TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
DEPUTY PRESIDENT CLANCY
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards
Social, Community, Home Care and Disability Services Industry Award 2010
9.36 AM, THURSDAY, 19 AUGUST 2021
THE DEPUTY PRESIDENT: Good morning. I will, for the purposes of the transcript take appearances. And it might be easier, or at least, less unwieldy if I ask the union representatives to announce their appearances first, and then I'll move to the various representatives of employers and employer organisations. So if I could confirm please for the transcript, the appearances from the various unions, please.
MR M. ROBSON: Thank you, Deputy President. Robson, initial M, appearing for the Australian Services Union.
THE DEPUTY PRESIDENT: Thank you, Mr Robson.
MS L. SVENDSEN: Thank you, Deputy President. Lee Svendsen, appearing for the Health Service Union.
THE DEPUTY PRESIDENT: Thank you, Ms Svendsen.
MR B. REDFORD: Ben Redford, your Honour, appearing for the UWU.
THE DEPUTY PRESIDENT: Mr Redford. Right, now for the employers, please.
Mr B. FERGUSON: Deputy President, it's Ferguson, initial B, appearing with Ms Bhatt, initial R, for the Australian Industry Group.
THE DEPUTY PRESIDENT: Thank you.
MR K. SCOTT: If the Commission pleases, Scott, initial K, appearing for ABI, ACSA, LASA and Business New South Wales. And I think Ms Bailey is also with us.
THE DEPUTY PRESIDENT: Thank you, Mr Scott. Yes.
MR LIN: Thank you, Deputy President. Lin, initial B, appearing for the Australian Federation of Employers Industries.
THE DEPUTY PRESIDENT: Thank you, Mr Lin.
MR M. PEG: If the Commission please, Peg, initial M, appearing for National Disability Services.
THE DEPUTY PRESIDENT: Mr Peg. All right, is there anyone else? Yes, sorry. Mr Pick, is it?
MR PICK: Deputy President, yes, Pick, initial T, appearing for I CAN Network Limited.
THE DEPUTY PRESIDENT: Is it, ICare, is it?
MR PICK: I CAN.
THE DEPUTY PRESIDENT: I CAN. All right. Thank you. Is that everybody? All right, thank you. The material that appears to have been filed, I have from the HSU, a number of clauses, one for damaged clothing, one for remote response, and one for broken shifts. I have from the UWU, an email outlining their support for the proposal of the HSU in relation to damaged clothing and the support for the AESU proposal in relation to remote response. From the ASU I have from Mr Robson, his letter of 17 August and the clause for remote response work which is attached. And then from the Australian Industry Group, a letter of 17 August which outlines proposals for the remote response and damaged clothing. Is that the extent of the material that the parties want to bring to today's conference, just noting Mr Scott, Mr Lin, Mr Peg and Mr Pick, your presences. Is there anything that I'm missing from your respective organisations?
MR SCOTT: Yes, Deputy President, Mr Scott here. My clients have circulated a proposal on a without prejudice basis to the union parties. We haven't filed any proposal but I'm just conscious that for the purposes of today it might help to, at least, Deputy President, to make you aware that there is another proposal that has been sent to the union parties and they may seek to wish to kind of include that in the midst, at some stage today.
THE DEPUTY PRESIDENT: Right. That's not particularly helpful.
MR SCOTT: No, I understand that. I understand that. I'm conscious the directions were to file proposals and it may be that it can be tabled today on a without prejudice basis. But Mr Robson and I have had discussions over the last 24 hours and we're still working through a number of matters. I'm not in a position and I don't have instructions to file any proposal today, but it may be that in the next two or three hours I might get those instructions. I'm conscious that it kind of puts us in a difficult position today because the sense I have from my discussions with Mr Robson is that there may be some real benefit in us having - and continuing our private discussions but we just haven't been able to reach a landing by today, and by this morning. And so it may be, subject to the views of other parties and yourself, Deputy President, that my clients and potentially others, might seek an adjournment this morning for a period of time to allow those discussions to finalise so that we might be in a position to actually file a document.
MR FERGUSON: Deputy President, if I may interpose.
THE DEPUTY PRESIDENT: Yes, Mr Ferguson.
MR FERGUSON: It might be that if the parties are agreeable to this, that the discussions would be more productive if we went off record, just so that the parties can explore the issues frankly and without worrying about how elegantly they put them. If everyone was agreeable, of course, to not taking issue with yourself Deputy President, continuing to hear the matter notwithstanding the off record discussions we could then explore some of the content of the without-prejudice proposals.
THE DEPUTY PRESIDENT: The Bench won't be reconstituted - - -
MR FERGUSON: No.
THE DEPUTY PRESIDENT: Regardless of what you or anyone takes about the role or the President, or anyone else has played in conference, we're that far along. Secondly, for my part only, I just don't understand how it is that directions can continue to be disregarded. And thirdly, and this is for my part only, the boom gate is going to come down at some stage on this and the parties have an opportunity to work through these issues. If they can't, my view, at least, is that they'll be arbitrated at some stage. So you either apply yourselves to the task that the opportunity of conferencing and complying with directions presents, or you don't.
As regards this morning, I'll hear any views from the various union representatives as to the way they might think we can best use the time this morning. You're rather presuming that there'll be other opportunities to conference between now and then, all mixed together in a hearing context but again, that rather assumes everybody has got availability to do so. So I'll hear firstly from the various union representatives as to their thoughts in proceeding this morning, perhaps starting with you, Mr Robson.
MR ROBSON: Yes, thank you, your Honour. The ASU has filed its position in regards to a remote response. We've seen the position that was put by AiG and there's a significant difference between the two. What was put to us by Australian Business Industrial on a without-prejudice basis seems much closer to our position and we are certainly inclined to pursue discussions with Australian Business Industrial on their proposal. I understand that's difficult for other employer parties who haven't seen it. But there are other issues that we could discuss today. There's the damaged clothing allowance.
There is the issue of broken shifts, those various issues arising from the last hearing that were referred to that conference. We can use that time productively today. If Mr Scott needs time to confirm his instructions we could pursue those discussions, perhaps break, if they're finalised before the end of the time allotted today, and then resume if that's enough time for Mr Scott. And certainly, I'm available between now and the next hearing to continue the conference if that's necessary. This award is a priority for our union and we'd make ourselves available.
THE DEPUTY PRESIDENT: Thank you. Ms Svendsen?
MS SVENDSEN: Thank you, Deputy President. I concur with what Mr Robson has just said. We have had these discussions and we were actually talking about it literally at 9.28 to 31, I think, this morning. So we're not talking about it but we are close. I hear that Mr Scott hasn't got instructions. Technically, I haven't sought a tick-off because I have been given a bit of latitude but I wouldn't mind just double-checking with my powers that be either. I think that it's very close and that what Mr Robson suggested, in terms of doing broken shifts and damaged clothing first, would be a good idea.
THE DEPUTY PRESIDENT: All right, thank you. Mr Redford?
MR FERGUSON: Yes. Your Honour, I concur with all of that. I'm obviously privy to the conversations that have been had between Mr Robson and Mr Scott, and I can see some significant prospect of a consent position being reached. So whilst there might be some inconvenience associated with the course of action that's been suggested, it seems to me that if there's a real prospect of some alignment in positions that that should be pursued.
THE DEPUTY PRESIDENT: All right. Mr Ferguson, you look like you want to say something at this point?
MR FERGUSON: Deputy President, I think the issue is that there are two matters listed for conference this morning. That is the issue of damaged clothing and remote response. I think that there is obvious scope for a narrowing in the differences on damaged clothing and perhaps even reaching agreement, and we'd be supportive of that being considered as a priority.
I think in relation to remote response, we're quite open to exploring the issue, entirely and the union's proposals, speaking to our proposal and exploring what concerns the unions might have about it. We're happy in that context to also talk about any element of the proposal that Mr Scott might have, but I don't think it will be at once characterised as a consent position just because agreement might be reached with one of the many employer parties and the union. So I think we can explore that. We can break. Mr Scott's position and our position might change and align during the course of that exploration of the issues.
I think we're also happy to talk about the other proposals that were advanced by the unions, perhaps after we've dealt with the matters that are the subject of this conference, and that might include - present with the broken shift issue, and I think that some progress on our own differences there could be reached. But that's probably the order of priorities as we would see it:- damaged clothing; remote response and broken shift.
THE DEPUTY PRESIDENT: Mr Scott, what's the position of your members in relation to damage clothing? Are you heavily invested in this? You've had the opportunity to see the proposal of the HSU and the Australian Industry Group on it. What I'm trying to get a sense of is, if you were to be excused now to consult with your membership regarding remote response, and I was to proceed dealing with damaged clothing, is that going to be a useful way for you to dedicate your time in the next hour or so?
MR SCOTT: Absolutely, your Honour. We are invested in the issue of damaged clothing. We've seen the proposals. Our position, in an nutshell, is that we're generally supportive of the proposal that's been put forward by Ai Group. But if you're willing to excuse me for an hour or so to try and make some progress on remote response while damaged clothing is discussed, I think that's eminently sensible.
THE DEPUTY PRESIDENT: All right, we'll do that. We'll deal with damaged clothing. Mr Scott, then if you need to leave you're excused to do so. In terms of getting back on, I don't know how this technology works. You either click a link and get back on and we admit you back in, I think, or if all else fails, ring my chambers.
MR SCOTT: That sounds fine. Thank you, Deputy President.
MR FERGUSON: Mr Scott, before you - just so I can factor in my considerations, is your organisation and your client opposed to our remote response proposal?
MR SCOTT: I don't have instructions on that. But clearly we're working on another proposal - working on another proposal, so I don't know that I've got instructions in respect of yours.
THE DEPUTY PRESIDENT: All right. Now the easiest way to proceed, or maybe one way to proceed, is for everyone to have in front of them, or at least at hand, the two clauses that we have for consideration, one being that of the - this is damaged clothing, now - one being the HSU proposal; one being the proposal of the Ai Group. And the Full Bench's views aren't as developed on this claim as perhaps they are for remote response. So there were a couple of points that we made but - I'm happy for, just to get things underway, Ms Svendsen, you might just want to give an overview of your proposal, and if you want to highlight any aspects of it, or speak to any aspects of it in doing so, please do. And then I'll ask Mr Ferguson to do likewise in relation to the Ai clause, and we'll then take the discussion from there.
MS SVENDSEN: Thank you, Deputy President. There has been some discussions among the parties in relation to damaged clothing, remote response and other matters before we went to the last hearing. And this clause was one of those things that went to and fro, a couple of times. The proposal that AiG put forward was the last thing we'd actually got to, and so we've seen AiG's proposal and to some extent we had discussed that in our confidential proposals but not yet put to the Commission. So both of us are kind of putting our positions around those conversations now. And to some extent, what I've done - well, no, really what I've done is attempt to simplify the proposals to some extent put up by AiG.
If you remember during the hearing on this matter - well, no, I think it might have been in a conference with, yes, Justice Ross, we actually got to a point where we realised that damaged clothing and replacement was focussed at high end concepts and that we needed to realign this. And one of those things was around laundering which is why, instead of damaged clothing, review what laundering repairs and replacement of clothing. I've taken where AiG got to in terms of their proposal, around implementing some aspects of the current uniform policy in relation to laundry.
THE DEPUTY PRESIDENT: Yes.
MS SVENDSEN: But I use references back to the standard laundry clause, so in relation to safety equipment, for instance, the provisions at 20.2(d) require that either employees are paid to provide their own protective equipment, or it's provided by the employer, and so I've attempted to do that. It's actually not something that AiG or anyone else has seen until I've filed this now. But that's where the start of it was and my rationale behind it.
THE DEPUTY PRESIDENT: And this is, when you say that the most recent one is, or the most recent iteration - or is there one more recent than Tuesday the 17th at 4.51 pm?
MS SVENDSEN: No. I mean that those conversations went back to before the last hearing, Deputy President, and so we had got to - I think the last proposal at those discussions was the one that AiG had filed on Tuesday. And this is actually my response that they hadn't seen. The other union parties have and we've had discussion about that but we've not yet had discussions, at all, with the employer parties about what I've put, what (indistinct) was put in this particular matter.
THE DEPUTY PRESIDENT: All right. Mr Ferguson, anything that you want to say in terms of an overview of your proposed clause?
MR FERGUSON: Yes, I might do that and then also, I've gone through the comparison and I think I can sort of identify what I think to be areas of potential compromise and then just some areas of difference that we can explore.
THE DEPUTY PRESIDENT: All right, thank you.
MR FERGUSON: So I think we've tried to address, in broad terms, two elements. One is, you know, an amount for payment where clothing is just soiled, and that's in 20.3(a), and I think there's a fair degree of common ground between the parties and their positions there but they're expressed differently. And then in (b) we're dealing with an issue where clothing is soiled or damaged to the extent that it has to be repaired, effectively, and we've got sort of an additional way of covering the replacement costs, if you will. I think that's where we start to depart a little bit.
THE DEPUTY PRESIDENT: Okay.
MR FERGUSON: And I think if I can put this, and Ms Svendsen might correct me if I'm wrong, I think in relation to 20.3(a), which is dealing with the money that should be paid just for the costs of washing or laundering soiled clothing, I think Ms Svendsen has tried to simplify that by capturing part of the award that always deals with laundering allowances - - -
THE DEPUTY PRESIDENT: Yes.
MR FERGUSON: By reference to 20.2(b). I think, in principle, that has merit because the amount we took per day was taken from 20.2(b), so we could be tied to an alignment, as well. I think the award also provides some greater flexibility of a very slightly smaller amount being paid, if you pay a weekly amount, which sensibly should be applied in both contexts. So I think, you know, we'll look at the words and the finalisation of anything and if there's a point of principle I think that approach is an approvement.
THE DEPUTY PRESIDENT: So just a direct reference back to 20.2(b)?
MR FERGUSON: That's right, rather than having all of it. And then the notice in evidence requirements could be dealt with just in one place in the clause, if you will, is what the union's done.
I think, Ms Svendsen, the only thing I might - which has just come to mind now, is whether there is notice of evidentiary requirements in the award in 20.2(b). I'm not sure about that but we can perhaps return to that issue.
THE DEPUTY PRESIDENT: It doesn't seem to. It just seems to - it enlivens, instead of the provision of uniforms, the employer may by agreement pay - but it doesn't - - -
MR FERGUSON: Yes. And there might be a conceptual difference there which I've only just woken up to, in that - obviously what we're dealing with here is a proposition that there should be some amount paid where clothing is soiled, not just paid as a matter of course. And so you'll need to have some sort of evidence dealing with - well, notification requirements for dealing with when clothing is soiled so as to justify the allowance. Because I don't think there's anything in the claim that there should just be an allowance payable to people generally, for washing their clothes, if that makes sense. And it may be that there's no disagreement with that point with the unions and we can work through that. So one other issue - - -
THE DEPUTY PRESIDENT: But the laundry allowance at the moment would be paid. Is it payable where there's no uniform, as long as there's agreement?
MR FERGUSON: I'm bringing the award up, but no, I don't believe so. I think that's - - -
THE DEPUTY PRESIDENT: Ms Svendsen, how do you understand 20.2(b) to operate?
MS SVENDSEN: Your Honour, I'm just looking back at it and Mr Ferguson is right in the sense that it also provides for a uniform allowance, which is of course, not what I was referring to. Yes, 22.2(b)(sic) would be enlivened for a laundry allowance, in line with a laundry allowance for a uniform, at all times, if it's not washed. And I'm guessing that - I mean, that was not the intention but the employee will be paid the laundry allowance in accordance with clause 20.2(b). It certainly could be argued that that enlivens it to the point that it would be paid if they didn't wash the clothes of the employees and that wasn't the intention. I think it could be argued that that's what it does and I understand what Mr Ferguson is saying there. But that was not the intention.
MR FERGUSON: I think my reading of 20.2 is that it's really about the provision of uniforms. 20.2(a) talks about, or contemplates those being laundered by the employer. 20.2(b) seems to, we would say, deal with a laundry allowance that's payable in circumstances where the items are not laundered by the employer.
MS SVENDSEN: Yes, it does. And it also is enlivened for a uniform that's not provided by the employer. But it is enlivened only by a uniform, which would be my argument that this isn't. And this isn't a uniform so it shouldn't be enlivened in its full form.
THE DEPUTY PRESIDENT: Yes.
MR FERGUSON: But Ms Svendsen, I think the idea of having the 32 cents per shift or the weekly payment, whichever is the lesser, we'd probably be okay with that proposition. It might be simpler if people are, yes, able to use both propositions. But I think just so that we're on the same page, is it the union's view that what we're talking about in terms of this new entitlement, is just something where your clothes are soiled, rather than just paying for you to do your laundry in the ordinary course?
MS SVENDSEN: That was the intent.
THE DEPUTY PRESIDENT: Both parties have reflected the same, have they not, in the heading for the proposed clause 20.3? Does that not make it clear that we're talking about not the scenario where a uniform or a uniform allowance is paid in 20.2(b), but rather this is where someone's not wearing a uniform, or required to supply a uniform and receiving the uniform allowance and they're wearing other clothing? That's your gateway, isn't it?
MS SVENDSEN: Also by the heading, Deputy President.
THE DEPUTY PRESIDENT: Yes, 'Clothing other than uniforms.'
MS SVENDSEN: Yes.
THE DEPUTY PRESIDENT: That was what I was raising. So there's your gateway, and then you're into (a). When it's read, 'Clothing of an employee', well, it's clothing other than a uniform, 'is soiled they will be paid the laundry allowance in accordance with 20(b).' That seems to be almost a consent position now, at least, as far as Ai Group is concerned and I'll go to the other employer representatives. Then we - - -
MR FERGUSON: Deputy President, just, I think the issue is evidence and notice.
THE DEPUTY PRESIDENT: I was coming to that.
MR FERGUSON: Sorry, I'm just - - -
THE DEPUTY PRESIDENT: Yes. So the added elements that are present in the Ai Group's clause is notice of evidence and the compliance with the wearing of PPE, which also has application perhaps in relation to the scenario where the clothing needs to be repaired. So without cutting too fine a point, Mr Ferguson, what's the evidence and what's the notice? I mean, how is that going to play out in practical terms?
MR FERGUSON: Yes. I think the first thing is, the union has proposed some extra words which members have said are important, that the notice be provided, 'as soon as reasonably practicable after the event.'
THE DEPUTY PRESIDENT: Yes.
MR FERGUSON: I think the members have said that's useful, so they don't have some, you know, claim weeks later.
THE DEPUTY PRESIDENT: (Indistinct) claim.
MR FERGUSON: Yes.
THE DEPUTY PRESIDENT: Yes.
MR FERGUSON: So we would adopt some wording to that effect. I think in practical terms it would best be left to an employer to potentially work out - an employee and employer, how the employer is notified. In different circumstances and with different employees some will have, you know, absent, electronic methods of communication. Otherwise it might just be, you know, an email or a telephone call. I think we don't need to necessarily be entirely prescriptive in the award as to how that notice is given, merely there be a requirement that the notice be given. Obviously the employee will need to be told that the clothes have been soiled, given the work happens remotely.
I think in terms of evidence we've said, 'if requested evidence that would satisfy a reasonable person', and obviously we'll try to bring similar tests to those that apply under the NES in terms of evidence requirements. But we think the words, 'if requested', have some real work to do here because it may well be that employers don't always insist upon evidence such as, you know, a photograph of the soiling or whatever it might be. Where it's obvious that it's happened or it's known that that sort of work might result in soiling, I don't think in practical terms we need to necessarily insist upon the evidence. But again, I think it can be left to the parties to work out in their specific context, rather than being descriptive, what the evidence would be.
THE DEPUTY PRESIDENT: All right. If I could perhaps approach the next part of the conversation this way. Ms Svendsen, Mr Redford and Mr Robson, just have a think about your response to that because if we're proceeding on the basis that there's, at least between Ai Group and the HSU, almost a consent position in respect to the HSU, clause 20.3(a). Just have a think about those other elements. While you're doing that, I'll firstly go to Mr Lin, just for your view on the matters that we have just discussed with Mr Ferguson.
MS SVENDSEN: Excuse me, Deputy President, can I just - - -
THE DEPUTY PRESIDENT: Sorry - - -
MS SVENDSEN: Clause C(2), Mr Ferguson says the employer will comply with the request to provide evidence. Is that not - - -
THE DEPUTY PRESIDENT: Sorry, so in your clause, Ms Svendsen, 20.3(c) applies both to the soiling and the repair scenario?
MS SVENDSEN: Yes. Yes.
THE DEPUTY PRESIDENT: Yes, I see.
MR FERGUSON: I thought about that, Ms Svendsen, and I think the difficulty with C(3), because at first I thought, well, it's a simpler form of words, but it - 'provided that the employee will comply', so they would need to comply, but that's just a minor point; but 'they provide evidence that would satisfy the reasonable person', but it doesn't say what it would satisfy them of. So it doesn't take us where we need to go. And I think what it needs to do in relation to the soiling is, it needs to satisfy a reasonable person of the soiling and how it occurred. And I say that 'how it occurred', because part of our clause is that it's soiled in the course of the performance of their duties.
Now as I said to you, I'm not sure that in practice employers will always insist up on the evidence. But that's why I've said, 'a reasonable requirement of the employer.' I'm sorry, 'evidence that would satisfy a reasonable person.' And that reasonable person test (indistinct) it would try to take out of the NES type concept. But that's the only concern I have about your approach, Ms Svendsen. I'm not sure it actually ties the evidence to the test - to the requirements.
THE DEPUTY PRESIDENT: All right. So just have a think about that, Ms Svendsen and Mr Robson and Mr Redford. I'll go, firstly, to Mr Lin, just in terms of the clause.
MR LIN: Yes. Thank you, Deputy President. So AFEI is fine with reference to the laundry allowance when it comes to soiled clothing, and we would agree with AiG that there should be notification requirements and that there should be evidence requirements if requested by the employer.
THE DEPUTY PRESIDENT: And does that include the wording to the effect, 'evidence of the soiling and how it occurred'?
MR LIN: Yes, Deputy President.
THE DEPUTY PRESIDENT: So essentially, you're aligned with the Ai Group's clause but with the reference back to payment as per 20.2(b), is that how you would characterise it?
MR LIN: Yes.
THE DEPUTY PRESIDENT: Thank you. All right, thank you. Mr Peg?
MR PEG: I think we've got the same position here. We're pretty supportive of the Ai Group proposal. We are relaxed about it referring back to the laundry allowance. I think that's simpler. We agree to the points just made by Mr Ferguson about notice of evidence and the need to be specific about what the evidence is in relation to.
THE DEPUTY PRESIDENT: All right, thank you. Mr Pick?
MR PICK: Deputy President, we didn't have any submission on this heading into this morning's conference but just picking up on a point that Mr Ferguson made a short time ago, I wonder whether there's any benefit in inserting the words, 'as soon as practicable', after the word, 'notice', in both 20.3(a)(i), and 20.3(b)(i), just to reinforce the point Mr Ferguson made about the notice really should be forthcoming soon after the soiling or damage actually happens.
THE DEPUTY PRESIDENT: All right, thank you. Perhaps I'll start, firstly, with you, Ms Svendsen. Let's assume we've got a basis for, insofar as the laundering in - or the scenario where the clothing is soiled, we move from 20.3(a) down to 9(c), 'as applicable', and your clause which Mr Ferguson's submission does most but not all the work that he thinks it could do. Therefore he's suggesting, 'evidence that would satisfy the reasonable person of the soiling and how it occurred.' Any observations or thoughts on that, please?
MS SVENDSEN: Deputy President, I was just wondering, first, two things, I guess. If we changed, 'provided that', at (c), to the provisions of 20.3(a) and (b), 'will apply provided that', which makes it clear that Roman numerals (i) to (iii) then apply to both (a) and (b).
THE DEPUTY PRESIDENT: Yes, so the provisions of 20.3(a) and (b), 'will apply provided that', is that how you say it?
MS SVENDSEN: Yes.
THE DEPUTY PRESIDENT: Yes, I see. All right, yes, that's the gateway. Then working through (c).
MS SVENDSEN: I note that Mr Pick has indicated, 'as soon as practicable after the event', which is already in Roman numeral (i).
THE DEPUTY PRESIDENT: Yes.
MS SVENDSEN: But not in Roman numeral (ii). I think that's fine. That's a good way of putting it. I'm not as clear about the concerns that Mr Ferguson expressed about complying with a request unless it's just to reverse it and say, 'if the employer request evidence the employee will provide evidence that will satisfy the reasonable person', and then, 'of the soiling or damage.' Is that something along those lines? But yes, I haven't quite got the wording there.
THE DEPUTY PRESIDENT: Well, lets say that the wording that we're looking at in your clause, 20.3(c)(ii), and if it was something along the lines of, 'the employee will comply with a request from the employer to provide evidence as soon as practicable of the soiling and how it occurred' - or we might - sorry, 'as soon as practicable satisfy the reasonable person of the soiling and how it occurred.' That is the essence, I think, of Mr Ferguson's position.
MS SVENDSEN: I guess the real point is we're not actually at a disagreement over the need for a request and evidence to be provided of anything in relation to (a) or (b) if requested by the employee and using the test that is already in the Act which would satisfy the reasonable person. And I have no difficulty with that either. So in the sense that we actually need to play with the words there - other than that we have agreement on the context.
THE DEPUTY PRESIDENT: Yes. On one view it should be apparent what evidence is going to be required, that if you're seeking payment under this clause you'll need evidence of the soiling, not just evidence at large, and you need evidence of the damage. And again, you could also read into that how it occurred, so that the issue is perhaps one of form here, and there's a desire from Ai Group to make it abundantly clear what evidence is required, or do we leave it less wordy and just say it's 'evidence'?
MR FERGUSON: I think, Deputy President, from our sake there's a need for clarity for this reason. It shouldn't just operate as an obligation on the employee to provide the evidence if requested. The entitlement wouldn't crystallise unless the notice and evidence has actually been provided as requested. And once you tie it to the payment of a monetary amount I think there is merit in being specific about what might be required, provided it's reasonably required, rather than leaving it sort of open to differing interpretations because it is a monetary entitlement that's flowing from this.
THE DEPUTY PRESIDENT: Yes.
MR FERGUSON: I think the other point just to raise now is, I think Ms Ferguson is right, we seem to be broadly in agreement as to the substance. It's just the wording and we can perhaps work through that. But perhaps before we try and settle all of that issue, something also flows from the different approach that we've taken in relation to damaged clothing. So I think the unions have tried to deal with evidence and notice in one general way in their clause, which has the appeal of a slightly simpler clause but the difficulty is that in (b), we've got so many different requirements in relation to notice and evidence for damaged clothing, and I'll take you to (b)(i) of our proposal.
It also embraces the reasonable repair or replacement costs. And I think that's why there is some merit, perhaps on reflection to our approach of having one clause dealing with laundering costs and then one dealing with, if I could call it placement and repair costs and having slightly different rules around notice and evidence, because they are different things that you would need to establish. And if you're an employer there is no real loss of simplicity because if you're just looking at soiling, you look at one clause; if you're looking at damage resulting in repair or replacement, you look at the other. You wouldn't read both.
THE DEPUTY PRESIDENT: Your point around the damage is that you want evidence of the damage, and evidence of the replacement cost?
MR FERGUSON: Yes, evidence of the damage, how it occurred and the replacement or repair costs.
THE DEPUTY PRESIDENT: Right.
MR FERGUSON: Whereas for soiling, it's just the soil and how it occurred, the costs are just picked up by the clause because what the outcome is, you just pay the allowance.
THE DEPUTY PRESIDENT: Yes, so you could add a new Roman numeral to clause (c) though, couldn't you 3(c)? That deals with the evidence of the replacement costs or the repair costs.
MR FERGUSON: Perhaps,
THE DEPUTY PRESIDENT: Yes.
MR FERGUSON: There are differences in (b) between the proposals, as well. But yes, you could deal with it just with a separate - if you're dealing with notice and evidence in one spot, you could just have an additional obligation in relation to damage.
THE DEPUTY PRESIDENT: Yes.
MR FERGUSON: (Indistinct) to the clause. I take your point.
THE DEPUTY PRESIDENT: Let's just, before we get into damage I just want to see whether we can, as far as soiled clothing is concerned, settle upon whether - Ms Svendsen, is there any wild objection to confirming what the evidence goes to?
MS SVENDSEN: No, your Honour. I prefer to keep the award simpler, but yes. I have no difficulty with the concept of adding that, you know, particularly for the purposes of repair and replacement that it would include the cost, and while we're talking about how it occurred, damage and replacement costs, I - or repair costs, I have no difficulty with that referencing back to either clause, frankly.
THE DEPUTY PRESIDENT: Yes, all right. Let's just check in with Mr Robson and then Mr Redford. Mr Robson?
MR ROBSON: Yes, Deputy President. We're supportive of the views that the HSU have.
THE DEPUTY PRESIDENT: All right, so the manner in which the discussion has moved this morning doesn't pose any difficulties for you?
MR ROBSON: No, your Honour.
THE DEPUTY PRESIDENT: What I'm sort of moving towards at the moment, or the basis on which (indistinct) are proceeding is, we're using the clause 20.3 that's been proposed by the HSU, with some modification to accommodate some of the matters that have been picked up in the Ai Group's clause. So you're comfortable with that sort of approach, Mr Robson?
MR ROBSON: Yes, we are, your Honour.
THE DEPUTY PRESIDENT: Thank you. Mr Redford?
MR REDFORD: Yes, your Honour. No problems from us in relation to what appears like consent in terms of 20.3(a); no problems with the insertion of the words, 'the provision of 20.3(a) and (b) will apply provided that', in subclause (c).
THE DEPUTY PRESIDENT: Yes.
MR REDFORD: No problems with the insertion of the words, 'as soon as practicable', in subclause (c)(ii). In relation to specifying that the evidence would satisfy the reasonable person of the soiling and how it occurred, the insertion of the words, 'of the soiling', okay, no problem; how it occurred, I suppose this is the question, your Honour. I mean, I don't quite get it. I'm imagining a situation in which I provide evidence of my soiled shirt that's covered in a chocolate milkshake, but am I then pressed to somehow also provide evidence as to how that milkshake covered the shirt? I mean, I don't really know what that requirement would be.
THE DEPUTY PRESIDENT: Yes, I'm sort of scratching my head as to whether we'd be having a Spanish inquisition every time someone produced a soiled piece of clothing.
MR REDFORD: Yes.
THE DEPUTY PRESIDENT: I mean, I'd like to think we wouldn't need to for the princely sum of 32 cents a shift.
MR REDFORD: Yes, and perhaps if I could just follow on with that, I'd say the same thing in relation to cost. I mean, I'm coming to you saying, 'here's my shirt, I need to get it cleaned', or 'I need to get it replaced.' How am I not going to tell you how much it costs? I mean, of course I am.
MR FERGUSON: But if could interpose. I think that's why we're saying, 'if requested.' While it might not seem - - -
THE DEPUTY PRESIDENT: I don't see this as a pathway to rivers of gold.
MR FERGUSON: But many of my members have many thousands of employees. I appreciate from an individual employee that may not seem like a lot. But they have many thousands of employees, doing many shifts. And it is hoped that that might not be required but it doesn't seem unusual for a clause to potentially require and to have some window for an employee to provide notice and evidence of the two things. People might just reasonably be satisfied with an explanation as to what happened. 'I was doing this, this happened.' I really do doubt that for, as you put, that sum of money, that people will be putting to the tasks of stat decs and so forth and I think the employer having the right to ask for evidence will generally mean people will just probably apply it appropriately. As you said, we don't think it's a pathway to rivers of gold for an employee but there is a significant cost impost collectively for an employer.
THE DEPUTY PRESIDENT: Mr Pet, what are your thoughts around this?
MR PEG: I think there clearly has to be at least reference to the need for reasonable evidence if requested. I agree with the points just made by Mr Ferguson. I don't think that in practice we're going to see employers requiring forensic evidence most of the time, because most of the time it's pretty obvious what's happened. But I think there needs to be some kind of discipline in the clause around ensuring that it is actually work related. And that's what the provision around how it occurred is really about, demonstrating that it was in the course of employment and not through something that happened during the commute or whatever. So I don't sense that we've got any real disagreement on any of the principles here. It's around the form of the drafting and how much detail we'd want to put into it.
THE DEPUTY PRESIDENT: All right. From my perspective it seems as though the parties are almost there. It's really going to come down to a question of form in terms of the soiled clothing, which we can come back to. If we look at damaged clothing or - yes, Mr Ferguson?
MR FERGUSON: There was just perhaps one issue, and that's the differing approach in relation to PPE. And I think if I can just explain the reason why we've taken the approach we've taken because it might actually, in some respects, be more beneficial to employees, we've made the provision of the allowance subject to the employer complying with any reasonable requirement to the employee in relation to the wearing of PPE, whereas I think the unions have said that the employee must wear any protective or safety equipment provided. I think there was an issue in the evidence around some employers perhaps making people travel to a third location to pick equipment up, and that that might not be reasonable in some circumstances, whereas what we've tried to capture is just a requirement that, well, it's a reasonable requirement with the employer in relation to wearing the PPE. So if you've made someone travel some - - -
THE DEPUTY PRESIDENT: The question that I'd had in relation to 20.3(c)(iii) in the HSU proposal is, or the note that I'd made is this - 'after the event or before the event.' But it refers one back to 20.2(d) which perhaps goes to the substance of what you're saying, is that there's either a requirement to wear, or the reimbursement for the cost of purchasing. Now somewhere between those two falls the scenario that was raised in the evidence, I think by one or two employees of the same employer where if they were to get the PPE they'd have to travel to the employer's offices to get it.
MR FERGUSON: Yes.
THE DEPUTY PRESIDENT: Even if one was to change the words in the HSU clause 20.3(c)(iii) to, 'an employee must have complied with the provisions and worn', you know, which is not dissimilar to what you've outlined in your 20.3(b)(iii) - yes, that's one way of doing it.
MR FERGUSON: Yes, I think 20.3(a)(ii) was our specific provision around protective clothing. 20.3(b)(iii) goes to a separate issue which we can come to in due course. But 20.3(a)(ii) is - the idea is it has to be at the time of (indistinct) the soil, so that picks up your concern, Deputy President, as to the temporal issue. And then we're just saying, a reasonable requirement. So if the employee is being unreasonable in some way then the requirement doesn't stand. But it's not entirely prescriptive and obviously parties can, I think, deal with that in different ways depending on the circumstances at hand.
THE DEPUTY PRESIDENT: You see, the issue here is you may be in a scenario where the prerequisite enlivens the payments in the scenario of soiled or damaged, is going to have been the wearing of PPE. And if one then goes to 20.2(d) of the award then that's going to be more in focus, isn't it? Employees may find themselves in the scenario now where they want to insist upon people having worn PPE prior to getting payments for these allowances, they're going to have to be available or be reimbursing for the cost of purchasing, and around and round the circle we go.
MR FERGUSON: Yes, I hadn't appreciated that, trying to capture the requirements for the purchase and so forth, as well.
THE DEPUTY PRESIDENT: Doesn't it flow? I mean, if one is going to say, well, to get these allowances you're going to have to have been wearing PPE, and then then employee is going to say, 'well, where's my PPE', or 'it cost me X to get this PPE and I want to be reimbursed for that, thanks, very much.' That's where it goes, doesn't it?
MR FERGUSON: Yes, I think 20.2 would. Just, I'm just reading through it as you've raised the issues, Deputy President. I think 20.2(d) would just apply independently and they'll have to cover the costs for the purchase and so forth. And then I suppose if you adopted the approach we'd proposed to allow - the damaged clothing clause doesn't deal with the requirements of costs, or anything like that. It just leaves that to 20.2(d) to do it. And the real test is, well, did you comply with the reasonable requirement to wear it? And if someone has required them to wear it but not covered the costs and so forth then it's not reasonable and so you wouldn't have to. If they've made them travel some unrealistic distance to pick it up, well, the argument would be put that it's not reasonable.
THE DEPUTY PRESIDENT: Equally, if the employer hadn't required them to wear it then they might find themselves with a greater exposure to the laundry costs.
MR FERGUSON: That's right.
THE DEPUTY PRESIDENT: So, rather it would be economical, I suppose.
MR FERGUSON: There's that issue, as well. So we'd encourage them to require it and we'd encourage them to make that requirement reasonable.
THE DEPUTY PRESIDENT: Ms Svendsen, where does that little conversation take your thoughts?
MS SVENDSEN: Deputy President, when we looked at this we've no difficulty in the sense the reasonable requirement and what Mr Ferguson said about that. Our concern was that there was nothing in here in relation to the provision of that PPE and the reference back to 20.2(d) ensured that there was clarity around that. So we can use their words and a reference back to 20.3(d), would be fine as far as we can see. I don't have a difficulty with that being a reasonable requirement. I understand what Mr Ferguson is saying about 20.2(d) applying, except for the fact that people don't always look at other provisions when they're looking at one, and I think a cross reference to 20.2(d) makes it clearer. It provides clarity to somebody reading it and not knowing the award necessarily, very well.
THE DEPUTY PRESIDENT: Yes. Yes, I understand.
MR FERGUSON: We'd be open to a note or something if that was necessary. I'm just looking at the wording in (d) and uses odd wording around 'rubber gloves, special clothing or safety equipment', rather than personal protective equipment. They might be the same thing. But we're certainly open to a note or something referencing 20.2, if that is a concern.
THE DEPUTY PRESIDENT: Just planting it in the clause.
MR FERGUSON: Yes, we could do that. I'm just conscious that one is - - -
THE DEPUTY PRESIDENT: I don't want to do notes.
MR FERGUSON: We don't need - - -
THE DEPUTY PRESIDENT: (Indistinct).
MR FERGUSON: I appreciate that, especially when it's - the clause is that - to be honest, at 20.3 and we're noting - referencing it at clause 20.2, right? Like, it's not like you're looking at a clause five pages away in the award. The point I was just raising is that personal protective equipment is not contemplated in 20.2, but rather, more specific items are:- rubber gloves; special clothing; safety equipment. I'm not expert. Ms Svendsen would be closer than me to some of the detail but I assume there might be other - like aprons and things that people might be wearing, just to keep clothes clean.
MS SVENDSEN: There would be but the clause is obviously taken from an older version and it includes domestic assistants, which is where rubber gloves come in. But safety equipment provides a bit of an overall. It could be reduced to personal protective equipment, rather than all of those examples in clause 20.2. I would just say that one of the reasons that we're in a bit of a pickle around broken shifts is that nobody realised there was a (d) in the shift provisions.
MR FERGUSON: We'll come to (d) but I think, Ms Svendsen, that the issue I'm picking up is, I look at the wording in 20.2 and I think it's perhaps archaic, it's perhaps outdated, but I'm not sure, and 20.2 hasn't been the focus of these proceedings. But for that reason we probably don't need to pick up that wording and drop it in the new 20.3.
MS SVENDSEN: It's just across, for instance, not putting the wording in.
MR FERGUSON: Yes, okay. 22.2(d), Deputy President, it talks about rubber gloves, special clothing or safety equipment. But the point I'm raising is I'm just not sure if that's entirely aligned, and I think Ms Svendsen is raising the same issue with the concept of personal protective equipment.
MS SVENDSEN: I think safety equipment covers PPE.
THE DEPUTY PRESIDENT: I think special clothing probably covers an apron.
MR FERGUSON: Maybe it does.
MS SVENDSEN: Yes.
MR FERGUSON: But there needs to be a reference to the payment (indistinct) in it. We're probably not opposed to that, if we want to build some words around that.
THE DEPUTY PRESIDENT: All right.
MR FERGUSON: If it's just a cross reference, rather than a new entitlement.
THE DEPUTY PRESIDENT: Okay, so what I'm, at eye level, taking out of that exchange is that if 20.3(c)(iii) in the HSU provision had inserted into it, 'the employee must comply with any reasonable requirement of the employer to wear the protective or safety equipment provided' - yes, it's incorporating a reasonable requirement with enlivening 20.2(d) which is the issue.
MR FERGUSON: Yes. The only issue with that, Deputy President, is that it's not that the employee must comply and how do we get there, it's that the employee has complied.
THE DEPUTY PRESIDENT: Yes. It's working out how to then capture the other element to 20.2(d), which is the provision of the reimbursement of the items described in 20.2(d).
MR FERGUSON: But if there's common ground that there be some sort of cross reference, perhaps during the course of the day or at some other point we can settle the wording between the parties, of the cross reference.
THE DEPUTY PRESIDENT: Yes.
MR FERGUSON: If everyone agrees, once we see the total form of the clause. Because there are other live issues, I think, that are probably more - - -
THE DEPUTY PRESIDENT: Hopefully not too many more because I don't think any of us ever dreamed that we would be spending hours and hours on such matters.
MR FERGUSON: I think for this one we are closer. Many hours have already been spent, Deputy President, but I think we are very close, in substance and it's just the wording.
THE DEPUTY PRESIDENT: (Indistinct), Mr Ferguson, not (indistinct).
MR FERGUSON: Yes.
THE DEPUTY PRESIDENT: All right. Now the matters that you want to raise in your clause 20.3(b), which you say need to be reflected. Because at the moment what I'm trying to do is work on the basis that the structure, at least, will be aligned to how it's been structured by Ms Svendsen.
MR FERGUSON: Yes. Adopting that approach, I think if we just went to the paragraph there, I think paragraph of (b).
THE DEPUTY PRESIDENT: Yes.
MR FERGUSON: And I'm just trying to cross reference it with both. I think both contemplate soiled or damaged excluding normal wear and tear, in the course of the performance of their duties required by their employer, we're of common ground there; and to the extent that repair or replacement is necessary. Now we then say, 'an employer must reimburse the employee for the reasonable cost of repairing the item, or replacing it with a reasonably priced substitute item.' Whereas the unions say, 'or the reasonable cost of repairing or replacing the item.' And I think what was picked up is that, in part, if an unnecessarily expensive item of clothing was worn that the employer obviously should not be put to the cost of replacing that. And I'm not putting for a second that all employees are necessarily doing this work in particularly expensive clothing, but it would arise, so that an employer shouldn't be put to the task of replacing whatever the item is with a like for like. I think in a safety net context, 'the requirement to replace with a reasonably priced substitute item', should be sufficient.
THE DEPUTY PRESIDENT: Doesn't that get picked up in, 'reasonable cost of replacing the item'? It's not the cost of replacing the item, it's the reasonable cost. Doesn't that pick it up?
MR FERGUSON: I think we're just trying to be specific about what you're replacing it with, that you're not replacing it with like for like, necessarily.
THE DEPUTY PRESIDENT: Okay.
MR FERGUSON: See, I don't know if the unions are opposed to that, necessarily. They may be. But that was the intent. Then if we move through the clause, if you want me to move on, Deputy President?
THE DEPUTY PRESIDENT: Yes.
MR FERGUSON: Yes. I think (b)(i) has obviously picked up 'the reasonable repair or replacement costs.' That's the evidence, the notice point we've gone through in detail.
THE DEPUTY PRESIDENT: Yes.
MR FERGUSON: The second is a proposition that the employee's complied with any reasonable requirement of the employer in relation to the wearing of personal protective equipment. We've dealt with that.
THE DEPUTY PRESIDENT: Yes.
MR FERGUSON: (iii), 'the employee comply with any reasonable requirement of the employer in relation to the nature of the clothing that is to be worn or not worn.' And to be clear, because I think there might be some anxiety, we're not purporting to give an employer any enhanced right to direct people to wear something. The award would just say that the costs only deal with whatever policy you've got about what clothing should be worn - i.e., they might say, well, wear suitable clothing for getting wet, or gardening or whatever it might be.
Then at Roman numeral (iv), unless you - I'll just keep moving along unless you tell me otherwise because - - -
THE DEPUTY PRESIDENT: Yes.
MR FERGUSON: 'An employee is not eligible to recover the costs through any worker's comp legislation.' It appears to us that there are some legislative schemes that are not uniform across the country, but there are some that enable employees to recover the cost of damaged clothing through those schemes. And there is, in other awards, provisions that, like this, limit the reimbursement to situations where you haven't got an eligibility to recover it through worker's comp.
THE DEPUTY PRESIDENT: Thank you. I'm holding the view that 20.3(b)(i) and (ii) in the AiG clause have been - in terms of those, they've been picked up and we've worked through any possible differences with the HSU clause in the discussion we've already had.
MR FERGUSON: Yes.
THE DEPUTY PRESIDENT: There's then some additional matters to decide of the placing of the reasonably priced substitute item. But there seem to be some additional matters or some additional considerations in Roman numeral (iii) and (iv), and it would be useful to hear from the unions in response to those two components; (iv) might not be all that contentious; (iii) may raise some issues. I mean, a wave of despondency descends over me, every time we get prescription after prescription after prescription of these awards. Routinely, the institution I work for is criticised for making things complex and yet, we're dragged kicking and screaming into layers of complexity. So that's my musing for the morning. But Ms Svendsen, any comments on the matters that are raised in (iii) and (iv)?
MS SVENDSEN: Thank you, Deputy President. I think (iii) is a policy matter and just should be left to that. And if the employer has a policy then that will be the policy that applies, regardless of putting it in here. And I don't think it's necessary. I think it's an unnecessary complication. I cannot believe that someone who is - or the number of people who would be interested in worrying about their clothing if they're going through the worker's compensation legislation and getting compensation out of as much of it as possible, is really the focus of what they're actually doing. I just don't think that clause - I mean, we can put that in so many clauses it's not funny.
I don't think that's necessary and we have just an objection to that kind of insertion into a clause that we're talking about. We're talking about something that, I guess from - I guess what I go back to is partly also around having worked in this sector for near on 35 years where we have the simpler clause which says, if your clothes are damaged in the course of your employment you can recover reasonable costs of replacement of repair, and that is the sum total of the clause. That is what we put in our initial submission. And it's not abused and it's not a problem. And it seems to me that we're overcomplicating this issue for no apparent gain, and for minor amounts of money. So it just doesn't seem necessary to us.
THE DEPUTY PRESIDENT: All right, thank you. Mr Robson?
MR ROBSON: Thank you, your Honour. We agree with the ASU. We think (iii) and (iv) are just an unnecessary complexity for the clause and it just seems to create just so many ways that an employer could get out of paying this entitlement, over such - and it is such a small sum in the end. We wouldn't (indistinct).
THE DEPUTY PRESIDENT: Sorry, you just went on mute there. Had you finished, Mr Robson?
MR ROBSON: Yes, your Honour.
THE DEPUTY PRESIDENT: Thank you. Redford?
MR REDFORD: I don't have anything to add, your Honour. I agree with the comments that have been made, particularly by the HSU.
THE DEPUTY PRESIDENT: All right, thank you. That leaves then - the parties seem to have a similar subclause (d), which is non contentious, I believe, which then leaves in the Ai Group clause, 20.3(c) which is, 'this clause will not apply where the damage or soiling of an employee's clothes is caused by the negligence of the employee.' Oh, boy.
MR FERGUSON: It's the provision in other awards, Deputy President.
THE DEPUTY PRESIDENT: Yes, okay. Is it going to be a consent position?
MR FERGUSON: I think, trying to be productive, I think we aren't so easily satisfied that the points raised in (indistinct) (iii), (iv) or (c) are just unnecessary. Perhaps it's because it's obviously our members that will be covering the costs. And while it's easy for the unions to say they're just not warranted in the interests of simplicity, it's different when you're speaking to members who are potentially paying for these new obligations.
We think all of them are necessary. I'm wondering whether, if we reached a compromise position on the totality of it that - and let's say, we walked away from (c) on the basis that that we retained renewal(?) (iii) and (iv), we might be content for that to go into the award on that basis. Obviously, if at a later point this was a real issue we might come back and seek to ventilate it, if it crystallises as an issue. I'm just putting that on a without prejudice basis, in terms of balancing the interests of simplicity and/or the real concerns we have, if that's a way to content.
THE DEPUTY PRESIDENT: All right. Can I just get a brief outline of the position of each of the unions in relation to (c), please, 20.3(c) out of the Ai Group clause? Ms Svendsen?
MS SVENDSEN: I'm not sure that I'm in a position to - I don't think that that fully works, although I could propose possibly that we got agreement on everything but those three subclauses and we let the Commission decide on those three subclauses, for what it's worth. But I certainly think we're close and I don't think that there's a necessity, and I don't - well, (iv), we have a problem with, right? So we actually have a problem with that; (iii), we think that this clause, Roman numeral (iii) is not even enlivened unless the employer has a policy, and if the employer has a policy there's no necessity for (iii) because you would be, as an employee, required to comply with reasonable policies anyway, because that would amount to an employer directive and therefore (iii) is unnecessary because it doesn't even enliven anything unless the employer is actually made a policy or direction to employees. So I think that (iii) is completely unnecessary. And my view about (iv) is already stated.
THE DEPUTY PRESIDENT: All right.
MS SVENDSEN: I'd be interested to hear what - - -
THE DEPUTY PRESIDENT: Sorry - - -
MS SVENDSEN: (Indistinct) is, so - - -
THE DEPUTY PRESIDENT: Yes. No, I don't - just - - -
MS SVENDSEN: I'm interested to hear what ASU and - - -
THE DEPUTY PRESIDENT: With 20.3(c), sorry, I don't know that I captured what you outlined there. This is the negligence point.
MS SVENDSEN: Sorry, again I think that damage and soiling, like anything else, that is caused by negligence of the employee, is a performance matter, not something that can be confined to a sentence in a clause for an entitlement. Again, if you actually talk about the concept of negligence as the employee, you could apply that to almost every clause in the award and it's therefore an unnecessary addition because it actually - if, you know, the employee is negligent then they should be being performance managed or spoken to about that stuff, and negligence would be a reason for not enlivening this clause.
MR FERGUSON: Ms Svendsen, just - sorry.
THE DEPUTY PRESIDENT: That's all right.
MR FERGUSON: No, I apologise, Deputy President. I was just going to explore one issue with Ms Svendsen but - I'm sorry, I - - -
THE DEPUTY PRESIDENT: No, that's all right, if you want to do it quickly.
MR FERGUSON: I'll do it quickly. It seems that there might be a level of overlap between (b)(iii) and (c), and I'm just trying to explore these issues, Ms Svendsen, and whether you'd be open to perhaps - I appreciate you don't want this outcome, and on both but whether you'd be content with the approach that perhaps we saw the retention of one or the other, as a compromise between both our positions.
MS SVENDSEN: It's not just me.
MR FERGUSON: Sorry - - -
MS SVENDSEN: Yes, so before I went any further I would want to hear what ASU and UV - United Workers have to say.
MR FERGUSON: I think our position, in simple terms, is if the cost is incurred because the employee has been negligent or not complied with the policy, we don't think it's entirely fair that we have to pay. But I put that as a compromise proposition.
MS SVENDSEN: But I'll go back to the fact that it wouldn't. You wouldn't have to pay.
MR FERGUSON: But - - -
MS SVENDSEN: If somebody has not complied with a policy - you're right that they're directly interlinked but if somebody hasn't complied with the policy then the issue is about that. That issue has to be raised and it wouldn't enliven the clause, so - and you don't need to say that in every clause in an award because it's true for everything.
I mean, you get to the final stage, it's true in the sense of depending on the level of negligence, it's true in terms of terminating the employee's employment. You know, it's just, you don't need to say those things.
MR FERGUSON: Yes, I think, to speak constructively, I think we were trying to provide a different issue. So I think the clause would pick it up, but it may be that we're both on common ground that it wouldn't be payable in those circumstances, so if that's the view, I think - we're only arguing about whether or not it's sensible to make that - - -
MS SVENDSEN: Would you like to go back through the award and put this in everything? That's my point, Brent. And, no, we're not going to agree with that. And policy is enlivened because it is a direction of the employee(sic) at the employer(sic), and if the employee hasn't complied with the directions of the employer then there is a case for the employee to say no, absolutely. And ditto, you know, it's - and it's also a matter that might be the subject of performance or disciplinary action. I just don't see that you have to say that in every clause.
MR FERGUSON: I'm just trying to constructively float the compromise as a matter for consideration.
THE DEPUTY PRESIDENT: I'm going to go into (indistinct). I'll just check in with Mr Robson and Mr Redford, thanks.
MR ROBSON: Yes, thank you, your Honour. Look, from our perspective we've got significant concerns about (c). I think the concept of introducing the concept of negligence into this award where it hasn't existed previously, is just going to cause more problems than it solves. And I've done a quick scan of some of the modern awards that do include a reference to negligence, and an example that comes to mind is the Manufacturing Award where it's used in reference to the tool allowance. And it seems to us that this is dealt with in - this is use in awards where there is the potential for significant liability. In terms of the tools and the tradesperson, that could be hundreds, if not thousands of dollars and I can understand why an employer - why a minimum award system should provide some balance there. But we're dealing with clothing worn by a person dealing with people that are likely to be a person with a disability, an aged person.
What we're dealing with is a t-shirt, a polo, pants, maybe a pair of shoes that someone's vomited on, or it's been soiled with faeces. How you work out where negligence is just seems very difficult for us. And for the small sums of money involved, you know, proceeding to a dispute over negligence and the payment of this award would just seem terribly unproductive, and employees would be dissuaded from advancing it. Like, if it's a $32 shirt that the employer says that, well, now you got vomited on by your own negligence, you know, why would you take that forward? Whereas if it's a more significant item like a tool set or a power tool that actually costs a significant sum of money, I could understand some value there.
So we wouldn't be agreeing to see - and I don't have instructions on some sort of trade off, or what is it, it's a Roman numeral (iii) and (iv) in subclause (b) of the AiG proposal, but it (indistinct) unnecessary. We don't think it should be in there. It adds unnecessary complexity for offering very little to the employer. And then in (iii), just again, I mean, again this comes down to a dispute over what is a reasonable item of clothing. And again, for the small sums of money that are potentially involved in this, it does seem to be a dramatic response. If we were dealing with things that could cost thousands of dollars, I could understand that. But it's not likely to.
THE DEPUTY PRESIDENT: All right. Mr Redford?
MR REDFORD: Yes, your Honour, I mean, I agree with all of that. With regard to subclause (c), I keep coming back to this idea of how this is actually supposed to work in practice. I mean, I turn up with my shirt with the milkshake on it and I somehow have - I've got a video of the client throwing the milkshake on me so I can prove how the damage occurred. And then I'm in an argument about whether or not it was reasonably foreseeable that I shouldn't have given the milkshake to the client because they were probably going to throw it on me. I mean, it seems to me to create disputation, not resolve it. I just want to, without indicating that we'd be prepared to agree with it, I just want to clock though, and understand the proposition that is being put. That is that the Ai Group would withdraw subclause (c) on the basis that the unions would agree to one of either Roman numeral (iii) or (iv). Is that what's being put?
MR FERGUSON: I think, and I just floated it, and this was on a without prejudice basis, was perhaps take away (c) if we retained (iii) and (iv). I think (iii) and (iv) deal with different issues. I think there is a degree, conceptually, of overlap between (iii) and (c). And I'm not necessarily sure which - and I think that's where there's scope between us to perhaps reach agreement on how, in the context of a new entitlement and hot it would be dealt with. We're raising them because they're definitions that have been raised with us, and obviously in relation to (c) it's a concept that's worked in other awards and not just in the context of expensive items, as Mr Robson said. I think, Mr Robson, you might be referring to a clause that deals with negligence by an employer, but there's probably not utility in digging into that because I might be wrong.
And Mr Redford, I think we're open to consideration of how we can sensibly reach agreement on these two issues and make it a bit simpler for a new clause. And I think the milkshake analogy, I don't know how far that takes us. The analogy that was put to us was more people carrying on home maintenance work in a way that was completely foreseeable that clothing was going to get damaged, gardening and so forth, rather than following the protocols that were put in place. But we also hadn't made the negligence subject to evidence, or anything like that. Like, the employer, unless they were sure that it was negligence, would just have to pay. I think that's how it would work in practice. Otherwise they would risk an underpayment. So again, I don't think this is going to apply all the time, Ben, or that employers are going to be looking for ways to quibble with every little claim that comes in, but it's a mechanism for dealing with the obvious outliers. And the costs of replacing items of clothing are not that insignificant to employers in this sector, many of whom are really genuinely struggling with maintaining their viability. So I understand it's not a huge amount of money for an individual item but obviously we're concerned about any cost increases. But we're hoping we're able to compromise on those sort of issues, is what I was suggesting.
THE DEPUTY PRESIDENT: Okay. Well, this is where we're going to conclude the discussion around damaged clothing, this morning. What we're going to do in relation to that is, it seems to me that good process has been made in relation to most aspects that are raised in the two - those clauses. The framework, which certainly I've been focussing the discussion on, is that which was outlined by the HSU and I think the parties are across the elements that the Ai Group has suggested by incorporated from its proposal into that framework. The obvious areas of disagreement lie around 20.3(b)(iii) and 20.3(b)(iv); and then 20.3(c).
The current programming sees that parties required to make any submissions in relation to damaged clothing, and I've got matters by 4 pm, Wednesday 25 August. Now it seems to me that there's an incentive on the parties to continue their discussions and try and produce, if not a consent position in totality, a consent position in terms of all but three matters, and present a clause to the Commission by that time for our consideration ahead of the hearing on 1 September. It will require the parties to exchange that form of wording and continue to work it up but I think rather than indulge in a drafting exercise with as many people as we have on the line now, that we can use our time better.
So basically the proposition is this. You either prepare yourselves to do further submissions on damaged clothing or you try and narrow the gaps and present by that time, a consent clause, as far as you've taken it. I certainly have an appreciation there that might land in the elements of it and if it's ultimately the task of the Full Bench to determine what sort of a clause might be inserted and any form of it, we will. But you've got that opportunity between now and next Wednesday. If further discussion before the Commission is considered useful I'd look to accommodate that but if it's simply so that you could have discussions that you could have by everyone organising them, themselves then I'm less enthusiastic about the task
But I think we'll leave damaged clothing now. Perhaps if I could just get an indication, do the parties consider that with some back and forth they might be able to narrow the issues in terms of drafting and how they consolidate a position on all but a few elements of the damaged clothing clause? First, Mr Ferguson?
MR FERGUSON: I think so. It seems very likely.
THE DEPUTY PRESIDENT: Mr Scott?
MR SCOTT: Deputy President, you appreciate I wasn't necessarily a part of all of the discussion this morning but I expect - - -
THE DEPUTY PRESIDENT: The correct answer is yes. Mr Peg?
MR PEG: Yes, Deputy President, that's fine.
THE DEPUTY PRESIDENT: Mr Lin?
MR LIN: Yes, Deputy President.
THE DEPUTY PRESIDENT: Mr Pick?
MR PICK: Yes, Deputy President.
THE DEPUTY PRESIDENT: Thank you. Ms Svendsen?
MS SVENDSEN: Definitely, Deputy President. Yes.
THE DEPUTY PRESIDENT: Thank you, Ms Svendsen. Mr Robson, you're on mute.
MR ROBSON: Sorry, sir. Yes, Deputy President.
THE DEPUTY PRESIDENT: Mr Redford?
MR REDFORD: Yes, your Honour, it would be a worry if we can't.
THE DEPUTY PRESIDENT: All right. Well, look, Mr Scott, you're the starring act next when we start talking about remote response. What we might do now is just take a brief break and we'll resume at 25 past 11.00. I'll leave it as a matter for the parties as to whether they disconnect or whether they just turn off their camera and microphone now and we'll just take a short break. My intention would be to see where we've got to with damaged clothing. Mr Scott, did you have anything that you're intending to circulate ahead of any further discussion, or is that still a bit premature?
MR SCOTT: It's a bit premature.
THE DEPUTY PRESIDENT: All right. What we'll do is, I'll get an update from you when we reassemble at 25 past 11 and then we'll see where we can take the conversation from there. Thank you.
SHORT ADJOURNMENT [11.29 AM]
RESUMED [1.25 PM]
THE DEPUTY PRESIDENT: We will turn now to remote response. And again noting that there are proposed clauses before the Commission from the HSU and Ai Group; and then further to that, the ASU. In terms firstly of the two union positions, is there any comment on the two clauses that have been put in from the HSU and the ASU going to differences in form or substance? I will ask you, Mr Robson, first.
MR ROBSON: Thank you, Deputy President. I don't believe there would be any difference. If there was any difference, it wouldn't be any - it would have been a minor drafting issue and nothing of substance.
THE DEPUTY PRESIDENT: Ms Svendsen, is that your view as well?
MS SVENDSEN: Yes it is, Deputy President. We conferred on this, and I believe they're the same wording, but I would have been perfectly happy to have said we agree with the ASU's clause. And I know that we intended to file the same.
THE DEPUTY PRESIDENT: Okay. Thank you. All right then. It's then just a matter of the differences in position between that and that which has been filed by the Ai Group, and then that which may be ultimately put up for discussion by Mr Scott. Mr Scott, your indication at the outset of our discussion today was that the sort of clause that you're considering in consultation with your membership is close or closer to the union position. Is that correct?
MR SCOTT: I think that's right. I think that's fair to say. We've seen the clauses that have been filed by all of the parties, and we're working very hard to narrow the issues in dispute, and so we've obviously had regard to the unions' clauses. So that's kind of where we're at, but I'm not sure that I can advance it beyond that at the moment.
THE DEPUTY PRESIDENT: All right. Well, without wanting to marginalise the position of the Ai Group, Mr Scott, are you in a position, if we were to look at the - let's use the ASU's document on remote response, with also the proposal around clause 20.9. If we were to look at that, are you able to identify the current areas in it or the current parts of it which provide a point of difference?
MR SCOTT: I can, Deputy President. It may be somewhat torturous. The reason I say that is I've had communications with the ASU over the last 24 hours, and subject to having discussions with Mr Robson, it may be that a different clause is put up entirely. I appreciate that that is unhelpful right now, but I'm just not sure that working through this clause and its structure is an efficient use of our time.
Over the morning I've kind of worked to progress discussions with Mr Robson, but obviously Mr Robson has been tied up in the conference. I've also endeavoured to get instructions from the four clients who I represent, and unfortunately it's not necessarily that easy to get instructions on the spot from people who are otherwise busy. So at the risk of being more difficult than I have been this morning, I would be suggesting that if Mr Robson and I could be excused for 30 minutes to have a discussion, it may be that we can get some progress beyond where we are at at the moment.
THE DEPUTY PRESIDENT: Mr Robson, are you happy to do that?
MR ROBSON: Yes, your Honour, I think I would be. It would be helpful to clarify some points from Mr Scott's point of view, but I would need to seek instructions after that conversation from our - just about what Mr Scott has said to me and where we would be prepared to go with this. I'm not sure I could report back after a 30 minute discussion with a settled view from the ASU on the ABI proposal.
THE DEPUTY PRESIDENT: Okay. Just park that for the moment because it would seem that what would then also be involved is there having to be an attempt at establishing how much common ground there would then be that flows through to the other union parties and the other employer parties. At the moment the union position appears to be aligned around the form of the clause, but I'm not sure whether there would be a divergence when it comes to considering aspects of Mr Scott's position.
Perhaps I will get a bit of an overview from the employer parties regarding Ai Group's proposed clause. I'm taking from what we've been discussing that ABI at least has a different view and has its own ideas about the sort of clause it would put up. So to that end, Mr Pegg, what's in broad terms the position of NDS? Is it reflected, at least conceptually, in any of the clauses that have been put before the Commission?
MR PEGG: Deputy President, before I respond to that, I just wonder whether it might be worth hearing from Mr Ferguson. I think he was trying to intervene a moment ago, just to speak to the Ai Group draft; if there's anything Mr Ferguson want to say first, and then - - -
THE DEPUTY PRESIDENT: Yes, only if there is something overarching that has changed about it, Mr Ferguson. I realise there's a lot of detail in it. You're on mute.
MR FERGUSON: I apologise. It had to happen. I wasn't proposing to take you through the detail unless you think there's utility. Obviously were filed it so that everyone could see it. I think our concern was just - and I appreciate the Deputy President's opening comments - we've obviously filed this in accordance with the directions. Our concern was that these proceedings not be diverted to a consideration of some discussions that might be happening between one employer group and one union.
We are obviously keen for an exploration of the issue, the clause with proposed, comprehensively; and the unions' proposals, and we're happy to explore the issues productively with them. Just we are somewhat concerned that if, you know, some parties break off and start talking about another proposal that we may not have even seen, let alone engaged with our members, how productively we could advance that.
If the intent is to get a consent position or a narrowing of issues between the parties generally, just narrowing them between one of the many employer groups, I'm not sure how helpful that is. But I'm not sure there is any employer opposition to our proposal at all. We haven't heard that there is. Mr Scott may be prepared to move further, but I would certainly be assisted in knowing if there was an employer opposition to our proposal, or union - what the unions' concerns with it is.
THE DEPUTY PRESIDENT: Yes, all right. I'm moving to the employer's just now. Mr Pegg, in broad terms what's NDS's position?
MR PEGG: Yes, thank you, Deputy President. In broad terms we don't oppose the Ai Group's proposal. We think it reflects the principles that were outlined in the decision around minimum payments that would apply; a higher minimum payment where an employee is not on call; the appropriate application of penalty rates where applicable. So as a starting point we have no opposition to that.
We note, you know, clearly there are differences in comparison to the union proposal, and I guess it remains to be seen if we can work through and narrow the gap on that.
THE DEPUTY PRESIDENT: Thank you. Mr Lin.
MR LIN: Yes, thank you, your Honour. Broadly AEFI would support Ai Group's proposal for remote response.
THE DEPUTY PRESIDENT: Thank you. And Mr Pick.
MR PICK: Thanks, Deputy President. I just had a query, and it might be something that Mr Ferguson can talk to directly. I'm conscious that I'm coming in to this proceeding late, so my apologies if it has been addressed in previous conferences. But the draft clause X.1(a)(i) - - -
THE DEPUTY PRESIDENT: Is this just getting into the minutiae, or have you got a broad overarching position?
MR PICK: It is more of a minutiae point.
THE DEPUTY PRESIDENT: Have you got an overall sort of position?
MR PICK: Overall position is supported, your Honour
THE DEPUTY PRESIDENT: Okay. Mr Ferguson, one opening comment I have is the Full Bench expressed a provisional view around the period of payment, firstly one between the span of 6 am to 10 pm, and then the next from 10 pm to 6 am.
MR FERGUSON: Yes.
THE DEPUTY PRESIDENT: And it looks as though you want to argue the toss on that.
MR FERGUSON: Only marginally, and I think because it was a provisional view, but to explain - - -
THE DEPUTY PRESIDENT: (Indistinct)
MR FERGUSON: No, but I - but it is only marginally, because let me explain. I think the view, as I understood it from the Full Bench, was that it would be 30 minutes between 6.00 and 10.00 - 6 am and 10 pm - and an hour between 10 pm and 6 am, but that less where people were on call. So what we've proposed is 30 minutes between 6 am and 10 pm, and 45 minutes between 10 pm and 6 am, and I will come to that in a moment. And then consistent with the view that there be less when people are on call, we've proposed at X.2(a) less where people are on call, 15 minutes and 30 minutes; so entirely consistent.
The 45 minutes, the Full Bench noted an interaction between the rate of pay and the minimum payment, and we tried to grapple with that complexity by not I think adopting what the Full Bench might have been thinking about at least, which was that the minimum rate apply; we've actually proposed that the work be paid at the rate that would otherwise be applicable under the award, but for some address the complexities; and because the work would be paid at that higher rate, we've actually proposed a very slight reduction in the minimum payment to 45 minutes from an hour.
We're only apart from the Bench by 15 minutes in relation to one timeframe, and the Bench otherwise didn't really articulate what the lesser payment would be for where you are on call, so we proffered one. I think in terms of the rate issue what we've tried to do is address some of the complexities the Bench said, for example make it clear that you wouldn't be paid shift allowances when you were doing this sort of work, because it wouldn't be a shift in the sense contemplated. So at X.1(a) we've addressed that issue; and obviously you wouldn't get necessarily the allowances and so forth, it would be applicable either.
I think just so that everyone understands conceptually what we've done is one other issue, is that no one has really said what the minimum payment should be calculated at. So if it's a minimum payment for an hour but you're not working an hour, at what rate do you pay it, that minimum payment? And what our approach has been to say the minimum payment would be effectively the minimum applicable rate, the base rate. Because if you're only working for 10 minutes, how else would you do it? Which is a problem I think that flows from the unions' proposal.
So conceptually what we've sort of said is - and I might be moving too far, Deputy President, just stop me, but I was just trying to provide an explanation of the scheme. When you work, you get paid at the rate the award requires for the time you work; but when you work, you get a minimum payment each time, and that would be based on the minimum rate. So you might get 10 minutes at overtime rates, but if that doesn't get past the minimum payment, well you get the minimum payment.
That's the sort of the scheme of the Act in broad terms. But as I said to you, we slightly tried to argue the toss, I suppose, about the minimum payment periods, but only because we've moved further than what it seemed to ask the Bench was contemplating in relation to the rate of pay. And it's a provisional view, we thought it entirely open to us to try and develop a conference scheme.
And look, we don't think that that's unwarranted. Some of the work will be very short duration. So paying, you know, for an hour at time and a half for a seven, eight minute phone call does seem disproportionate to us. But that's the scheme, if that hasty explanation assists.
THE DEPUTY PRESIDENT: I think we identified that the work that was required to be done was about the rate of payment, that's necessarily tied back to 'and for what period'. We've certainly expressed the view that overtime was not going to be the appropriate rate as a base sort of payment for remote response work. I'm just trying to grapple with how we use our time now, then. We could have ‑ ‑ ‑
MR FERGUSON: I think there are some - probably the pointy end of it is, you know, what we're going to pay and for how long, but I think there's a bunch of mechanical issues that we're apart on before you even get to that, or threshold issues, that might be usefully worked through to see whether they have just been left out of the unions' proposal or whether there's actually fight between us.
THE DEPUTY PRESIDENT: All right. I will take that on as a possible while using our time, and we will see where that goes. I'm just conscious of the fact that you may have emailed a proposal that ends up being tabled at some stage, and that's going to be different again. So all right - sorry, who's this?
MR ROBSON: - sorry, Mr Ferguson. Only other thing to just raise again, in this one where we're talking about compromises, is there any merit in going off record to facilitate those discussions? I'm in your hands entirely. I just wonder if that might encourage frank discussion.
MR FERGUSON: I simply don't know.
MR ROBSON: From our perspective it would, and if the other parties were deposed to it, I wouldn't have thought there anything inappropriate about that.
MS SVENDSEN: The unions can certainly make this point, I would guess, that we didn't leave out the issue of the rate of pay that they were paid at, because that should be being paid at their own rate of pay, and therefore for us it was not contentious.
THE DEPUTY PRESIDENT: I'm happy to go off the record, but it's all a bit of a mystery as to how we're going to proceed at all with this at this stage.
MR SCOTT: Deputy President, I thought I might make a suggestion, and I'm conscious that the Ai Group have put forward a proposal, and I don't want to prevent constructive discussions on that proposal, and it might assist if the unions in a moment can indicate their views on it.
But one way of progressing this is if this mystery document that has been referred to this morning is circulated and filed with the Commission on a without prejudice basis, and on the basis that it's not an ABI proposal and it's not any other parties' proposal, but it is simply a document that has been developed out of discussions between certain parties. The mystery will then dissipate, and it may be a document upon which a discussion can occur.
But I say that, you know, I just want to - I'm conscious that I don't want that to derail the Ai Group proposal, but that's really a matter for the other parties to indicate what their view is. But that's a potential way forward.
THE DEPUTY PRESIDENT: Yes. Again I'm going to draw everyone back to the current timetabling and the requirement for you all to file material on this, absent a consent position or something nearer to a consent position. At this stage I'm not really convinced we can usefully discuss anything today.
My thoughts are this, that if the parties are available, I will resume a conference on Monday afternoon. What you're going to be grappling with at that point is if not much is achieved there, then you will have a deadline for Wednesday to file material, and the matter will be subject to arbitration. That's about as much as I can see at the moment.
I mean, the differences between the Ai Group position and that which has been put forward by the unions is going to be able to be discerned from the two documents, and you can face into those. But as the Full Bench left everyone with was that - it's about what the rate is. We need to move forward from what the appropriate rate is and lock this down. There are a range of other questions that we put in our previous decision where this was addressed. I don't think we can usefully discuss anything now.
MR FERGUSON: If I may, Deputy President?
THE DEPUTY PRESIDENT: Yes.
MR FERGUSON: I think our concern is that by Monday we will be well on track on trying to deal with our evidence and submissions, so I'm not sort of wanted to say definitely no, but from our perspective that's why we put a program prancing proposal. We've also already put submissions on, so everyone knows our thoughts about this. Our proposal is a little bit different. I just - if we can't make progress today, so be it. I'm just not sure that Monday is not too late.
I wonder whether, though, some progress could be made on a few conceptual issues which I'm just not sure about the unions' position on, without taking much time up, just raise ‑ ‑ ‑
THE DEPUTY PRESIDENT: Why does that have to be without prejudice, for example?
MR FERGUSON: It doesn't. Look, I'm happy to explore things. I just wondered if the without prejudice basis allowed - the off the record discussions allowed people to just explore issues and scope for compromise. I'm not pushing that point, Deputy President. If you want to keep it on record, that's fine, but I just had some questions about the unions' proposal as opposed to our approach.
THE DEPUTY PRESIDENT: Why don't you put your questions regarding the union proposal now, and if that produces some greater clarity, then that won't have been a fruitless exercise.
MR FERGUSON: Yes. One of the accused is what is remote response work. As I understand it, the Bench said there should be a definition, but none has been proffered. They pointed to one from ABI just in terms that stating that one was proffered by ABI, but there seems to us a degree of uncertainty around what even is remote response work that would attract a payment. We've tried to proffer some definitions in our proposal which essentially means that:
It's the performance of work by an employee whilst not at a designated workplace if they had been directed or authorised by their employer to undertake the work in those circumstances.
So it's work that's away from a client or an employer's place, so it's basically away from a designated workplace, we put a definition so it would capture working from home, but any other place an employee wanted to work. But the important point is it is only where it has been required or directed by the employer, which I'm not sure that's agreed, and so it wouldn't capture somebody just checking their emails of their own volition, for example.
But also we say that this is all work that is undertaken remotely under our proposal. So it's not just work undertaken outside of someone's rostered hours, if you will, and I think that seems to be an element in the unions' proposal, which I think to our mind there's a problem with that because for example not everyone in this award is rostered.
So that's what I'm trying to work out, is: are the unions just aiming at work that is directed or expressly required to be undertaken away from the workplace; and are they agreeing that remote response can be any of that work, or is it just work that is somehow outside someone's rostered hours? I think that's a big issue for the scope of these proceedings.
MR ROBSON: Deputy President, I can answer that question. The clause the ASU has proposed was developed in consultation with both the HSU and UWU, so I think it can be taken on making this statement it represents the views of all unions, and certainly my colleagues and jump in if I've said something that misrepresents their position.
We've provided a definition of remote response duties at 28.6, or our proposed new clause 28.6(a). Yes, Mr Ferguson is right, we say that remote response duties, this clause should be restricted to work outside of an employee's rostered ordinary hours. I do take his point that, you know, there may be some people who aren't on a roster, you know, that rotates per se, but that is how work is described under the ordinary hours of work clause.
Even if that roster doesn't change, it's the same, and perhaps that issue could be corrected by deleting 'rostered'. And then it would be those specific activities listed below. This definition has been taken from a number of Modern Awards, they were listed in the Australian Business Industrial submissions during the proceedings.
They're awards the ASU is familiar with: the Water Award; the Victorian Local Government Award; The Federal Local Government Award; I believe also the Energy Award. And so it describes the type of work that is being performed outside of it that would be captured by this clause. And we think that the list there of activities would capture what an employee would be doing outside of their ordinary hours of work that would enliven this clause. Going through ‑ ‑ ‑
THE DEPUTY PRESIDENT: Sorry, just going through your - going to your wording at the moment, for example at 28.6(a), that if it was - or is it necessary to put in that clause that it's - where it takes place?
MR ROBSON: Look, no, your Honour. We think potentially, based on the definition with proposed, that adding a location for that work causes potentially undue controversy about which entitlement applies when and it certainly - - -
THE DEPUTY PRESIDENT: So your position is, broadly speaking, if it's outside the rostered hours, it's going to be outside a workplace.
MR ROBSON: Yes, that's really how ‑ ‑ ‑
THE DEPUTY PRESIDENT: At an office or at a client's site, for example.
MR ROBSON: Exactly. And of course this clause is intended to relate with the recall to work overtime provision. So if you're recalled to a physical workplace, whether that's a client's premises, or for example a third location like a park where there is a youth in crisis, a motel where a woman is escaping domestic violence, that would be covered by the recall to work provision.
But this is intended to deal with a circumstance where you're working, you're not necessarily working in any particular location, but you're responding remotely; so you're responding to phone calls, messages or emails, and you're providing advice, you might be - I think one of the issue that has been raised has been, you know, dealing with callouts and rosters.
It's not intended - and this is I think a big point of difference with AiG - we don't intend this clause to be - to apply in all circumstances where a person doesn't work at a designated workplace. If you're working from home, both your ordinary hours of work would apply to you, and we would say that is what should apply; but if you're working outside of those ordinary hours, yes, maybe this clause applies, maybe it doesn't. I think that would depend on the nature of the requirement to perform the work and how it falls into place.
THE DEPUTY PRESIDENT: Okay.
MR ROBSON: And just one final point on that, this sector is very different from, say, a hospital where a doctor or a nurse may be required to be on-call and remain at the physical workplace. We would say that's very unlikely to occur in the disability sector or, you know, in the community sector, or in home care. That's the definition of the duties that would be captured by it.
We provide a sort of a three tiered scheme. We tried to reflect the provisional view of the Commissioner as we understood it about the minimum payments proposed, and so adapting from the ABI proposal during proceedings, we reflected a provisional view of the 30 minutes between 6 am and 10 pm, and then an hour between 10 pm and 6 am.
And we've taken that provisional view to be when an employee is on-call. And what we've proposed is the right payment would be that which applies, you know, to that time worked under the enterprise agreement. So if you can see there for example at (b)(i)(A), we've tried to express the clauses that could apply by saying:
The minimum rate of pay with shift penalties, weekend rates, overtime, and public holiday rates of pay paid according to clauses 26, 28, 29 and 43.
And that's to take into account the Commission's comment about the appropriate rate. And then so if you were not rostered to be on call and you are required to perform these duties, we are proposing that you be paid at the overtime rate, and we've adopted the proposal from ABI's draft determination from the proceedings, that that minimum payment period should be one hour.
And we've used the term 'required', and that seems to be consistent with the other awards that we've seen that have this type of clause, and we think 'requirement' it's fairly well understood to mean employer's requirement.
THE DEPUTY PRESIDENT: All right. Mr Ferguson, do you want to keep working through your questions?
MR FERGUSON: Yes, I think there are probably a couple of points of clarification the fall from that, Mr Robson. I think you've nailed it in the sense that obviously we say remote response is where you're working remotely, right, but we have no delineation between the time at which it's worked. You said perhaps you dropped the word 'rostered' and it would just be the employee's ordinary hours.
Is that the ordinary hours as understood as a concept under the award, or is that the hours that the person ordinarily or normally works? Because obviously under this award a part-timer can work up to 38 hours, in my understanding, as ordinary hours in a week, so it would be outside the 38 hour mark that this clause would apply, is it?
MR ROBSON: That's a good question, and I haven't quite thought about that point. What I would say, though, is that it's clearly not intended to apply to a person's normal working time. So if this is part of your guaranteed hours of work, if this is, you know, under the part-time employment clause it would apply to time outside of that; any variations to that part-time clause, whether they're voluntary additional hours, they wouldn't be captured by this provision and, you know, it would be external to that as well; and then the full-time hours of work, you know, defined for a full-timer, it wouldn't apply in that case.
MR FERGUSON: So it would be outside the guaranteed hours four part-time hours.
MR ROBSON: Yes, all those additional hours that are agreed to be worked.
MR FERGUSON: I think that's one way of narrowing it. Are you opposed to our proposition that it just be - so you are opposed. I think it's a different approach you've adopted, but our proposition was that remote response work - all remote response work be undertaken or paid in accordance with this clause. Are you opposed to that?
MR ROBSON: Yes, we're opposed. I think you could take it that we are opposed to your clause almost in total. Probably we are opposed to the minimum payments, we are opposed to the structure of how they work, and we are opposed to the rate of pay that you say should apply.
MR FERGUSON: Just on the first point - and if we can't take it further constructively, just tell me - why are you opposed to it covering remote response work in its entirety?
MR ROBSON: Sorry, I don't quite understand the question.
MR FERGUSON: We put that remote response clause should deal with all remote response work, right. You don't want it to deal with most response work undertaken within someone's normal hours. Is there a reason for that?
MR ROBSON: We say that someone's ordinary hours clause - like, we say that should just be the ordinary hours of work. We don't see there's any reason to, you know, do away with the guaranteed hours of work that are provided by the part-time hours clause; we don't see any reason why the ordinary rules that apply to the ordinary hours and rostering of full-time employees shouldn't apply. It's just a step too far.
MR FERGUSON: Yes, I get it.
MR ROBSON: Yes, in the context of, you know, claims advanced by Australian Business Industrial and the ASU that are really meant to deal with work that's being performed outside of a person's ordinary hours of work; and where all the evidence has gone people who are, you know, available outside of the time they're normally working to do callouts and rostering or, you know, deal with professional advice to people, it's not meant to be a replacement for a normal pattern of work.
MR FERGUSON: Yes. It seems we probably can't reach agreement. I was just trying to see whether we could. It probably is scope. On the minimum rates issue, just being candid, one of the things we grappled with is where the time is not worked, how it would work out the minimum rate. So let's say someone takes a phone call for 10 minutes but it occurs during ordinary hours, under your proposal you would pay them for an hour at the applicable rate. How would you work out how to pay that? We say the minimum payment would be at minimum rates. I just don't ‑ ‑ ‑
MR ROBSON: During an employee's ordinary hours, do you mean during the day worker span of hours, or do you mean - - -
MR FERGUSON: Yes. So somebody takes a call at 10 to 8.00 during the span of hours but it's outside their normal hours, just call it that, how would you worked out the minimum payment under your proposal?
MR ROBSON: Well, the first question would be: have they been required to be on call or have they not. And so if they had been required to be on call and it was before - you know, after 6 am and before 10 pm, the 30 minutes.
MR FERGUSON: At what weight?
MR ROBSON: That would depend. Actually, if you said it's before 8 pm, then it would be depending on the number of hours the employee had worked in a day or the week, and their type of employment, it would either be their ordinary rate, their minimum rate of pay or an overtime rate.
MR FERGUSON: Right, so if it was within 38 for a part-timer and within the daily spread, you would say the full minimum our would be at minimum rates?
MR ROBSON: Yes. And except if you weren't rostered on call, we would say it's a minimum payment of one hour at the appropriate overtime rate for their - it's often by classification stream but, you know, depending on whether they're a SACHS employee or whether they're a disability support worker.
MR FERGUSON: Sorry, I'm just trying to explore this, if the Deputy President will indulge me. Isn't it a bit odd that somebody could be at home and do that and do that work at overtime rates, but if you actually ask them to come in to the workplace, as they're a part-time employee, you would only have to pay them at the minimum rate?
MR ROBSON: I don't think that's odd at all.
MR FERGUSON: It's just it seems that you get paid extra for sitting at home and taking a phone call than you would if you actually had to come to work.
MR ROBSON: Yes. Look, I (indistinct) think it's odd, and I there is a significant distinction between the type of work. It does seem that we're not reaching agreement here, we are sort of debating the point, and maybe that's not useful.
MR FERGUSON: All right. That's why I thought - that's why we've adopted the approach we've - I'm trying to reconcile those sort of anomalies. But if there is no scope to reach agreement, I won't take the Commission's time, but, you know, we were trying to work through it productively.
MR ROBSON: Yes, yes, look - - -
MR FERGUSON: I think one of the other things we put them is perhaps some exceptions for this, because I think, you know, everyone understands there's not a lot of evidence about remote response work, but I don't think there's any disagreement that there is some very short phone calls that happen after hours, and so part of our proposal was to have some exemptions ‑ ‑ ‑
MR ROBSON: I have to say the exemptions are a significant issue with us. We don't support it. But it's also if we can't agree on a definition of what this should apply to, it's a bit hard to talk about the exemptions to it, isn't it? I'm not sure this is terribly productive.
MR FERGUSON: If you can't agree, I just - I'm not sure, based on all the discussions we've had in the past, whether you could or couldn't - but one of the things that arose to us, that people will get a two-minute phone call, they reply to a text message, whether - putting aside agreement about when these things apply, whether you would think there could be any carveout for, you know, 30 seconds of work not entitling someone to an hour's payment.
MR ROBSON: Yes look, I think our proposal is pretty clear of the face of it. And talking about carveouts when the definition of remote work proposed by AiG is just so intensely broad, it's a bit pointless. We need to agree on what we're talking about before we can talk about exemptions to. So look, I'm not sure that these are points of clarification, it's more, you know, (indistinct) of what our position is, and I think a fundamental issue, so there's no point exploring this.
MR FERGUSON: Yes, I was just trying to see whether there was any scope. We put transitional arrangements. Is there any scope talking about that?
MR ROBSON: Yes, no, not - no. And again, like, I think, Brent, you can ask me about, you know, any point in the clause that you propose, but we disagreed about (indistinct) so it's hard to talk about transition when, you know, we don't even agree that your definition should apply. You don't agree with mine.
So I think this is a bit - I think we've had the important discussion about what we say this should cover, and we're miles apart on that, so I'm just not sure what we can usefully talk about afterwards because, you know, our position on what a minimum payment should be, or an exemption or anything like that, would be wholly determined by what remote response is defined as.
MR FERGUSON: We're content to leave it, Deputy President. We're content to go through and see whether there's any scope for agreement, like refining it or not. I don't think we're going to reach overall agreement. My hope was to narrow the issues in dispute before the Full Bench and to flesh out any concerns about our proposal, but I don't want to waste the parties' for your time, Deputy President.
THE DEPUTY PRESIDENT: All right. I'm not sure we can take discussions much further this morning - this afternoon, as it now is. The question I have then is: do the parties see any utility in further conferring on the issue of remote response prior to the deadline of next week?
MR FERGUSON: For our part we don't see much utility. We're wanting to confer now, and it doesn't seem that there is any utility.
THE DEPUTY PRESIDENT: Any other party want to make a comment?
MR ROBSON: Look, your Honour, then we intend to continue discussions with Australia Business Industrial. It's not just with Australia Business Industrial and the ASU, it also includes the other unions. We're not sure if that's leading anywhere, but it seems very positive to us, it's just far too early. If we come to a proposal that both ABI and the unions are content with, we will file that, and then it may be useful to convene a discussion.
We don't intend to ask for any additional time for the ASU's part. We've had our submissions and are ready to go on this point since the original filing date on it. We will be proceeding, if we don't reach agreement with ABI, with the proposal we've filed on the 17th, maybe with some minor amendments, but it won't be substantively different. But look, it may be useful to pencil in something on Monday afternoon in case there is scope for agreement there.
THE DEPUTY PRESIDENT: Mr Scott, for your part?
MR SCOTT: Yes. One option which might be sensible is that the Commission grant the party liberty to apply, that a further conference be held on Monday afternoon if the parties form a view that it's constructive.
THE DEPUTY PRESIDENT: All right. What I will do is I will leave that time available in my diary, and if I hear from the parties I will list something at short notice. At this stage the parties will be mindful of the directions regarding submissions and further evidence. If it transpires that some sort of a consent position emerges between the ASU, the other unions, ABI, and any other employer groups, it may be that on current timelines that that can simply be filed by 4 pm on Wednesday the 25th along with the other material.
It's a worthwhile deadline to aim for because the timeline does allow then for such a proposal to be considered by other parties, and is subjected to submissions in reply for the following Monday the 30th. And then of course we've got the hearing on the Wednesday. So I think that's the best we can do at this stage on remote response.
My inclination at present is that we adjourn the conference now. I note that there was, with the HS you material, a broken shift allowance. Is there anything you want to say about that, Ms Svendsen?
MS SVENDSEN: Deputy President, I was under the impression that - I know that the notice of listing didn't, but under the impression that his Honour was referring the broken shift discussions to this conference as well, which he says at PN324 and 326. So I - which is why I put that in. And it's really contains - puts together the issues that we have raised collectively as the unions, and puts it in one kind of group rather than separate issues.
But I understood that we were going to be talking about some of those issues today, which is why I popped that proposal in as well.
THE DEPUTY PRESIDENT: Are any of the employer parties in a position to discuss those matters?
MR FERGUSON: Deputy President, Mr Ferguson. I think for our part we can discuss the broken shift allowance issue to some extent. I think whether it would culminate in a content position, it's probably unlikely, but I think there is some utility in discussing it to narrow the issues between us. I say that because of this, the unions appear to be proposing a clause which would contemplate remuneration for shift workers working broken shifts.
It seems that an issue - and I expect the issue popped up in the proceedings about whether or not, for example, shift workers can work broken shifts, whether that happens at the moment. There might be - given the unions are proposing to regulate the payment of that eventuality, we could be able to reach agreement on perhaps at least some agreed facts about what happens in the industry about, you know, the fact that shift work in broken shifts does need to happen, and why, just so that we could narrow the amount matters we're dealing with from an evidentiary perspective in the next tranche of proceedings.
I think it's common ground between the parties that at the moment, regardless of this anomaly in the award, if I can just use that term, that work does need to be performed in the sector after 8 pm routinely, and that it is, and that it is by people who would work broken shifts. If we could reach agreement on that, that might significantly narrow the matters we've got to deal with in the hearing.
THE DEPUTY PRESIDENT: Is the position - how do the parties see themselves overcoming clause 29.4? Is that to be varied, is it?
MR PEGG: Deputy President, if I could ‑ ‑ ‑
MR FERGUSON: Excuse me, Deputy President, I might - Mr Pegg, I'm sorry.
MR PEGG: Sorry. I was just going to make a quick comment because I think it's partly my fault this came up in a submission that I made. We don't see that there is any need to vary 29.4. The issue that we were raising was that given 29.4, just as a definitional matter, under the award currently where an employee working broken shift is working hours that might attract a shift penalty, that's regulated by the current broken shift clause, 25.6.
So the current broken shift clause spells out how broken shift will be paid, and in the event that an employee works beyond 8 pm, for example, then it points to the shift penalties that would apply under clause 29. But that's not the same thing as saying that an employee who works a broken shift is a shift worker for the purpose of clause 29, it's just pointing to the payment.
What we understood the decision to say is that instead of that arrangement, there would be a new arrangement in relation to the payment for broken shift, and that will include a broken shift allowance, which depends on the number of breaks; there will be new minimum engagements that apply; and in the event that the broken shift extends outside the span of hours, overtime penalty rates will apply for those specific hours that are beyond the spread.
THE DEPUTY PRESIDENT: Not the shift rate.
MR PEGG: Yes, instead of shift penalties. So what we submitted was that that's straightforward in and of itself. We anticipated the issue that the unions have raised, that they're seeing that they want - what they're saying, they want shift penalties to apply, we're saying it's not necessary in the decision, it's already dealt with. And we propose that perhaps broken shift could be defined as being restricted to day workers.
I think on reflection maybe that particular wording is not helpful. But for the purpose of just conceptually trying to clear the air on how the award operate, you might conceive it of broken shift employees as being a third category that's spelt out under clause 25.2, which currently says a day worker works within a span of hours, a shift worker works in accordance with clause 29, and conceptually we had this third category of a broken shift employee whose payment is governed by clause 25.6.
So we say at the moment there is no problem with how the award operates currently. A broken shift employee who works outside the span has their payment regulated by 25.6; that gets replaced by the new arrangements after the decision; we also say that the evidence has been primarily around workers who work the bulk of their hours during the day within the spread.
I'm struggling to imagine too many circumstances where there would be, for example, a broken nightshift commencing at 11 pm and finishing before 6 am that has breaks through the night. I'm not quite - I mean, it may exist, but it seems like a sort of an artificial hypothetical. So from our point of view for the bulk of broken shifts that are actually worked, and certainly that the evidence pointed to, where employees to work beyond the span, and they certainly do, it's typically up to 10 or 11 pm, and they get compensated for those hours past 8 pm with overtime penalties.
And in relation to the original HSU claim around early morning work, under this arrangement they will now get compensated for hours worked before 6 am at overtime penalty rates. So that's our take on what the decision was intended to do and how it would operate. We don't think there is any major problem, it's just a matter of tweaking the wording of the clause so that an employer or employee reading the award can understand what happens in the event that an employee works outside the span.
THE DEPUTY PRESIDENT: Thank you. I follow. Any comments on Mr Pegg's outline there, please.
MR ROBSON: Yes, Deputy President, if I might speak. We disagree with Mr Pegg's analysis of how the award currently works. We do agree that there is a significant amount of broken shifts that are worked within the daytime span of hours, but there are a significant amount of work that may be rostered in the evenings or the early mornings, and there's for instance across - and I'm speaking of the disability sector here, I don't represent people covered by the homecare stream, but there are different types of disability supports.
There's one on one supports in the home and the community, and they I have been the focus of the evidence in these proceedings. I'm not sure if someone has come from SEL or short term temporary accommodation. In in-community support, yes we would agree that there is a bulk of work that's being performed within that span of hours.
There are what could be called put to bed shifts that would end at 10 or 11 o'clock at night as the client is going to sleep, and they may form part of an employee's agreed pattern of work, considering that the majority of workers in the sector - the biggest group of workers in the disability sector would be - and it has always been our understanding in dealing with this award and dealing with employers that those workers are shift workers.
The rules in clause 26 modify the application of the broken shift term and modify the application of the payment of shift penalties that are earned by shift workers when they work them. A day worker for the purposes of the award probably just wouldn't be working past 8 pm.
And yes, I understand Mr Pegg's point that there is work that's being done up to 10 am in the community or in home, but that - if you're simply paying them at overtime rates and they're not being treated as part of an employee's ordinary hours, that causes significant problems when someone is going on leave. Yes, they've been paid that higher amount while they're working ‑ ‑ ‑
THE DEPUTY PRESIDENT: How are they regulated? If there's clause 29.4, you're talking about - how does that interrelate with clause 29.4?
MR ROBSON: I think that has been interpreted up to this point as being an exception to 29.4. The hours of work for a shift worker are worked continuously, and then the broken shift term applies as an exception for home care and disability support workers.
THE DEPUTY PRESIDENT: How does the award allow that?
MR ROBSON: Look, I suppose we would be very happy if the award did say that a shift worker should work their hours continuously. That was the position in the majority of the ASU's awards before modernisation. But the way it has - as we've understood to have been applied, 29.4 is the general rule in the award; clause 25.6 has applied as an exception to that rule. And there's certainly no language in that space that provides a distinction between a shift worker and a day worker. Just going through the other examples of types of work - sorry, sir.
THE DEPUTY PRESIDENT: Sorry, that just doesn't work. I mean, aren't you viewing this really through the lens of there now being, in prospect, a broken shift allowance?
MR ROBSON: No, your Honour. We're viewing this from how this clause has been applied for 10 years. We applied to have the broken shift term removed from the award in the transitional review and we were unsuccessful then. And simply it had been - the way this term has been applied for nearly a decade now has been that shift penalties are applied.
People working shifts can work broken shifts, an example being supported independent living where - these are the group homes - where people will be working a rotating pattern of nights and days, and in many group homes there isn't a continuous shift during the day. You have someone who comes in in the morning after 6 am for a wake-up, and that would work in the afternoon, and that would hand over to a night shift worker who is either working and active night shift or a sleepover shift, depending on the needs of the client.
And then in the next rotating pattern that worker may be working as a - who may be working a continuous active night, or the unbroken sleepover shift where the periods of work may then be working a broken shift in the morning and the afternoon. Wherever possible we negotiate with employers' arrangements that try and make sure that, you know, those broken shifts are actually turned into continuous shifts.
But certainly there are well-established patterns in the industry of shift workers working broken shifts, maybe not necessarily when they are working at times that attract a nightshift penalty. We just say it doesn't fit our experience of dealing with employers and employees in this sector.
And for example Mr Pegg said it might be hypothetical that someone would be working a broken shift at night, but people with a disability go to work and they work shift work. They may need someone to accompany them to that shift that starts early in the morning or late in the evening. That's certainly not hypothetical, that is work that's performed under this award.
MS SVENDSEN: Deputy President, if I could just possibly say I think that there's sort of a bit of two things that go in here. I've been working with people working broken shifts in this sector since 2006, so predating the modern award. Part of this is also an artefact of the putting together of several awards to come up with this award.
I think that Mr Robson's characterisation of 25.6 being applied as an exemption is for those who actually looked at 29.4, which not everybody would have. But I would also suggest that more importantly that because 25.6 applies, whether it is as his Honour characterised it in the hearing as the way that people were paid, or whether it was seen as we've always seen it, as an exemption that meant somebody could - say a shift worker could work broken shifts, it refers to the shift allowances, so the understanding from the people in the sector is that people are working a broken shift and they're receiving shift allowances because they're shift workers.
It is a provision that predates the modern award. It is also a provision not in quite this format, and it also didn't have - my experience, certainly. And one of the things that gets a bit mixy with the whole modern award stuff, certainly in health, is that the principal awards in terms of the amount of people that were covered, were all the Victorian common rule awards, your Honour. And as a consequence of that, in this particular area in disability, they were all actually pretty rubbish awards.
And they had been cobbled together very quickly, I go back far enough to remember this, and so does Mr Pegg, go back - they had all been cobbled together fairly quickly in the 90s and then essentially abandoned because we went into enterprise agreements, and nothing had really been done with them, and they were a bit disastrous when we got to the point of doing something with the modern awards.
And that's where quite a few of the provisions in relation to disability and home care, aged care come from; poorly worded, and therefore popped together, and then made some complications as a consequence of putting together of provisions that - so the Victorian awards don't have any concept of day workers in the sense that the New South Wales award does, and this has actually been a bit of a problem throughout health awards.
So that if you work a shift in Victoria, if you're working the hours beyond - outside the span of hours and a shift applies, an allowance rate applies, a fixed allowance rate, not per hour or any of those things. But then the day worker concept from New South Wales applies a different rate of pay, it applies at 112.5 per cent or 115 per cent, effectively, per hour.
Those two things were jammed together and the rough edges were never taken off them in terms of how they actually merged, and that has certainly created additional problems. So I think that there are a range of reasons that we have what amounts to broken shifts being seen as an certainly operating as an exception to 29.4.
MR PEGG: Deputy President, if I can just quickly respond. I mean, I don't disagree with the history that Leigh has just outlined, but I guess the main point I would like to make is if there's a concern or an apprehension from the unions that somehow through some definitional sleight of hand an employee could be rostered to work what is commonly considered as shift work but get no penalties, then that's not the case under the decision and it's not what we were saying in our submission.
There is clearly compensation for working hours outside of the span of hours in the form of the overtime penalty rates. So I'm just wondering, it doesn't really matter how people have, in a common sense kind of way, perceived shift work to be under the current award, and it doesn't really matter whether people have paid much attention to 29.4. Under the decision, the decision puts in a new method for compensating for the working of a broken shift, and where hours are worked outside the span of hours there is a penalty rate that applies.
It's a different formulation, but it's in conjunction with the broken shift allowance and the minimum engagements and the restriction on the number of breaks. And so I think there has just been a misunderstanding that somehow employees will completely lose any kind of penalty rate if they work past 8 pm at night. You know, clearly broken shifts are worked past 8 pm at night, and there will be a penalty that applies to those hours.
MR ROBSON: Your Honour, can I just ask a brief question just directly on that point, because there's an aspect of it that I just don't understand, and that is this: the draft determination is explicit that that, what you referred to, Mr Pegg, as a penalty, only applies to day workers. So what if the person is shift worker?
MR PEGG: That's essentially the point that I raised in our submission, is that by definition under 29.4 - now moving away from a common sense understanding of what a shift worker is, by definition under the award at its currently constructed, 29.4 says the broken shift worker can't be a shift worker because it's not a continuous shift. So up until now the 25.6, the broken shift clause, has said the payment where you work outside of the span of hours will take the rates that are set out in the shift work clause at 29, but that doesn't mean that they're a continuous shift worker, they're are broken shift worker.
So if you like, the way I conceive of it is there are three types of workers: day workers, continuous shift workers, and broken shift workers.
THE DEPUTY PRESIDENT: Mr Ferguson.
MR FERGUSON: I just come at it from a different approach. We think there's a lot of force to some awards being put by the unions and there is a degree of common ground. It seems to me that one way of looking at - without detracting from what Mr Pegg is saying about the decision - looking at the current terms of the award, there's a sort of an reconcilable tension between the broken shift provisions dealing with the payment which requires effectively the payment of shift allowances were shifts are being worked, and the provisions of 29.4.
Ai Group has done the work that has gone through and looked at the history of this award, and it seems to us that it may be our preliminary review is that there is just an anomaly and a problem in the award, and that it might need to be addressed. It does, however - we agree with the unions that the work in the industry is of such a nature that it requires, you know, work to be undertaken in a broken way, if I can use that term, and includes some work outside of the day spread and some work before the spread.
In that, I don't think - I think I'm hearing that common ground between the parties that that's the work that occurs from a factual perspective. The question is how does the award treat it and how should it treat it in light of the decision, and I think, you know, we will set this out clearly in our decision, but it seems to us that there is an anomaly, if I can use that term, in the award.
It may be an uncertainty or an error as contemplated in section 160; if not, it's still - you know, it's an issue because I think the proposition that shift work can't include breaks is a problem. It is a major problem for the industry, and it is not one that - a situation that any of these parties, apart from perhaps Mr Pegg, has contemplated.
I think history will show that, and I think there is some force to the proposition put by the HSU and I think others, that in practice people have been interpreting 20.6 as providing an exemption. Whether the words get us there or not, I think it is very difficult to understand how those words could apply where they require the payment of shift allowances where the shift allowances are payable if shifts are worked after a certain time.
Those words appear to assume the working of broken shifts in that clause. And I think what it is, to be blunt, is that different elements of these clauses were pulled from different predecessor awards and there is a tension between the two. We will set this out and deal with it in our submissions, but that's why I say I'm not sure we can reach agreement today on a resolution of the broken shift issue.
I understand the force of what Mr Pegg is putting about what was decided, regardless of the history, but it might be that we could all at least agree on what happens in practice in terms of the work, and the need for there to be broken shifts in the sense of, you know, work that is taken at night. People with disabilities need to be assisted past 8 pm routinely, regularly, they're not all going to be expected to be just put to bed at 8 pm, and so there is lots of reasons, need for the award to reflect that. So that's why I was just trying to see whether there could be some common ground about the problem, if not the solution.
MS SVENDSEN: Your Honour, I would also kind of concur there in terms of the outcome. I guess I agree, Michael, that there's compensation after hours, but we have concerns about that because it does actually impact on other things quite substantially in terms of leave and a range of those things, and so we actually don't think that's really the answer.
I guess that if we - while we don't agree on what it should be paid at and how we resolve this, we won't - and I'm not actually really looking to it - if we could agree maybe that the issue for us is that we think broken shifts should be able to be worked by shift workers, if we make that - which would mean a range of things and, you know, that might include an exemption in relation to 29.4. But it means if that's the case, then what we are actually putting to the Bench is a proposal that deals with that, and they will be different.
But instead of arguing about the premise around it only applying to day workers or something, now, I'm not clear about where other people fit with that. I mean, it seems to me that it's fairly clear.
The unions think that we need it to apply to shift workers; AiG appear to think the same; I understand what Mr Pegg is putting from NDS's point of view, which is what the clause says, and I don't disagree with what he's saying, but if he agrees, and if AFEI again - and ABI agree that the way forward is about whether or not broken shifts should be able to be worked by shift workers and that they need to be compensated for that, then we actually have a significantly different issue put before the Bench next week, rather than also arguing about whether this applies to day workers only.
I don't know. If that's a possibility, it would be great, but if it's not, then we have to do the whole lot.
MR PEGG: If I can just clarify. NDS is not for a moment saying that, you know, this type of work doesn't occur and shouldn't occur or anything like that. In fact, we don't think that there's anything that we said that precludes people being rostered to work the sorts of hours that they currently work. I think probably from the discussion, the issue that arises from our point of view - I mean, in some ways we were simply trying to give logical effect to the decision.
One thing that does arise is where somebody is rostered in a way that would be regarded as being rostered to do shift work, that they're regularly rostered to work, say, till 10 pm, I think there is an issue around the treatment of those hours as overtime versus ordinary hours for the accrual of leave and payment of superannuation and things like that. So that's something that maybe needs to be worked through as to the appropriate way of compensating for those hours.
So I don't want the NDS position for a moment to be interpreted as saying that we think that the current arrangements need to be overturned in terms of rostering. We don't think that that's what the decision was doing. I think the question is the appropriate way to structure the compensation in the event that you're rostered outside the span of hours.
MR ROBSON: But you do see the problem, Michael, if you're - sorry, Mr Pegg - if your interpretation is adopted. Like, you know, if those hours outside the span are overtime, then there's an extent to which an employee can refuse to do them. But then it also - you know, the real concept, if these workers are actually day workers, then their ordinary hours can't be required to be work outside of the span.
That just doesn't seem to fit, even with the words of the current award. If they're a day worker, then they're designated to work between 6 am and 8 pm, and at the moment, you know, one of the issues we've got is that that doesn't amount to very much because there's not overtime that is payable under the award as it presently stands if you work outside the span of hours.
So it's really a matter of how you've been, you know, designated by your employer. And since there is no cost implication really for the employer, they probably just haven't done it. It has been something that has been left behind. I really think we need to, you know, just be careful here because there's a lot of people who will be affected by your interpretation negatively, and they will either need to be restricted to work their hours continuously.
I will be very blunt about that, the ASU would be very happy with that arrangement. And if that's the position the Commission comes to, we will be happy with it; but if they're not, they shouldn't be - there shouldn't be the risk that they either lose income or lose any benefit of the regulation of broken shifts that are currently provided by the award.
Because if what you're saying is true, then a shift worker currently would either work their hours continuously, and it sounds like that's a submission or a position that many of the employer parties would oppose, but then there would be no regulation of how hours would be worked for shift work, and that's also a significant problem.
MR PEGG: No, look, I - just a couple of things ‑ ‑ ‑
MR ROBSON: It's just a - sorry.
THE DEPUTY PRESIDENT: I just think we're drifting now into submissions and counter-submissions, and it's not really - it's all very interesting stuff, but it's not really the purpose of today.
UNKNOWN SPEAKER: Where we were getting ‑ ‑ ‑
THE DEPUTY PRESIDENT: - - - to take I tup in their written submissions now. I intend concluding by or at 1 pm. Is there anything to be said about the ASU proposal to pay travel time?
MR FERGUSON: I will cut to the chase, Deputy President. That will be opposed by Ai Group for reasons we ventilated in the hearing, and others, potentially.
THE DEPUTY PRESIDENT: Mr Pegg, anything you want to say on that?
MR PEGG: No. I agree with opposing that. We think that travel time has been dealt with through the other aspects of the decision around broken shifts and minimum engagements.
THE DEPUTY PRESIDENT: Mr Scott?
MR SCOTT: I'm candid, Deputy President. I've been so focused on remote response that I haven't considered it, and didn't realise that they had put something forward.
THE DEPUTY PRESIDENT: All right, have a look at that. Mr Lin?
MR LIN: Thank you, your Honour. Consistent with the other employer parties, we would also likely oppose that as well.
THE DEPUTY PRESIDENT: Thank you. Mr Pick, I appreciate you've come at this late.
MR PICK: Deputy President, were you inviting me to speak?
THE DEPUTY PRESIDENT: Yes. There's a proposal by the ASU that paid travel time - there's a draft determination filed by the ASU. Maybe you need to have a look at that before providing that position. All right. In the circumstances it seems as though there will be likely submissions and perhaps evidence going to the question about the broken shifts. The parties will be mindful of the directions and timeline that was outlined in the Full Bench's statement of 9 August. Yes, Mr Ferguson.
MR FERGUSON: Deputy President, if - I appreciate you will e leaving the Bench, but perhaps for convenience if we could just use this forum for the parties to have some discussion about the broken shift issue and how the proceedings could evolve even after you depart; or otherwise we can send a link around. I'm just raising it now because we've got everyone together. It just seems there might be some further useful discussion around broken shifts without the Commission's assistance so we can narrow the issues.
THE DEPUTY PRESIDENT: Yes.
MR FERGUSON: What I'm asking is if parties can just stay online for a moment after you depart, if that's okay from the Commission's perspective.
THE DEPUTY PRESIDENT: Yes, that's fine. I might leave you then now, and the parties can take up that opportunity if they would like. I will leave it for any interested party to contact my chambers if there's interest in a conference on Monday afternoon, any time from 2 pm. That contact need only be made to my chambers. I will keep the time available at this stage and await any advice in that regard. Other than that, the parties will be aware of the timeline that was outlined in the statement of 9 August.
I thank everybody for their presence this morning and their contribution to the discussion, and I will depart the conference now. Thank you.
ADJOURNED INDEFINITELY [2.59 PM]