PN1

THE DEPUTY PRESIDENT: Good morning. Where are matters at?

PN2

MR KRAJEWSKI: There's no one from Melbourne, is there?

PN3

THE DEPUTY PRESIDENT: Doesn't appear to be. They've abandoned.

PN4

MR KRAJEWSKI: That's okay, can we do a deal?

PN5

THE DEPUTY PRESIDENT: I'm actually not sure that's the Melbourne court room.

PN6

SPEAKER: The dark one is.

PN7

THE DEPUTY PRESIDENT: Yes, the dark one is. Melbourne is in there.

PN8

MR KRAJEWSKI: Your Honour, I don't know if we can lead off, and I suppose, and I think for reasons up here in Brisbane, from our point of view, from the Fire Protection Association, there's really two matters that are probably outstanding. One, I think can be resolved pretty readily and that is the allowance issue. I think from our point of view, that I think that comes to that question of wording more than anything else and who the allowances actually apply to.

PN9

I think, and I'm going on memory, the current award provision talks about fire, sprinkler employees, but seems to focus upon trades people more so than other groups of employees covered by the award. Our simple proposition is that the title ought to be set out that covers everybody under the award because that is what the award actually applies to, with a possible clarification on apprentices and how the various allowances might apply to them. I'm sort of open to - from our point of view to discussing that.

PN10

But I think the wording that has come from Melbourne is that these allowances which are the industry disability allowance and the space, height and dirt money allowance, apply to fire protection tradesmen and fire protection employees or workers. That's based on a submission made by the Master Plumbers Group.

PN11

We think that's fine on the one hand, but it still seems to sort of discriminate, so to speak, between employees and we just wonder whether some generic sort of term, like these allowances will apply to all fire sprinkler employees covered by this award. If it applies to apprentices based on their relativities, make that qualification. That's the only thing that we say ought to be sort of considered, rather than sort of distinguishing between tradesmen and other employees.

PN12

Apart from that, I don't think the parties are all that far apart, although I think that AiG have made a reference to adult people. We say that that's not correct because the allowance applies to all employees under the award in different ways.

PN13

THE DEPUTY PRESIDENT: With respect to the list of - just trying to find it, I won't be a moment.

PN14

MR DUNCALFE: With this issue, our understanding is that in the conference that we had initially, that the word 'adult' was getting removed from this clause, so 20.3(f). Subsequently, the Master Plumbers Group and I think the NFIA submitted a document on changing it then to a fire sprinkler fitter tradesperson, and a sprinkler fitting worker. Both of those options are fine with the unions. Our main concern was that juniors, apprentices especially, were going to be precluded from accessing that allowance and both wordings - both the proposed wording that we had in the Commission and also the MPG and the NFIA submission seems to deal with that concern for us.

PN15

THE DEPUTY PRESIDENT: The effect of two amendments would be that the provision would apply to a person described as a fire sprinkler worker, effectively.

PN16

MR DUNCALFE: And a tradesperson. I don't know why they decided to - there's no one here to speak on the proposal.

PN17

THE DEPUTY PRESIDENT: The tradesperson would cover that, wouldn't it? Worker would cover that.

PN18

MR DUNCALFE: Employees would cover that.

PN19

THE DEPUTY PRESIDENT: Yes.

PN20

MR DUNCALFE: As I said, I've got - I think that what we decided in the Commission is much simpler and also the consistency issue whereas, changing it to fire sprinkler fitter tradesperson and sprinkler fitting worker, there might be some consistency issues throughout the award by introducing a different title for workers, instead of just fire sprinkler fitter employees. It seems to be of wider application. I'm happy with what we decided in the conference and all I was saying was, with the MPG and NFIA proposal, it deals with what we are concerned about, but I'm not saying it's better.

PN21

THE DEPUTY PRESIDENT: Yes, all right. Who wants to go next?

PN22

MS VALAIRE: On this issue, or on a different issue?

PN23

THE DEPUTY PRESIDENT: No, this issue.

PN24

MS VALAIRE: We have nothing to say on this issue.

PN25

THE DEPUTY PRESIDENT: Ms Hogg?

PN26

MS HOGG: No, we've got nothing to say on this issue.

PN27

THE DEPUTY PRESIDENT: We don't have anybody attending in Melbourne. Phil Eberhard, he usually attends.

PN28

MR DUNCALFE: Yes, so no one from NFIA or the MPG who proposes is here to speak on. That's why I'm saying we stick with what we decided.

PN29

THE DEPUTY PRESIDENT: What do you say we decided.

PN30

MR DUNCALFE: The word 'adult' was removed from 20.3(f).

PN31

THE DEPUTY PRESIDENT: Remove adult from 20.3(f). It would then read - but you would leave tradesperson and you would add and fire sprinkler employee. Is that right, or just simply delete - - -

PN32

MR DUNCALFE: If you just delete the word 'adult' it says fire sprinkler fitter employees.

PN33

THE DEPUTY PRESIDENT: Yes. But the award will continue elsewhere to use tradesperson.

PN34

MR DUNCALFE: Is that what the issue was initially for the NFIA?

PN35

THE DEPUTY PRESIDENT: I'm just raising it. That seems to me to be why we suggested that the word 'worker' put that to one side. That it read fire sprinkler fitter tradesperson and fire sprinkler fitter worker. I mean, out of an abundance of caution, it might be a fire sprinkler fitter tradesperson and any other fire sprinkler fitter employee.

PN36

MR DUNCALFE: I just don't know how to move on, on this, give an opinion if we've got no one to talk on the proposal. I was hoping that someone would talk on it today and I don't necessarily want to commit to a position that I haven't already which was the removing of the word 'adult'. I don't know how to go forward on this issue if we've got no one to speak on the proposal that was put forward.

PN37

THE DEPUTY PRESIDENT: That's very true. Yes, go on.

PN38

MR KRAJEWSKI: Your Honour, just - I'm not fussed either way. I just wonder though, is this allowance apply to all employees, why then distinguish between tradesmen and other employees?

PN39

THE DEPUTY PRESIDENT: That makes sense to me, it's just that in the context of other provisions of the agreement, I just don't want there to be any confusion that somehow employee means a person other than a tradesperson. Because of the words 'fire sprinkler'. We were just talking an employee, so an employee covered by this award, shall be entitled to - then all employees covered by this award performing fire sprinkling duties, or something to that effect.

PN40

The difficulty is that the award distinguishes between tradespersons and non-tradespersons. Once you use a term such as a fire sprinkler employee, that might be regarded as someone other than a tradesperson, that's all.

PN41

MR KRAJEWSKI: Point taken.

PN42

THE DEPUTY PRESIDENT: That's all. Without sort of wanting to recraft the entirety of the award and to check that, I'm just trying to overcome any concern. I mean, one way of dealing with it would be taking out your point, Mr Duncalfe, that if one deletes the word 'adult' and it simply read fire sprinkler employee or employees, one could add the word (including tradespersons).

PN43

MR DUNCALFE: That's something - I mean, obviously from our perspective the allowance applies to tradespeople, clearly.

PN44

THE DEPUTY PRESIDENT: Yes.

PN45

MR DUNCALFE: Any clarification on it, applying to tradespeople as well as employees, is something that would welcome.

PN46

THE DEPUTY PRESIDENT: Is someone trying to find court 5, court 5 where, in Melbourne? Apparently someone is having trouble finding court 5. Mr Eberhard is somewhere on the phone, so we're just trying to hook him up.

PN47

MR KRAJEWSKI: The only other point, your Honour, if I could just make - - -

PN48

THE DEPUTY PRESIDENT: Well, we might just wait for the others to join us, sorry.

PN49

MR KRAJEWSKI: Of course.

PN50

THE DEPUTY PRESIDENT: Look, we might just park that issue and see if anybody is able to join us. What was the second issue?

PN51

MR KRAJEWSKI: I suppose from our point, your Honour, it's the issue of shift work. Following reports coming back to you I think by the 25th.

PN52

THE DEPUTY PRESIDENT: Which item in the summary?

PN53

MR KRAJEWSKI: The shift work.

PN54

THE DEPUTY PRESIDENT: Yes, which number?

PN55

MR KRAJEWSKI: Sorry, my fault. 28.

PN56

THE DEPUTY PRESIDENT: Thank you. Yes.

PN57

MR KRAJEWSKI: What we had said in our most recent response to the Commission was that we would contact other parties and come back to the Commission about that. We apologise that we haven't come back to the Commission, but what we can say is that following the conference back in February, we got in contact with all the parties and provided them with a proposition in terms of what we thought would be the specific shift work clause.

PN58

We saw subsequent that the responses to the Commission's request for comments by, I think, 28 July, that the other parties who hadn't been involved in our earlier discussions, had opposed the proposition, or had made no comment, so therefore we didn't pursue them. In short however, we've put forward a proposition which we think is a technical issue and no more than that, of bringing together under one new clause called shift work, the current shift work provisions.

PN59

It is no more than in our view, a drafting issue. Unless somebody can point out to us that what our proposition is, and goes beyond the technical drafting, then we are happy to discuss those. However, we have had no response from anybody since February last year in relation to that. We still say that the proposition of a shift work clause is an important part of work out in the workplace, ought to be a bit more recognised than what it currently is. It simplifies and brings together, we say, all shift work propositions. There is a matter of where do shift work penalties lie, but perhaps the Commission may be able to assist the parties on that.

PN60

Apart from that particular issue, we say that our proposition of a shift work clause, which does not more than bring together relevant shift work provisions, is no more than a drafting proposition. We see in the submission from the Master Plumbers Group that some submission on that issue was raised before the Full Bench in the substantive hearing matter.

PN61

We can't recall a specific application before the Full Bench in relation to that, and in any event, insofar as the shift work proposition is concerned, we are talking about a specific clause in a specific award. We say that parties had an opportunity to make comments. No one has made, in our view, any comments in relation to that, but we also say that the matter is a straight-forward technical drafting issue and it is really no more than that.

PN62

We see comments saying we oppose, but there is no substance or no support for why that proposition is being opposed. As I say, and I'll conclude on this particular note, that this is, in our view, no more than a drafting, a technical issue, the matter of whether shift work penalties should be included in the clause, well that is something that perhaps we could ask the Commission to provide us with some advice and perhaps have a separate conference on that. At this stage, we say no more than that, your Honour.

PN63

THE DEPUTY PRESIDENT: Yes, right. Mr Duncalfe, I gather you agree with the proposal.

PN64

MR DUNCALFE: Yes, we would support that, yes, your Honour.

PN65

THE DEPUTY PRESIDENT: Ms Hogg?

PN66

MS HOGG: We oppose the proposal. We believe it's not necessary to make this change to the award and we have had similar decisions about this under another award, the electrical award, and had concerns about the changes proposed. We don't believe it's necessary.

PN67

THE DEPUTY PRESIDENT: Do you say it's a technical drafting issue or a substantive issue?

PN68

MS HOGG: Sorry, I'm just having a quick look at the clause. I think the difficulty is the arrangement of saying day workers and shift workers. I think there is a chance that it could make substantive changes to the award, so in that regard, it could go beyond a technical drafting issue.

PN69

THE DEPUTY PRESIDENT: Yes, well we have some people in Melbourne now.

PN70

MR EBERHARD: Yes, your Honour, sorry about that.

PN71

THE DEPUTY PRESIDENT: That's all right. Who is there?

PN72

MS COATE: Carmel Coate from the National Fire Industry Association.

PN73

THE DEPUTY PRESIDENT: Yes, Ms Coate.

PN74

MR EBERHARD: Phillip Eberhard from Master Plumbers.

PN75

THE DEPUTY PRESIDENT: Mr Eberhard, sorry, the screen on which I can see you is a bit small.

PN76

MR EBERHARD: I don't know whether to take that as a compliment or not.

PN77

THE DEPUTY PRESIDENT: I know you're larger than life, but this screen is small, Mr Eberhard. Well, Mr Eberhard, in relation to this issue, do you say that the FPAA proposals are substantive or a technical drafting issue?

PN78

MR EBERHARD: We've indicated in our submissions, your Honour, that we'd submitted various matters to the Full Bench during the substantive proceedings and I think that was the time that this sort of thing should have been raised. It wasn't raised during those proceedings and these proceedings are about technical and drafting; they're not about making or seeking change. On that basis, we think it's a substantive issue.

PN79

THE DEPUTY PRESIDENT: Yes, all right. Ms Coate?

PN80

MS COATE: I would support that position.

PN81

THE DEPUTY PRESIDENT: Master Plumbers, New South Wales?

PN82

MS VALAIRE: We think that it could be substantive issue only in regards to interpretation of the day worker, that could stray a little bit to substantive issue. But generally, the proposed worker clause is a technical and drafting issue. We are not against or for this clause. The only qualification to that, we probably prefer to leave the shift work loading in a penalty clause rather than to make as a separate clause for just convenience sake.

PN83

THE DEPUTY PRESIDENT: To the extent that it's related to the proposal to amend and simply obligations under the penalty rates clause, which would include the shift work penalties, that matter is currently the subject of consideration by the construction Full Bench.

PN84

Given that the parties are not in agreement in relation to whether or not it's a substantive or a technical drafting issue, and the prospect of, and given opposition to the variation, it's not something that I consider is going to be resolved through further discussion. What I propose to do, if FPAA wants to press the amendment I will add it to the substantive issues list.

PN85

Mr Krajewski, do you press the issue?

PN86

MR KRAJEWSKI: We do, your Honour, except to say this, that our submission on this will be very very short.

PN87

THE DEPUTY PRESIDENT: I understand. I'm not suggesting you have to make lengthy submissions, but in order to resolve the matter, given that you press it, I'm going to add it to that list.

PN88

We'll add the issue which appears at item 28 in the summary of technical and drafting issues to the summary of proposed substantive variations to be determined at a later date.

PN89

Ms Coate and Mr Eberhard, you missed the earlier discussion about the amendment to the allowance clause at clause 20.3. Mr Eberhard, is it your position that that clause should, (a) applies to - I'll withdraw that.

PN90

As I apprehend, where we got to last time was, there was an agreement that the word 'adult' be removed and there is a view that the allowance, the disability, height and dirt money allowance applies to all employees covered by the - sorry, all sprinkler fitter employees who are covered by the award. Is that your understanding?

PN91

MR EBERHARD: The clause 20.3.5, so the industry disability allowance and space height et cetera allowance would apply to both the tradesperson and the to the sprinkler fitter worker. I don't think it applies to the apprentice in that particular instance. But the question was, whether the deletion of the word 'adult' sort of - I think when we had a discussion - - -

PN92

THE DEPUTY PRESIDENT: Your concern that by deleting the words 'adult' that would catch apprentices?

PN93

MR EBERHARD: I think that was - because then it would just become fire sprinkler fitter employee.

PN94

THE DEPUTY PRESIDENT: What if we added the words after employee (other than apprentices)?

PN95

MR EBERHARD: We've put something through to you on 23 February and we'd proposed that the words a 'fire sprinkler fitter tradesperson' and a 'sprinkler fitting worker'.

PN96

THE DEPUTY PRESIDENT: An apprentice is not a worker?

PN97

MR EBERHARD: No, the worker is defined in the award differently.

PN98

THE DEPUTY PRESIDENT: I see.

PN99

MR EBERHARD: The worker is in essence, the labourer in that particular instance. What you've suggested I think it doesn't, in the same way.

PN100

MR DUNCALFE: Your Honour, we would oppose that. That the apprentice isn't entitled to that allowance. Clause 18.2(a) of the exposure draft states that:

PN101

Apprentices will be entitled to all terms, conditions, amounts and allowances as prescribed elsewhere in this award.

PN102

You go down to 18.2(b), which is before January 2014 and on after is at (c), but it actually states in subsection (iii) height and dirt money allowance, clause 20.3(f), and they get a percentage of those allowances according to the table in (b) and (c). So, apprentices are entitled to that allowance, your Honour.

PN103

THE DEPUTY PRESIDENT: Well, they're entitled to a percentage of that allowance.

PN104

MR DUNCALFE: They are.

PN105

THE DEPUTY PRESIDENT: The answer for - the solution would be to add the words after employees 'other than apprentices for whom provision is made in clause 18.2.

PN106

MR DUNCALFE: Is that too complicated considering that the proposal by Master Plumbers would be to exclude apprentices, which actually contradicts the award itself, so we can't exclude them.

PN107

THE DEPUTY PRESIDENT: Mr Eberhard, do you accept that apprentices are entitled to a percentage of that allowance?

PN108

MR EBERHARD: They are, yes, your Honour.

PN109

THE DEPUTY PRESIDENT: You're not seeking to exclude apprentices from that allowance, you're seeking to exclude apprentices from the full dollar amount expressed in that allowance? They would be paid the percentage as provided for elsewhere in the award.

PN110

MR EBERHARD: In our email on 23 February we said that we had considered inserting words that cross-reference to apprentices which is clauses 18.2(b)(iii), (c)(iii) and (a)(iii). However, we thought that that made it too messy, but I think my putting the words - by deleting the reference to the adult, I think what we were trying to do is to try and incorporate the words that are used elsewhere in the award in respect of the fire sprinkler fitter tradesperson, and the sprinkler fitting worker.

PN111

Contrary to what I said before, we weren't seeking to exclude an apprentice from the payment of that particular allowance.

PN112

THE DEPUTY PRESIDENT: We appear to be in heated agreement that the sprinkler fitter employees other than apprentices are entitled to the full allowance set out in paragraph (f) and apprentices are entitled to a portion of the allowance, as contemplated by clause 18.2. Yes?

PN113

MR EBERHARD: Yes, your Honour.

PN114

MR DUNCALFE: Yes.

PN115

THE DEPUTY PRESIDENT: It's really a question of how we give effect to that. Either we can add the words as I've suggested, or alternatively, at the bottom of that clause, have a provision which says 'apprentice sprinkler fitters are entitled to a percentage of this allowance as set out in...' then cross-reference the relevant provision of the award.

PN116

MR EBERHARD: Yes. I think that addresses the issue.

PN117

THE DEPUTY PRESIDENT: Mr Duncalfe? Under the paragraph (f), under the table, there would just be another sentence which would say 'an apprentice sprinkler fitter is entitled to a percentage of the above allowance as specified in clause ...' then refer back to the specific clause in 18.2.

PN118

MR DUNCALFE: We would agree with that, your Honour, yes.

PN119

THE DEPUTY PRESIDENT: All right, Mr Eberhard, you agree with that?

PN120

MR EBERHARD: Yes, your Honour.

PN121

THE DEPUTY PRESIDENT: We're in heated agreement then. Anything else?

PN122

MR DUNCALFE: Any other items?

PN123

THE DEPUTY PRESIDENT: Yes.

PN124

MR DUNCALFE: Yes.

PN125

THE DEPUTY PRESIDENT: Go ahead.

PN126

MR DUNCALFE: If we could start from the start. Item 7 please. That's the submission from the AWU about adding finishing time for part time employees - 11.3. We still think there's merit in its inclusion, just mainly for the sake of clarity and the reasons that were raised in the previous conference. But there's nothing more we want to say to it. We just want to make sure that it's continued to be pressed.

PN127

THE DEPUTY PRESIDENT: I'll add it to the substantive list issue.

PN128

MR DUNCALFE: Substantive?

PN129

THE DEPUTY PRESIDENT: Well, Mr Eberhard, putting aside the merits of the issue, do you consider that issue to be a substantive or a technical drafting issue?

PN130

MR EBERHARD: The inclusion of the word 'finishing'?

PN131

THE DEPUTY PRESIDENT: Yes.

PN132

MR EBERHARD: Hadn't looked at it in that particular way. Our response to the Commission's information that was sent around previously, indicated that we wouldn't oppose the inclusion of the word 'finishing' in that particular part of the award, primarily because it appears in a number of other awards of the Commission.

PN133

THE DEPUTY PRESIDENT: Yes.

PN134

MR EBERHARD: On that basis, we don't oppose the application. I hadn't considered whether it is a technical issue or a substantive issue in that particular sense.

PN135

THE DEPUTY PRESIDENT: Ms Hogg, do you have a view?

PN136

MS HOGG: No, we don't have any view on that particular one.

PN137

THE DEPUTY PRESIDENT: I apologise, I neglected to ask you earlier whether there was any opposition of the resolution for the sprinkler fitter allowance.

PN138

MS HOGG: No, I agreed with that. I think that was a sensible resolution.

PN139

THE DEPUTY PRESIDENT: Thank you.

PN140

MS PAUL: Apologies, your Honour, I still had in my notification as a 10 o'clock start.

PN141

THE DEPUTY PRESIDENT: Yes, I reshuffled things because I've got some CFMEU and MUA matters on later this afternoon.

PN142

MS PAUL: Again my apologies, your Honour.

PN143

THE DEPUTY PRESIDENT: That's all right. We're dealing with item 7 concerning the AWU's proposed amendment to 11.3(b) and AiGroup opposed and you continue to oppose?

PN144

MS PAUL: Yes, your Honour. My instructions are to continue to oppose that.

PN145

THE DEPUTY PRESIDENT: In all other respects, is it a technical issue or a substantive issue? My purpose in asking is that if it's a technical issue, then it will be dealt with as an outstanding technical issue by the Full Bench.

PN146

MS PAUL: I believe, your Honour, out position was that this - we saw it as being a change to what's being sought in the - the AiG is seeking a change to what's in the award. We don't therefore see this as fitting neatly within a technical matter, but - - -

PN147

THE DEPUTY PRESIDENT: But not all changes are substantive. By adding words that aren't currently there, doesn't necessarily make it a substantive issue.

PN148

MS PAUL: No, your Honour, and I agree with that, except for the fact that this is a matter in which it may change the characteristic of how a part and casual employee is able to be utilised. By actually identifying a finishing time, that may create the fact that there's less flexibility in rostering arrangements et cetera. I don't know we'd press that any further that we've already put, your Honour.

PN149

THE DEPUTY PRESIDENT: Yes. I'm reluctant to add it to a substantive list if it's not really necessary. If your submissions on the point are going to be short and if they're not going to proposed to lead any evidence in opposition.

PN150

MS PAUL: Your Honour, the issues that we raise, can be raised in both areas.

PN151

THE DEPUTY PRESIDENT: Yes, it's just a question of when they're dealt with, that's all. Look, perhaps unless any other party wants to say something, I'll propose to simply leave it as an unresolved matter in the technical drafting issue and you can make formal submissions to the Full Bench when we finalise the technical drafting issues in relation to this award.

PN152

Anything else Mr Duncalfe?

PN153

MR DUNCALFE: Yes, your Honour, 8(a) was also an AWU claim; we'll withdraw that.

PN154

Item 12, the adult apprentices. I don't know if that was resolved. There was a lot of input on it. I was just wondering if we can come to an agreement on that. Our position is that it isn't discriminatory and it doesn't need to be removed. (d)(ii) speak to different things. If anything, number (ii) tempers number (i).

PN155

THE DEPUTY PRESIDENT: Bear with me for a moment. Sorry, I interrupted you; go ahead.

PN156

MR DUNCALFE: Your Honour, I was just - it was in response to a question asked by the Commission and everyone seemed to have a different opinion. Our preferred course of action is to leave just as is. It doesn't discriminate from where we can see. Basically, (d)(i) states that:

PN157

Where possible, employment as an adult apprentice should be given to people already employed with the employer.

PN158

Then (d)(ii) just tempers that, by saying that:

PN159

Adult apprentices should not be given preference to or employed at the expense of other (I'm guessing) junior apprentices.

PN160

In our reading of that, it's entirely allowable and there's no need to amend those clauses or to remove.

PN161

THE DEPUTY PRESIDENT: Yes. Ms Paul, I think you have a view there that it was possibly discriminatory.

PN162

MS PAUL: Yes, your Honour, we say it's discriminatory, but again, based on a reading of it, we see that as being - the words say that the adult apprentice will not be employed at the expense of other apprentices. So, there is already a caveat in (i) in relation to where possible employment as an adult apprentice should be given to an applicant who is currently employed. Then there's a further caveat that makes for an employer, when you read that, to have to then say I've actually got a junior apprentice here. I should actually be engaging them, as opposed to an adult because roman (ii) says I can't employ them to the expense of other adult apprentices.

PN163

It effectively neuters the ability to employ an adult apprentice where there is a junior apprentice available. We see that as being restrictive and thereby discriminatory and restrictive. There's two different concepts.

PN164

THE DEPUTY PRESIDENT: Discriminatory on the grounds of age.

PN165

MS PAUL: Yes.

PN166

THE DEPUTY PRESIDENT: I see the argument. Unless one reads the word 'expense' as meaning letting go a junior apprentice to employ an adult.

PN167

MS PAUL: Yes, your Honour.

PN168

THE DEPUTY PRESIDENT: Which itself would be a discriminatory act, I would think.

PN169

MS PAUL: I still don't see though that cure the - that would be discriminatory to that choice, but it becomes an issue, your Honour, in terms of what the words 'at the expense' means.

PN170

THE DEPUTY PRESIDENT: Yes, that's right, as I'm saying, if the words 'at the expense of' were confined to terminating the engagement of a junior apprentice, in order to employ an adult, that would be perfectly permissible in the sense that this would be prohibiting that.

PN171

MS PAUL: Yes, your Honour, we would accept that.

PN172

THE DEPUTY PRESIDENT: But if, at the expense of means where the employer is faced with a choice of employing an existing employee as an adult apprentice, or for that matter a new employee as an adult apprentice, in competition for that position by an applicant who is not an adult, that would appear to be discriminatory.

PN173

MS PAUL: Yes, your Honour.

PN174

THE DEPUTY PRESIDENT: I understand that. Mr Duncalfe?

PN175

MR DUNCALFE: I feel you can read discrimination into it, but I don't think that in itself it is discriminatory. Perhaps if (ii) was actually merged with (i), it would be taken into the context that we believe that it is supposed to be.

PN176

THE DEPUTY PRESIDENT: What do you say at the expense of means?

PN177

MR DUNCALFE: If it was read as one paragraph together, instead of two discrete sections, then it would - at the expense would mean that is basically a caveat, as my friend has mentioned on - one would be offering genuine career path development, and that is a statement.

PN178

THE DEPUTY PRESIDENT: The problem is the word - once you use 'adult' there wouldn't be a problem with a clause which gave preference to internal candidates over external candidates irrespective of any other criteria. But here the principal criteria is the adult (indistinct) of the apprentice. Once you introduce that, who are they getting preference over? Well, they're getting preference over external persons and they're getting preference over other apprentices who are junior apprentices.

PN179

MR DUNCALFE: I understand that.

PN180

THE DEPUTY PRESIDENT: Because other apprentices could only mean, not adult apprentices, otherwise the words 'adult apprentices' has no work to do.

PN181

MR DUNCALFE: I feel that the word 'adult' has been inserted in there, because adult apprentices are more expensive to employ. Instead it's to encourage - - -

PN182

THE DEPUTY PRESIDENT: That might well be right. But that it has a secondary purpose or even the principal purpose, on one view it permits an employer to breach the general protection provisions of the Act and would therefore be unlawful and of no effect.

PN183

In any event, if you, Mr Duncalfe, retain that view, then that's a matter that we'll need to decide, otherwise there'll need to be some steps taken to alter the provision. What I will simply do for present purposes is mark this as a matter that's unresolved and we'll need to hear submissions from the parties about its effect. Or alternatively, how it might be drafted in a way that does not permit discrimination.

PN184

Yes, anything else?

PN185

MR DUNCALFE: Item 21, so clause 22.2(a) in the exposure draft. We note that it's incomplete and does not include employees directed to work for less than five consecutive shifts as is provided in the current award, section 32.2(b)(ii). Our proposal would be - - -

PN186

THE DEPUTY PRESIDENT: You said item 21 in the list, is that right?

PN187

MR DUNCALFE: Item 21, yes your Honour.

PN188

THE DEPUTY PRESIDENT: Yes.

PN189

MR DUNCALFE: 22.2 in the exposure draft is missing information that's in the current award at 32.2(b)(ii) where it says:

PN190

Where an employee is directed by the worker to work ordinary hours between midnight on Sunday and midnight on Friday for less than five consecutive shifts.

PN191

Currently the shift work provision in the exposure draft only speaks of five or more consecutive shifts. We note that this information has been brought across into schedule C and D relating to shift work provisions, but it hasn't actually been brought across into the mirror section of the exposure draft and we propose to insert it at 22.2(b), renumbering the current (b) to (c) and the current (c) to (d).

PN192

THE DEPUTY PRESIDENT: And instead of (b), is that right?

PN193

MR DUNCALFE: Instead of (b), yes.

PN194

THE DEPUTY PRESIDENT: Instead of existing (b)?

PN195

MR DUNCALFE: No, sorry, insert - so we've actually proposed to reword it so that it fits in within the wording of the exposure draft.

PN196

THE DEPUTY PRESIDENT: Yes.

PN197

MR DUNCALFE: Those words would be a new subsection (b) in 22.2, which states:

PN198

An employee who is required to work ordinary hours on Monday to Friday, for less than five consecutive shifts, must be paid 150 per cent of the employee's ordinary hourly rate for the first two hours and 200 per cent of the employee's ordinary hourly rate thereafter.

PN199

I remember there was some conjecture about Monday to Friday and it's been changed back to midnight, has it?

PN200

MS COATE: No, I don't think so.

PN201

MS PAUL: Can I just add something? Or is less than 48 hours' notice.

PN202

MR DUNCALFE: That's already in the exposure draft, yes.

PN203

MS PAUL: But for the second part, less than five days or with less than 48 hours' notice, combined it together as it was in the current award.

PN204

MR DUNCALFE: We're totally fine with that as well. It's just been broken up, because in the exposure draft, 22.2(a) has the five or more consecutive shifts must be paid, already within that. To add it to roman (ii) wouldn't make any sense, so we were going to put it into (b), which would be the soft touch approach. Without changing anything else, we could just insert a new subsection there that deals with the less than five consecutive shifts penalties.

PN205

THE DEPUTY PRESIDENT: Run those words by me again Mr Duncalfe.

PN206

MR DUNCALFE: The proposed ones, your Honour?

PN207

THE DEPUTY PRESIDENT: Yes.

PN208

An employee who is required to work ordinary hours Monday to Friday for less than five consecutive shifts, must be paid - 150 per cent of the employee's ordinary hourly rate for the first two hours and 200 per cent of the employee's ordinary hourly rate thereafter.

PN209

MR DUNCALFE: But I understand that an AiG submission was to revert Monday to Friday back to midnight on Sunday to midnight on Friday which would obviously be - which we all agreed on, so that would be brought into our submission.

PN210

THE DEPUTY PRESIDENT: Right, so the combined effect of that would be an alteration to (a) to take into account AiG's position?

PN211

MS PAUL: Yes.

PN212

THE DEPUTY PRESIDENT: An alternation to - a new (b) to pick - - -

PN213

MS PAUL: (a) would be midnight on Sunday to midnight to Friday.

PN214

THE DEPUTY PRESIDENT: Yes, so an alteration to (a) to take into account AiG's position. A new (b) to pick up the AWU's position, and renumbering (c) and (d).

PN215

MR DUNCALFE: That's correct, your Honour.

PN216

MS PAUL: Yes, your Honour, just trying to recall the actual clause. I'm wondering whether it might be better just to reinsert the original clause in the award. I'm trying to find the original clause.

PN217

MR DUNCALFE: 32.3 in the current award.

PN218

MR EBERHARD: Your Honour, if I can, and I think New South Wales raised this previously, the present award provides an award where an employee is given less than 48 hours' notice prior to the commencement of shift work by the employer, or directed by the employer to work, then it continues on from there.

PN219

THE DEPUTY PRESIDENT: Mr Eberhard, you're cutting in and out. Just if you can speak into the microphone.

PN220

MR EBERHARD: The present award says, where an employee is given less than 48 hours' notice, and then it goes on to whether they work midnight on Sunday and midnight on Friday for less than the five shifts. At the moment, the proposal doesn't include the less than 48 hours.

PN221

MS PAUL: Does it resolve the problem talking about subject (a), because those two contradict each other.

PN222

MR DUNCALFE: We just went with the soft touch approach. I didn't want to rewrite the entire clause.

PN223

MS COATE: We're quite happy with the original clause, if it's easy.

PN224

MS PAUL: The concern we've got is that might then contradict the issue about when you provide the less than day's notice. The notice period issues might still be replicated in there because at the moment it says - - -

PN225

MR DUNCALFE: At the moment it's not - in the current award it's grouped together in terms of the penalty paid. In the exposure draft it is now grouped together, or well, since the less than five consecutive shifts has been left off, it's been grouped together for five more consecutive shifts in reference to the shifts instead of in reference to the penalties.

PN226

THE DEPUTY PRESIDENT: No, I see that.

PN227

MR DUNCALFE: So, therein lies the problem.

PN228

MS COATE: I think the current clause is quite clear.

PN229

MS PAUL: Your Honour, we have no issue with the principle of trying to retain the general provisions, but we just see that there may be an issue in the proposed drafting of the new clause (b). Our preference would be to go back to the current award term, which I think was - - -

PN230

THE DEPUTY PRESIDENT: All right, we can go back to the current award term and pick up the 133 per cent formulation and 150 per cent formulation. That would seem to be the simplest solution. It don't see why - there are no alterations to (c) and (d) through existing (b) and (c) in the exposure draft, so it's just (a) which has been sloppily cobbled together.

PN231

If we pick up existing 32.2(a) and (b), noting that there'll need to be an amendment to the loading formulation so as to read:

PN232

The employee will be paid 133 per cent of the employee's ordinary hourly rate

PN233

instead of a loading of 33 percent and so forth. That would resolve the issue.

PN234

MR DUNCALFE: That would resolve our part of the issue and then also the midnight Sunday issue.

PN235

MS PAUL: Certainly we would agree with that, your Honour.

PN236

THE DEPUTY PRESIDENT: Does anybody else want to say anything about this issue? That alteration appears to make sense to me, so that we will pick up the existing clauses 32.2(a) and (b) of the award and replace those with the current draft in (a) of 22.2. Renumber (b) to (c), (c) to (d) and make the necessary alterations to the description of the loading so as to be consistent with the current drafting of 133 per cent of the employee's ordinary hourly rate and 150 per cent and 200 per cent as the case requires. Yes?

PN237

MR DUNCALFE: Yes, your Honour.

PN238

THE DEPUTY PRESIDENT: Thank you. Next.

PN239

MR DUNCALFE: That's it for me.

PN240

THE DEPUTY PRESIDENT: All right, are there any other matters that any party wishes to raise?

PN241

MS PAUL: Your Honour, I have item 17 on the list of issues and that may have already been discussed.

PN242

THE DEPUTY PRESIDENT: Yes, it has.

PN243

MS PAUL: It has been resolved?

PN244

THE DEPUTY PRESIDENT: Well, it hasn't been resolved as such, it's been - sorry, just finding 17.

PN245

MS PAUL: It's about the payment of the adult.

PN246

THE DEPUTY PRESIDENT: What we had agreed is that - let me just get the clause in front of me. What we had agreed was to, in the current draft, to delete the word 'adult' and so rather than fire sprinkler fitter, it will read sprinkler fitter employee will proceed. Then there will be some additional words, following the table which would draw the parties' attention to the fact that apprentice sprinkler fitters will receive a percentage of this allowance as set out in clause 18.2. All right?

PN247

MS PAUL: The bar issue, your Honour, was the proposed shift work clause by the FPAA was still on our list as well. Has that been - - -

PN248

THE DEPUTY PRESIDENT: That's being pressed and we've moved it to the substantive list, all right? Anything else? No? What I propose to do is now prepare a - after amendments are made, to read a summary list of issues, I propose to prepare a report for the president alerting him to both to those few issues that are still outstanding in the technical and drafting area and the list of substantive matters. No doubt a Full Bench in relation to the technical and drafting issues will be convened to finalise those outstanding issues in relation to this award, as well as the other awards that have been assigned to this Full Bench.

PN249

MS VALAIRE: Excuse me, your Honour.

PN250

THE DEPUTY PRESIDENT: Yes.

PN251

MS VALAIRE: I still would like to ask you if it's possible to provide to provide some clarification or refer it to the Full Bench in regards to the application of the night shift work for more than five consecutive nights, when some of these nights will happen on the weekend.

PN252

THE DEPUTY PRESIDENT: I'm sorry, which clause?

PN253

MS VALAIRE: It's item 19, 20 and 21 and it's clause 22.

PN254

THE DEPUTY PRESIDENT: Of the exposure draft?

PN255

MS VALAIRE: Yes, please.

PN256

THE DEPUTY PRESIDENT: Yes.

PN257

MS VALAIRE: When we have more than five consecutive shifts, some of this night shift you have during the weekend work. We would like clarification in schedule C how to work the 133 per cent which is payable during those nights, when, for example, on Friday midnight, it's becoming a weekend penalty. Will we still be on 133 or we're going to 150 for the first two hours and double thereafter on Saturday?

PN258

THE DEPUTY PRESIDENT: This is for hours that - we can only be talking about hours after midnight on Sundays, which is a Monday.

PN259

MS PAUL: It doesn't touch onto Saturday.

PN260

THE DEPUTY PRESIDENT: It doesn't engage 22.1 because work after midnight on Sunday is Monday.

PN261

MS VALAIRE: For example, if they have a shift five night shift, Monday, Tuesday night, Tuesday Wednesday night, Wednesday Thursday night, Thursday Friday night and Friday Saturday night. So, after midnight Friday which rate - sorry?

PN262

THE DEPUTY PRESIDENT: That's Saturday.

PN263

MS VALAIRE: It's Saturday.

PN264

THE DEPUTY PRESIDENT: Yes, always has been.

PN265

MS VALAIRE: From midnight Friday they will get a weekend rate.

PN266

THE DEPUTY PRESIDENT: They'll get the higher rate, that's right.

PN267

MS VALAIRE: First two hours at 150 and 200 after.

PN268

THE DEPUTY PRESIDENT: That would be my reading of the award.

PN269

MS VALAIRE: Is it possible to insert it in a schedule C, as an example please?

PN270

THE DEPUTY PRESIDENT: It's there already. Saturday first two hours 150, Saturday two hours thereafter, 200 per cent and the rates are there. I mean, what you're really asking is for a definition in the award that says the hours after midnight Friday is Saturday. I'm not really sure that that's necessary. That issue was agitated when the Roman calendar was introduced, I think.

PN271

Does anybody have a view that there's any confusion about the fact that Saturday commences after midnight on Friday and Sunday ends at midnight on Sunday?

PN272

MS PAUL: Your Honour, our view is that it's clear.

PN273

THE DEPUTY PRESIDENT: Is there a need to explain that in the award? Mr Eberhard?

PN274

MR EBERHARD: I think it's clear in the sense that if we revert the exposure draft back to the award as it reads now and include those words 'midnight on' whatever day it is, it clearly says that at 11.59 you get paid X and at 12.01 you get paid Y.

PN275

THE DEPUTY PRESIDENT: There are some awards where the overlap is catered for by reference to the penalty rate or perhaps not award so much, but certainly agreements where the higher rate is payable on the rate commencing on the particular day, so for a shift commencing on a Sunday, the rate will be X, even though it travels into the Monday. That's clear, but this is not that case.

PN276

This case talks about ordinary hours that are worked on particular days and a Saturday commences after midnight Friday, so hours worked then are paid at the 150 per cent for the first two hours and 200 per cent thereafter. The Sunday 200 per cent stops at midnight on Sunday. If a shift continues beyond that, those hours after that are payable in accordance with the shift work provisions in 22.2.

PN277

MR EBERHARD: That's correct, yes, your Honour.

PN278

MS PAUL: We would agree with that and I think that was also part of the argument we had for wanting to have clarity around adding the words midnight to midnight.

PN279

THE DEPUTY PRESIDENT: Yes, I understand that. If the parties want the words for example:

PN280

An employee required to work ordinary hours from midnight on Friday

PN281

I notice that Saturday is incorrectly spelt. No one wants to pick that up, do they?

PN282

MS HOGG: Didn't notice that one, your Honour.

PN283

THE DEPUTY PRESIDENT: Just for the record, in the exposure draft, if it hasn't already been picked up, contains an error in the spelling of Saturday in 22.1(a) - or does it? Maybe it's just my glasses.

PN284

We could make it, if parties wanted this, we could make it - sorry, I've got a speck on my glasses and I've put an 'I' next to the 'R'. We could change the reference to Saturday or Sunday to make it similar to the amendment that was proposed about midnight Monday to Friday. I don't think it's necessary, but.

PN285

MS PAUL: Our view is it wouldn't be necessary, your Honour, and then it starts getting into a rather complicated award drafting in terms of 12.01 on Saturday morning as opposed to - - -

PN286

THE DEPUTY PRESIDENT: Yes, I know, I know.

PN287

MR DUNCALFE: Is the issue though that there is no explicit statement in 22.2 that the penalty rates in 22.1 apply to shift workers on weekends. Is that the issue?

PN288

MS VALAIRE: Yes, there is no statement that the weekend does not break continuity of five day shift. So, it's still five day shift. For example, if shift started on Thursday and including Saturday and Sunday, it's still five days shift, so for Thursday and Friday and Monday you can the 133, with exclusion that during the weekend, you pay the weekend rate, but it's still this five day shift.

PN289

MR DUNCALFE: 22.2(a) says ordinary hours on Monday and Friday. That implicitly means that the penalty rates on weekends will be the ones listed in 22.1 but it's not explicit.

PN290

MS PAUL: Yes, but that's because it would not then be part of the Monday to Friday consecutive shifts.

PN291

THE DEPUTY PRESIDENT: Monday to Friday regime, yes. I don't think there's any scope for any argument other than - these are concerned with working ordinary hours at particular times or days. The schedule under A makes it clear that the penalty rates apply only to Saturday and Sunday which is the period following midnight Friday up to the period including midnight Sunday.

PN292

A shift work employee will find their entitlements for working ordinary hours on midnight Monday to Friday in 22.2. If they work a shift on a Saturday, which is ordinary time, they will get paid the rates in 22.1.

PN293

MS PAUL: Is the issue the fact that if a shift started at 9 o'clock on a Friday and finished at 6 o'clock on a Saturday, that that's not - and that was your fifth shift? But that's not what the issue is. Sorry, I still see that if the shift started on Friday at 9pm, finished at 6am on the Saturday morning, the shift would still be deemed a shift for the purpose of five or more shifts.

PN294

The issue though is that again, my reading is that the employee would get paid from Friday 9 o'clock to midnight on Friday at the 133 per cent. As soon as 12.01 comes in through to 6 o'clock on that Saturday morning, they would get paid the additional of first two hours of 150 and double time thereafter. That's how I would read it.

PN295

MS VALAIRE: But that wouldn't be a shift rate.

PN296

MS PAUL: But it's still considered a shift, but it's just the payment that you're making - it doesn't - - -

PN297

MR DUNCALFE: But is that five consecutive shifts Monday to Friday?

PN298

MS PAUL: Yes, but it is - it's required to work ordinary hours on Monday to Friday for five or more consecutive shifts. It doesn't need to identify that the actual shift falls on a - - -

PN299

THE DEPUTY PRESIDENT: It doesn't have to be full time hours either.

PN300

MS PAUL: Yes. So, the shift, because it's commencing on the Friday, it would still fall within, being able to be used as a calculation for whether it's five or more consecutive shifts.

PN301

THE DEPUTY PRESIDENT: I mean a part time employee, for example, could work five or more consecutive shifts. It will be four hours on five or more consecutive days, four hour shifts, potentially. This isn't confined to full time employees.

PN302

MR DUNCALFE: I understand that, but what I'm saying is where it says an employee who is required to work ordinary hours on Monday to Friday for five or more consecutive shifts. If you're employed for five consecutive shifts, but two of those are Saturday and Sunday, then you're probably going to have to be paying the 150 and 200 on your Thursday, Friday shift and then on your Saturday Sunday shift, you're back to the penalty rates and then on your Monday shift you're back to the 150, 200, because you're not employed to work five consecutive shifts on Monday to Friday.

PN303

MS PAUL: That's right.

PN304

MR DUNCALFE: You're employed to work five consecutive shifts on Monday to Sunday, which 22.2(a) does not cover.

PN305

MS PAUL: That's right.

PN306

THE DEPUTY PRESIDENT: But don't you get - just bear with me for a minute. What's the current clause in the award? We discussed it earlier - 30 - yes here it is.

PN307

MR EBERHARD: Your Honour, can I put an alternate view in the sense that, I can understand - - -

PN308

THE DEPUTY PRESIDENT: Just hang on a second Mr Eberhard, I just want to read the existing clause. It's the situation for someone who doesn't work five consecutive shifts is dealt with in what will be (b).

PN309

MR DUNCALFE: I agree.

PN310

MS PAUL: Yes, your Honour, yes.

PN311

MR DUNCALFE: That's the thing our friend remain - the 150, 200, correct.

PN312

THE DEPUTY PRESIDENT: They'll get the same, whether they work on Saturday or not.

PN313

MR DUNCALFE: But I think there's a disparate view here where there would still be five consecutive shifts including the Saturday and Sunday and therefore, they'd only be entitled to 133 per cent, which we don't agree with.

PN314

THE DEPUTY PRESIDENT: I don't think Ms Paul said that, did you?

PN315

MR DUNCALFE: Yes.

PN316

MS PAUL: I think my reading of that, your Honour is the fact that again, the words are - the issue around working the ordinary hours on Monday to Friday is to be separated for the concept of what is the five or more consecutive shifts.

PN317

THE DEPUTY PRESIDENT: I agree with that.

PN318

MS PAUL: So, if the five or more consecutive shifts fall between a - - -

PN319

THE DEPUTY PRESIDENT: The start of the shift starts on a Friday, that's five, I agree with that.

PN320

MS PAUL: Friday, so that was my only point.

PN321

THE DEPUTY PRESIDENT: The proposition that's put if someone starts on Wednesday, they work Wednesday, Thursday, Friday, Saturday, Sunday as an example, the paragraph (b) would cover Wednesday, Thursday, Friday and 22.1 would cover Saturday and Sunday.

PN322

MS PAUL: Yes.

PN323

THE DEPUTY PRESIDENT: Which is the same thing.

PN324

MS PAUL: And therefore the - yes.

PN325

THE DEPUTY PRESIDENT: Which is the same thing.

PN326

MS PAUL: Yes.

PN327

MR DUNCALFE: Yes.

PN328

THE DEPUTY PRESIDENT: That person would get a higher rate for those shifts than a person who works Monday through Friday, shift work the Friday shift spilling over into Saturday.

PN329

MS PAUL: Yes, your Honour. To be clear, I'm not seeing if the person worked on the four days, and the fifth shift was on the Sunday, they haven't worked five days.

PN330

MS VALAIRE: In this case, it says now ordinary hours are Monday to Friday for five or more consecutive shifts. How can you have more than five consecutive shifts between Monday and Friday?

PN331

THE DEPUTY PRESIDENT: It's true. Well, theoretically you could, but I doubt you could do it on ordinary hours. But a part time employee, theoretically could work a day shift or four hours, come back and work a night shift starting on the same day of another four hours. Theoretically it's possible for a part time employee to do it. It's not possible for a full time employee to do it.

PN332

That's not the issue and I think Ms Paul, you agree, that a person who works less than five shifts of ordinary hours, which commence on a Monday to Friday or which are on a Monday to Friday, but the fifth shift commences on a Saturday. Those being consecutive - - -

PN333

MR DUNCALFE: That would be less than five consecutive shifts.

PN334

THE DEPUTY PRESIDENT: That would be less, and so under our restructured clause, the first four days would be dealt with in accordance with 22.2(b) and the Saturday shift would be dealt with in accordance with the weekend penalties. The effect is the same, because the penalty is the same.

PN335

We seem to be in agreement that a person who works five shifts where there's an overflow into the weekend, all hours worked after midnight on the Friday are paid at the weekend penalty rates.

PN336

MS PAUL: But that is still considered for the purpose of the five.

PN337

THE DEPUTY PRESIDENT: That issue is governed by (a). Yes, that's right.

PN338

MR DUNCALFE: Yes, but when you say it's still considered a shift for the purposes of the five.

PN339

MS PAUL: Sorry, it's still covered by (a), if I start my shift on Friday.

PN340

THE DEPUTY PRESIDENT: If my fifth shift starts on Friday night, that part of the shift is covered by (a), not (b).

PN341

MR DUNCALFE: Yes, I'm on board.

PN342

THE DEPUTY PRESIDENT: It's not less than five shifts.

PN343

MR DUNCALFE: No, no, see I thought - I'm not even going to enter into it.

PN344

THE DEPUTY PRESIDENT: No, I had understood what Ms Paul was saying.

PN345

MS PAUL: We'd still say it's clear that if you start your shift on Friday night, it's a Friday shift for the purposes of falling within (a), but your payment is going to be (b).

PN346

MS VALAIRE: Yes, I agree.

PN347

THE DEPUTY PRESIDENT: All right, is there anything else?

PN348

I'll prepare a report as I indicated. It will be published on the website when it's given to the President. Thank you for your attendance this morning.

PN349

MR DUNCALFE: Thank you, your Honour.

PN350

MS PAUL: Thank you.

ADJOURNED INDEFINITELY [10.29 AM]