PN1

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

PN2

MR M CHESHER: Thank you, your Honour. Chesher, initial M, for the Media, Entertainment and Arts Alliance.

PN3

THE VICE PRESIDENT: Thank you.

PN4

MR S CRILLY: Crilly, initial S, seeking permission to appear for Fairfax Media Limited.

PN5

THE VICE PRESIDENT: Thank you, Mr Crilly.

PN6

MR S FORSTER: If the Commission pleases, Forster, initial S, continuing my appearance for Nationwide News Proprietary Limited, (indistinct) Media Proprietary Limited and Magazines Proprietary Limited.

PN7

THE VICE PRESIDENT: Thank you.

PN8

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

PN9

THE VICE PRESIDENT: This matter is listed in front of me for the dealing with the technical and drafting submissions. Have there been any further discussions between the parties since the list has been prepared?

PN10

MR CHESHER: No, your Honour.

PN11

THE VICE PRESIDENT: I think we'll work through the list and then state what we do after that. I should indicate that my current preference is that any matter remains alive should be discussed between the parties between now and the 12 May for further report back.

PN12

Let us go through them. Item number one which is from ABI seeking a deletion. Is there any opposition to that?

PN13

MR CHESHER: No.

PN14

MS CHAN: Your Honour, we note that that's going to be dealt with by a group three Full Bench.

PN15

THE VICE PRESIDENT: Yes, I understand that. Item number two.

PN16

MR CHESHER: No objection, your Honour.

PN17

THE VICE PRESIDENT: That's agreed. We'll just go through it and just indicate whether there's objections still remaining because some of these are very minor changes. Item three.

PN18

MR CHESHER: No objection, your Honour.

PN19

THE VICE PRESIDENT: Item four?

PN20

MR CHESHER: Question your Honour.

PN21

THE VICE PRESIDENT: Yes.

PN22

MR CHESHER: The point by my friend in News Limited is that repetition is the basis for their suggestion that the published media industry not be restated in the coverage provision at clause 4 of the exposure draft. It's MEAA's understanding, your Honour, that the question of coverage is commonly included in both the definitions and the coverage clause. We wonder whether it's necessary.

PN23

THE VICE PRESIDENT: Is it being pressed?

PN24

MR FORSTER: It's not a major bugbear. We thought it made it simpler not having a definition repeated twice but we don't mind if the parties want to keep it.

PN25

THE VICE PRESIDENT: Withdraw that one. Withdrawn. Item five.

PN26

MR FORSTER: So item number five was the response to the Commission's question whether or not the exemption arrangements in the award was prohibited by reason of the prohibition on state based differentials in section 154 of the Act. We say that they're not because that prohibition concerns terms and conditions.

PN27

THE VICE PRESIDENT: Yes. And does anybody have a contrary view?

PN28

MR CHESHER: No.

PN29

THE VICE PRESIDENT: And that's the position. Item six?

PN30

MS CHAN: This is actually withdrawn. That appears to have been a discrepancy between comparison document and the actual ED document, that's correct.

PN31

THE VICE PRESIDENT: Item six is gone. Item seven?

PN32

MS CHAN: Similarly that is withdrawn.

PN33

THE VICE PRESIDENT: Item eight?

PN34

MR CHESHER: That's yours, it's not mine.

PN35

MS CHAN: We have no objection to that.

PN36

MR FORSTER: I don't object to my own.

PN37

MR CRILLY: I was hoping that you might just explain its merits in a nutshell.

PN38

MR FORSTER: I can. Clause 7.2 lists the facilitative provisions and whether they're by a majority agreement or individual agreement. Clauses 12.2 and 12.3 of the award we think are facilitative provisions. 12.2 deals with arrangements for working an average of 38 hours per week by a majority agreement and 12.3 provides that employers and individual employees may agree to work an arrangement that differs from the arrangement that applies to the majority. They weren't listed in the facilitative provisions so we thought we'd just pick them up and call them out.

PN39

MR CHESHER: Completes the menu.

PN40

MR FORSTER: Completes the menu. Precisely.

PN41

MR CHESHER: No objection, your Honour.

PN42

THE VICE PRESIDENT: Item nine?

PN43

MS CHAN: In light of item eight that item is withdrawn Vice President.

PN44

THE VICE PRESIDENT: Item 10?

PN45

MR CHESHER: That's fine, your Honour.

PN46

THE VICE PRESIDENT: Item 11?

PN47

MR CHESHER: No objection but the proposed change does not solve the problem, your Honour. In clause 9.1, we support the News Limited submission that the current clause (b) maintained - there's just a cleaner - and that's a current clause 10.2 that said in contrast to the exposure draft clause 9.1. A part-time employee is employed on a continuing basis and engaged to work an average of less than 38 hours per week. The News Limited submitted that there be a change - I'm sorry - I've misread their proposal. No objection.

PN48

THE VICE PRESIDENT: No objection.

PN49

MR CHESHER: Yes.

PN50

THE VICE PRESIDENT: Clause 12?

PN51

MR CHESHER: Same issue. I imagine your Honour. No objection.

PN52

THE VICE PRESIDENT: Yes. Clause 12 you're happy with it all?

PN53

MR CHESHER: Yes.

PN54

THE VICE PRESIDENT: Just retain the wording of the current award.

PN55

MR CHESHER: MEAA's comfortable with that proposal, your Honour.

PN56

THE VICE PRESIDENT: Clause 13? That's the change of the Higher Educational Loan Program - HELP.

PN57

MR CHESHER: No objection.

PN58

THE VICE PRESIDENT: Fourteen?

PN59

MR FORSTER: I think we're all agreed.

PN60

MS CHAN: All agreed.

PN61

THE VICE PRESIDENT: All agreed?

PN62

MR CHESHER: Yes. Agreed.

PN63

THE VICE PRESIDENT: Fifteen? That's the changes - - -

PN64

MS CHAN: Yes. Again that one is withdrawn. That was just a comparison - - -

PN65

THE VICE PRESIDENT: Fifteen's withdrawn. Sixteen?

PN66

MR CHESHER: If your Honour could just give me a moment please?

PN67

THE VICE PRESIDENT: This applies to the next four. I think they're all being picked up in there.

PN68

MR CHESHER: Would you mind, through you your Honour, explaining that Steve?

PN69

MR FORSTER: Certainly. I think the proposal in essence is to just stick with what we've got. Actually, I think there was - - -

PN70

THE VICE PRESIDENT: You can remain seated I think.

PN71

MR FORSTER: Thanks, your Honour. Some concern on the part of our clients that changing clause 12.1 could change the legal effect of the provision. If you - and I'll just find where the clause is in the current version of the award, for you, Matthew, and show you - and show how they relate to one another. I think we want to be looking at clause 19.3 of the current award if you've got it there handy?

PN72

MR CHESHER: Yes. Got it.

PN73

MR FORSTER: You'll see that clause 19.3 just in the prefatory words it doesn't include there any reference to increased costs that might arise because of those - you know - because of an agreement to work those shifts and we think bringing it forward and putting it there is just a bit confusing. I can't say any more than that hand on heart we weren't intending at all to change the way that the clause operates. We were just trying to essentially put it back to the way that it was because we thought it worked better. If you want, perhaps we can mark it as something that we can agree at a later point.

PN74

MR CHESHER: I think that would be MEAA's preference, your Honour, those four matters - given they're similarly - - -

PN75

THE VICE PRESIDENT: Yes. Let's go to item 20.

PN76

MR FORSTER: This is a live issue, your Honour. It concerns whether or not the adoption of percentage-based formulas for expressing penalty rates and loadings should be kept or whether it should revert to time-based expressions. We understand that that's a matter that's been resolved by an earlier Full Bench and so we think it should be as per adopted in the exposure draft. I'm not sure whether that's still pressed by Matt.

PN77

MR CHESHER: If it's opposed by the employers, your Honour, MEAA will withdraw.

PN78

THE VICE PRESIDENT: It's withdrawn. Twenty-one. That's the change of ordinary to minimum hourly - is that okay?

PN79

MR CHESHER: Just the question of clause 3 or clause 2 is it now? Ordinary hourly rate is now specified whereas in the current award it's not. I don't think that's changed to most if not all awards.

PN80

MR FORSTER: Can I have just one moment, your Honour? It might be - - -

PN81

THE VICE PRESIDENT: Why don't we come back to it. Some of these we're going to hold back if there's any argument - we'll just move through the list quickly and we'll come back to them.

PN82

MR FORSTER: Sure.

PN83

THE VICE PRESIDENT: Twenty-two?

PN84

MR CHESHER: No objection, your Honour.

PN85

THE VICE PRESIDENT: Twenty-three?

PN86

MR CHESHER: That's agreed, your Honour.

PN87

THE VICE PRESIDENT: Twenty-four?

PN88

MR CHESHER: An employee who is - sorry, for reading out aloud, your Honour. Yes. Agreed, your Honour.

PN89

THE VICE PRESIDENT: Twenty-five?

PN90

MR CHESHER: Defer, your Honour.

PN91

THE VICE PRESIDENT: Twenty-six? I believe the schedule is no longer required?

PN92

MR CHESHER: That's agreed.

PN93

THE VICE PRESIDENT: Twenty-seven?

PN94

MR CHESHER: I'd - - -

PN95

THE VICE PRESIDENT: Do you need to have a closer look at that one?

PN96

MR CHESHER: I think we'd like to see some more information, your Honour.

PN97

THE VICE PRESIDENT: Twenty-eight?

PN98

MR CHESHER: Defer.

PN99

THE VICE PRESIDENT: Twenty-nine?

PN100

MR CHESHER: Agreed.

PN101

THE VICE PRESIDENT: Thirty?

PN102

MS CHAN: If it assists the parties, 30 is essentially the same as 29 - - -

PN103

THE VICE PRESIDENT: Yes.

PN104

MS CHAN: - - - except we've gone further to say that there should be a reference to the actual clause that the rates derived from.

PN105

MR FORSTER: That's fine by us.

PN106

THE VICE PRESIDENT: Is that fine by you, Mr Chesher?

PN107

MR CHESHER: Yes, your Honour.

PN108

THE VICE PRESIDENT: Thirty-one?

PN109

MR CHESHER: That too is agreed, your Honour.

PN110

THE VICE PRESIDENT: All right. So what we will do is this; so it's noted that items one, two and three are agreed. Item four has been withdrawn. Item five is agreed. Item six is withdrawn as is item seven. Item eight is agreed. Item nine is withdrawn. Ten, 11, and 12, 13 and 14 are agreed. Fifteen is withdrawn.

PN111

Items 16, 17, 18, 19 - there shall be discussions between the parties in relation to those clauses to see if they can be resolved between now and the next report back. Item 20 is withdrawn. Item 21 should also be subject to discussions. Items 22, 23, and 24 are agreed. Item 25 is subject to further discussions. Item 26 is agreed. Twenty-seven and 28 subject to further discussions and items 29, 30, 31 have been agreed.

PN112

Is there anything further on the technical and drafting matters?

PN113

MR CHESHER: No, your Honour.

PN114

THE VICE PRESIDENT: There'll be a report back on 12 May. Has there been any progress on the substantive variations between the parties?

PN115

MR FORSTER: No.

PN116

MR CHESHER: No.

PN117

THE VICE PRESIDENT: Have you had any facilitated conciliation in relation to this award?

PN118

MR CHESHER: No.

PN119

MR FORSTER: No.

PN120

THE VICE PRESIDENT: All right. We may talk about that on 12 May then as well. See how we're narrowing the field. Anything further for today?

PN121

MR CHESHER: No, your Honour, thank you.

PN122

THE VICE PRESIDENT: All right. Thank you. I will conclude this conference so the Commission is adjourned.

ADJOURNED INDEFINITELY [3.22 PM]