couple of times in a week, that may mean they have never completed and it's how do you deal with those issues and it is a very different issue from payment.  It will still be they're not paid at the end of each day.  It's just if their employment comes to an end, you want to make sure that if they've worked a couple of days, whether as a full time, part time or a casual over a period of a week that they're paid for that rather than the current arrangement which technically there may be no entitlement to payment.

PN299      

MR CALVER:  Without conflating the two notions, your Honour, the practical point is that for a normal pay cycle the casual, albeit having their wage accrued by the hour would be paid for that pay period.

PN300      

JUSTICE ROSS:  Yes.

PN301      

MR CALVER:  That's why it doesn't in practice, in my submission, cause any difficulties.  It's only on termination of employment.

PN302      

JUSTICE ROSS:  That's exactly right.

PN303      

MR CALVER:  And that's why the notion of an incomplete pay period accruing wages in that way, I think there's a very good solution to that problem.  I think that treating casuals differently in specific terms that either of those clauses is unnecessary and out of the mouth of Irving and Stewart themselves as a solution to their problem, I think that they have come up with a nice - - -

PN304      

JUSTICE ROSS:  It may be that Stephen is putting the same thing.  I just want to make sure that you've got enough time to think about and come up with something.  We are only here dealing with, the essence of it is, where the rubber hits the road is, the payment on termination for a partly completely pay period.  So let's sort of focus on that.  Let's focus on what's the vice.  The vice is that at the moment for a partially completed pay period there may be no entitlement to be paid for the work that's been done during that pay period.  And I think there's general agreement, well, that's a bit tough.  So we should do something to make sure that there is an entitlement.

PN305      

It's really just I want you to have a discussion about that.  How do we address that issue and I think it would be useful for you to have a bilateral discussion about that and see where you go.  I'll give you time to think through, but let's focus on what the problem is.  We're not talking about casuals being paid for the completion of each hour of work.  We're not talking about people being paid at the end of each day as being some industry norm.  We're talking about payment on termination for partially completed pay periods.  And what ought to be the provision that applies there.

PN306      

MR CALVER:  Your Honour, having read the decision again this morning, it's fresh in mind that at paragraph 136, the Full Bench put out a plea to the Fair Work Ombudsman.

PN307      

JUSTICE ROSS:  Yes, we haven't heard anything.

PN308      

MR CALVER:  Then perhaps that silence rings hundreds of bells.

PN309      

JUSTICE ROSS:  I'm not sure what it rings.  It might ring the fact that they're knee deep in 7-Eleven - - -

PN310      

MR CALVER:  Other matters.

PN311      

JUSTICE ROSS:  - - - and every other issue they've got.

PN312      

MR CALVER:  Would it assist the Commission if there is some communication with the Fair Work Ombudsman on an informal basis?

PN313      

JUSTICE ROSS:  I think they have sent something.  I think they have sent something in saying, no, they've got - - -

PN314      

MR BULL:  Can I tell you what I do?  I wait a month.

PN315      

JUSTICE ROSS:  Generally, Mr Bull, or just about this?

PN316      

MR BULL:  No, you don't know what I do generally.  I wait a month because sometimes we get, you know, where there's mass redundancies.

PN317      

JUSTICE ROSS:  Yes.

PN318      

MR BULL:  You know it's coming and you know they're not going to pay them properly, so, you know, you've gone through processes of negotiation and so forth.  And increasingly, I don't do a lot of them, I usually help out smaller branches, there is non-payment of accrued leave, there's no notice given, there's the fight over redundancy pay and the ordinary customary turnover of labour and so forth.  And also increasingly there is non-payment of long service leave entitlements.  You know, when we're doing civil penalty proceedings, some of these, they frequently settle.

PN319      

JUSTICE ROSS:  Yes.

PN320      

MR BULL:  My practice is I wait a month because if they haven't paid them after a month, s.323, I take that to mean that you have got to pay after a month from the termination and if you haven't paid after a month, you're in default.

PN321      

JUSTICE ROSS:  But do you find any instance of this partial non-payment or is it just more - - -

PN322      

MR BULL:  It's all partial non-payment.

PN323      

JUSTICE ROSS:  Yes, so it's a broader issue than the no payment.

PN324      

MR BULL:  Because they usually pay the wages, but they don't pay the other bits.

PN325      

JUSTICE ROSS:  It's certainly the case that most prosecutions are resolved by consensual statements of fact and a plea and it comes down to - - -

PN326      

MR BULL:  Commercial settlements I think - - -

PN327      

JUSTICE ROSS:  It comes down to a penalty payment and in the wash-up of all of that, these issues are probably addressed.  But, of course, you know, at the prosecution end we are seeing a tip of an iceberg.  As the Ombudsman field report showed that they prosecute this group but whenever they do a compliance check in a sector, they turn up a raft of other things and it's really about around clarity.  I don't subscribe to the view that we have got millions of employers out there trying to find every possible way to circumvent the regulatory framework.  But when the regulatory framework is not clear and you don't give any guidance, well, you get what you pay for.  You will end up with non-compliance or various ways of purported compliance where they may be thinking they're doing the right thing, but in reality they're not.  But I do think with this accrual thing there is scope for some discussion.  So there are two.

PN328      

Let's go back to - we have the four items, conceptual items, in the timing of payment of wages and we've got how do we deal with this accrual point in respect of partial payment on termination.

PN329      

MR FERGUSON:  I think there are some other issues that potentially - - -

PN330      

MR THOMAS:  Can I just ask, your Honour, as far as the payment on termination, we have got the provisional clause that was in the December decision.

PN331      

JUSTICE ROSS:  And we have heard submissions about that.

PN332      

MR THOMAS:  So, in effect, that clause - - -

PN333      

JUSTICE ROSS:  We will decide, yes.  No, no, well, we will.  Yes, we will.  We will deal with it.

PN334      

MR THOMAS:  So the only issue - --

PN335      

JUSTICE ROSS:  That is we will implement - we have confirmed the provisional view.  We will implement the draft variation determination, et cetera.  I think that's where that's up to.

PN336      

MR THOMAS:  Even though there is the original clause on the payment of wages as well.

PN337      

JUSTICE ROSS:  Yes.

PN338      

MR FERGUSON:  There's two.

PN339      

MR THOMAS:  It is a different one.

PN340      

JUSTICE ROSS:  Yes, it is different.  One is dealing with termination.

PN341      

MR THOMAS:  Yes, and one - - -

PN342      

JUSTICE ROSS:  And the other is with your regular weekly, fortnightly, monthly pay.

PN343      

MR THOMAS:  Yes, but we're still addressing just normal payment.

PN344      

JUSTICE ROSS:  Yes, we're still doing that.

PN345      

MR THOMAS:  But not payment on termination of employment.

PN346      

JUSTICE ROSS:  Not the other, no.  Well, except for the other one.

PN347      

MR THOMAS:  Except for the accrual point.

PN348      

JUSTICE ROSS:  Except for the accrual point.

PN349      

MR THOMAS:  Yes, I understand.

PN350      

JUSTICE ROSS:  Yes, I think everyone has had their chop at the other one, but it's the accrual point where there hasn't been enough discussion and there needs to be some sort of process.

PN351      

MR CLARKE:  Can I just say with the termination clause from the 1 December decision, the process there was that we put in submissions about more than just the accrual term and then - - -

PN352      

JUSTICE ROSS:  No.  Yes.

PN353      

MR CLARKE:  Yes.  I thought you were saying that's it.

PN354      

JUSTICE ROSS:  No, no.

PN355      

MR CLARKE:  Yes, okay.

PN356      

JUSTICE ROSS:  I think in that one you've already put submissions on the termination term.

PN357      

MR CLARKE:  In response to the 1 December decision.

PN358      

MR FERGUSON:  There are other issues.

PN359      

JUSTICE ROSS:  What are the other issues?

PN360      

MR FERGUSON:  So one issue, I don't know whether there is utility in discussion this now with yourself, your Honour.

PN361      

JUSTICE ROSS:  Yes.

PN362      

MR FERGUSON:  One is around the rate of pay that is regulated by this clause.  Is it only amounts that are payable pursuant to the award in the NES that the clause proposes to regulate the payment of?  Or is the clause proposing to regulate the payment of over-award payments?

PN363      

JUSTICE ROSS:  Don't you deal with that in your written submission?

PN364      

MR FERGUSON:  We do and it's whether there is any utility in that or not.  We dealt with it comprehensively.

PN365      

JUSTICE ROSS:  I think it's been responded to.  I think if there is any gap when we are going through the submissions we can identify that and seek further comment but - - -

PN366      

MR FERGUSON:  I suppose in the course of discussions if employers are thinking about:  "Well, are we going to be reasonable about this accruing point?  Are the other parties going to look at accommodating the concerns we've raised in relation to the rate of pay that would be regulated?"  The only other issue I raise is the operation of section 120 which perhaps is a technical point and is best dealt with by the Full Bench.

PN367      

JUSTICE ROSS:  This is the redundancy point.

PN368      

MR FERGUSON:  This is the redundancy point where we - - -

PN369      

MR BULL:  It's the application to avoid redundancy.

PN370      

JUSTICE ROSS:  I think that's been - but that's been - you've ventilated those issues in the written submissions, haven't you?

PN371      

MR FERGUSON:  That's a technical point to an extent for the Bench because I think - - -

PN372      

JUSTICE ROSS:  I think the same could be said about the unions.  They've argued on particular issues and wanting a particular outcome.  But it did seem that once you look at it, everything has been pretty much ventilated except the accrual points that slipped in there and nobody really - or not everybody addressed it in their reply submissions.

PN373      

MR FERGUSON:  No, I'm talking about whether the parties want to have a degree of control over this and about the payment of wages issue, whether that in the course of - - -

PN374      

JUSTICE ROSS:  You'll need to be quick.

PN375      

MR FERGUSON:  That's what I was getting at.

PN376      

JUSTICE ROSS:  Well, look, it's if you do, you do, but I'm not encouraging you to do it.  It's a matter for you to.  You can always have discussions and if you accommodate on a position and you want to put in a further submission then - joint submission - then that's fine.

PN377      

MR BULL:  Can I be very quick on above-award payments?

PN378      

JUSTICE ROSS:  Yes.

PN379      

MR BULL:  I don't know what that has got to do with this process because and above-award payment is going to be essentially - it will be a common law contract between the employer and the employee and - - -

PN380      

JUSTICE ROSS:  Well, that's AI Group's position.

PN381      

MR FERGUSON:  I'm very hardened by that submission.

PN382      

MR IZZO:  We have advanced that position.

PN383      

MR BULL:  But it's determined by how that contract operates.

PN384      

MR IZZO:  Unless the award requires it to be paid.

PN385      

MR BULL:  But the award can't - if it's above award, the award can't regulate an above-award common law contract.

PN386      

MR FERGUSON:  It shouldn't.

PN387      

MR BULL:  If you want to have the above-award common law contract, you know, the termination paid six months later or whatever, you can agree with that.  But it's just as a matter of practicality.

PN388      

MR IZZO:  Stephen, that means you will no objection then to the provision.

PN389      

MR BULL:  You want to clean the slate and that's why - - -

PN390      

MR IZZO:  You would have no objection then to the provision saying that the clause is referring to payments under the award of the NES on the basis of what you have said.

PN391      

MR BULL:  In principle, no.

PN392      

MR IZZO:  Well, that's obviously submitted.

PN393      

JUSTICE ROSS:  Yes, I'm not even sure that's a unanimous position on your side of the Bar table.

PN394      

MR BULL:  Well, anyway, I just raise it.

PN395      

MR FERGUSON:  Hence I raise this as possibly meriting discussion.

PN396      

JUSTICE ROSS:  I mean, I don't want to confine - up to the point of decision you can advance whatever you want and have whatever discussions you want and we won't be dealing with the decision until I hear from you about the accrual in any event because that's part of the consideration.  If you want to have the conversation then that's fine.

PN397      

MR BULL:  But I don't understand administratively why an employer would want to have the complexity of having to deal with two lots of termination.

PN398      

JUSTICE ROSS:  No, they probably wouldn't, but - - -

PN399      

MR BULL:  It just seems to odd to me and it's these sort of - I use this term - red herrings that seem to pop up in this process that I don't think are very helpful.

PN400      

JUSTICE ROSS:  In any event, do you want an opportunity now for perhaps, firstly, if we have the unions talking to their people interstate and just working out what's the timeframe and is there anything else.  But bearing in mind, there are the two issues that I want you to focus on and see if you can reach a collective position on each side and then engage and see how you can move it forward.  It's on the - what's the content of the four conceptual issues that are identified in paragraph 8 of the statement on the timing of payment of wages.  And the second point in relation to payment on termination, how is this accrual issue that we've been talking about to be dealt with.  So there's probably a two-stage process from your perspective, Trevor.  There's how much time do you need to round up your interests and then how do you want to engage with the employers.  The employers, same thing.  And try and get one person that will do the interaction rather than me getting ten emails from each side about the blow by blow about where you're up to and how much more time you need.

PN401      

But I would be sort of looking at, well, at what point - really, the only thing that matters to me is when are you going to come back with something that's going to set out where you've got to, the extent of any measure of agreement between the two groups and if it's not agreement then what's the area of disagreement and then what further opportunity do you want and I'll expect that to be agreed, just short directions in draft about the filing of anything extra, if that's what you want to do and how you want any outstanding issues resolved.  So for me, it's really only how far out are we looking at for that.  Are we looking at four, six, eight weeks?  What are we looking at?  I don't need to know the interim step about, you know, how you are going to get to that point.  Okay?

PN402      

MR BULL:  Do we talk about increments of time, months, years?

PN403      

JUSTICE ROSS:  I think realistically you're probably - my level of anxiety is going to go up the further you get away from the end of July for coming back to me because I just think, you know, at some point that we're going to need to - because even after that, even if it's mid-July you're back to me, you're still going to have, I suspect, some issues where you haven't agreed and you're going to want some submission process and I'd want that timeframe relatively confined on that so that we have got some prospect of trying to deal with the issue at a conceptual level in September/October because then we have got the award phase and it might be a more detailed award phase for these issues than it has been for some others.

PN404      

So that might give you some benchmarks around the when because I know you're all keen to bring the four yearly review to an end, so you might bear that in mind when you think about the timeframes because I want to give enough for that award process.  I don't apprehend that it will be much more than a fight around the usual suspects, but, you know, that's usually a fairly vigorous process and parties want an opportunity to argue for what they want.  So the sooner we get to that point, we'll be able to give them more time for that opportunity.  Can I just check which unions have we got interstate?  We have got you, Ms Wiles?

PN405      

MS WILES:  Your Honour, in Melbourne it's the TCFUA and the SDA.

PN406      

JUSTICE ROSS:  Yes, and we have got in Adelaide, I think?

PN407      

MS RODGERS:  Yes, thank you.  It's the Meat Workers Union, the Australasian Meat Industry Employees Union (indistinct).

PN408      

JUSTICE ROSS:  What we might do is I will just ask the employers to - I'll vacate the room.  We'll vacate the room for ten minutes and if the NFF would mind doing the same and then if you come back in ten minutes and then the employers will - - -

PN409      

MR IZZO:  Your Honour, can I just get the phone number again of the NFF?

PN410      

JUSTICE ROSS:  Yes, sure.

PN411      

MR IZZO:  Then we can speak to her.

PN412      

JUSTICE ROSS:  We will tic tac and we'll come back at 12 and sort out what the next step is.  That will give you a chance to talk to each other about where you have both got to and it may be that you can keep tic tacking and when I get back, we'll have an agreement.

PN413      

MR IZZO:  So we can just get your phone number?  Can we have a phone number for the NFF representative?

PN414      

MS PEARSALL:  I actually have left my phone behind at the office today, unfortunately.

PN415      

JUSTICE ROSS:  Where is she?  In Canberra?

PN416      

SPEAKER:  Yes, yes.

PN417      

JUSTICE ROSS:  You're in Canberra?  That's okay.  We'll get a registry number to Mr Izzo and we'll call you and we'll get someone from the registry to come out and give you the phone.

PN418      

MS PEARSALL:  Thank you, your Honour.

PN419      

MR BULL:  Can the court turn the listening device off or - - -

PN420      

JUSTICE ROSS:  Yes, sure.  No, certainly.

PN421      

MS PEARSALL:  (Indistinct).

PN422      

MR IZZO:  I have read some interesting transcript from just last week (indistinct).

PN423      

JUSTICE ROSS:  No, no, we'll turn off the - - -

PN424      

MR BULL:  No, well, I - you know - - -

PN425      

JUSTICE ROSS:  We'll turn off the recording.

PN426      

MR IZZO:  (Indistinct) abuse of process.

PN427      

JUSTICE ROSS:  We'll turn off the recording now and we'll come back at 12 and I'll see where you're up to then.  All right, thanks.  See you shortly, thanks.

SHORT ADJOURNMENT                                                                  [11.40 AM]

RESUMED                                                                                             [12.18 PM]

PN428      

JUSTICE ROSS:  How did you go?

PN429      

MR IZZO:  Fixed it.

PN430      

MR BULL:  Seven weeks.  You don't have to do anything.  The employers have agreed to pay everyone instantaneously as soon as the employment relationship ends.

PN431      

MR FERGUSON:  To their phone.  To their phone.

PN432      

MR BULL:  To their WeChat account.

PN433      

JUSTICE ROSS:  Yes.

PN434      

MR CLARKE:  It's going to take us seven weeks internally to sort of come up with something at which point we exchange that and have some discussions with the employers about that.  That would encapsulate the issues about the first model term as well as the issue of accrual.  We may or may not throw something else in there about the termination clause.  It depends on what we can get to - where we can get to on it, but we're suspecting that we're probably going to ask for that bit to actually get the hearing that was going to happen a month or so ago on that.

PN435      

JUSTICE ROSS:  Yes.

PN436      

MR CLARKE:  But we would appreciate the opportunity once we've exchanged the material and had some additional discussions to ask if you could help us through that.

PN437      

JUSTICE ROSS:  Yes, sure.

PN438      

MR CLARKE:  If you or a member of the Commission could help us through that.

PN439      

JUSTICE ROSS:  So what date are you likely to reach a position where you've got as far as you are and, for example, you might have a draft that will report on where you're up to and then we can have a conference at that point and see whether a bit more movement can be had.  Is that what's in mind or - - -

PN440      

MR FERGUSON:  I think what we envisaged is that we would exchange something between ourselves in seven weeks.

PN441      

JUSTICE ROSS:  Yes.

PN442      

MR FERGUSON:  And then just discussion.

PN443      

JUSTICE ROSS:  Then you are going to discuss it directly or - - -

PN444      

MR FERGUSON:  Discuss it directly and seek - this is to the Commission - if we think as a group that will assist.

PN445      

JUSTICE ROSS:  No, that's fine.  Yes, yes, okay.

PN446      

MR FERGUSON:  But there be a time limit on all of that for a further seven weeks at 11 August.

PN447      

JUSTICE ROSS:  Yes.

PN448      

MR FERGUSON:  And I appreciate what you have said about end of July.  We did have a careful look at the diary and we thought that marginally moves beyond the end of July and we have lots happening.

PN449      

JUSTICE ROSS:  I don't think the calendar has changed, but, yes, okay.

PN450      

MR FERGUSON:  No, no, we are trying to look at the first half of August is what we were thinking to call time on it.  Now, of course, we may get where we get well before then.

PN451      

JUSTICE ROSS:  Yes, okay.

PN452      

MR FERGUSON:  And that may be obvious especially if we call for the assistance of the Commission at some point if there's no points.

PN453      

JUSTICE ROSS:  No, that's fine with me.  If you can also in the exchange and the discussion just give some thought to, well, those matters where you're not able to land on an agreement, and there may be some.

PN454      

MR BULL:  That might be an easier list to put together.

PN455      

JUSTICE ROSS:  Then what's the process for that?  That also needs to bear in mind that that might be a fairly tight process because there's nothing to stop you working on that stuff now.  So what I want to avoid is that, well, then that process takes us into next year and we're deciding the issue in February or March next year, then we've got to do the award stuff and we won't be done until the end of year.  So I want to try and work backwards a bit so that we can try and at least make some determination in October of the issues that are outstanding.  Then you'll at least have, well, these are the final model provisions.  Here's the stuff that's going on awards and then we move to the award phase and that will then take us probably through the rest of this year and into a bit of next year.  So give it as much thought to how you see it playing out and if you've got a view about - because it may suit certain parties in the award phase to go first.  And if you've got a view about that then let us know about that and we can start to plan around those issues as well.  It may be it can be heard with another matter.  Construction has always got something going on, so we can roll it in with something - - -

PN456      

MS ADLER:  (Indistinct), your Honour.

PN457      

JUSTICE ROSS:  You can roll it in with something else you're already doing.  But, you know, you might have another thing that's going that the parties think, "Well, we'll do it all at once."  Or it may be that because there is something else, you want to pace it and you want to make sure we don't bump into the other issue.  So just give some thought to that and we can wrap that up when we come back.  From my end, what I'll do is put out - talk to the Bench, put out a statement by the end of next week.  That'll just give a bit of a timeline of what we've done so far.  That is, the provisional view, what we've decided, where we're up to, what submissions we have received, so we'll have all the links to that.  And it may be when you look at that you might decide, "We don't actually need to say anything more about those issues, but we want to deal with something else."  And it will set down what the process is from this and we'll see how we go.

PN458      

MR THOMAS:  When it comes to the award phase, your Honour, the earlier - - -

PN459      

JUSTICE ROSS:  I am sure we will be looking at Black Coal separately.

PN460      

MR THOMAS:  - - - you have mentioned a number of things such as context and that applies equally to payment on termination as it does to payment of wages generally.

PN461      

JUSTICE ROSS:  I think we have already made some comments about payment on termination.

PN462      

MR THOMAS:  Yes.

PN463      

JUSTICE ROSS:  So whatever the Bench has said about that on the award phase we would be right  I was really - I think it probably applies more particularly with the timing issues because payment on termination, really, the nub of the problem and the area of dispute is the timing question at the award level.  The other issues are probably capable of being sought.

PN464      

MR THOMAS:  Yes, I'm more interested in the timing.

PN465      

JUSTICE ROSS:  Yes, yes.  No, no.  I think, look, the timing issue will - - -

PN466      

MR THOMAS:  I thought something different to seven days.

PN467      

JUSTICE ROSS:  Yes, well, I think it's a similar sort of context and discussion.  It will be, well, what's the appropriate merit outcome in that case.

PN468      

MR THOMAS:  Yes.

PN469      

JUSTICE ROSS:  And when you're looking at that, you look at what are the current award circumstances, why it was put in there, what is the contemporary circumstance in industry and that will include both arguments around too restrictive, problematic, arguments around, well, it's all worked swimmingly and the fact is most employers pay by EFT.

PN470      

MR THOMAS:  I've got (indistinct).

PN471      

JUSTICE ROSS:  Yes.  So it's that sort of discussion.  I was more trying to draw a distinction between these matters and the annual leave matters because annual leave was fairly, well, reasonable minds might differ about this, but fairly straight forward in so much as there was a significant merit argument at the beginning around what all that would look like and the interaction with the legislation and then it moved to the award phase in circumstances where there was nothing in most awards anyway.  No provisions about cashing out leave in advance, et cetera, for most of the awards.

PN472      

Here it's a bit different.  One, we're not sure about the impact in each award context and these payment of wages issues require a sort of closer look at what are the other provisions in the award, how does it work at the moment, and there might be particular contextual questions that mean, you know, we need to proceed a bit differently.  So I just think there is probably - and it's only a gut reaction at this stage, but on what I have seen and the arguments, it does seem to me that it is really a closer more detailed look.  And there are plainly provisions in particular awards whether it's daily hire or transport that you look at them and you think, well, we need to think about how that's going to work.  And that's really the point of it.  So I think, look, more particularly timing of payment of changes.  Termination, a similar sort of process, but I think the debate is narrower there.  On what we have seen so far, the debate is narrower.  I don't think there is much dispute that people should know what they're getting and when on termination and even I think the issues about, you know, the range of descriptors, moneys, all that I think can be washed out.  Where the rubber hits the road is the timing.

PN473      

MR THOMAS:  Yes.

PN474      

JUSTICE ROSS:  And we will see where we get to on that.  Part of it will depend on - I have just gone through this process with retail trying to track through the history of Saturday loadings and - --

PN475      

MR BULL:  What decision was that?

PN476      

JUSTICE ROSS:  Yes, it's been a pretty arid exercise because you go back in time and there is no real reason for it.  We can't find them.  In that case, why is it that casuals don't get - - -

PN477      

MR BULL:  I think the term happen-chance.

PN478      

JUSTICE ROSS:  Saturday they get a different casual loading.  We just haven't been able turn up a reason.  We follow the process.  We know when it happened.  But finding out the why is a bit tricky.  So we will look at the history and we will try and do some of that work for you where we can once we know what the awards are in contention.  In some areas, the parties will know much more clearly what the history is.  In others, it's just a mystery.  All right.  We will adjourn and I will see you in eight weeks.

ADJOURNED TO A DATE TO BE FIXED                                      [12.27 PM]