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Fair Work Act 2009                                                    






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Broadcasting and Recorded Entertainment Award 2010


(ODN AM2008/35)

[MA000091 Print PR988989]]




2.00 PM, THURSDAY, 20 APRIL 2017


THE VICE PRESIDENT:  Thank you.  I'll take the appearances in Sydney.


MR M CHESHER:  If it pleases the Commission, Chesher, initial M for the Media Entertainment and Arts Alliance.




MR K BARLOW:  Your Honour, if the Commission pleases, Barlow, initial K for the CPSU.




MR S FORSTER:  Your Honour, if the Commission pleases - Forster, initial S for the Seven Network Operations Limited and its related entities Network 10 Proprietary Limited and its related entities and the Nine Network Proprietary Limited and its related entities.  Your Honour, I want to say that I'm continuing my appearance.  I'm sure we've been here and leave has been granted in the past to the extent that I need to I would thank you, your Honour.


MS M CHAN:  May it please the Commission, Chan initial M, Australian Business Lawyers and Advisors seeking leave to appear on behalf of ABI and the New South Wales Business Chamber.


THE VICE PRESIDENT:  Thank you, Ms Chan, you can appear.  You could perhaps come to the front table.


MS CHAN:  Certainly.


THE VICE PRESIDENT:  Then go to Perth.


MR D HAMILTON:  Your Honour, D Hamilton and R Spoors for the Australian Entertainment Industry Association trading as Live Performance Australia.


THE VICE PRESIDENT:  Thank you.  And we then go to Brisbane.


MR J MURDOCH:  Yes, thank you, your Honour.  Murdoch, initials JE, counsel continuing appearance for Birch Carroll and Coyle Limited, the Hoyts Corporation Proprietary Limited, the Greater Union Organisation Pty Limited, Village Cinemas Limited and the Independent Cinemas Association of Australia and its members.


THE VICE PRESIDENT:  Thank you, Mr Murdoch.  Now, the purpose this afternoon is to look at the two documents collated, the summary of submissions technical and drafting and the substantive variations and to see in discussion today what has been agreed.  Following today's conference the matter will then be adjourned until 12 May for further report back to see whether we can narrow the field even further before the matters are finally referred to the Full Bench for programming.


What I propose to do is work through the list and each of the proponents in the list can speak first and see where that is to remain as a live issue.  If we go to item one on the technical and drafting.  That's in relation to the calculation of overtime.  Does that remain a live issue?


MR CHESHER:  With respect, your Honour, that's a submission from the Directors' Guild who don't appear.


THE VICE PRESIDENT:  Yes.  Who are not here.  Yes.


MR CHESHER:  Who are not here but it is - I think it covers territory that MEAA raised in its submissions in November or December 2016 about the method of calculation that being the change to a percentage formula of ordinary pay from the current award provisions.


THE VICE PRESIDENT:  Has there been any further discussions with the ADG?


MR CHESHER:  Not on MEAA's behalf.  We simply support the claim that was promoted by the ADG.


THE VICE PRESIDENT:  Well, have there been any discussions amongst the parties at all in relation to this?


MR FORSTER:  Your Honour not from - if I can call them the "television networks".  We did raise a similar issue in our response to the exposure draft where we called out examples of where we believed minimum rate and ordinary rate might have been used incorrectly in the new exposure draft in Attachment A to our first submissions which was a marked up version of the exposure draft.  We tried to call those out.  I'd have thought that - you know - based on that draft between now and 12 May that's something that can be talked about amongst those people who have expressed an interest.


THE VICE PRESIDENT:  Inserting an agreed document, yes.  We then go to item two which is from the Seven interests.


MR FORSTER:  Yes.  It's a very minor change.  I can't imagine there's any issue with this.  It's just a structuring issue.


MR BARLOW:  There's no issues from this side of the table.


THE VICE PRESIDENT:  Is there any issue in relation to item two, anybody?


MR CHESHER:  Not from me, your Honour.


THE VICE PRESIDENT:  Well we'll do it - sing out if anybody has an issue on item two - otherwise I'll take that as being an agreed position.  Item three.


MR HAMILTON:  Your Honour, I might have a feeling that this issue is being considered by Hamberger SDP who I believe is looking after the substantive issues.




MR HAMILTON:  Am I right, Matthew?


MR CHESHER:  You may well be right, David.


THE VICE PRESIDENT:  He's dealing with the conciliation at the moment, isn't he?


MR CHESHER:  Well, your Honour, as you would be aware there's been two parallel processes under way.


THE VICE PRESIDENT:  That's right.


MR CHESHER:  In conference with his Honour Hamberger SDP in January and then again in February, his Honour set down dates for I believe 4, 5 and 6 June for hearing of substantive matters.  How that intersects with the process that your Honour is now - - -


THE VICE PRESIDENT:  I'm not sure how he does that when he's not - this one is a Full Bench, that's a single member is it?


MR CHESHER:  No.  He has been quite clear that he would be not part of the Full Bench.  I think my recollection is sound on that.


THE VICE PRESIDENT:  Yes.  Because the Full Bench, as I understand it, on this matter is the President, myself, Lee C, Kovacic DP and - yes - I'm not sure how that dissects because this matter has been referred to me from the President to have conferences.


MR CHESHER:  Well, that - it may not assist the Commission but I do note that the Full Bench you just nominated is also dealing with the award flexibility issue for I think it was brilliant while I think it was dealing with the TOIL matter.




MR CHESHER:  Across the board but in the Journalists Award as well which is listed immediately after this conference today.


THE VICE PRESIDENT:  That's why I'm aware of what's happening in the journalists' matter in terms of the TOIL issue.




THE VICE PRESIDENT:  So, is your understanding in June the substantive variations are going to be considered, that is a document that I have put in front of me.


MR CHESHER:  Well, further to his Honour Hamberger SDP setting dates for the BREA - on 4, 5 and 6 June - his Honour set dates prior to then for substantive submissions and for submissions in reply to those substantive submissions.  When I last checked the award review website for the BREA Award the CPSU and the MEAA filed substantive submissions.  It's our anticipation that in another week or two's time that there will be either submissions in reply or no submissions in reply at which a decision might have to be taken about vacating those three days in June.




MR CHESHER:  I think you're well aware that there's a small amount of confusion.


THE VICE PRESIDENT:  Well, I'm confused myself too because ordinarily only a Full Bench can deal with these matters.  Well, I take it from that comment that there's not much utility at the moment in me speaking about proposed substantive variations till that unravels.


MR CHESHER:  Well, I think there's a clash of instructions, your Honour.




MR MURDOCH:  Your Honour, could I say something please?  Because I don't want to compound any confusion.  Is that okay, your Honour?


THE VICE PRESIDENT:  Yes, Mr Murdoch go ahead.


MR MURDOCH:  Yes, thank you.  So far as the cinema employees - the majority that I represent - are concerned we had a series of substantive issues which over a lengthy period we've been able to resolve in consultation with MEAA and they were the subject of a report by Hamberger SDP to the President back on 21 July 2016.  And they have already been incorporated into the exposure draft but then there was a second list of matters that concerned us, and they were matters which arose out of the exposure draft and they were mentioned before Hamberger SDP at a conference on the 16 February.  Arising out of that there was agreement that our client should meet with Mr Chesher and his organisation.  As a result of that there has been a letter of the 22 March 2017 from our clients to Hamberger SDP notifying him that our concerns in relation to the exposure draft are now the subject of agreement in principle with MEAA.


So I am sorry if there has there been this direct dealing with the Senior Deputy President but the cinema matters both substantive and technical and drafting have been getting his assistance now for many months and we have been relying on the Senior Deputy President to be the conduit from the cinema parties to the Full Bench through the President.


I wanted to say also that unfortunately I don't have any list of issues so that I can't profitably participate in the call of the card.  All I can do is to say that the matters that we were interested in appear to be resolved and appear to be the subject of communications sent through the Senior Deputy President.


THE VICE PRESIDENT:  Yes, I understand that.  I think that there is some confusion because the note from the President to me is to bring these matters on as part of the President's Full Bench to see what is happening.  And then I see there's a notice of listing for another Full Bench on the same award on substantive issues.  I think it may be preferable that if I try to unravel this, rather than waste people's time but it is unusual that a President instruction conflict in some way.


MR BARLOW:  Your Honour, the CPSU has no specific interest in the similar part of this but may I suggest part of the confusion here is the fact that we're dealing with a summary compiled by the Fair Work Commission that summarises various submissions some of which deal with different parts of the award and some of which obviously include the cinema - some of these cinema matters.


THE VICE PRESIDENT:  That's right.


MR BARLOW:  But it may not include all of the cinema matters necessarily.  But if I may suggest a way forward?  It may still be possible to work through the technical and drafting list and ignore the cinema matters on the basis that they are either already resolved or if they're not already resolved need further discussions.


THE VICE PRESIDENT:  I'm happy to do that.  It's just unusual that the substantive issues should be listed for hearing before the technical and drafting matters of the award have been resolved.




THE VICE PRESIDENT:  It's very odd compared to the award matters.


MR BARLOW:  Yes.  That may very well be correct, your Honour, but certainly the CPSU who has filed a matter in the substantive matter it was quite clearly a substantive claim that we were making and it had been identified early on that it would require a Full Bench to be constituted and evidence and so forth which, in some sense, puts it in a different category to a matter that the parties here at the table may be in disagreement over whether an exposure draft is a substantive change or not a substantive change, your Honour.


THE VICE PRESIDENT:  Yes.  Any other comments?


MR CHESHER:  Well, we're grateful that your Honour has identified a question that has been alive to us for a little while and that is how the two processes could be intertwined.  Your Honour in his opening remarks referred to the 12 May as a period upon which parties would regroup before you to identify areas of agreement and outstanding questions.


Because there has been confusion to date I say from MEAA's perspective that if it's feasible to the Commission for us to combine so-called substantive and technical and drafting issues so that they might be considered in the one forum mainly before a Full Bench or its delegate, because we're a stage four award, I think this matter has taken a long time to come on.  Justify it all around of course but I speak for myself again in saying that I'd benefit from being able to refresh my memory in a more comprehensive way about the historical claims that we first made over two years ago and what the parties' current thinking is, that is if the date of 12 May could be extended - subject obviously to your Honour having discussions with his colleagues - that would be attractive to the MEAA.


THE VICE PRESIDENT:  My recollection is that Hamberger SDP is either on leave or about to go on leave for a month which poses some difficulty to understanding how this all links in.  What I propose to do is I think I need to speak to the President where there is confusion.  Because this matter in terms of its current form has not been brought on.  That's what is unusual that  there is actually a formal listing in June of all the substantive issues.


Do I take it that the issues before Senior Deputy President include all the matters on the document?  If not there is also a problem.


MR CHESHER:  That's unclear.  If I were to hazard a guess, your Honour, it would only be directed at the substantive issues.  In past - - -


THE VICE PRESIDENT:  Well there are 35 substantive variations being sought on the substantive documents.


MR CHESHER:  Well given the expiry of the date for filing which is in that other document handed up to his Honour it's our expectation - bold as it may be - that unless people filed by the 11 May or the 11 April or had an extension approved that most of those 35 substantive claims are no longer current.


THE VICE PRESIDENT:  Yes.  That may be a very bold assumption.


MR CHESHER:  That may be.


MR FORSTER:  Just to help my friend out, your Honour.  There are four items on the list from the television networks.  Three of them were earmarked to be dealt with as part of the award specific process.  One was hived off to a common issue.  So the one that's been hived off has been dealt with.  The remaining three - these are items 11, 12 and I think - I think it's 18 on the list - won't be pressed by the television networks.  So, in essence, that takes care of all those there - substantive applications.




MR CHESHER:  The cinema matters - those cinema matters, your Honour, we were of the understanding that probably had been settled.


MR MURDOCH:  That was our view as well, your Honour.


THE VICE PRESIDENT:  So what was supposed to be left for 4, 5 and 6 June?


MR BARLOW:  Your Honour, the CPSU application to vary the coverage of the award to cover captioners and subtitlers has been made pursuant to the directions issued for the hearings in June and I believe MEAA has also submitted substantive applications as a part of that process but the filing date for applications are some weeks away and those are the only two applications to my knowledge.


THE VICE PRESIDENT:  Yes.  All right.  Well, I think I will adjourn and make some enquiries and then we'll communicate with the parties in that regard.  Thank you.

ADJOURNED INDEFINITELY                                                           [2.22 PM]