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Fair Work Act 2009                                       1056173






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Family Friendly Work Arrangements




9.01 AM, THURSDAY, 19 JULY 2018


JUSTICE ROSS:  Can I have the appearances, please.  Firstly, in Sydney.


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


MR J ARNDT:  If the Commission pleases, Arndt, initial J, for the Australian Chamber.


JUSTICE ROSS:  Thank you.  In Brisbane?


MS S ISMAIL:  Good morning, your Honour.  Ismail, initial S, for the Australian Council of Trade Unions.


JUSTICE ROSS:  Thanks, Ms Ismail.  In Canberra?


MR S HARRIS:  Your Honour, Harris, initial S, for the Pharmacy Guild of Australia.


JUSTICE ROSS:  Thanks, Mr Harris.


MR D JOHNS:  Johns, initial D, for the National Road Transport Association.


JUSTICE ROSS:  Thank you.


MS E SIMPSON:  Simpson, initial E, of the National Farmers Federation.


JUSTICE ROSS:  Thanks, Ms Simpson.  Mr Ferguson?


MR FERGUSON:  Thank you, your Honour.  As contemplated on the last occasion, ACCI and the Ai Group have had discussions with some of the particularly interested employer parties - - -


JUSTICE ROSS:  Well, what was contemplated on the last occasion was that you file the material by Monday.


MR FERGUSON:  Yes, that was - - -


JUSTICE ROSS:  There was liberty to apply.  You didn't seek an extension.  We had to chase you up on no more than four occasions, I'm advised - or Mr Arndt.  On no occasion did you seek an extension.  Why not?


MR FERGUSON:  I appreciate that and I wasn't aware that Mr Arndt was chased up on four occasions.


JUSTICE ROSS:  Well, contact was made with your respective organisations.  We were told initially it would be filed yesterday morning, then later in the day and then it arrives last night.


MR FERGUSON:  I can only apologise.  As I indicated on the first occasion, I came back from a period of leave and tried to wrestle it to conclusion as quickly as possible.


JUSTICE ROSS:  It's not about you individually, it's about your organisation and complying with directions, but that's fine.  In the future as a matter of courtesy, if nothing else, if you're able to file within the prescribed time then you seek the extension.




JUSTICE ROSS:  Extensions aren't going to be unreasonably refused, but we're entitled to be kept informed as to where you're up to.


MR FERGUSON:  I think that's entirely right, your Honour, and I apologise unreservedly.  I think given there are a few parties, I had hoped that it would have reached a landing earlier in the day since my return, but, nonetheless, we should have come back to you - - -


JUSTICE ROSS:  In any event, you have filed a document.  What is the status of the document?  Who does it represent?


MR FERGUSON:  So the parties that were involved in those discussions - and a large part of those discussions were undertaken by ACCI - were the Pharmacy Guild, National Farmers Federation, NatRoad, Ai Group and ACCI.  Now, I understand that the very final form was supported by ACCI and Ai Group.  I understand - and the others will probably speak to this if it's wrong, but I anticipate that it will be supported by all; but there was some final tinkering with it that wasn't necessarily confirmed with everybody, but, as I anticipate, there will be broad support for the proposal.


What I had contemplated is that perhaps the matter be listed for a conference to be discussed with the ACTU, because what has not occurred is the discussions that were anticipated with the ACTU.  That has not happened as yet, but I understand from discussions with Ms Ismail that they would be in a position to have productive discussions at a conference quite shortly, so early next week, and we have contemplated Thursday of next week as being sufficient time.  I was mindful that they would have to undoubtedly engage with their affiliates.


JUSTICE ROSS:  All right.  Before we get to the ACTU, let's tidy up the employer's side.




JUSTICE ROSS:  Mr Arndt, can you shed any more light on this?


MR ARNDT:  Just before I do, can I please apologise on behalf of my own organisation and myself in relation to the delay.  I think Mr Ferguson is correct, he probably wasn't aware of the follow‑ups.  I think from our perspective we were seeking to try and get something useful to the Commission as opposed to anything else, but I apologise for that.




MR ARNDT:  With that in mind, the joint employer proposal that was filed last night represents the fruits of those discussions with the Ai Group.  In principle and certainly in relation to our discussions with the guild and the farmers, I don't foresee any - there were some final changes that were made in the course of last evening.  I don't see any in‑principle issues that they may have with this based on what I know about their position, but that is probably a confirmation that they need to make.


JUSTICE ROSS:  No, that's fine.  I can ask them.  Can I go to the parties in Canberra.  Can you tell me what your attitude is for this document.


MR HARRIS:  There is no objections from ourselves, your Honour, in regard to what has been tabled between the discussions to meet the provisional view of the Bench.


MR JOHNS:  Similar from NatRoad's perspective, your Honour.  From the discussions, I understand there was a minor change last night, but largely NatRoad supports the document that has been tendered as a joint proposal.


JUSTICE ROSS:  All right.  Ms Simpson?


MS SIMPSON:  No objections from the NFF, your Honour, on this matter.


JUSTICE ROSS:  Okay.  We published a provisional view.  I will go to Ms Ismail in a moment.  There can be a conference, but, frankly, whether a party has an alternate clause, you still need to argue in relation to the provisional view why you think that either is beyond power or it not to be made and advance alternatives.  What I would intend to do, we will set down a conference date, but we'll also set down a date for any submissions.


The intention would be all parties would file submissions on a common date in respect of the provisional view and then we would have an oral hearing.  There would be no reply submissions.  We don't want a protracted process.  In any event, there is usually a reply to the reply.  The issues have been fairly clearly ventilated.  Ms Ismail, what do you say about a conference or about any of the other issues that have been raised?


MS ISMAIL:  Thank you, your Honour.  Look, it's a little bit difficult to make a comment on whether or not we would support a conference.  I haven't had the opportunity to process the document.  We received it at about 10 to 8 yesterday - - -




MS ISMAIL:  - - - in the evening.  Obviously I haven't had a chance to process it myself, let alone talk to our affiliates about it.  Look, from the start in theory we are happy to sit down in conference with the employers.  Our view is that what the Commission has put forward is appropriate, adequate and does not need to be amended.  Having said that, we are happy to consider the proposal, but I'll need a little time to do that.  I think the course of action that your Honour has proposed is suitable to us.


JUSTICE ROSS:  How long do you want to consider whether or not to engage in a conference?


MS ISMAIL:  Well, I think it would be reasonable today to list a conference.


JUSTICE ROSS:  No, I'm happy to list it.  I just wanted to know how long you want, that's all.


MS ISMAIL:  One week - - -


JUSTICE ROSS:  Can I make this point, Ms Ismail:  we can list the conference and if ultimately you decide that you don't want to participate, that is fine.


MS ISMAIL:  Thank you, your Honour.




MS ISMAIL:  I think realistically we would probably need early next week for consultations and if we can list a conference for Thursday or Friday next week, that would be ample time.


JUSTICE ROSS:  All right.  On that basis, I will list a conference for 2 pm on Thursday, the 26th, in Melbourne.  Can I go to the timeline for submissions.  Presumably everyone has had a full opportunity to review their position, so it needn't take that long.  If we provide four weeks and written submissions in response to the Commission's provisional view to be filed by no later than 4 pm on Thursday, 16 August, I will confer with my colleagues and provide you with the date for oral argument shortly after that.


MR FERGUSON:  Sorry, just one point in clarification.  The submissions in terms of what they're addressing - I know we have had a round of submissions in relation to the provisional view already.  Are these in relation to what has been filed or just any matter that is outstanding?


JUSTICE ROSS:  I'm not sure.


MR FERGUSON:  We have had a round of submissions and replies on the provisional review.  I accept though that we advanced - - -


MS ISMAIL:  Sorry, your Honour, I'm having a little trouble hearing Mr Ferguson.


MR FERGUSON:  Sorry, I'll move the microphone.  I've got a cold.  We have had a round of submissions and replies, but I'm conscious of - - -


JUSTICE ROSS:  Yes, that's from the statement on 3 May.  Is that the - - -


MR FERGUSON:  It was.  I'm conscious that we perhaps dealt with it in more detail than others.


JUSTICE ROSS:  Well, we would still give that date.  Your comments were filed on 1 June, reply on the 15th.  On that basis we may need a shorter period than four weeks.  Perhaps the submissions can be filed on Thursday, 9 August, by 4 pm.  In filing the submissions, avoid the temptation to - I don't care if you re‑file the previous submissions with whatever additions you want to do, but I'd rather you avoided saying you want to read these submissions in conjunction with what you have previously filed.


If you don't change your view, just re-file your earlier submissions or add to them, because sometimes there are inconsistencies between them as the position has shifted towards the position where the employers have currently landed, so just bear that in mind.  To the extent you can, make the submissions that you file on the 9th the submissions that you wish to advance - - -


MR FERGUSON:  In relation to the matter in totality as opposed to just what has developed.


JUSTICE ROSS:  Yes.  Okay.  Anyone else have any more questions?  Any issues or concerns about any of that?  In Canberra?


MR HARRIS:  No, your Honour.


JUSTICE ROSS:  No?  All right.


MR JOHNS:  No, your Honour.  Thank you.


MS SIMPSON:  No, your Honour.


JUSTICE ROSS:  Ms Ismail, are you content with that course?


MS ISMAIL:  Yes.  Thank you, your Honour.


JUSTICE ROSS:  All right.  We will adjourn until next Thursday at 2 pm.

ADJOURNED UNTIL THURSDAY, 26 JULY 2018                         [9.13 AM]