PN1

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

PN2

MS R SOSTARKO: Thank you, your Honour. Sostarko, S‑o‑s‑t‑a‑r‑k‑o, initial R, for Master Builders Australia.

PN3

JUSTICE ROSS: Thank you.

PN4

MR T CLARKE: Trevor Clarke, ACTU.

PN5

JUSTICE ROSS: Thank you, Mr Clarke.

PN6

MS V WILES: Wiles, initial V, for the Textile Clothing and Footwear Union.

PN7

JUSTICE ROSS: Ms Wiles.

PN8

MS L DOOLEY: Dooley, initial L, for the CFMEU Forestry, Furnishing, Building Products and Manufacturing Division.

PN9

JUSTICE ROSS: Thanks, Ms Dooley. And in Sydney?

PN10

MR A THOMAS: Your Honour, Thomas, initial A, for the CFMEU Mining and Energy Division.

PN11

JUSTICE ROSS: Thanks, Mr Thomas.

PN12

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

PN13

MR S BULL: Bull, initial S, if the Commission pleases, for United Voice.

PN14

JUSTICE ROSS: Thank you.

PN15

MS A AMBIHIPHAR: Ambihiphar, initial A, from the CEPU.

PN16

JUSTICE ROSS: Thank you.

PN17

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

PN18

JUSTICE ROSS: Thank you.

PN19

MR H ARJONILLA: May it please, Arjonilla, initial H, for the AMWU.

PN20

JUSTICE ROSS: Thank you.

PN21

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

PN22

JUSTICE ROSS: Thank you.

PN23

MR J ARNDT: Arndt, initial J, for ABI and New South Wales Business Chamber.

PN24

JUSTICE ROSS: Thanks, Mr Arndt.

PN25

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

PN26

JUSTICE ROSS: Thanks, Ms Adler.

PN27

MS T WALTON: Walton, initial T, for the Transport Workers Union.

PN28

JUSTICE ROSS: Thank you. That's it for Sydney. And in Canberra?

PN29

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

PN30

JUSTICE ROSS: Thanks, Ms Pearsall.

PN31

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

PN32

JUSTICE ROSS: Thanks, Mr Calver. And in Adelaide?

PN33

MR T EVANS: Yes, your Honour, Evans, initial T, for the Australian Hotels Association. Thank you.

PN34

JUSTICE ROSS: Thanks, Mr Evans. Anybody else? No? All right. The Full Bench in this matter issued a statement on 19 May and at para 26 set out the process that was to take place from that point. And in essence it identified some issues relating to the timing of payment of wages and the accrual point that were to be the subject of discussion between the interested parties.

PN35

I think the process was the respective unions and employer organisations would confer amongst their own constituents and then there be an exchange amongst each other or between the union group and the employer group. And the parties at that point requested seven weeks to confer with their respective affiliates and forward a position to the opposing side.

PN36

And there was a ‑ a mention was originally listed for Wednesday, 5 July. That was deferred to today's date at the request of the parties. And I think there was a further request for the deferral of today but I decided to press on with today to set some clear timelines about how long this process is going to take.

PN37

And if it's not completed within that sort of reasonable timeframe then you'll just have to file whatever you've got and whatever submissions you wish to make because we need to, within some reasonable timeframe, come to a conclusion in respect of these issues lest they drift.

PN38

Because I'm pretty sure that what will happen is if they drift for too long then I'll be hearing arguments about how they conflict with other cases and you've all got other things that you've got to be doing and at some point I want to conclude the four yearly review. So really that's the purpose in bringing it on.

PN39

I understand the position to be that the union groups have only recently concluded their internal, if I can refer to it that way ‑ or discussion amongst themselves. So perhaps I might hear from you, Mr Clarke, about where you're up to with that.

PN40

And then ‑ now, I can't recall, Mr Ferguson or Mr Arndt, I think it was one of you that was the nominated person to try and round up the relevant employer interests. Is that right or did I not do that?

PN41

MR FERGUSON: Yes, your ‑ well, I think that eventuated in practical terms anyway, your Honour, and it's myself, Mr Ferguson, who's doing that.

PN42

JUSTICE ROSS: No, that's fine. All right. Well, I'll come back to you in a moment, Mr Ferguson. I'll just hear from Mr Clarke about what he's been up to and then we'll see where we go from there.

PN43

MR CLARKE: Yes, okay. Thank you, your Honour. So I might preface this by saying that one of the issues that I think we all sort of pussyfooted around a little bit in these proceedings was the linkage between the model term and what would actually happen in awards.

PN44

JUSTICE ROSS: That's true.

PN45

MR CLARKE: And so the approach that ‑ I should say we've prepared a position paper with many attachments which is pretty comprehensive and I'll just explain in essence what that's about. Mr Ferguson has only had the benefit of that from about 10 past 1 in the morning last Thursday. He did attempt to contact me unsuccessfully yesterday to discuss it but, you know, I'm not making any complaint about that. I was late and I thank the Commission for its indulgence in allowing me to provide the material later.

PN46

What the position paper does is set up a model term, explains the reasoning behind that model term. It's a model term that's responsive to the four issues in the statement as well as the accrual of wages issue. It then sets out a matrix identifying where each of those issues is unaddressed in each individual award and then provides a schedule of tracked changes of payment of wages clauses.

PN47

So the approach is to essentially adopt a model term which is modular and say, "Well, here in the matrix is" ‑ ‑ ‑

PN48

JUSTICE ROSS: Yes.

PN49

MR CLARKE: This award doesn't deal with the public holidays issue so let's lift up the bit of the model term ‑ ‑ ‑

PN50

JUSTICE ROSS: Yes.

PN51

MR CLARKE: ‑ ‑ ‑ that's about the public holidays issue and chuck it in there.

PN52

JUSTICE ROSS: So there are two elements to your approach. You've got a model term ‑ ‑ ‑

PN53

MR CLARKE: Yes.

PN54

JUSTICE ROSS: ‑ ‑ ‑ that addresses the various issues. And there will no doubt be discussion between yourself and the employers about that.

PN55

MR CLARKE: Yes.

PN56

JUSTICE ROSS: The second question is the translation to individual awards and your preference is where an award already deals with one of the issues in the model term the award retains what it currently has rather than translating the relevant model term. And where there's a deficiency, where it doesn't deal with one of the elements of the model term, then you pick up that element of the model term. So rather than, for example, dropping the model term in and replacing what an existing award ‑ how an existing award deals with a particular issue, you deal with it on item by item, an item by item basis.

PN57

MR CLARKE: Yes.

PN58

JUSTICE ROSS: And it's to redress deficiencies rather than replace, is that the ‑ ‑ ‑

PN59

MR CLARKE: That's essentially the approach.

PN60

JUSTICE ROSS: Yes.

PN61

MR CLARKE: There's a couple of ‑ so the model award is effectively for what we call schedule 2 awards which are awards that are completely silent on all of the issues.

PN62

JUSTICE ROSS: Yes, yes, I follow, yes.

PN63

MR CLARKE: And there are a couple of deviations from the general approach you've spoken about there which might need to descend into some more detailed discussions ‑ ‑ ‑

PN64

JUSTICE ROSS: Yes, yes, yes.

PN65

MR CLARKE: ‑ ‑ ‑ or hearing where, for example, we've identified where the payment of wages clause or the adaptation of the model term to it wouldn't address some issue that arises in a particular industry. For example, you may have itinerant workers who tend to work in one town, finish a job there, travel 600 kilometres.

PN66

JUSTICE ROSS: Yes.

PN67

MR CLARKE: And they may prefer not to be paid by cheque in those circumstances. So those types of issues.

PN68

JUSTICE ROSS: Yes, yes.

PN69

MR CLARKE: But where that's arisen there's a highlighted comment to say, "Look, this is a bit different and our thinking was this." But as I say, this ‑ ‑ ‑

PN70

JUSTICE ROSS: No. Well, if I can just say in relation to those, that I don't particularly want the discussions between the unions and the employers to get bogged down on the minutiae of a particular award and whether or not ‑ and what the resolution of that is.

PN71

And I make this observation to both the unions and the employer representatives, that I think it's useful that you've identified it. I'm not ‑ don't interpret or misinterpret what I'm saying as somehow a criticism. I think it has to be done at some point.

PN72

But I think at this particular stage the focus ought to be on, "Well, what does the model", ‑ on two things. What does the model term look like? And secondly, to see whether there is an agreement between the respective interests about what's the process for translation into modern awards?

PN73

And that may be the subject of either complete agreement or limited agreement. You may agree, for example, that either the model term that you settle on or the model term that's determined is inserted into the following modern awards. And they might be the vast majority of those that make no provision for it.

PN74

So let's focus on maximising the area of agreement between the parties and then identify, "Well, where is there some residual dispute?" And the residual dispute might be around either aspects of the model term itself. You may not be able to reach an agreement about all of those issues.

PN75

And there may also be a dispute around the translation question and that dispute might be at two levels, you know, possibly. One is the employers may disagree with your ‑ let's frame it as a light touch approach and may prefer to completely replace. They may not. Difficult to judge where respective parties will go in these matters because their positions have changed through the review process, depending on what the clause is.

PN76

And there may be a dispute about the exceptions that you've identified. But at this stage I think all we need to do is really identify where there's likely to be a dispute about the translation issue and the minutiae.

PN77

I don't think it's going to be useful at this stage to, you know, explore in detail what those differences are because the Bench's approach is likely to be, "Well, let's look at settling the model term. Let's look at where there's no dispute about the insertion of the model term. And then let's resolve the issue where there is a dispute."

PN78

And I think it would probably be useful if the Bench indicated, depending on where all the parties land, what our approach will be in the translation, light touch or some other approach. But let's focus perhaps at that level in your discussions with the employers for the moment and see how far you get with that.

PN79

MR CLARKE: Yes.

PN80

JUSTICE ROSS: And we can then determine those questions and then we'll move on to the awards that remain in contest, okay?

PN81

MR CLARKE: Yes, yes. I might just say that from our perspective we're happy to have some direct discussions ‑ ‑ ‑

PN82

JUSTICE ROSS: Of course.

PN83

MR CLARKE: ‑ ‑‑ but equally happy for there to be, you know, a couple of conferences about that issue and if it assists the Commission we're happy to provide a copy of the materials that we've prepared for that purpose.

PN84

JUSTICE ROSS: Well, look, I think at this stage ‑ so you've provided the position paper to the employers?

PN85

MR CLARKE: I've only provided it to ‑ ‑ ‑

PN86

JUSTICE ROSS: Mr Ferguson?

PN87

MR CLARKE: ‑ ‑ ‑ Mr Ferguson at this point.

PN88

JUSTICE ROSS: All right. Okay. Was there anything further you wanted to say about it before I ask him ‑ ‑ ‑

PN89

MR CLARKE: No, no, no.

PN90

JUSTICE ROSS: All right. Okay, thanks, Mr Clarke.

PN91

Mr Ferguson, well, I take it you've received it and without, you know, wanting to lead you, but I'm assuming you haven't had much opportunity to discuss it amongst the various employer interests, or have you?

PN92

MR FERGUSON: No, not as yet, and their proposal is quite long, as you'd anticipate, given it goes down to the minutiae of individual awards.

PN93

JUSTICE ROSS: Yes.

PN94

MR FERGUSON: So at the moment I've only had a discussion with it about some of the groups and only in very broad terms. I think a lot of your observations today, your Honour, were helpful in the sense that the work of the employer group has been focused on that threshold issue of what the model clause might look like and how it might grapple with some of those key issues. And that seems to be where we could achieve the most initially. But I certainly haven't had a discussion as yet with all of the parties about their views on the proposal.

PN95

JUSTICE ROSS: All right.

PN96

MR FERGUSON: They haven't even seen it as it stands.

PN97

JUSTICE ROSS: Yes.

PN98

MR FERGUSON: So from our perspective, you know, we would see utility in there still being discussions, as we all anticipated. We just need to think a timeframe for that. It doesn't seem appropriate at the moment that that material that's been prepared by the union actually be filed in the proceedings. It should just be for the purposes of discussions between parties.

PN99

JUSTICE ROSS: Yes, yes. No, that's fine. Well, look, I'm interested to progress the matter so ‑ ‑ ‑

PN100

MR FERGUSON: Yes.

PN101

JUSTICE ROSS: Look, if you were provided with a couple of weeks, Mr Ferguson, to circulate, consider the paper amongst the employer interests, come up with a position, and then I think it would be desirable if you meet directly and see what you can sort out.

PN102

MR FERGUSON: Yes.

PN103

JUSTICE ROSS: And I would look to list the matter for further mention in four weeks. My expectation would be within that time period the employer interests would have considered their position, communicated it to you, Mr Clarke. There would have been a meeting between the respective parties and you'll have an idea about where you're up to.

PN104

I think at that point I'd be looking probably ‑ look, see how you go. I don't think it would be worthwhile issuing any directions for a joint report or anything at this stage. But if you ‑ just so you know where I'd be looking to go with it ultimately, it would be a joint report setting out what you agree on and, where you don't agree on a particular matter in relation to the model term, what your respective positions are.

PN105

And it can also then go into the translation process and to the extent that each of you have positions on individual awards you can set out what they are. I think I'd be looking for that sort of joint report before convening any direct conferences of the parties. I'd prefer to let you ‑ see how far you can go with the direct discussions. Let's then focus on what are the issues in dispute and then we could have a conference to discuss those.

PN106

Are there any questions about any of that or any issues or concerns? So that's in about four weeks. I'll just check ‑ I'll check my calendar. I'll let you know precisely when it will be.

PN107

MR FERGUSON: So ‑ ‑ ‑

PN108

JUSTICE ROSS: But in about four weeks we'd come back and I'll see where you're up to.

PN109

MR FERGUSON: Your Honour, it's Mr Ferguson.

PN110

JUSTICE ROSS: Yes?

PN111

MR FERGUSON: Look, giving some forethought to that, in terms of that we'd have ‑ or we think the approach is broadly appropriate. In terms of the timing for the mention if we could perhaps stretch that just to about 9 August? I'm conscious that there's a lot to do by 2 August in relation to the casuals case and a few other matters. That ‑ ‑ ‑

PN112

JUSTICE ROSS: Well, it would probably be ‑ it would be after 9 August because I was thinking about four weeks from today.

PN113

COUNSEL: Four weeks.

PN114

MR FERGUSON: Four weeks, yes. Yes, sorry, looking at the wrong date in my calendar. That would be ‑ ‑ ‑

PN115

JUSTICE ROSS: But look, I'll ‑ yes. So you've got a while.

PN116

MR FERGUSON: Yes. No, that would be fine. Look, at least then we would be able to advise you as to what progress was being made in relation to it.

PN117

JUSTICE ROSS: Yes.

PN118

MR FERGUSON: I had anticipated the dates we spoke about at the previous conference might need to slip a little bit just because of some of the delays.

PN119

JUSTICE ROSS: Yes.

PN120

MR FERGUSON: And I'm very conscious that we've got some other major cases and we've written to you in relation to some of the other issues recently.

PN121

JUSTICE ROSS: Yes. Is that the ‑ ‑ ‑

PN122

MR FERGUSON: And the position in relation to ‑ ‑ ‑

PN123

JUSTICE ROSS: Is that the domestic violence family ‑ ‑ ‑

PN124

MR FERGUSON: Family friendly work arrangements case.

PN125

JUSTICE ROSS: Yes, yes, yes.

PN126

MR FERGUSON: Yes, and the position in that in relation to that request will colour the amount of resources we can devote to this process.

PN127

JUSTICE ROSS: Sure.

PN128

MR FERGUSON: But I understand we have to deal with that on another day.

PN129

JUSTICE ROSS: That's right, on Friday.

PN130

MR FERGUSON: Yes, but that is obviously a live issue but you're aware of that, your Honour.

PN131

JUSTICE ROSS: I am, yes.

PN132

MR FERGUSON: But we're content for the mention to be listed so that we can update you as to what progress is being achieved.

PN133

JUSTICE ROSS: All right. I don't imagine that the process will be particularly protracted. We'll have that mention. We'll see where you're up to. And it might be the subject of a conference at the Commission. I don't think it will be more than one conference.

PN134

And it may be that there's no need for a conference because the views of the parties are pretty clear about what you agree about and what you don't. And you may form the view that further discussion is not really going to advance the issue much. So I think we'll be better informed in about four weeks as to where it's up to but that's the approach we'll adopt and we'll see how far we go, okay?

PN135

Any other issues or questions about this matter? No? Okay. Well, thanks for your assistance. I'll see you in four weeks. I'll let you know the exact time and date later on today. Okay, thanks. I will adjourn.

ADJOURNED TO A DATE TO BE FIXED [10.29 AM]