Fair Work Logo   Merrill Logo

 

 

 

 

 

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                                    

 

COMMISSIONER ROE

 

AM2014/217 AM2014/218 AM2014/222 AM2014/248

 

s.156 - 4 yearly review of modern awards

 

Four yearly review of modern awards

(AM2014/248)

Telecommunications Services Award 2010

 

Melbourne

 

10.32 AM, WEDNESDAY, 20 JULY 2016

 

Continued from 26/05/2016

 


PN705      

THE COMMISSIONER:  All right.  So can we just identify whose participating.  So in Sydney, who's present?

PN706      

MR K BARLOW:  If it please the Commission, Barlow, initial K, appearing for the CPSU.

PN707      

THE COMMISSIONER:  Yes, thanks.

PN708      

MS R BHATT:  And if it pleases, Commissioner, Bhatt, initial R, appearing for the Australian Industry Group.

PN709      

THE COMMISSIONER:  Thank you, very much.  And in Melbourne?

PN710      

MR J COONEY:  Justin Cooney for the ASU.

PN711      

MS J KNIGHT:  And Joanne Knight for the ASU.

PN712      

THE COMMISSIONER:  All right.  Now I think we sent out with the notice of listing, the list of matters that I understood were still outstanding, arising from the hearing before Justice Ross on 6 of June.  So the first question was, did I miss anything in my list?

PN713      

MS BHATT:  Not that AI Group has identified, Commissioner.

PN714      

THE COMMISSIONER:  Thank you.  Anyone else identify anything?

PN715      

MR COONEY:  As far as the ASU is concerned, for the Business Equipment Award, that covers is.

PN716      

THE COMMISSIONER:  Okay.  All right, thank you.  Now if we just go through the issues.  With banking and finance, the issue relates to the question of the use of the term, "loading" versus "penalty".  It's an issue that Australian Industry Group have raised.  My understanding from the conference, and I did speak to Justice Ross directly about this, as well, is that the Australian Industry Group are producing a list by the end of this month of the places where the AI Group believe this is an issue.  And then we'll try to deal with that.  So is that your understanding, Ms Bhatt?

PN717      

MS BHATT:  Yes, it is, Commissioner.

PN718      

THE COMMISSIONER:  All right, so when you've got your list could you, in addition to sending it to Justice Ross, could you also send it to me, because Justice Ross wants me to have a look at that and then we're going to have some discussions about it.

PN719      

MS BHATT:  Of course, Commissioner.

PN720      

THE COMMISSIONER:  All right, thank you.  So unless you've got a different view, Ms Bhatt, I don't think there's much point in talking about that till we've got your list.

PN721      

MS BHATT:  I think that might be right.

PN722      

THE COMMISSIONER:  All right.  Now with the Business Equipment Award, if it's item 5 I'll just get the award okay, so item 5 relates to 6.4(c)(2), and it's the issue of the ordinary hourly rate.  Now we've included it in this way in the award because we believe it's consistent with the approach taken in earlier Full Bench decisions and in particular, the issues about ordinary rate of pay.  And I think the issues is really about leading hand allowance.  I think that's the only all purpose allowance that I could identify.  So I think it's really about the leading hand allowance.  The other allowances appear to be not all purpose allowances, they're either expense or reimbursement or a disability type allowances.  And it seems to us that that's what the term, "ordinary hourly rate", should be used and that's why it's been included in the draft.  So I mean, we're interested in, I suppose, the Australian Industry Group's view about this particular matter.

PN723      

MS BHATT:  Yes, thank you, Commissioner.  We're obviously aware of the decision to which you've referred.  Our understanding or interpretation of that decision is that as a general proposition exposure drafts would adopt a clause that requires the calculation of the casual loading on the ordinary hourly rate which, of course, includes any all purpose allowances, but that in respect of certain awards it may be open to be argued, or there may be scope for argument that based on the interpretation of the current provision the casual loading should, in fact, be calculated on the minimum hourly rate that doesn't include an all purpose allowance.  And of course, the basis for our argument is that the step away from that approach is to adopt a substantive change which, of course, was never the intention, as we understand it, of this redrafting process.

PN724      

Our submission in respect of this award is based on the current clause 13.2 of the award.

PN725      

THE COMMISSIONER:  Yes.  Hang on, I've just got to get that.

PN726      

MS BHATT:  Of course.

PN727      

THE COMMISSIONER:  Yes.

PN728      

MS BHATT:  Clause 13.2 says, "Casual employees (indistinct) engaged are paid as such and for working ordinary time will be paid, per hour, one 38th of the weekly wage prescribed by this award for the work which the employee performs, plus 20 per cent".  It is our view that the weekly wage prescribed by this award, those words were for to the weekly wage prescribed at clause 20.2 of the award.  That weekly wage is the minimum weekly rate payable under the award and doesn't incorporate any allowances.   That a proper construction of clause 13.2 therefore is that the 20 per cent is to be applied to that minimum rate, and not any higher amount.

PN729      

THE COMMISSIONER:  But how is that consistent with clause 12, which uses exactly the same words for the part time worker - - -

PN730      

MS BHATT:  Yes.

PN731      

THE COMMISSIONER:  But a proper interpretation, I would think, of clause 12 for part time worker, read in conjunction with the clause, the Allowances Clause, which is about the leading hand allowance, would suggest that the leading hand allowance does apply to part-time workers, so how would you distinguish the two?

PN732      

MS BHATT:  We don't quibble with the proposition that a casual employee might be entitled to the leading hand allowance.  So if - - -

PN733      

THE COMMISSIONER:  Sorry?

PN734      

MS BHATT:  We don't quibble with the proposition that a casual employee might be entitled to the leading hand allowance.

PN735      

THE COMMISSIONER:  Okay.

PN736      

MS BHATT:  I think the issue is simply about the calculation of the casual loading and the order in which, or the way in which the amount payable to a casual employee is to be derived.  Our argument is that you apply the casual loading to the minimum hourly rate and if a leading hand allowance is payable, you add it to that amount after you've applied the casual loading.

PN737      

THE COMMISSIONER:  So minimum hourly rate, plus the casual loading, plus the leading hand allowance?

PN738      

MS BHATT:  Yes, Commissioner.

PN739      

THE COMMISSIONER:  But how will that give you a different result from doing it, minimum rate plus leading hand, plus casual?

PN740      

MS BHATT:  It means that the casual loading of 20 per cent isn't compounded on the all purpose allowance.  Because otherwise we end up with a result where a casual employee is paid an additional 20 per cent of the minimum hourly rate - - -

PN741      

THE COMMISSIONER:  Yes.

PN742      

MS BHATT:  And an additional 20 per cent of the leading hand allowance.  We say the casual loading shouldn't compound on the allowance in that way.

PN743      

THE COMMISSIONER:  But the problem it's currently expressed as a percentage, the leading hand allowance, but I yes, but it's a percentage of the standard rate.  Yes, okay.

PN744      

MS BHATT:  Yes.

PN745      

THE COMMISSIONER:  So I see your point.

PN746      

MS BHATT:  I think that this is an issue that has arisen in other exposure drafts, as well.

PN747      

THE COMMISSIONER:  Yes.

PN748      

MS BHATT:  We've raised it wherever we've identified it and we've addressed it in our written submissions, at some length, I think.

PN749      

THE COMMISSIONER:  Yes.  All right, well - - -

PN750      

MS BHATT:  So, as to how we deal with it from here - - -

PN751      

THE COMMISSIONER:  Yes.  Well, my view is that this is unless you've got a different view, Ms Bhatt, I think that this is a matter that can be finalised, on the basis of written submissions, by the Full Bench and would you be seeking to make further submissions than those that you've already made?

PN752      

MS BHATT:  No, Commissioner.  We're content to rely on what's already before the Commission.

PN753      

THE COMMISSIONER:  Okay.  All right.  So what I think we will do parties have had the opportunity to reply to your submissions so I think the proposition that we rely on that we determine the matter based on the material before us, is a reasonable way to proceed.

PN754      

MS BHATT:  If the Commission pleases.

PN755      

THE COMMISSIONER:  Okay.  So then the second matter is item 6.  Now this is really I think I described it last time as a fairly marginal issue.  It's the use of the term, "for the classification in which they are employed", versus using the term, "for the work which the employee performs".  And my understanding is the Australian Industry Group had some concern that using the term, "classification", might imply that a casual employee can't work in more than one classification, and its classification can't change.  I understand the issue.  I think the reason we've used the term is because it's a fairly consistent term that we've used in the drafting of equivalent clauses in a range of awards, and I suppose we don't think that you could properly give a narrow interpretation of the words as restricting a casual being employed in more than one classification, because casual engagements change and a casual employee might be employed in one classification, at one stage, and another classification at another stage.  We don't think that the wording precludes that.  So I think - you know, my view, looking at it, is that I think the Australian Industry Group's concern is not there's not a serious problem that I can see.  It's really a question of whether the Australian Industry Group want to press this point and so I think it's up to over to the Australian Industry Group to tell us whether they do want to press this point, whether they still think it is important.

PN756      

MS BHATT:  My instructions are that we do seek to press the argument.

PN757      

THE COMMISSIONER:  Okay.

PN758      

MS BHATT:  But we wouldn't be seeking an opportunity to put anything further to the Commission by way of written submissions.  We're content to rely on what we've already filed.  If I can just describe our concern in this way.

PN759      

THE COMMISSIONER:  Yes.

PN760      

MS BHATT:  I think the issue is simply this, that we're concerned that the words at clause 6.4(c) of the exposure draft introduce a notion that a casual employee is employed at a particular classification.  Now Commissioner, you're of course very well aware there are many awards that require that when an employee is engaged of any type, full- time, part-time or casual, they must be informed of their classification.

PN761      

THE COMMISSIONER:  Yes.

PN762      

MS BHATT:  And in respect of those awards we haven't taken issue with the insertion of these words in the casual employment provision.

PN763      

THE COMMISSIONER:  Yes.

PN764      

MS BHATT:  Because we accept that the operation of the provisions in conjunction have that effect anyway.

PN765      

THE COMMISSIONER:  Right.

PN766      

MS BHATT:  But such a provision doesn't exist in this award.

PN767      

THE COMMISSIONER:  Yes.

PN768      

MS BHATT:  We can't find any obligation on the terms of the award that requires an employer to advise an employee of their classification at the time of engagement.

PN769      

THE COMMISSIONER:  Right.

PN770      

MS BHATT:  There's no requirement that a casual employee be engaged in a specific classification.  And so it's on that basis that we've simply sought a reversion to the words of the current clause 13.2.  Beyond that we rely on what we've put in writing.

PN771      

THE COMMISSIONER:  So do the unions want to say anything about this matter?

PN772      

MR COONEY:  Yes, Commissioner, that the our preference would be for the wording in the exposure draft.  I think that it's clarity and also, I mean, if an employee - - -

PN773      

MR BARLOW:  Commissioner - - -

PN774      

MR COONEY:  Is performing work below the - - -

PN775      

THE COMMISSIONER:  Yes.

PN776      

MR BARLOW:  We can't hear the - - -

PN777      

THE COMMISSIONER:  You can't hear, okay.

PN778      

MR BARLOW:  Our colleague's - - -

PN779      

THE COMMISSIONER:  Mr Cooney - - -

AUDIO MALFUNCTION                                                                   [10.50 AM]

PN780      

THE COMMISSIONER:  - - - if Mr Cooney could speak up.

PN781      

MR COONEY:  Sorry.  Look, the preference of the ASU is the wording in the exposure draft.  Look, again, we don't think it will be an issue but I guess if there's instances where an employee is performing work below their classification, and I know they would still get paid at their classification but at least from that point of view, that there's some clarity to what they're actually paid, particularly with some of the smaller businesses in this industry.

PN782      

THE COMMISSIONER:  Yes.  Yes.  Well, I think the words, "for the work which the employee performs", basically does mean that, you know, based on the work you perform, what does the award say you should be paid?  You'd have a look at the classification clause.  So in a sense it's a bit of a circular argument, but I do understand what Ms Bhatt has raised and I can see the point in it, and she's expressed it differently and better than I had originally expressed it, so I do understand the issue.  So, you know, I think we'll have to carefully consider what the Australian Industry Group have raised and I think again this is a matter which can be determined on the basis of the material before us, unless there's any objection to that.

PN783      

MS BHATT:  Not from the AR Group, Commissioner.

PN784      

THE COMMISSIONER:  All right, thank you.  All right, so then the third issue is item 33.  Now this is a matter where it's simply an issue of does the exposure draft adequately reflect the current provision, and I think the issue is, in 11.4(c)(2) that we're relying on the fact that in the immediately preceding subclause, which is 11.4(c)(1) it says that "all reasonable expenses actually incurred by an employee in connection with the employer's business".  And then the next subclause defines those reasonable expenses.  So we think that you have to read that the only reasonable expenses that can be included are those that are actually incurred by an employee in connection with the employer's business.  So that's why we think that the words, "in pursuance of the performance of the employee's duties", are probably unnecessary.  But it's purely an issue of trying to say things as clearly and simply as possible.  If the employers believe that these words do need to be included then I've got no objection to including them.  So it's really a question of whether the Australian Industry Group Business SA have also agreed with the Australian Industry Group on this point, is whether the Australian Industry Group is convinced that what's in the first subclause is adequate, or not.

PN785      

MS BHATT:  Commissioner, I think we would still take the view that the words in the current award are potentially narrower than what's found in the exposure draft.  I've heard what you've just put in respect of subclause (1).

PN786      

THE COMMISSIONER:  Yes.

PN787      

MS BHATT:  I think our concern is that subclause (2)C requires "where an employee is required to be away from the employee's usual place of residence at the usual time for taking such a meal but that the employee is so required in pursuance of the performance of the employee's duties and not for some other reason".  An example of that might be that the employee decides to return home, for instance, at a later time due to the employee's own convenience, and we wonder if the provision as currently proposed in the exposure draft might give rise to an argument that in those circumstances this provision would provide that employee with an entitlement, whereas on the terms of the current award I think it's clear that it wouldn't.

PN788      

THE COMMISSIONER:  Okay.

PN789      

MS BHATT:  I don't think I can take it too much further than that.

PN790      

THE COMMISSIONER:  All right.  Okay, so I propose that we put the words back in as proposed by the Australian Industry Group.  Is there any objection to that course of action?

PN791      

MR COONEY:  Look, Commissioner, I'm not aware of anything in dispute over the clause as it's currently structured or that situation arising, so no, we don't oppose the words going back in.

PN792      

THE COMMISSIONER:  All right, thank you.  Anyone else?  All right.  Next move to the next item which is item 46.  Now ABI is not here.  ABI indicated in their statement to Justice Ross that they wouldn't be pushing this matter further if it wasn't agreed in this process.  I think our view is that the proposal this is in respect of overtime, that the proposal does constitute a significant change to the present award and therefore we wouldn't be supportive of making the change.  Is there anyone who wants to push the matter further, at this point?  All right, so we'll determine that matter on the basis of the material provided.

PN793      

MR BARLOW:  Sorry, Commissioner - - -

PN794      

THE COMMISSIONER:  Yes.

PN795      

MR BARLOW:  It's the CPSU here in Sydney.  Forgive me.  I'd understood from the report back summary that we're referring to, item 46 there, that the Commissioner had taken the view that this was the substantive claim and thereby was not going to be included in the exposure draft, and if the ABI wished to pursue that as a change to the exposure draft that that would need to be referred to a Full Bench.

PN796      

THE COMMISSIONER:  Exactly and (indistinct).

PN797      

MR BARLOW:  From your comments yes, so in some senses what I'm and if they've already distances themselves from the claim in and I haven't actually read that part of the transcript so please forgive me, Commissioner, then I don't think a determination on the material before you by the Full Bench is concluding action here.

PN798      

THE COMMISSIONER:  I see.  Okay.

PN799      

MR BARLOW:  I'd suggest that the concluding action is, if they don't want to press it, they don't want to press it and it remains as it is in the exposure draft, as it is in the current award.

PN800      

THE COMMISSIONER:  Yes, okay.  All right, I think - - -

PN801      

MR BARLOW:  Sorry to - - -

PN802      

THE COMMISSIONER:  No, no, I think you're correct.  I think you're correct.  All right, so I think that's the approach we should take and if the ABI want to object to that then they'll have the opportunity to do so.  All right, thank you.  All right, the next item is item 57.   And this relates to schedule B.  Now we've made a number of changes as a result of the helpful suggestions that have been made by various parties, particularly the Australian Industry Group, during the conferences that we've held.  And I think the changes that we've made do help to clarify what the tables mean and how they can be properly applied.  So I'd be interested to understand whether there is still an issue as far as the Australian Industry Group is concerned and if so, what the issue is.

PN803      

MS BHATT:  Thank you, Commissioner.  The changes that have been made to B.1.1 and B.1.2 of the exposure draft do go some way in alleviating the concerns that were previously raised.  From our perspective the issue is this, that if a reader of the award were to look at any one of these tables in the schedules, those tables refer to the ordinary hourly rate which may lead to an assumption that the rates there calculated include the all purpose allowance of which there is only one in this award.  But that assumption is, of course, not correct and so to that extent we're concerned that the use of "the ordinary hourly rate" in the table may be misleading or confusing.  This is also an issue that we've raised in very many exposure drafts and when we were before his Honour on 6 June we were directed to identify all exposure drafts in which this issue arises and to write to his Honour by the end of July, along with the other issue we earlier addressed regarding the characterisation of penalties, loadings and allowances.

PN804      

THE COMMISSIONER:  Okay.

PN805      

MS BHATT:  So we intend to do so by the end of the month and we can send a copy of that submission to your chambers, Commissioner.

PN806      

THE COMMISSIONER:  Okay, that'd be great.  That'll be great and then we can see if we can sort this out in a co-ordinated manner.  All right, thank you.  Does anyone else want to comment on that issue at this point?

PN807      

MR COONEY:  No.  No, no, Commissioner.

PN808      

THE COMMISSIONER:  All right.  Let's move to the next award which is the Contract Call Centre Award and the couple of issues in respect of that award.  Item 5, this is a change that we made in response to the issue raised by Australian Industry Group that there's a requirement under section 147 of the Act to actually specify the ordinary hours for casual employees, and so we made change to try and resolve that concern.  The union wanted to have the opportunity to give that some further consideration and so I'd ask the union if they can let us know if they do have an issue with the drafting of clause 8.1, and if so, what the concern is.

PN809      

MS KNIGHT:  Thank you, your honour.  It's Joanne Knight from the ASU.  I have now had plenty of time to consult around whether the change poses an issue and I can withdraw any concern on behalf of the ASU.

PN810      

THE COMMISSIONER:  Okay.  All right, thank you.  If we now move then to item 25.  Now this is the proposal for the trainer classification and there's as I understand it there's been some preliminary discussions, at least with the Australian Industry Group, so perhaps if the CPSU was to update us as to where things are up to in respect of that matter?

PN811      

MR BARLOW:  Thank you, Commissioner.  Yes, it is correct that we've had some preliminary discussions on several occasions but I will leave it to my colleague from the Australian Industry Group to report on their own internal consultation process, which is part of the reason why this matter was held over between conferences.

PN812      

THE COMMISSIONER:  Yes.

PN813      

MR BARLOW:  But I may also add, Commissioner, when we were before Justice Ross on 6 June this item was obviously mentioned again and it was his Honour's view that an  additional period he was satisfied that an additional period was needed for the parties to properly discuss this and suggested a conference to discuss this matter specifically, as well as other matters, would most appropriately occur after the next round of exposure drafts in this award, as there would likely be another conference to discuss if anyone had any problems with those updated exposure drafts.  And he was thinking, I believe at this stage, late August or something to that effect, Commissioner.  So in some senses, that's been the situation since 6 June and the CPSU and the AIG are hopeful in having some discussions before some - should I say, productive discussions, before the next conference to specifically conciliate this issue.

PN814      

THE COMMISSIONER:  Well, we did issue a revised exposure draft in respect of this award, shortly before the 6 June hearing before Justice Ross, and that was to reflect where things had got to at that point.  There are a few matters that in respect of I suppose there's not likely to be much change to the exposure drafts in these awards between now and when there's a decision issued about a number of these matters, so I suppose I'm not sure that it's going to progress a great this particular award is going to progress a great deal between now and next month.

PN815      

MR BARLOW:  Yes.

PN816      

THE COMMISSIONER:  And Justice Ross is keen to sort of bring it to the whole thing to a conclusion pretty quickly, as you know.

PN817      

MR BARLOW:  Yes.  Yes.

PN818      

THE COMMISSIONER:  So I'm not opposed to the idea of further conference and if that's what Justice Ross spoke about, of course that's good.

PN819      

MR BARLOW:  Yes.

PN820      

THE COMMISSIONER:  But I suppose let's hear from Ms Bhatt to what, if any, feedback she's got from members at this point.

PN821      

MS BHATT:  Yes, thank you, Commissioner.  Some consideration has been given to the CPSU's claim internally.  Those discussions have been hampered by some extent due to certain leave arrangements of the relevant personnel within our own organisation.  I think it's appropriate that I foreshadow that it's unlikely that our opposition to this claim would evaporate entirely because as we understand it, the impact of the claim would be to expand the coverage of the award.  But given that we haven't yet undertaken an exhaustive process of consultation with our members our position may well evolve.

PN822      

THE COMMISSIONER:  Right.

PN823      

MS BHATT:  I wonder, if it might be appropriate, whether the Commission would indulge us and provide us with some time to consult and to have discussions with the CPSU and perhaps we can report back to the Commission as to the progress of those discussions and whether a conference before the Commission might assist us.

PN824      

THE COMMISSIONER:  Yes.

PN825      

MS BHATT:  And whether the Commission would allow us until the end of August to do that.  I propose that date, bearing in mind, particularly the casual and part-time case, Commissioner, as you're very well aware, is likely to take us away for the better part of the next month or so.

PN826      

THE COMMISSIONER:  Yes.  I'm just a bit nervous about the end of August and what Justice Ross may think about that and its impact on his timetable, but maybe you know, maybe we could take this approach of saying that we'd schedule a conference at the end of August and if you can provide us an update a few days before that, and if you felt the conference wasn't necessary or then obviously we could then cancel it.  But I think that might be the way of keeping the timetable, if we look to schedule something at the end of August.

PN827      

MS BHATT:  Yes, Commissioner.  It might be that if we have discussions with the CPSU prior to then - - -

PN828      

THE COMMISSIONER:  Yes.

PN829      

MS BHATT:  And it appears to us that the claim will be opposed, then we might be able to use that conference for the purposes of discussing programming.

PN830      

THE COMMISSIONER:  Exactly.

PN831      

MS BHATT:  So the conference might be of utility anyway.

PN832      

THE COMMISSIONER:  Yes, yes.  I agree.  I think that's what and it might be quite a short conference or it might be a longer conference but we can I think if we do it that way, yes.  Is that an acceptable approach to the CPSU?

PN833      

MR BARLOW:  Certainly, Commissioner.  I think putting a deadline for discussions that is reasonable to give the AIG a chance to properly consider the claim and respond to us would be very important, Commissioner.  And I certainly didn't take it from President Ross' comments on 6 of June that this was not an issue that the Commission wasn't interested in, to use a double negative, in providing some assistance to the parties on, prior to it going to a full Bench.

PN834      

THE COMMISSIONER:  Yes.

PN835      

MR BARLOW:  So that is certainly something we'd be interested in progressing with the Commission.

PN836      

THE COMMISSIONER:  All right.  So let's take that approach.  We'll schedule a conference at the end of August, and I'm talking about right at the end, and you'll have some the Australian Industry Group will provide some feedback and have some discussions with the CPSU prior to that conference.  Okay?

PN837      

MR BARLOW:  Yes, Commissioner.

PN838      

THE COMMISSIONER:  Right.

PN839      

MS BHATT:  Thank you, Commissioner.

PN840      

THE COMMISSIONER:  Thank you.  All right, anything else on that?  All right, so let's move to the Telecommunications Award.

PN841      

MR COONEY:  Can we be excused?

PN842      

THE COMMISSIONER:  Yes, of course.  All right, now the first item is item 3, and it's the same issue as we discussed in respect of the Business Equipment Award.  So I think we would take the same approach to that matter.  Is there any disagreement with that?

PN843      

MR BARLOW:  No, Commissioner.

PN844      

THE COMMISSIONER:  Okay, then I think the next one is item 7, or sorry now can I just check, is this an identical situation to the one we were discussing in respect of the Business Equipment Award?

PN845      

MS BHATT:  I think it is, Commissioner, and the words of the current clause, 11.3(b), appear to be relevantly similar to those in the Business Equipment Award, so the argument would be virtually the same.

PN846      

MR BARLOW:  Although I may add in there, Commissioner, unlike the Business Equipment Award there are probably there may be a number of other allowances that could be considered for salary purposes, as it isn't - - -

PN847      

THE COMMISSIONER:  Okay.  It might not just be leading hand allowance, yes.

PN848      

MR BARLOW:  Yes, so but that in itself makes it a more complex issue.

PN849      

THE COMMISSIONER:  Yes.  So if I can just so it's eleven point - - -

PN850      

MS BHATT:  3(b) in the current award.

PN851      

THE COMMISSIONER:  Okay, 11(2)(b), yes.  Yes.  So which was the clause you were looking at in the current award, Ms Bhatt?

PN852      

MS BHATT:  Clause 11.3(b).

PN853      

THE COMMISSIONER:  Yes.  Yes, yes.  Yes, okay.  Yes, and it's the same construction, yes.

PN854      

MS BHATT:  Yes.  We're content for this issue to be dealt with in the same way as the Business Equipment Award.

PN855      

THE COMMISSIONER:  Yes.  Okay, any objection to that?  All right, that's the approach we'll take.

PN856      

MR BARLOW:  Sorry, Commissioner.

PN857      

THE COMMISSIONER:  Yes.

PN858      

MR BARLOW:  Forgive me.  This is an award where the CPSU has an active interest rather than a passive interest, so I'm just having conversations with my colleague here at the table.  Can you permit me a moment, Commissioner?

PN859      

THE COMMISSIONER:  Yes, sure.

PN860      

MR BARLOW:  Commissioner, thank you for that brief moment.  The difficulty with this issue being determined on the papers as Ms Bhatt has suggested the Business Equipment Award should be, is that the CPSU has not been on record on this issue, in the TSI Award, and so thereby there would be no counter to any argument with the AIG raised outside those (indistinct) comments, either of the Commission or of the CPSU about anything contained in the transcript, which might be a laborious exercise to mine through.

PN861      

THE COMMISSIONER:  Can you provide us with - - -

PN862      

MR BARLOW:  So on that basis could we - - -

PN863      

THE COMMISSIONER:  Can you provide us with your response to the AI Group's submission within - - -

PN864      

MR BARLOW:  Yes.

PN865      

THE COMMISSIONER:  Say, seven days, and we'll give the Australian Industry Group the opportunity to reply if that's necessary, within a further seven days.

PN866      

MS BHATT:  Thank you, Commissioner.

PN867      

THE COMMISSIONER:  All right, is that I think that's probably the way to do it, and then we would determine the matter on the basis of the material before us at that stage.

PN868      

MR BARLOW:  Yes, Commissioner.

PN869      

THE COMMISSIONER:  Thank you.  All right, then if we go to item 22.  Yes, now this was a matter where we were just giving the opportunity to the unions if they wanted to say anything further about that matter.

PN870      

MR BARLOW:  Thank you, Commissioner.  I think it may very well be that this matter was mentioned in the - - -

PN871      

THE COMMISSIONER:  It was and I think it was the ASU, actually.

PN872      

MR BARLOW:  Conference.

PN873      

THE COMMISSIONER:  I think it was the ASU.

PN874      

MR BARLOW:  Yes, the - - -

PN875      

THE COMMISSIONER:  So I'm assuming, given that they decided that they were departing, that they were no longer pursuing the matter, but I have to say - - -

PN876      

MR BARLOW:  Well - - -

PN877      

THE COMMISSIONER:  I think that the current award is pretty clear and that the after the matter was raised by the Australian Industry Group, we corrected the exposure draft, and I think yes, so I do think it's pretty clear.

PN878      

MR BARLOW:  Yes.  I haven't got the transcript, Commissioner, but it may very well be that this was an item that was mentioned on the 26 of May conference, and it was at that stage that the CPSU expressed a view that it did not press the item, but if that's not the case, we now make that clarification.

PN879      

THE COMMISSIONER:  Okay.  I think you did make that point then but I think it might have been the ASU that said something and - - -

PN880      

MR BARLOW:  Yes.

PN881      

THE COMMISSIONER:  In passing at the conference before Justice Ross.

PN882      

MR BARLOW:  Yes.

PN883      

THE COMMISSIONER:  So I think we'll assume that this matter is resolved.  All right, if we go then - - -

PN884      

MR BARLOW:  It may very well be yes, Commissioner.

PN885      

THE COMMISSIONER:  If we can then go to item 26, and I think this is the loading versus penalty issue, and we're going to await the AI Group's list.

PN886      

MS BHATT:  Yes, Commissioner.

PN887      

THE COMMISSIONER:  Thank you.  Then item 32, is this the other matter that you're producing a list for Justice Ross?

PN888      

MS BHATT:  Yes, it is, Commissioner.

PN889      

THE COMMISSIONER:  Okay.  And item 34, which is the trainer classification - - -

PN890      

MR BARLOW:  Yes, Commissioner.

PN891      

THE COMMISSIONER:  Yes.

PN892      

MR BARLOW:  Obviously this falls within the previous conversation that we had about the Contract Call Centre Award, and forms part of the CPSU's application because in the TSI Award and the Contract Call Centre Awards share a similar classification spine.

PN893      

THE COMMISSIONER:  Yes.

PN894      

MR BARLOW:  And there are areas in the TSI industry which have performed call centre work and would have functions of the nature that we're trying to cover, Commissioner.

PN895      

THE COMMISSIONER:  All right, so can we handle that in the same way, link those two issues together, is that - - -

PN896      

MR BARLOW:  Yes, it's the same conversation, Commissioner.

PN897      

THE COMMISSIONER:  The same conversations, yes.  Do you disagree with that, Ms Bhatt?

PN898      

MS BHATT:  No, we don't, thank you, Commissioner.

PN899      

THE COMMISSIONER:  All right.  So we'll have the same approach to that which is that'll be part of the conference at the end of August, and the prior conversation.  All right.  So I think that that's all of the issues.  Is there anything that I've missed?

PN900      

MS BHATT:  It doesn't appear so, Commissioner.

PN901      

THE COMMISSIONER:  Okay, great.  All right, thank you.  Thanks very much for your participation and your hard work on these matters.  I think we've made good progress on these awards and this gives us a pathway to resolve all of the remaining issues, so I appreciate your assistance.  All right, so I think that concludes what we need to do today.  Thank you.

PN902      

MR BARLOW:  Thank you, Commissioner.

ADJOURNED INDEFINITELY                                                        [11.24 AM]