PN1

THE VICE PRESIDENT: I will just take appearances. Mr Nguyen, you appear for the AMWU?

PN2

MR M NGUYEN: Yes, that's correct, your Honour.

PN3

THE VICE PRESIDENT: Ms Bhatt, you appear for the Australian Industry Group?

PN4

MS R BHATT: And for Toll, Vice President. Thank you.

PN5

THE VICE PRESIDENT: Thank you. Mr Nguyen, what's the progress with discussions in relation to your organisation's proposed helicopter award?

PN6

MR NGUYEN: Your Honour, the AMWU has further provided drafts of a revised coverage clause to the Ai Group and AMMA and also the solicitors representing private companies who have also been in attendance at some of our conferences. We had a further teleconference on 14 February where we discussed the AMWU's revised coverage clause and there were still some points of disagreement between the parties, in particular - Ms Bhatt will correct me if I'm not saying the right thing - but what I understand is that the employers want the union to be able to clearly identify to them where all of the employees who might be covered by this award currently exist. We can't do that because we don't have 100 per cent density of these types of employees, but what we can provide is ABS data, and which we have provided is the ABS data about this category of profession on a high level and the number of those people that exist in the economy. We have provided the key employers that we think exist in the economy who employ these types of employees, but we can't say specifically where every single one of them exists, and we don't agree with the employers that that's a threshold issue for us, bringing a claim to the Commission, and identifying this class of employees as needing to be covered by a modern award.

PN7

THE VICE PRESIDENT: Mr Nguyen, the four‑year review has to come to an end at some stage. Is it your forecast that these discussions are going to go anywhere, or they're just deadlocked?

PN8

MR NGUYEN: Ms Bhatt and I were just having a conversation about that again just to see whether there was any possibility, but my personal view is that there is no further progress that can be made in the discussions. I think that we'd be able to clarify a lot of the key issues with the coverage clause, so it has been significantly improved in terms of being able to identify someone if they came off the street: does this person have the award applied to them. We've been able to do that to the coverage clause to make it a lot clearer in terms of being more specific about the level of training required and skills required of these people.

PN9

THE VICE PRESIDENT: And these people aren't covered by any modern award currently?

PN10

MR NGUYEN: We say that it's unclear. In terms of, like, specifying the skills and the training and the type of work, no, they wouldn't be covered by any award currently, aside from potentially the Miscellaneous Award.

PN11

THE VICE PRESIDENT: Right. So does it follow then that the matter should simply be set down for hearing?

PN12

MR NGUYEN: Yes, that's what I think is the next stage for this process, your Honour.

PN13

THE VICE PRESIDENT: What might that involve?

PN14

MR NGUYEN: We were just having a discussion about timing and we will respectfully request a period of about three months to put together our case to try and maximise involvement from employees who have an interest in the proposed award, but also just to re‑confirm the statistics and the information that we have gathered in the past, which is out of date, like, may be out of date by now. So we'd respectfully request three months. Obviously the employers would have an equal opportunity of time, and then we may request a shorter period for any potential issues that might need to be replied to in writing that haven't been raised before in the proceedings, a right of reply before the final hearing.

PN15

THE VICE PRESIDENT: It's getting up to the end of the year, I think.

PN16

MR NGUYEN: I think that's probably right, your Honour. But in terms of this proceeding, it is part of the four‑yearly review but it's also a different type of proceeding, of category in the four-yearly review, looking at different issues, and so the timeline of concluding it by the end of the year may not necessarily be appropriate.

PN17

THE VICE PRESIDENT: Thank you. Ms Bhatt?

PN18

MS BHATT: Thank you, Vice President. As Mr Nguyen indicated, we have participated in various discussions with the union, including on 14 February. If I can just say this: there was a revised coverage clause that was circulated on the 30 January by the AMWU. It purports to limit the coverage of the draft instrument to those that perform rescue work, if I can call it that. We continue to have some concerns that it might not in fact achieve that end. Whether or not it does will obviously colour our level of opposition to the potential claim, and it may also have some bearing on the extent to which other parties are interested and involved in these proceedings potentially, but of course I can't speak for others that are not here.

PN19

THE VICE PRESIDENT: Who has been involved in the discussions apart from your organisation and Toll?

PN20

MS BHATT: I know that AMMA has participated in some of the discussions. It is my understanding that there was a law firm that was representing a group of employers that had not been identified who might have some interest. It's also my understanding that there were some other unions that were involved in earlier discussions, but they seem to have satisfied themselves that a concern wouldn't arise from the most recent coverage clause that's being proposed by the AMWU.

PN21

THE VICE PRESIDENT: So this covers the crew. Does any modern award cover the pilots of these helicopters?

PN22

MS BHATT: It's my understanding that the Air Pilots Award will cover those pilots.

PN23

THE VICE PRESIDENT: Right.

PN24

MS BHATT: Mr Nguyen has proposed some steps forward and we have no opposition to that course of action. Part of the difficulty for us has been that we haven't been able to undertake any serious consultation with our membership, because we are still unable to identify precisely who this instrument would in fact cover. For that reason, I would say that if the AMWU is granted a period of, say, three months to file its material, then we be granted a commensurate period of time. I anticipate that we won't be able to start that process until we've seen some of the material. If I can also say this for the record: the discussions that have been undertaken between the parties have not involved any consideration of the terms and conditions that would apply to the employees. They have pertained only to the coverage of the instrument. We have reservations about many of the provisions that have been proposed by the AMWU and the draft award that they've filed to date. They seem to reflect an enterprise award that I understand has since been terminated, and they don't bear the characteristics of a minimum safety net, but rather of an enterprise‑specific instrument. So I thought that I ought to flag that at this stage as well.

PN25

THE VICE PRESIDENT: So you agree with Mr Nguyen's assessment that there is no real possibility of agreement being reached about this matter?

PN26

MS BHATT: I think that further discussions may allay some of our concerns regarding the coverage of the instrument, and that may narrow the scope of the dispute. It's my understanding though that the organisation's position remains that based on what we've seen so far, we are not satisfied that there is in fact a need for an additional modern award.

PN27

THE VICE PRESIDENT: Is there any possibility that some existing award can be modified appropriately to deal with this class of persons, rather than creating a whole new award?

PN28

MS BHATT: Vice President, if I had a better understanding of the class of persons that might be covered, I'd be in a better position to answer your question. I'm sorry.

PN29

THE VICE PRESIDENT: Right. Directed at both parties, is there any - I accept the assessment is pessimistic, so you needn't hesitate in saying no - but is there any possibility that assistance from a member of the Commission would be of any utility? And again, if it's just a waste of time, please say no.

PN30

MS BHATT: I've just consulted with Mr Nguyen and it seems the assessment is that that might assist - - -

PN31

THE VICE PRESIDENT: Might assist?

PN32

MS BHATT: - - - in at least, if I can put it this way, tightening the coverage clause of the instrument so that we have some greater certainty as to who this in fact applies to before we embark on some process of arbitration.

PN33

THE VICE PRESIDENT: Do you agree with that, Mr Nguyen.

PN34

MR NGUYEN: Yes, your Honour. I think that would be a useful process to have an independent party involved in the discussions and give a view or recommendation about where the issues might arise in terms of the coverage clause.

PN35

THE VICE PRESIDENT: Yes. I mean, the first hint I put out to you is that, speaking for myself, I'd see it as a fairly major matter to create a whole new modern award, so there would have to be a fairly strong case about that for that step to be taken. Can I ask the parties to develop some draft directions for the hearing of the matter to forward to my Chambers for consideration? I might get that done as a first step, if that can be done in the next seven days, and then once I've received those I'll arrange for a member of the Commission to conduct a conference into the matter.

PN36

MS BHATT: Yes, Vice President.

PN37

MR NGUYEN: Thank you, your Honour.

PN38

THE VICE PRESIDENT: Anything else?

PN39

MR NGUYEN: Nothing further.

PN40

THE VICE PRESIDENT: Thanks for your attendance. I will now adjourn.

ADJOURNED INDEFINITELY [10.11 AM]