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s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Hospitality Industry (General) Award 2010 - Plain Language re-drafting






JUSTICE ROSS:  Could I have the appearances please, firstly in Sydney?


MS N DABARERA:  If the Commission pleases, Dabarera, initial N, from United Voice.


JUSTICE ROSS:  Thank you.  Perhaps if you could just talk into the microphone, Ms Dabarera, just so we can pick you up.  In Brisbane?


MS J MINCHINTON:  Thank you.  Good morning, your Honour, if it pleases the Commission, Minchinton, initial J, for the Australian Hotels Association, the Accommodation Association of Australia and the Motoring Motel and Accommodation Association.


JUSTICE ROSS:  Thank you, Ms Minchinton.  And, Ms Thomson, we've got you on the phone?


MS K THOMSON:  Yes, that's correct, your Honour.  I appear on behalf of ABI and the New South Wales Business Chamber, but I'm also mentioning appearance on behalf of Business SA.


JUSTICE ROSS:  Thank you.  Look, I just wanted to go through some background and then outline how I was proposing to deal with this morning's conference and then get your views about that.


We last had a conference on 12 September, on that occasion each of you was asked to confirm the status of the 95 or so items listed in the summary of submissions that was published prior to the conference.  Following the - bear with me for one moment, following the conference, on 25 October, we published a revised summary of submissions, a revised plain language exposure draft and a statement, the statement is 2017 FWC 5402.


The statement set out some mixed steps, in relation to the matter, at paragraphs 50 and following, and I'll come back to that.  The statement called for submissions in respect of a range of issues and submissions were received from ABI, the AHA, Business SA and United Voice.


What I propose to do this morning is to go through those submissions, in case there's any questions from any party about the submissions of another party, to then confirm where we're up to, in relation to the revised summary of submissions, to see if anyone has any corrections to that, and then I think the most productive way forward is to then have two further conferences, in February, and we would circulate, prior to those conferences, the particular items that would be discussed, then we'd seek to reach a resolution on them.


So for example, hours of work, part‑time, casuals, apprentices, seems to be one convenient basket, and there are some other items that are also related.  Then you would know, going into the conference, the particular issues that would be discussed, and we would summarise there the submissions of all of the parties on those issues.  Where we don't reach a resolution about those issues, we would also determine the process by which those matters would be decided.  Okay?  So if you're content with that course, I would go through the correspondence that has been received since the last conference.  Are you happy enough with that?


MS THOMSON:  Yes, your Honour.


MS DABARERA:  Yes, your Honour.


JUSTICE ROSS:  It's probably easiest to deal with Business SA and ABI first, because their items are relatively short.  Business SA simply confirms that it's no longer pursuing item 8, so item 8 will be regarded as being withdrawn.  ABI has sent in correspondence dated 21 November, and there, Ms Thomson, you confirm that the list of outstanding items is accurate, and you comment on the amendment to clause 29.3 at paragraph 37.  I'm just not clear - you say that the current drafting may make the operative component of the clause unclear.  I was just wondering if you can elaborate on that.


MS THOMSON:  Certainly.  I think, your Honour, the thrust of the submission or the comment as it is was just about the way that the clause is proposed to be amended and a suggestion that perhaps there might be an alternative formulation.  If your Honour would like us to provide you alternative wording I can provide that at the close of this conference, or if the other parties are not in agreement, they don't think there's any issue with it, it's also one of those ones where I'm happy to go with the proposed wording that's in the statement.


JUSTICE ROSS:  All right.  Well let's just ask the other parties whether they have any difficulty with the provisionally amended wording at paragraph 37 of the statement of 25 October.  Ms Dabarera?


MS DABARERA:  Your Honour, we didn't have any particular issues with that.


JUSTICE ROSS:  All right.  Ms Minchinton?


MS MINCHINTON:  Your Honour, we were quite comfortable with the wording proposed.


JUSTICE ROSS:  Ms Thomson, do you want to reflect on that and perhaps advise whether or not you are content to leave it where it is?


MS THOMSON:  Yes, thank you.  Thank you, your Honour.


JUSTICE ROSS:  Thank you.  I think that was all that was identified in the correspondence from ABI and Business SA.  Let's go to the submission filed by the Australian Hotels Association.  This is the submission of 20 November.  Can we just go through that, Ms Minchinton?


MS MINCHINTON:  Yes, your Honour.  Your Honour, before we actually go through the detail of it, I just wanted to make mention that in our submission at paragraph 4 and 17, we had made the comment that we were satisfied with the way that particular items had been characterised in terms of being withdrawn or still being outstanding issues.




MS MINCHINTON:  I've noticed in the revised summary of submissions that were published on the 15th of this month that for some particular items we're noted as having made submissions on it, when previously they weren't matters that we had raised; for example, item 12, we're noted as - - -


JUSTICE ROSS:  Okay.  Let's go through all of the items that are in that category.




JUSTICE ROSS:  What's the page number of the - that's page 4 of the summary?


MS MINCHINTON:  No - sorry, your Honour, I was referring to our submission of the 20th and our paragraph 4.


JUSTICE ROSS:  Yes - no, I see that, but which item in the revised summary of submissions do you say does not accurately reflect your position?


MS MINCHINTON:  Well I have a list of them for you, your Honour, which I'll read out.




MS MINCHINTON:  These are matters that the AHA, the Associations, had not expressed a - - -




MS MINCHINTON:  - - - a view on.


JUSTICE ROSS:  All right.


MS MINCHINTON:  So item 12, item 15, item 30, 34, 35, 59 and 60.


JUSTICE ROSS:  Okay.  We'll amend the revised summary and we'll publish that following this conference with any other amendments, and we'll remove any reference to the AHA in respect of those items.  Is that what you're seeking?


MS MINCHINTON:  Yes.  Thank you, your Honour.  I just thought it might create some confusion, because for some items they were resolved, except for the fact that we had made a statement in our submission of the 20th that was taken to refer to all of the items, whereas we were just referring to the items that the Associations had expressed.


JUSTICE ROSS:  Yes.  Okay, no problem.  Let's go to paragraph - I'm looking here at your submission of 20 November.




JUSTICE ROSS:  And if we go to paragraph 5, you say that - you're referring here to paragraph 7.  I'm not sure what - perhaps if you take me through each paragraph of your submission and identify what you're responding to in the statement, and what if anything you want us to change.


MS MINCHINTON:  Okay.  With regards to our paragraph 5, that was simply to confirm that with regards to item 4, only one of the matters had been - from our perspective, only one of the matters was actually dealt with as part of being a matter that had been withdrawn.


JUSTICE ROSS:  Is that raised in paragraph 15 as well?


MS MINCHINTON:  Yes.  That's the second part of it.


JUSTICE ROSS:  So you're really just clarifying that was what it was, so it's not - - -?


MS MINCHINTON:  That's right.


JUSTICE ROSS:  Yes, that's fine.  Let's go to paragraph 6.


MS MINCHINTON:  That was also to clarify, your Honour, that in relation to item 33 we had two particular concerns that we had expressed, the first one being the use of the word, "rest pauses", which we have withdrawn.  However, we also had a concern with the phrasing of the table at clause 16, and clauses 16.2 and 16.6, and they are still outstanding matters for us, your Honour.


JUSTICE ROSS:  Yes.  No, that's fine.  That's really reflected at paras 20 through to 23 of the statement.




JUSTICE ROSS:  Okay.  Item 66, this is your para 7?


MS MINCHINTON:  Yes.  I'll just find that.


JUSTICE ROSS:  So item 66 should be more accurately put under the "Resolved" section rather than the "Withdrawn" section?




JUSTICE ROSS:  Yes, no problem.


MS MINCHINTON:  Yes, thank you.


JUSTICE ROSS:  All right, we'll do that.  In relation to item 7, that's no longer pressed?




JUSTICE ROSS:  So that would go into the withdrawn column?


MS MINCHINTON:  Yes, thank you.


JUSTICE ROSS:  All right.  Then as item 65, what do you want to do with that?


MS MINCHINTON:  Your Honour, this was something that we had raised as part of the hospitality award specific matters and at that time the then‑definition of "ordinary hourly rate".  And I note that in the plain language exposure draft it's a revised definition to incorporate the all-purpose allowances.


So from our perspective we just wanted to highlight that we were, I guess, providing some context to, I guess, where those matters had come from and why we had expressed them.  But if you bear with me I'll just look at my current status document.


JUSTICE ROSS:  No, that's fine.


MS MINCHINTON:  So 65 ‑ the other concern that we'd had with it, and I guess this is something that we wanted to flag either to be dealt with as part of the specific matters, AM2014/272, where it's now in the plain language draft referring to the ordinary hourly rate the all-purpose allowance that exists in this award, being the forklift allowance, is not actually expressed as an hourly amount.


It's expressed as either a weekly amount for a full‑time employee or for a daily amount for a part‑time or casual employee.  And what we'd like to put forward is the proposal or the submission that we now look at that all-purpose allowance on an hourly basis which we calculate to be 32 cents per hour ‑ ‑ ‑


JUSTICE ROSS:  All right.  Well, we'll ‑ ‑ ‑


MS MINCHINTON:  ‑ ‑ ‑ given that it is incorporated ‑ ‑ ‑


JUSTICE ROSS:  Okay.  We'll have a look at that issue.




JUSTICE ROSS:  That's really paragraphs 10 and 11 of your submission.  Paragraph 12 is really noting what the outstanding part of item 68 is, is that right?


MS MINCHINTON:  Yes, correct.


JUSTICE ROSS:  Item 88, this is a matter that we had down as resolved.




JUSTICE ROSS:  Are you pointing to the fact there's a cross‑referencing error?


MS MINCHINTON:  Yes, that's correct, your Honour.


JUSTICE ROSS:  All right.  We'll check the cross‑referencing, that's fine.  Item 90, that's been resolved, is that right?


MS MINCHINTON:  We would like to make some comment on that.  So in the schedule C this refers to C.3 and C.4 and the amendment that we had sought was in relation to, I guess, the note talking about penalty rates and that penalty rates are not payable where clause 25 applies.


We also submit that if you are complying with clause 24 as well the penalty rates are not payable either, whereas the wording in the latest exposure draft says it may not be payable.  We believe that should say it is not payable as well.


JUSTICE ROSS:  Just bear with me for a moment.  Well, the only issue in relation to clause 24 is, of course, that an annualised salary arrangement will not necessarily satisfy the award obligations in relation to penalty rates.  Clause 24.5 provides that unless the employer and employee otherwise agree an annualised salary satisfies the awards.


So in other words, the parties could agree to confine the scope of the annualised salary arrangement.  That's why the schedule's phrased in the way it is.  So it may satisfy it but the parties can agree to a different arrangement pursuant to 24.5.


MS MINCHINTON:  Your Honour, in practice in our member venues clause 24, or as it exists as clause 27.1 at the moment, is utilised for the purposes of penalty rates and overtime.  It is not very common for other monetary entitlements to be wrapped up.


JUSTICE ROSS:  Well, you can change 24.5 to make it clear that you can't otherwise agree but as long as you have those words in there the schedule is accurate.  Do you follow?  I mean, it may be in practice they do but that doesn't matter.  It's what's possible, if you like, pursuant to the clause.


MS MINCHINTON:  Yes, your Honour, we were just looking at it from the perspective of avoiding any confusion in the reading of C.3 where an employer might question how it could be payable if they are satisfying the requirements of clause 24.  May I suggest that we could amend the note to say where an employer and employee have agreed for payment in accordance with clause 25 or clause 24, penalty rates are not payable?  So there's the proviso that that element ‑ that reinforces that there's a need for agreement.


JUSTICE ROSS:  Yes, all right.  What do you say about that, Ms Dabarera?


MS DABARERA:  Your Honour, we have raised some concerns in relation to that clause.  We wouldn't have an opposition to rephrasing it to make that clear.  We just have to have a think about that phrasing that's just been suggested now.


JUSTICE ROSS:  No, that's fine.  Look, perhaps we can leave it on the basis we'll also give some consideration to some rephrasing that tries to meet the issue that's been raised and is consistent with clause 24.  And we'll put that to the parties for discussion at one of the next conferences, all right?


MS DABARERA:  Thank you, your Honour.


JUSTICE ROSS:  All right.  Let's go back to the AHA's submissions and from para 17 onwards.  Can you just take me through ‑ so you're dealing here with the outstanding issues?


MS MINCHINTON:  Yes.  At paragraph 18, your Honour, this was the remaining item of part 4.  In the plain language exposure draft of 25 October the appropriate level of training definition was inserted into the Casino Gaming Classification part of the award.  And for us that satisfies that part of part 4 which means the entire part 4 is done.


JUSTICE ROSS:  So we can take that bit out of the outstanding.  Then we've got item 19.


MS MINCHINTON:  Yes, that's correct.


JUSTICE ROSS:  You say that's acceptable so I can remove those as well and that's resolved?


MS MINCHINTON:  Yes, we can resolve that, yes, and ‑ ‑ ‑


JUSTICE ROSS:  Then we've got item 22.  That's withdrawn?




JUSTICE ROSS:  Then we go to item 40.


MS MINCHINTON:  Yes, the inclusion of the words "other than an adult apprentice" which was proposed by the drafter in the summary of submissions is acceptable to us to resolve it.


JUSTICE ROSS:  Yes, all right.  I should indicate when we get to those matters that are resolved on the basis you've identified, if any other party has a different view then they should let me know at that time.  Then I think we go to item 47.  You note the comments in the summary of submissions.  But you say that for ease of reading clause 24.5 should specifically state the relevant clauses for penalty rates and overtime?


MS MINCHINTON:  Yes, your Honour, and the current version of the award does that at the moment.


JUSTICE ROSS:  All right.  Is there any opposition to that?


MS MINCHINTON:  And we believe that should be ‑ ‑ ‑


JUSTICE ROSS:  Yes, is there any opposition to that proposal?


MS DABARERA:  No, your Honour.


JUSTICE ROSS:  All right.


MS THOMSON:  No, your Honour.


JUSTICE ROSS:  Well, we might amend the plain language draft and move that item to resolved.  Item 51.


MS MINCHINTON:  Thank you, your Honour.


JUSTICE ROSS:  That's all right.


MS MINCHINTON:  Item 51, the reading of this annualised salary provision has always been interpreted, from our perspective, your Honour, to where it refers to annual leave being brought out by the 25 per cent annualised rate, we have taken that to read "annual leave loading."  So that what I'm referring to is clause 25.2(g), and it had been something that we had raised, as part of AM2014/272, to provide that clarification, that it should read "payment for annual leave loading."


From our perspective we believe that that will aid the reader's understanding of the application so that they don't have to pay annual leave loading, as opposed to not paying annual leave at all.


JUSTICE ROSS:  Yes.  That seems to make sense.  Do any of the other parties have any issue about that?


MS DABARERA:  We would support that, your Honour.


MS THOMSON:  Yes, that's fine, thank you, your Honour.


JUSTICE ROSS:  Can I just - I suppose it could be a cross-reference to the 17 and a half per cent loading, provided in clause 30.3, just to make it obvious what we're referring to.




JUSTICE ROSS:  All right.  Well, we'll make that change.  I think that will, on the face of it, resolve item 51.  We then go to item 53.


MS MINCHINTON:  Thank you, your Honour.  Item 53.


JUSTICE ROSS:  I think you were saying it's resolved?


MS MINCHINTON:  Yes, we are, your Honour.


JUSTICE ROSS:  Okay.  Then item 56?


MS MINCHINTON:  This was a more detailed matter, your Honour, in terms of a particular clause being allowable or otherwise.


JUSTICE ROSS:  Let me just - - -


MS DABARERA:  This was one of our submissions, your Honour, relating to - - -


JUSTICE ROSS:  Which term is that about?


MS DABARERA:  It's relating to clause 26.10(c), which is allowances for working away from the usual place.  We've submitted that it's an objection or an unreasonable term, because it permits the employers to deduct a sum of money from an employee's pay if they only work for a certain period of time with the employer.


JUSTICE ROSS:  I see.  So whether it offends the deduction provision of the Act.


MS DABARERA:  Yes, your Honour.


JUSTICE ROSS:  All right.  We'll note that that's the issue and we can explore how we will determine that matter at the next conference.  Then if we go to item 61, I think the Associations are withdrawing that item, is that right?


MS MINCHINTON:  Yes, your Honour.




MS MINCHINTON:  Your Honour, we were noting that a common issue matter that was determined by the Full Bench.  We didn't have any specific comments about it at this stage, noting that the clause will be redrafted, with effect, from 1 January and that was simply our comment for that purpose.


JUSTICE ROSS:  Okay.  Then item 71, you're indicating that you want to pursue a change in relation to that matter?


MS MINCHINTON:  Yes.  So, your Honour, and we acknowledge what the drafter has stated in the summary, which is that the current award is reflected in the plain language draft.  However, the practice of the deduction for a meal is per meal, not on a weekly basis, and we believe that the plain language drafting exercise provides the opportunity to clarify the practice of that deduction.


JUSTICE ROSS:  Well, we'll also note that for discussion at the next conference.  Item 73?


MS MINCHINTON:  Seventy-three was also an item that we had raised, as part of AM2014/272, as an opportunity to clarify that wage levels do not translate equally, in all occasions, to a classification level.  We had proposed, as part of the other proceedings, to put the wage level in brackets after the particular classification.  An example of that is the clerical stream, where clerical grade 1 actually equals wage level 1.  We thought that would aid the reader and avoid confusion.  We do note that the drafter has proposed, in alternate to that, a note.  We submit that the note is an opportunity to clarify that the classification level does not always translate to the wage level, as an alternative mechanism of resolving a matter that we had raised as 2014/272.


JUSTICE ROSS:  In relation to 2014/272, that's the substantive claims, in respect of the award?


MS MINCHINTON:  Yes, that's correct, your Honour.


JUSTICE ROSS:  All right.  Well, let's park it for the moment and we'll need to discuss, at the conferences, the sequencing of the plain language redraft and then making sure that we've highlighted the matters the parties still wish to pursue as substantive items.




JUSTICE ROSS:  Then if we go to your comments, under the revised summary of submissions, in part C, I think we've dealt with those already.




JUSTICE ROSS:  If you go to paragraph 35, I think you've dealt with those items on the way through, are there any that you've not?


MS MINCHINTON:  Yes.  No, I think what we've provided, at clause 35, covers a number of those issues, as well as some of the questions that were raised in your statement of 25 October.


JUSTICE ROSS:  Okay.  Then if we go to paragraph 36, you say there's a cross-referencing error in (a)?




JUSTICE ROSS:  Let's just deal with that for a moment, and if I can get the views of others.  So clause 6, yes, 6.8, that should be to 6.7(b), that's right, rather than 6.9.  Does anyone have a different view?  This is because 6.9 is referring to the time and wages record when, in fact, the reference should be where you're under 18 and the agreement's been signed by your parent or guardian.  So, on the fact of it, the AHA's point seems correct.  Does anyone take a different view to that?


MS THOMSON:  No, your Honour.


JUSTICE ROSS:  Let's go to (b), can you explain (b) to me, Ms Minchinton?


MS MINCHINTON:  Yes, thank you, your Honour.  In terms of the clause 15.4, for rostering purposes, we note that Business SA had put forward a proposed change to 15.4(b) and (e), which included reference to ordinary hours.  Specifically with regards to 15.4(b), we had a concern with the use of the word "ordinary hours" because it is practice, in the hospitality industry, for both ordinary hours and additional hours to be rostered.  What we would like to propose, and I've had some discussions with Business SA about this, is that perhaps we could change the wording, at 15.4(b), to indicate the start and finishing ordinary hours as well as additional hours, so that the additional hours can now also be put onto the roster.


JUSTICE ROSS:  In some ways it was easier when it simply said "work".


MS MINCHINTON:  Yes, or as per the current edition of the award, there's a full stop at the end of "finish", there's not even a reference to "work" or "ordinary hours".


JUSTICE ROSS:  Yes.  Well, work would encompass both ordinary and additional hours.




JUSTICE ROSS:  Ms Thomson, what do you say about inserting the word, "work", rather than "ordinary hours" in 15.4(b) to address the concern that has been raised by the Associations?


MS THOMSON:  Thank you, your Honour.  Yes, I think that's a sensible outcome, and I also understand as Ms Minchinton has indicated that she has had discussions with Business SA and they would be content with that course of action.


JUSTICE ROSS:  All right.  Are you happy with that, Ms Dabarera?


MS DABARERA:  Yes, your Honour.  We don't have an issue in terms of - we think it can be helpful to have additional hours shown on the roster as well, so we wouldn't object to that, your Honour.


JUSTICE ROSS:  I was actually proposing we replace the word, "ordinary hours", simply with "work", so:  "at which they start and finish work", work being a term that could embrace both ordinary and additional hours, and the point that has been made by Ms Minchinton of course is that in the current award, the subclause finishes where it says, "the times at which they start and finish."  So we're just making it clear that that's referring to when they start and finish work, that's all.


MS DABARERA:  No objection to that, your Honour.


JUSTICE ROSS:  Thank you.  Let's go to 21.2.  There is an incorrect reference to the Restaurant Award, and the correct reference should be to the Hospitality Award.  Does anyone take a different view?  No?


MS THOMSON:  No, your Honour.


JUSTICE ROSS:  If you can take me to item (d), Ms Minchinton, and just explain that - this is about clause 29 at table 11?


MS MINCHINTON:  Yes.  In column 2 and column 3, the penalty rates for full‑time and part‑time employees - and I'm looking at column 2, your Honour - for a Sunday they reflect 175 when it was reduced to 170 from 1 July this year, and equally for column 3, the public holiday row, it's now 250, not 275, and the public holiday for full‑time and part‑time is 225, not 250.


JUSTICE ROSS:  Yes.  I think that's right, so we'll update the table to reflect the adjustments that took effect from 1 July.


MS MINCHINTON:  Thank you, your Honour.


JUSTICE ROSS:  Thank you for that.  Was there anything else from the Associations before I turn to deal with the issues raised by United Voice?


MS MINCHINTON:  No, your Honour, except to say if there's any of the outstanding matters that you'd like us to provide more detail to, we're happy to do so today.


JUSTICE ROSS:  What we might do is identify them in a short statement that we'll issue in the New Year, and we will have grouped the outstanding items by conference; in other words, we'll split them.  Some will be dealt with at the first conference in February, others will be dealt with at the second, and we'll identify in that statement where we're seeking clarification or further information from a party.  Okay?


MS MINCHINTON:  Thank you.


JUSTICE ROSS:  Because it may not just be the Associations, Ms Minchinton; we may also seek comment from other parties about a particular outstanding issue when it's not clear to us what their concern is.  Okay?


MS MINCHINTON:  Okay.  Thank you.


JUSTICE ROSS:  Ms Dabarera, can I just go through your submission, and you deal with the outstanding items from paragraph 2 onwards.  You note - I think item 4 has been resolved; we've discussed that.


MS DABARERA:  Yes, your Honour.


JUSTICE ROSS:  In relation to item 7, I had a note that that had been withdrawn by the AHA, so what's happening with that one?


MS DABARERA:  Your Honour, our submissions were made on the same day as the AHA, so yes, we do note that they have withdrawn it, so that appears to be resolved.


JUSTICE ROSS:  Thank you.  Then go to item 19, you continue to press that?


MS DABARERA:  Item 19 is in relation to clause 11.4 and it's about how casual employees are paid.  The AHA has raised a concern that the clause was - originally they raised a concern that it was a bit - it could be simplified, and the drafter made a suggestion that a note could be inserted to simplify it.  Our position was that inserting a note that refers to a separate clause actually complicates the clause and the original wording in the plain language draft was simpler than it has turned out to be now.


JUSTICE ROSS:  So whilst the drafter's note has resolved the matter from the AHA's point of view, you're opposed to the note and therefore that issue remains unresolved, is that where we're up to?


MS DABARERA:  Yes, your Honour.


JUSTICE ROSS:  All right.  Let's go to item 20 then.  This is really to deal with apprenticeships, and the proposition you advance is that apprenticeships can be undertaken on a part‑time basis, is that right?


MS DABARERA:  Yes, your Honour, and we have previously suggested some wording essentially to delete the term, "full‑time", from that clause so that it can include part‑time apprenticeships as well.


JUSTICE ROSS:  All right.  What's the view of the other parties about that?  Is there any opposition to the removal of the reference to "full‑time" from either ABI or from the Associations?  Perhaps if I go to you first, Ms Thomson, what do you say?


MS THOMSON:  Neither opposed nor support, your Honour.


JUSTICE ROSS:  Okay.  Ms Minchinton?


MS MINCHINTON:  Your Honour, this was also a concern that we had with regards to the drafting of clause 12.3.  Currently the award does not refer to full‑time or part‑time employment and our preference is that it stays the way it currently is, which would be in line with United Voice's submission to remove the "full‑time" reference.


JUSTICE ROSS:  Okay.  If we remove the "full‑time" reference, that seems to resolve that issue.


MS DABARERA:  Yes, your Honour.


JUSTICE ROSS:  Let's move to item 28.  That seems to have been resolved as well, is that right?


MS DABARERA:  Your Honour, from our perspective, we were happy with the drafter's suggestion to include a definition.  I'm not sure how the other parties are in relation to that.


JUSTICE ROSS:  Yes.  Perhaps if they could let us know.  Ms Minchinton, what do you say about that?


MS MINCHINTON:  Sorry, your Honour, this is in relation to clause 15.2 and the definition of "catering employer?"




MS MINCHINTON:  Sorry, I just wanted to clarify that.


JUSTICE ROSS:  Yes, it's item - - -


MS MINCHINTON:  The reception dropped out for a bit.


JUSTICE ROSS:  Yes.  It's item 28, which relates to clause 15.2, that's right.


MS MINCHINTON:  Yes.  The Associations are comfortable with the drafter's proposed definition of "catering employer" as well.


JUSTICE ROSS:  What about ABI, are you content as well?


MS THOMSON:  Yes, we don't oppose that.


JUSTICE ROSS:  All right, then that issue is resolved on that basis.  Item 29, United Voice is withdrawing its objection, is that right?


MS DABARERA:  Yes, your Honour.  We are withdrawing our objection because we believe that the drafter's comment has explained why the clause is phrased in that way.


JUSTICE ROSS:  Okay.  Item 56?


MS DABARERA:  Item 56 is in relation to the issue that we did talk about briefly before, which is the allowances for working away from the usual place.


JUSTICE ROSS:  No, I follow - yes, I follow.


MS DABARERA:  And that's the one that we're saying is objectionable and unreasonable.


JUSTICE ROSS:  Yes, so that will probably need to be determined by submissions.




JUSTICE ROSS:  All right.  Items 59 and 60 you're continuing to press?


MS DABARERA:  Yes, your Honour.  Items 59 and 60, so 59 is in relation to the airport catering supervisory allowance and in relation to it being an all‑purpose allowance, and item 60 is also in relation to that allowance and who it applies to.  So yes, we are concerned that the draft has reduced or changed the employees that it applies to, so we do continue to press those items.


JUSTICE ROSS:  All right, we'll have a look at those submissions and provide a response in the next statement.  In relation to changes to the revised PLED, you're identifying an issue at clause 28.  And the essence of this is that the word "reasonable", the qualifier in relation to working additional hours, has been removed, is that right?


MS DABARERA:  Yes, your Honour, and I might actually expand on that.  I've had a look at that clause again and we do have some further concerns about it.  So our issue, as we've gone through in our submission, it is firstly that the word "reasonable" has been removed and we think that changes the nature of the obligation on the employer to consider whether the additional hours are reasonable.


Further, our concern with this is, having had a look at it within the full clause again, the additional clause refers to additional hours and that's a different concept to what the rest of the clause talks about which is overtime.  So having a look at it again, we're not sure that that's very useful in terms of reading it.  So the current clause as it is says:


An employer may require an employee, other than a casual employee, to work reasonable overtime at overtime rates.


Our preference would be for that clause to remain, recognising that there has been a change in terms of casual employees.  And I would wonder if the employer parties would be ‑ what their position is because I understand their concern was essentially that that clause had disappeared from the plain language draft.


JUSTICE ROSS:  What do the other parties say?  Ms Thomson?


MS THOMSON:  Your Honour, I have some sympathy for United Voice's argument.  However, I would be hesitant to return to the draft ‑ or the way that's in the current draft of the award and wonder whether or not the addition of the word "reasonable" in between "work" and "additional" in the proposed PLD would be sufficient to satisfy United Voice's concerns.  So it would read:


An employer may require a full‑time or part‑time employee to work reasonable additional hours.


JUSTICE ROSS:  Yes.  I think, as I understood United Voice's position, they have two concerns.  One is the introduction of the concept "additional hours" where the existing clause refers to overtime and the second is the removal of the word "reasonable".


Look, it may be ‑ I think we should come back to this at the first conference in February because the notion of reasonable additional hours is going to be canvassed in a statement that the plain language Full Bench will issue shortly because there's an issue here about the interaction with the NES obligations in respect of additional hours that we need to cover off on as well.


The issue was touched on in the Pharmacy Award plain language redraft.  I think if you await the next statement on the general issue that may inform the debate about this matter and we can come back and have another look at it at the first conference in February.  Is that satisfactory to you, Ms Dabarera?


MS DABARERA:  Yes, your Honour.


JUSTICE ROSS:  Okay.  All right.  Well, what then I would propose to do is to update the list of withdrawn, resolved and outstanding issues, reflecting the agreed position today.  We would make the changes to the revised summary of submissions reflecting those changes and the issues that have been raised by the AHA where their position in respect of a number of items may have been mischaracterised.


We'll attach those two with the revised PLD reflecting the items that have been agreed today.  All of those documents will accompany a statement that will be issued in the first half of January.  That statement will also identify the remaining outstanding items and we'll set an agenda for two conferences in February.


The statement will identify in relation to each item that will be discussed at each conference precisely what the issue is and what each of the parties have said so far about that issue.


Just taking up your point, Ms Minchinton, the event that we seek further clarification from any party about those issues will indicate that.  We'll also provide parties with an opportunity prior to the conference to make whatever additional remarks they wish to make about any of the items.


I think it would be helpful, once you see them and we're more focused on ‑ because we've spent really the last two conferences going through and trying to clear some of the items which can be withdraw or resolved fairly easily.  Now as we move down into perhaps some of the more difficult issues I think it would facilitate the conferences if each of you gives consideration to taking up the opportunity to expand on your position in respect of the items at the particular conferences.


We'll provide two dates to put in that material.  There will be one date that will be about a week before the first conference and that will be to provide any additional material or anything you wish to say further about those items.


And then about a week prior to the second conference you'll be able to say or put in any additional comments about the items that we're going to discuss at the second conference.  Okay, does anyone have any questions about the process or anything further you want us to do at this stage?


MS MINCHINTON:  No, your Honour.


MS DABARERA:  No, your Honour.


MS THOMSON:  No, thank you, your Honour.


JUSTICE ROSS:  All right.  Well, if there's nothing further then we'll take those steps.  I'll see you in February and I hope you have a safe and happy Christmas.  Thanks very much.  We'll adjourn.


MS THOMSON:  Thank you, your Honour.


MS MINCHINTON:  Thank you.


MS DABARERA:  Thank you, your Honour.

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