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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009

 

DEPUTY PRESIDENT KOVACIC

 

AM2014/190

s.156 - 4 yearly review of modern awards

 

Four yearly review of modern awards

(AM2014/190)

Common issue - Transitional provisions District Allowances

 

Canberra

 

4.15 PM, TUESDAY, 19 DECEMBER 2017


PN1          

DEPUTY PRESIDENT KOVACIC:  Good afternoon, everybody, how are we?  Can you hear me clearly?

PN2          

MR SCAIFE:  Yes.

PN3          

MS KNIGHT:  Yes, Deputy President.

PN4          

DEPUTY PRESIDENT KOVACIC:  Thank you.  Again, I should indicate for everyone's benefit that this afternoon's mentions and directions hearing is being recorded so perhaps if we can just do a call of the card, if I can describe it that way in terms of appearances?  If I can start with the SDA - - -

PN5          

MR D SCAIFE:  Yes, Mr Scaife for the SDA, if it pleases the Commission.

PN6          

DEPUTY PRESIDENT KOVACIC:  Thank you ASU?

PN7          

MS J KNIGHT:  Thank you, Deputy President it's Joanne Knight and John Nucifora.

PN8          

DEPUTY PRESIDENT KOVACIC:  Welcome, Ms Knight and Mr Nucifora.  Australian Retail Association?

PN9          

MR N TINDLEY:  Thanks, your Honour Tindley, initial N.

PN10        

DEPUTY PRESIDENT KOVACIC:  Welcome, Mr Tindley.  Australian Business Lawyers?

PN11        

MR J ARNDT:  Deputy President, Arndt, initial J, and Ms Wish, initial S, appearing for ABI and New South Wales Business Chamber.

PN12        

DEPUTY PRESIDENT KOVACIC:  Thank you, Mr Arndt, Ms Wish.  AiG?

PN13        

MS R BHATT:  Yes, Deputy President, Bhatt, initial R, appearing for the Australian Industry Group and Hair and Beauty Australia.

PN14        

DEPUTY PRESIDENT KOVACIC:  Welcome, Ms Bhatt.  Motor Trades Association?

PN15        

MR A BAUMGARTNER:  Yes, Baumgartner, for the Motor Trades Association.

PN16        

DEPUTY PRESIDENT KOVACIC:  Welcome, Mr Baumgartner.  Pharmacy Guild?

PN17        

MS J LIGHT:  Light, initial J, and with me is Mr Harris, initial S.

PN18        

DEPUTY PRESIDENT KOVACIC:  Welcome, Ms Light and Mr Harris.  Finally, CPSU?

PN19        

MR K BARLOW:  Deputy President, Barlow, initial K.  Thank you, everyone.  Look, this is a follow-up to the mention and directions hearing we had earlier this month and at that stage the employer parties hadn't seen the revised SDA claim or for that matter the revised ASU claim.  They have now been provided to the parties.  Mr Scaife, Mr Nucifora, Ms Knight I'd just invite, if there is anything in particular you wish to say in respect of the revised claims or draft determinations that are being sought now?

PN20        

MR SCAIFE:  Thank you, Deputy President, very briefly, obviously insofar as the SDA's determinations are concerned we have narrowed the two areas which the district allowances would apply and also gone forward with the quantum that is set out in the Broken Hill allowance so some of those issues that I know have been sticking points for the employer parties previously will hopefully be clearer now.  In terms of the way forward, I discussed at the last directions hearing, Deputy President, that some of the evidence was stale and that in view of there being revised determinations that there would likely be a need to revisit witness statements and submissions.

PN21        

I understand that that was generally understood by the employer parties so that's really all I'm seeking to achieve today.

PN22        

DEPUTY PRESIDENT KOVACIC:  All right, Mr Scaife.  Just picking up on that last point in terms of needing to actually visit the evidence and some of the submissions.  Do you have a sense of what sort of time frames you might need in terms of being able to do that?

PN23        

MR SCAIFE:  I do.  We are relatively well-advanced, Deputy President, but I am concerned by obviously the shut-down period and that there are some logistical or operational difficulties with getting statements from witnesses in these regions and getting them finalised, so I would be looking for at the very earliest mid-February for us to file those revised materials.

PN24        

DEPUTY PRESIDENT KOVACIC:  Look, I just should indicate for everybody's benefit I've had the benefit of some discussions with my colleagues on the Full Bench and the earliest that we'd be in a position and I presume I think prior to our last hearing, Mr Scaife, you'd indicated that the hearing itself might take in the order of three days.  In terms of getting the Full Bench together for a period of three days, the earliest that we would be in a position to do that would be 10 through to 12 April next year.  So people might just bear that in mind, in terms of their time frames.

PN25        

Now, the other thing that was canvassed last time, Mr Scaife, was the issue of inspections.  Certainly the employer parties I think are almost unanimously if not unanimously doubtful as to the utility of inspections.  I think I expressed a view to that extent too.  Is there anything you want to say about that?

PN26        

MR SCAIFE:  I think I would only be re-treading previous ground, Deputy President.  The only thing worth highlighting is that as I think I said last time, I think it is difficult to convey the notion of isolation through written witness statements and even through oral evidence, and that is a criterion that has been uniformly applied by workplace tribunals and certainly by the state Western Australian Industrial Relations Commission in its consideration of district allowances.  We think that the Commission would have a better sense for measures of isolation in terms of, say, the facilities, the amenities, just the sheer distance that these districts have to contend with if it was to conduct inspections.

PN27        

We also consider that if we could agree on a set of locations where there were, say, a few witnesses from both the SDA's applications and on behalf of the ASU, then the Commission would be in a position to hear that evidence directly, in person, perhaps, as part of conducting inspections to those regions and that there would be some utility to the Commission in that process as well.

PN28        

DEPUTY PRESIDENT KOVACIC:  I suppose the question I have and the question that my colleagues on the Full Bench also had is to what end when I look at the claim where there is in essence a uniform quantum of allowance that's now being sought in respect of the various awards, I just wonder what you've said, how that I understand the point about the witnesses but in terms of the isolation issue, I'm not quite sure how that necessarily relates to the quantum, frankly.

PN29        

MR SCAIFE:  Well, I think it goes to the merits of whether or not perhaps as a threshold question, Deputy President, about whether or not there is a justification for district allowances and historically part of the justification has been the notion of isolation and we just say that that is something that the it will be difficult for the Commission to appreciate without actually seeing those communities and speaking directly, locally, with those witnesses.

PN30        

It's certainly always been the practice of, I believe, the Australian Industrial Relations Commission when it last visited this issue which was I think some 30 years ago and that the state Industrial Relations Commission here in Western Australia, that when it has done a full review that it would that it conducted inspections.  In terms of there being a range you know, obviously there is one quantum sought for various districts.  While obviously we don't think it's practical for the Commission to visit every single town or every single district, if we are able to agree a sort of representative sample so that the Commission can be satisfied that the different regions that have been identified share similar characteristics as isolation and disadvantage then that is something that is useful to the Commission in satisfying itself that a variety of regions should be deserving of the district allowance of sort.

PN31        

DEPUTY PRESIDENT KOVACIC:  All right, thank you.  Ms Knight, Mr Nucifora, do you wish to say anything about the ASU's draft determinations?

PN32        

MS KNIGHT:  Primarily thank you, Deputy President primarily we just wanted to act on that (indistinct) summarise facts.

PN33        

DEPUTY PRESIDENT KOVACIC:  Ms Knight, you seem to be dropping in and out at my end.  I'm not sure if others are experiencing the same thing.

PN34        

MR SCAIFE:  Yes, Deputy President, same here.

PN35        

DEPUTY PRESIDENT KOVACIC:  Do you want to see if you can have another try and see if we still have an issue or not?

PN36        

MS KNIGHT:  Certainly I just wanted to draw attention primarily, first of all, to our revised draft determinations that we've withdrawn four of the modern awards from our initial application.

PN37        

DEPUTY PRESIDENT KOVACIC:  Yes.

PN38        

MS KNIGHT:  We have updated the found locations previously referenced to the relevant built-up areas.  We've changed the scale from (indistinct) - - -

PN39        

DEPUTY PRESIDENT KOVACIC:  Ms Knight, I'm just going to interrupt you there again.  I think we're having there are some issues in the sense that the sound quality is very disjoined.  I'm having great difficulty in getting everything that you're saying.  If you might just bear with me and I might just put you on mute and sort of see if we can do anything in terms of just checking the connection. So bear with me, if you wouldn't mind.

PN40        

MS KNIGHT:  Thank you.

PN41        

DEPUTY PRESIDENT KOVACIC:  Ms Knight, can I perhaps ask you to hang up and my associate will dial you back in and hopefully we'll have a much better-quality line than we have had up until now.  So if everyone can just bear with us while we try and sort that but I think it'll be great.

PN42        

MS KNIGHT:  Okay.

PN43        

DEPUTY PRESIDENT KOVACIC:  Look, we're still having difficulty with getting through to Ms Knight and Mr Nucifora.  Rather than delay any further, I just thought we might continue.  When hopefully we get it won't be too long before we're able to re-contact them both.  So just coming back to Mr Scaife, in terms of the time frame that Mr Scaife mentioned was the earliest would be mid-February.  In terms of, I suppose, any employer responses at this stage both in respect of the revised determinations and secondly, time frames, and perhaps we might start with yourself, Mr Arndt.

PN44        

MR ARNDT:  Thanks, Deputy President.  Our position I mean, I guess it depends on when the hearing is listed for.

PN45        

DEPUTY PRESIDENT KOVACIC:  Yes.

PN46        

MR ARNDT:  I just sort of as a starting point, just looking at the SDA's minute of directions which I think was provided last time, it's just as a starting point I think that timetable had the employer parties responding with submissions and evidence four weeks after the supplementary submissions in evidence from the union.  I think given the changes to the claims, we're not starting from scratch by any means but certainly there is a lot of considerations that are no longer relevant and probably some new ones as well.  We'd need more than four weeks, certainly, to understand where these areas are, what the membership there is and then go about trying to find some evidence and trying to find the relevant submissions.  So I think it's definitely longer than four weeks but as I said, it will depend on when the hearing is as to whether that latitude can be afforded.

PN47        

DEPUTY PRESIDENT KOVACIC:  I should just mention for everyone's benefit that I've just been advised that Mr Nucifora and Ms Knight have re-joined but and I'll throw back to Ms Knight in a moment.  Mr Arndt, just following up on that last comment, in terms of do you have a sense of how much more than four weeks you might be looking for?

PN48        

MR ARNDT:  It's a good question.  I certainly can't speak for all the employer parties.

PN49        

DEPUTY PRESIDENT KOVACIC:  Sure.

PN50        

MR ARNDT:  The case that we would put on would not be an extraordinarily large case.

PN51        

DEPUTY PRESIDENT KOVACIC:  Yes.

PN52        

MR ARNDT:  But we would think that an eight-week window would be enough for us.  But I can't speak for any other parties who may have different interests.

PN53        

DEPUTY PRESIDENT KOVACIC:  All right. I'll continue talking to employers in a moment but I'll come back to Ms Knight and Mr Nucifora and, Ms Knight, I think you got as far as saying highlighting that in terms of the revised determinations the ASU had withdrawn four modern awards but it also updated the areas that were to be covered so you might sort of pick up from there if I've accurately described where you got to.

PN54        

MS KNIGHT:  Thank you, Deputy President.  I just also wanted to highlight that we had some views from the last (indistinct) from each of our fairly uniform draft determinations (indistinct) words that referred to a - - -

PN55        

DEPUTY PRESIDENT KOVACIC:  Ms Knight, we're still having technical issues.  That line is just like a tape that's been mangled in a cassette recorder.

PN56        

MR TINDLEY:  Deputy President, it's Tindley from ARA.  I do know that in a number of circumstances that arises from using a speaker phone so it may assist if the hands-free is removed.

PN57        

DEPUTY PRESIDENT KOVACIC:  Yes, would you like give that a try, Ms Knight, assuming that you are using a speaker phone?

PN58        

MS KNIGHT:  Yes, we were.  I'll just quickly say that you were correct, thank you, and also add that the third point that we wanted to make was that we had removed a line from our mostly uniform draft determinations from the last paragraph that made a reference to the Australian Defence force district allowance.  I also wanted to say on behalf of the ASU that we support the statements and submissions that the SDA has made both today and in their communication with the Commission over the last couple of weeks.  I'd also just like to hand over to John Nucifora to add to the statements we wanted to make about inspections.

PN59        

DEPUTY PRESIDENT KOVACIC:  Great, thank you.

PN60        

MR NUCIFORA:  Thank you, Deputy President, it's Mr Nucifora here.  Sorry, I just wanted to refer to I just missed something in I suppose the replies there and particularly your earlier statements in relation to inspections but the previous occasion when district allowances this is prior to award modernisation were heard before the federal commission in relation a number of Northern Territory awards I may have referred to at the previous conference.  I was just trying to find a print number in that when we referred to that.  That was back in 1983, as I recall.  I think it was print 2900 and came out of the national wage case so this question of the district allowance was dealt with then.

PN61        

There were a number of inspections that involved a number of Northern Territory locations.  So we just wanted to I don't know what's happened in the interim when we were offline but we still support, obviously, the question of inspections.

PN62        

DEPUTY PRESIDENT KOVACIC:  Well, we didn't really touch on that.  We Mr Arndt just really spoke of the time frame that ABL would be looking for in terms of responding or providing its submissions and evidentiary case.  I'm not sure whether this question is best directed to you, Ms Knight, or to you, Mr Nucifora, but in terms of the ASU providing its revised submissions and any revised evidentiary material, do you have a sense of what sort of time frame might be involved from your perspective?

PN63        

MR NUCIFORA:  The time frame that was proposed by the SDA is certainly we would support.

PN64        

DEPUTY PRESIDENT KOVACIC:  Yes.

PN65        

MR NUCIFORA:  As I understand it, it was at least we understood there was you mentioned earlier the hearing dates of 10 to 12 April.  Then of course the SDA would be able to meet at the time frame of mid-February.  We would be in the same position as the SDA on that.

PN66        

DEPUTY PRESIDENT KOVACIC:  All right, thanks for that.  Ms Bhatt.

PN67        

MS BHATT:  Thank you, Deputy President.  If I can first address the Commission on the issue as to whether or not the unions should be permitted to amend their claim on account of the fact that I raised that last time.

PN68        

DEPUTY PRESIDENT KOVACIC:  Yes.

PN69        

MS BHATT:  Having reviewed the amended terms in which the claims are now advanced, Ai Group will not press its opposition to the unions being permitted to amend their claim.  But if I can just address the issue of site visits very briefly I think it goes without saying that if site visits are to be undertaken that is a very time-consuming and costly exercise for all interested parties and that's true in a context of an award review that will be running into its fifth year, that is placing serious resource constraints on organisations including Ai Group.

PN70        

We anticipate that concurrently with this matter we will be involved in various other award review matters as well, which we say is a factor that the Commission should take into account when determining whether or not site visits will take place.  We would say simply that the matters that the SDA have said that they seek to establish through site visits can also be established through the calling of witnesses to give evidence before the Commission and the (indistinct) approach that it should take.  As for time-tabling, I suppose in (indistinct) and we've all been proceeding on the assumption that site visits will not occur because if they did, that would necessarily have to be factored in to that program.

PN71        

DEPUTY PRESIDENT KOVACIC:  Yes.

PN72        

MS BHATT:  If the unions were to file their material in mid-February, to which we would have no opposition, then we would say that the respondent parties should not be required to file before around 26 March and that would leave I think two clear weeks before 10 April, which I think is the date that the Deputy President indicated would be the first set of three days that the Commission will be able to hear the matter.

PN73        

DEPUTY PRESIDENT KOVACIC:  That's correct.

PN74        

MS BHATT:  I mean, if those hearing dates can be postponed slightly then it may be that the timetable can be extended out and respondent parties afforded a little more time.  One of the difficulties we have with providing the Commission with an indication as to how long we might need, if we of course don't know precisely what the scope of the evidentiary case might be that the unions will mount, is (indistinct).

PN75        

DEPUTY PRESIDENT KOVACIC:  Yes.  Thank you, Ms Bhatt.  I'll come back and I'll just hear from everybody else in terms of and then I might just sort of have a sense of I think there is an element of asking a question about how long a piece of string is here but my presumption on the basis of three days was premised I think on the SDA's initial outline of possible or draft directions in terms of a hearing date.

PN76        

MS BHATT:  Yes.

PN77        

DEPUTY PRESIDENT KOVACIC:  It might be that that time frame is longer.  But I'll hear from the others and then we can come back to it.  So can I perhaps now throw to Mr Tindley?

PN78        

MR TINDLEY:  Thank you, Deputy President.  We would concur with the views already expressed by the employer parties.  We see six to eight weeks from the date that the SDA files its materials as appropriate.  In terms of inspections, I just don't think that there is any probative value of conducting inspections.  I accept that those inspections did occur a number of years ago but the world has advanced significantly in the points that would be made through inspections are likely to be able to be made through other means, through both the giving of evidence and if appropriate the viewing of footage of locations.

PN79        

One issue that had not occurred to the ARA until recently is the issue of notification of claims.  Now, we're in a situation here where what is being proffered is that these are isolated locations.  If that is the case then they're isolated, likely to be isolated in all senses and we maybe in a situation where employer bodies are trying to act in the interests of employers to whom these variations or determinations would have an impact without those employers being aware of the application so I wonder if there is a need for the SDA and ASU to engage in some process of notification of people within the relevant areas, be that through newspaper advertisements, which has been the which we would assume the FDS is familiar with through the manner in which the West Australian Industrial Relations Commission operates or through direct notification of businesses located in that area in those areas, sorry.

PN80        

DEPUTY PRESIDENT KOVACIC:  All right, we'll come back to that issue in terms of notification.  Mr Baumgartner.

PN81        

MR BAUMGARTNER:  Yes, I would support the other employers.  I think at least six to eight weeks after the February material is provided from the unions would suit us.

PN82        

DEPUTY PRESIDENT KOVACIC:  All right.

PN83        

MR BAUMGARTNER:  I should say, on inspections we don't see any probative value in having inspections.

PN84        

DEPUTY PRESIDENT KOVACIC:  Thank you, Mr Baumgartner. Ms Light.

PN85        

MS LIGHT:  Deputy President, I don't think there's anything I can usefully add.  We agree with the submissions made by the respondent parties with respect to the timetable and the utility of any site inspections.

PN86        

DEPUTY PRESIDENT KOVACIC:  Now, Mr Barlow, I should have perhaps asked you to invited you to comment after Ms Knight had concluded but is there anything you wish to say?

PN87        

MR BARLOW:  Thank you, Commissioner.  No, our interest here is primarily in the special community services sector.  We will be participating or we intend on patriating in support of the other union application so that is our we have other than to say that we support their position on the issues that have currently been discussed we have no position or addition to make to that of our own.

PN88        

DEPUTY PRESIDENT KOVACIC:  Thanks very much.  So perhaps if I come back to you in the first instance, Mr Scaife do you have a sense of how long might be needed for hearing?

PN89        

MR SCAIFE:  Yes, thank you, Deputy President.  The three days was really allowing sufficient time, depending on the material that's filed, Deputy President, so in that sense it is a little bit of a how long is a piece of string question.

PN90        

DEPUTY PRESIDENT KOVACIC:  Yes.

PN91        

MR SCAIFE:  I estimate from our side that I will need about a half day for submissions and evidence.  But I anticipate that we will have about 10 to 12 witnesses so it will obviously there will be a question of how much time the employer parties need by way of cross-examination but certainly I can say from my perspective that I wouldn't expect to traverse our written submissions in great detail but that I would need about a half day for that exercise and to tender the witness statements.

PN92        

DEPUTY PRESIDENT KOVACIC:  Certainly, Mr Nucifora, Ms Knight, do you have a sense of how much time might be required by way of a hearing?

PN93        

MR NUCIFORA:  Yes, Mr Nucifora again I've just spoken to Ms Knight.  We would say that half to one day would be enough for the ASU.  We would have about four to seven witnesses.

PN94        

DEPUTY PRESIDENT KOVACIC:  Do the employer groups sorry, before I Mr Barlow, do you envisage the CPSU leading any witness evidence?

PN95        

MR BARLOW:  No, not at this stage.

PN96        

DEPUTY PRESIDENT KOVACIC:  Do the employers envisage leading any witness evidence?  I might start again with you, Mr Arndt.

PN97        

MR ARNDT:  Deputy President, one would hope so but the it's probably unlikely.  We'll certainly make inquiries as to whether we can secure employer evidence but I wouldn't put a number on it and it certainly would be low, if any.

PN98        

DEPUTY PRESIDENT KOVACIC:  Ms Bhatt, do you have any sense?

PN99        

MS BHATT:  I don't think I can provide the Commission with any sense of an indication.  If we were to call any evidence it wouldn't be more than one to two witnesses.

PN100      

DEPUTY PRESIDENT KOVACIC:  Mr Tindley?

PN101      

MR TINDLEY:  Deputy President, we'd really need to see the case that's put before we determine whether evidence was necessary.

PN102      

DEPUTY PRESIDENT KOVACIC:  Mr Baumgartner?

PN103      

MR BAUMGARTNER:  Likewise, we really can't say at this stage.

PN104      

DEPUTY PRESIDENT KOVACIC:  Ms Light?

PN105      

MS LIGHT:  Deputy President, my current instructions are that the guild is likely to seek to rely upon one to two witnesses.  But that will largely depend on the evidence called by the SDA in relation to the matter.

PN106      

DEPUTY PRESIDENT KOVACIC:  All right, it strikes me that perhaps the time frame of 10, 11, 12 April might, in those circumstances, be well, I should go back a step.  Mr Scaife, Mr Nucifora, would you envisage once the employers file their material that you would want an opportunity to provide material in response?

PN107      

MR SCAIFE:  No, Deputy President, I don't think that will be necessary.

PN108      

DEPUTY PRESIDENT KOVACIC:  Mr Nucifora?

PN109      

MR NUCIFORA:  Yes, the ASU would be in the same position.  We don't think that would be necessary.

PN110      

DEPUTY PRESIDENT KOVACIC:  All right.  Mr Barlow, do you have any views on that issue?

PN111      

MR BARLOW:  No, I have no views that differ from my union colleagues, your Honour.

PN112      

DEPUTY PRESIDENT KOVACIC:  Well, in that case we might be in a position to start on 10 April.  I'm just a bit in terms of the potential number of witnesses I accept that at this stage it's there is an element of uncertainty about in particular how many witnesses might be called; how many might be required for cross-examination and so on and so forth.  But, Mr Scaife, given your estimate of 10 witnesses I think a half day might be a bit optimistic in terms of being able to sort of make your submissions and deal with your evidentiary case in that sort of time frame, but - - -

PN113      

MR SCAIFE:  I should have clarified, Deputy President, that I'm not talking about that's not allowing for, obviously, any cross-examination.

PN114      

DEPUTY PRESIDENT KOVACIC:  Yes.  Just in terms of the bench could sit on 13 April as well.  I just I'm inclined to lock in some dates.  But perhaps on the basis that if anything I think maybe the time frame might need to there may be a need for extra days to be added at some later stage but we'll cross that bridge if and when we get to it.  It might become a little bit clearer once the employers have had an opportunity to see the substance of the unions' respective submissions and evidentiary case.

PN115      

I have to say that nothing I've heard this afternoon necessarily changes my thinking in terms of the issue of inspections.  I think the point that's been made by a number of the employer parties this afternoon, that the issues that might be garnered from an inspection could equally be covered through evidentiary material together with possibly submissions so I'm not inclined to include any inspections as part of the timetable of hearings so we'll proceed on the basis that the hearings will be in the traditional form of in the hearing room.

PN116      

So if I was to suggest that I list it for four days, from 10 to 13 April inclusive, are there any violent objections to that time frame?  With the unions' submissions and evidentiary case to be due by mid-February and just bear with me, I'll call up my calendar and get a precise date.  If I was to say by close of business on Friday 16 February and then employers' submissions to be provided by close of business on Thursday 29 March, noting that the 30th is Good Friday, does that work for people or would employers perhaps like to spill over to just after Easter?

PN117      

I'll take silence as agreement?  Is that a reasonable assumption on my part?

PN118      

MR SCAIFE:  Yes.

PN119      

MR ARNDT:  Sorry, Deputy President we were just working out the calendar.  That's appropriate for - - -

PN120      

DEPUTY PRESIDENT KOVACIC:  All right, thanks, Mr Arndt. I appreciate that.  Look, I'll just come back to one issue that Mr Tindley mentioned and that is the issue of notification of claim.  I suppose a question before I throw to invite Mr Scaife and Mr Nucifora to say anything they may wish to, Mr Tindley, why wouldn't it be possible that through your own organisation's channels that perhaps there be some awareness raising, for want of a better description, as to the quantum?

PN121      

MR TINDLEY:  There's two points we make in relation to that, Deputy president.  The first is that this is not our claim.  There is a claim by a union to significantly change the award as it applies to a number of regions.  The employers in that region are entitled to be made aware of it and should be made aware of it, not by the people responding to those claims but by the people who are making those claims.

PN122      

DEPUTY PRESIDENT KOVACIC:  Yes.

PN123      

MR TINDLEY:  The second point we'd make is that and I say this without having considered directly our knowledge of this but we consider it reasonably unlikely that the ARA has any or substantial membership within those regions so it makes it difficult for the ARA to communicate or raise awareness of this within those regions.

PN124      

DEPUTY PRESIDENT KOVACIC:  So the other question I have is in terms of the notification and I think you identified one possible approach, would be that the unions perhaps place an advertisement in presumably local newspapers or whatever.  How would you sense that that particular where that advertisement would direct interested parties to?

PN125      

MR TINDLEY:  We would say that the advertisement could contain the proposed determination or the draft determination and direct parties or persons to the relevant page of the Fair Work Commission website for information about that.

PN126      

DEPUTY PRESIDENT KOVACIC:  So any of the other employer groups wish to express a view on the proposition that Mr Tindley has just suggested?  I'll take that as a no.  Mr Scaife, and then Mr Nucifora, do you wish to express any opinion or response to Mr Tindley's suggestion?

PN127      

MR SCAIFE:  Thank you, Deputy President.  I will just say I'm still a little in the dark as to what the purpose is of the notification.  The employer parties have spilled a bit of ink about how long this process has gone on for and how tortured it has been.  The regions that have been selected are in the revised determination on behalf of the SDA are only a smaller subset of the regions that would have been included in the previous draft determination.  So this is certainly not a case where there are new regions being introduced into the proposal and in those circumstances, I just find it very difficult to believe that notification requirements are somehow required now by reason of the further revised draft determination.

PN128      

It doesn't seem to me to be an expense that is useful to the parties and I would echo your comments, Deputy President, that it's not entirely clear to me what the purpose of representative employer organisations is if we need to notify all employers in a particular region or indeed, across the whole of Australia if that was the significant change that the union was contending for.

PN129      

DEPUTY PRESIDENT KOVACIC:  Mr Nucifora, do you have any views?

PN130      

MR NUCIFORA:  Yes, Deputy President the ASU is concerned that the application has been live, the ASU's application and the block application and the SDA's application has been live since 2014 and we support the comments statements made by Mr Scaife, that the reason why employers are members of the employer associations is they would be advised of the district allowance claim.  Plus, there was of course support from the full court of the Federal Court on the Broken Hill allowance.  So this issue has been live since 2014 and been supported by the full court of the Federal Court.

PN131      

I'm just concerned that in fact there is some obligation on the unions to advertise the claim to all these employers who otherwise are used to district allowance claims, both in the state jurisdiction and the federal jurisdiction in that time that they would need to be notified about this when they could otherwise be notified by the relevant employer association.

PN132      

DEPUTY PRESIDENT KOVACIC:  Mr Tindley, anything you may wish to say finally?

PN133      

MR TINDLEY:  Deputy President, with respect to both unions, they haven't engaged with the issue which is that it seems to be this claim has been live since 2014 so why would we be doing this now?  The claim has not been live since 2014 in the form it is.  The claim has changed form dramatically during that time.  It was a claim at one point that applied essentially throughout Australia.  Now, we would accept that that enlivened amongst the employer associations a capacity to rally the troops, for want of a better description, or to inform the employer world of the claim.

PN134      

As the FDA has pointed out, this is now a confined claim to a confined number of areas.  Those areas are by the FDA's own statements, remote locations.  Those areas are locations where it would be appropriate where there is a significant change to the safety net conditions of employees and therefore employment costs of employers that those employers be aware of it.  Are we seriously suggesting that those employers should not have the opportunity to be informed of this and that the sole responsibility for that should lie with employers?  I find that an extraordinary suggestion.

PN135      

MR NUCIFORA:  It's Mr Nucifora again, Deputy President.  It was the obligation of the unions to inform our members and employees across West Australia, Northern Territory and Queensland, New South Wales and South Australia and possibly Victoria that they were no longer going to have a district allowance.  I just think it's procedurally unfair for all of the obligations on notifying employers as well as employees is required to be met by the unions.

PN136      

DEPUTY PRESIDENT KOVACIC:  All right.

PN137      

MR TINDLEY:  Well, Deputy President and Mr Nucifora, that's the removal of district allowances wasn't part of an application by a party.  A party is seeking to change the minimum safety net.  That party should have an obligation in these circumstances, in our view, to inform those areas of that.  Now, the removal of district allowances wasn't an application.  It was a legislative provision.

PN138      

MR NUCIFORA:  Well, Deputy President, the unions would have been in a better position to notify both employees and employers if we actually were able to notify the employees' employers that there might be inspections out there.  This is part of the reason why we haven't raised the issue of inspections.

PN139      

DEPUTY PRESIDENT KOVACIC:  Look, in the circumstances, at this stage, Mr Tindley, I'm not of a mind to support any sort of further notification of the claim.  I think the points that have been made by Mr Scaife and Mr Nucifora in the sense that this issue has been on foot for some particular time, albeit that it's morphed over that period - - -

PN140      

MR TINDLEY:  With respect, Deputy President - - -

PN141      

DEPUTY PRESIDENT KOVACIC:  - - - doesn't diminish the fact that it has been out there for some period of time so in those circumstances I'm not I don't think it's necessary to require any further action on the part of either of the applicant unions in this particular case.  All right, so I think where we've gotten to is that the time frame will be the unions' submissions by close of business on Friday 16 February, employers' submissions and evidentiary case by close of business on Thursday 29 March with the dates 10 through to 13 April set down for hearing of the matter and those hearings will be in Sydney.

PN142      

I think that probably covers the issues that we needed to talk about this afternoon, unless there is anything else that anybody wanted to raise?

PN143      

MR TINDLEY:  No, Deputy President.

PN144      

DEPUTY PRESIDENT KOVACIC:  All right, thank you, everyone.  Thank you again for your time this afternoon and can I take this opportunity to wish you all the very best for Christmas and the New Year.  Have a great break and travel safely if you are travelling.

PN145      

MR TINDLEY:  Thank you, Deputy President, and to you.

PN146      

MR SCAIFE:  Thank you.

PN147      

MS BHATT:  Thank you.

PN148      

DEPUTY PRESIDENT KOVACIC:  Thank you very much, goodbye.

ADJOURNED UNTIL TUESDAY, 10 APRIL 2018 [5.02 PM]