PN1

THE DEPUTY PRESIDENT: Could I have the appearances?

PN2

MR Z DUNCALFE: May it please the Commission, Duncalfe, initial Z, for the Australian Workers' Union.

PN3

MR N KEATS: Deputy President, I continue my appearance for the CFMMEU and Maritime Union of Australia Division, instructed by Mr Jacka.

PN4

MR J STANTON: May it please, Stanton, initial J, with Mr Doyle, initial T, for the Australian Federation of Employers and Industries, the Boating Industry Association Commercial Vessels Division, and the Association of Marine Park Tourism Operators.

PN5

THE DEPUTY PRESIDENT: And in Melbourne?

PN6

MR N NIVEN: If the Commission pleases, Niven, initial N, appearing for Australian Institute of Marine and Power Engineers.

PN7

THE DEPUTY PRESIDENT: Thank you. The matter has been allocated to me by the President for conference foreshadowed, as I understand it, in the decision of the Full Bench in respect to this award on 23 November, and then there were to be submissions filed. Has that been – well, I see there have been some submissions, but is that the extent of it?

PN8

MR STANTON: Perhaps I can assist, the extent of the submissions that the organisations that Mr Doyle and I represent were filed or at least last filed on 31 October are fairly comprehensive submission, your Honour, and, as I understand it, at least the Maritime Union had filed a submission the following day, and I have been alerted this afternoon to a further submission which has been filed by that union and which Mr Keats has kindly provided to me. I guess that's a matter for him and others as to whether they intend to file more. I understand that no further dates have been set for the filing of those submissions, but our substantive submissions have been filed. May it please.

PN9

THE DEPUTY PRESIDENT: Further dates?

PN10

MR STANTON: There's no further dates. There's no further dates. I beg your pardon.

PN11

THE DEPUTY PRESIDENT: I thought you said further dates.

PN12

MR STANTON: I wasn't seeking further dates.

PN13

THE DEPUTY PRESIDENT: No, no, no.

PN14

MR STANTON: But as I understand it the earlier opportunity was to file on or about 31 October and no one is going to quibble with 1 November. But my attention has been drawn to some further submissions that have been filed today.

PN15

THE DEPUTY PRESIDENT: Today, yes.

PN16

MR STANTON: And they've been brought to my attention and just before your Honour came onto the Bench I was making my way through those, may it please.

PN17

THE DEPUTY PRESIDENT: I see. So is that the end of the submissions?

PN18

MR STANTON: Everything that we, on our side, can possibly say is said in the comprehensive submissions. We have no need to make further submissions. I just place one caveat on that, and that is that I have been made aware, as I'd indicated, that a submission has been filed by the MUA this afternoon. I would like the opportunity to consider that further and in the event that anything further could be put on our part if we could have that opportunity albeit I suspect that it would be only brief if at all, may it please?

PN19

THE DEPUTY PRESIDENT: Mr Duncalfe, the AWU had not filed in respect to those earlier directions?

PN20

MR DUNCALFE: No, Deputy President, we haven't, but I do take the opportunity today to say that we do support and adopt the submission of the CFMMEU of both, I believe, it's 1 November and 20 December. However, we would take the opportunity to file further submissions if AFEI to intend or eventually file further submissions in response to the CFMMEU.

PN21

THE DEPUTY PRESIDENT: This isn't going to be an exercise of every time someone files a submission someone has to reply to it.

PN22

MR DUNCALFE: No.

PN23

THE DEPUTY PRESIDENT: This has gone on for long enough.

PN24

MR DUNCALFE: Absolutely. I agree.

PN25

THE DEPUTY PRESIDENT: The purpose of today was to have a conference to see if we could get some resolution. Although from reading the submissions I'm not sure that that's possible.

PN26

MR KEATS: Deputy President, for the part of the CFMMEU and MUA, we have filed submissions this morning. The purpose of those was to try and facilitate the conference and it was quite clear where the MUA stood in relation to the issues raised by the AFEI to try and understand from at least August the transcript that the AFEI was the only organisation that had a difficulty with the exposure draft at that time. I believe that remains the case.

PN27

THE DEPUTY PRESIDENT: And Mr Niven for AIMPE, what ‑ ‑ ‑

PN28

MR NIVEN: Your Honour, AIMPE has no intention of filing any further submissions in this matter. We do support the MUA's submissions in this matter.

PN29

THE DEPUTY PRESIDENT: Thank you.

PN30

MR NIVEN: Thank you.

PN31

THE DEPUTY PRESIDENT: Would you be assisted by a short adjournment and then re-convene in conference to see if we can't ‑ ‑ ‑

PN32

MR STANTON: Yes, I believe so.

PN33

THE DEPUTY PRESIDENT: Are you content with that? How long would you like, Mr Stanton?

PN34

MR STANTON: Perhaps 10 minutes if that would suit?

PN35

THE DEPUTY PRESIDENT: Is that all right? Cool your heels for 10 minutes. I'll resume at around 25 past.

PN36

MR STANTON: May it please.

SHORT ADJOURNMENT [2.12 PM]

RESUMED [2.26 PM]

PN37

THE DEPUTY PRESIDENT: You're smiling, Mr Keats, so ‑ ‑ ‑

PN38

MR STANTON: It was nothing I said.

PN39

MR KEATS: It's the grist of the usual combative nature of the unfortunate now award proceedings too, Deputy President. I think it's fair to say that whilst we're all happy to sit down and explain our views to you, we don't have any common territory that enables us on either side, and I think this is fair to say, to make a concession on our respective positions. Perhaps the most useful thing other than giving you that elaboration would be to say that it appears that, and although we didn't get a final landing, that the Commission dealing with it on the papers might be worth a go.

PN40

THE DEPUTY PRESIDENT: That was going to be my other consideration, because I think you were to advise by today as to whether you wanted that.

PN41

MR KEATS: I don't believe there's any appetite from anyone around the table to have a full blown oral hearing with evidence and the rest of it.

PN42

MR STANTON: No, not with oral argument that's for sure. Not that we're arguing, Deputy President. We're having a discussion. There were some common areas, but we agree I think it can be dealt with on the papers and we can put on what we wanted to say. Again if we think of anything further that can be said, and I think that the submission that was filed just speaks to our submission, but I believe our interests will be adequately protected by what we have to say in the submissions, so ‑ ‑ ‑

PN43

THE DEPUTY PRESIDENT: So you won't be seeking to file anything further?

PN44

MR STANTON: No. Can I have a moment?

PN45

THE DEPUTY PRESIDENT: Sure.

PN46

MR STANTON: No, your Honour, in fact I think it was – at some point it was always going to be appropriate for the unions – well, I know it's the MUA's submission, but the others have adopted their position to have an opportunity to comment on what we filed on 31 October.

PN47

THE DEPUTY PRESIDENT: Yes.

PN48

MR STANTON: So the position is - I think the uniform position is that ‑ ‑ ‑

PN49

THE DEPUTY PRESIDENT: And that's happened?

PN50

MR STANTON: Yes, it has, your Honour. Yes, that the matter can be decided on the material filed.

PN51

THE DEPUTY PRESIDENT: I'm not sure explaining it to me is going to be helpful as I'm not on the Bench.

PN52

MR STANTON: It depends who explains it.

PN53

MR KEATS: I think that might be true, Deputy President.

PN54

THE DEPUTY PRESIDENT: Of course. Let's not abandon all hope. It is after all the season of good cheer.

PN55

MR KEATS: It is the 2014 four yearly review.

PN56

THE DEPUTY PRESIDENT: Which blessedly has been fixed.

PN57

MR STANTON: Are you saying you want to have it resolve don the papers before 31 December?

PN58

MR KEATS: I was merely pointing out that we were in the fifth year.

PN59

MR STANTON: I hadn't noticed.

PN60

THE DEPUTY PRESIDENT: I think I would like to see if there's some scope for me to make any suggestions. I am familiar with (indistinct) on a number occasions, Mr Jacka and I, so I do know a little bit about it, so maybe I can be helpful, so let's hear what you have to say, Mr Stanton, and I'll hear from the unions. I've got the submission.

PN61

MR STANTON: Yes. I think it would be appropriate in terms of our understanding our position to see if through a particular framework and it's this point that we raise in the submissions, we're not seeking to change the substance of any existing conditions. Insofar as it is put against us that that is the effect of what we propose well, that's not the intended effect of what we propose.

PN62

The points addressed in the submission include the point as to whether ordinary hours can be worked on the weekend and our position on the award, as it currently stands, is that ordinary hours can be worked on the weekend. By that we mean on a Saturday and on a Sunday. The source of that view is the award itself where the terms "ordinary hours" appear in relevant clauses, the relevant clause to do with Saturday and the relevant clause to do with Sunday. Those clauses are, well, perhaps unhelpfully - but we're just dealing with the award as it is. They're separate from the clause that deals with ordinary hours, but nevertheless the expression "ordinary hours" appears in the Sunday work clause and the Saturday work clause, and by virtue of that we say those words have to be given some work to do. That means that ordinary hours can be worked on the weekend. It is also the case that overtime can be worked on the weekend, both the relevant clauses for Saturday and for Sunday work accommodate this.

PN63

But the actual premium that's paid – in fact, this is an area where I think we have a uniform view is that the actual rate of pay is the same, whether it's ordinary hours or overtime. I might just qualify that position. Yes, I will. The rate of pay for work on the weekend, if you just disregard whether it's overtime or not overtime is the same. It's 150 per cent for Saturday and 200 per cent for Sunday. So if I might just clarify that, if we're correct in our view then it means that an hour of work performed on a Saturday as ordinary time is paid at 150 per cent, and an hour of work performed on a Saturday as overtime is paid at 150 per cent.

PN64

Nathan will correct me, your Honour, if the union position is correct that that time is just overtime it's still paid at 150 per cent, and the corresponding position for the Sunday.

PN65

MR KEATS: An hour of work is paid at 150 per cent on a Saturday.

PN66

MR STANTON: Yes. So if you just looked at it objectively as an hour of work it's 150 per cent.

PN67

THE DEPUTY PRESIDENT: So where does the distinction arise?

PN68

MR STANTON: I have to confess it's not – it isn't helpful the way the award is at the moment, but necessarily there is still the proposition as to whether ordinary hours can be worked has to be answered yes, by virtue of the fact that the ‑ ‑ ‑

PN69

THE DEPUTY PRESIDENT: I see.

PN70

MR STANTON: ‑ ‑ ‑ expression appears. I've addressed it in the submission.

PN71

MR DOYLE: It's in the award, it's 21.1(b). That's the current award position. It says a loading of 50 per cent of the ordinary hours base rate of pay for all ordinary hours and overtime worked between midnight Friday and midnight Saturday. And that's just doing the Saturday separately. Separately it talks about Sundays. So it's not an argument about what you get paid. It's an argument about whether you're working as – well, I think the argument is whether ordinary hours can be worked on a weekend, and we say they can and they are, and the unions are saying, no, they can't because there's another provision in the award that confines – it talks about the span of ordinary hours being Monday to Friday, 6 am to 6 pm. And I'm not sure what the unions are saying about shift work worked outside that span, Monday to Friday, but at least in relation to weekend work they're saying if anything outside Monday to Friday is not ordinary hours, and we say that's not the situation in the industry. It's now the way ferries operate. For that matter it's not what was there before the modern award, and there's provision in the award that provides for ordinary time on weekends.

PN72

MR STANTON: Could I just add, look, it would have to be said too, I can understand, and I'm not trying to – I can understand why a view such as that can be arrived at because the ordinary hours clause which is – sorry, I'm juggling between hours clauses in the draft and hours clauses in the award. If you read that in isolation I accept that you'd be forgiven for thinking that it was confined, but the award of course – everything has got to be read in the context. The award just doesn't end there. The award just doesn't represent 18.2. So the inclusion of that expression "ordinary hours" in the relevant clauses we are concerned with we say operates to give the result.

PN73

The other issue that was raised by the Full Bench on an earlier occasion which we did not address at all adequately in our August submission, more of an oversight than anything else, was whether shift loadings, which appear at clause 21 of the award, the current award, it provides for afternoon and nightshift loadings of permanent nightshift, whether those shift loadings are taken into account for the purposes of calculating the rates on the weekend, and our position, and I think this is actually - I am fairly confident this is our combined position - that the answer is no to that. That's addressed in our submissions and that was a particular question or concern raised by the Full Bench on an earlier occasion and at least we needed to satisfy ourselves that we could address that and we have. So the shift loadings as we say do not combine with weekend loadings.

PN74

Our proposed amendments to the exposure draft are really informed by two things. One is the approach that the Commissioner and the parties have taken to the exposure draft, and secondly our concerns about perhaps the unintended consequences of the exposure draft if it were made an award. So in keeping with the approach which is reflected in the exposure draft we have proposed how the exposure draft could be modified or replaced to overcome what we signal to be the consequences if the award is made in the terms of the current exposure draft. I think they are the essential positions that we put.

PN75

I just wanted to again clarify that we are - we're certainly not seeking to pursue changes in the substantial conditions of employment. If that is the effect of what we put, and it's not intended, and address that in our submission which runs from paragraph 29 through to 35 of our submission. I hope I have done my best to assist, and appreciating probably the more critical points. If I have missed something it's unintended, but they're the points I wanted to make.

PN76

THE DEPUTY PRESIDENT: Thank you. Yes, Mr Keats.

PN77

MR KEATS: I think probably the starting point is to understand that AFEI is not the only employer body involved in this award. They haven't turned up today, but MIAL is another employer body that's involved in this award, and they don't agree with the characterisation given by AFEI, they agree with the exposure draft. I think that's - - -

PN78

THE DEPUTY PRESIDENT: I think I saw that somewhere. Yes.

PN79

MR KEATS: The starting point I think is to look at the language in the span of hours and it talks about it may be worked, and AFEI has used that as the springboard to say, well, "may" is one of those words that can be discretionary and they use the language of being permissive. So it's not exhaustive is the consequence of the characterisation, and we say that's not the right way to use the "may"; may can have different meanings and different contexts, and if you look at a span of hours it's intended to say this is when you can work or capable of doing ordinary hours. It's not to say you can do it outside these periods of time, otherwise you're not giving work to the full meaning of the clause. It talks about days of the week and hours between which ordinary hours are worked.

PN80

So in 7.2 of the exposure draft that is set out and we say that's an exhaustive list, and to the extent that there's any confusion about the "may" we have provided a way of dealing with that by putting the "may" only into the clause and deleting the exclusive out of - inclusive I should say at the end of the clause.

PN81

What's happening with AFEI though they want to add that ordinary hours can be also worked on shift work, Saturdays, Sundays and public holidays, and that's the extent of the changes they propose, I think it's item B in their submissions.

PN82

MR STANTON: Sorry, I hadn't mentioned public holidays earlier, but it's a similar provision - - -

PN83

MR KEATS: If I don't fairly characterise you I am sure you will remind me.

PN84

MR STANTON: No, that's all right. I didn't raise it, so - - -

PN85

MR KEATS: And what we are saying particularly in these last submissions we have quoted a number of other awards of this Commission that use this concept of may be worked in describing a span of hours to show that if it's going to be considered a problem in this award then the Full Bench needs to go back and look at a whole series of other awards as well, because that language is a common language of how it's understood industrially by parties until today.

PN86

Moving to Saturdays and Sundays curiously as my friend has said this is not a dispute about changing how you pay someone on a Saturday, Sunday or a public holiday. This award is one of those more unusual awards where it's an agreement that regardless whether if you do a block of hours you get paid 150 per cent of the ordinary rate of pay on a Saturday. It's 200 for a Sunday and it's 250 for a public holiday.

PN87

What they are seeking to do with the change to clause 12.1 of the exposure draft is first of all add all these extra words at the beginning of it. So if you go to their submissions you will see they have got a table. It's item A, paragraph 36. It's almost the last - I think it's the second last page of their submissions. All the section above the table is essentially new. I know it says employees will be paid - and it currently says employees will be paid the following rates - but then all the A, B, C and D are all these extra words that they want to insert, and they're at pains to explain that the use of semi-colons is to explain and make it clearer as to when people are paid and the different types of payments available, and they say that the table really makes them commas and it makes it too difficult to understand.

PN88

In my view with the plain language redrafting of awards it's the table that is actually more clear to employers and employees, and having these extra words over the top is causing difficulty and it also infringes our understanding of ordinary time, which I have already spoken to.

PN89

The next thing that I should go to is the shift works, and this is item C in their submissions, and again they have added above the table the italicised words, and B below the table, and the words after the bolded percentage of the ordinary rate, hourly rate in the right-hand column of the table. They say these things are to provide clarity. On the contrary they actually provide confusion and I think they are unnecessary detail and should be removed. They also infringe this idea of when ordinary hours are, because they create this idea of ordinary hours on a shift.

PN90

I don't want to oversimplify it, but you really should need to see shift works here. You either engage the shift work provisions or you don't; in this award they're about a particular starting time or a finishing time, or you engage in ordinary hours of work. There's no day work provision here for dayshift work or something like that, there's just a normal ordinary time hours clause. So you're either falling down over her to shift work or you're falling over here to ordinary rate of pay. To try and create an idea of ordinary hours on a shift mixes those two concepts, and I think that's going to create more confusion, not create the simplicity that is sought and the clarity that's being sought by the federation.

PN91

The last thing that no one has talked about is item D in their submissions. They quite rightly point out that in the award there are two slightly different definitions of ordinary rate of pay. There's one sitting in the schedule which is schedule A.1.1, and there's another that's sitting in the schedule which gives the definition, which I think is schedule D to the exposure draft, and they're different. So that in the exposure draft schedule D there is the one that I have set out in the union's submissions. It picks up the idea of hourly rate of pay, the classification, plus any allowances specified as being included in the ordinary hours of rate of pay which is not picked up in the other one, or payable for all purposes.

PN92

So the difference between us there is if there is an allowance that specifies that it's to be included in the ordinary rate of pay, and it's not included in the definition that they're inserting into the award because they were picking up the one from schedule A.1.1. Whereas we pick up the one from schedule D that enables that to occur, which makes more sense. If you've got an allowance that says it's for ordinary time, then you may as well have appointed to that a definition I think. Otherwise we're content with the submissions we've filed and would be content for it to be dealt with on the papers.

PN93

THE DEPUTY PRESIDENT: Do any of the other unions wish to add anything?

PN94

MR DUNCALFE: No, Deputy President, just to reiterate that we believe that the submissions by the CFMMEU do cover all bases.

PN95

MR DOYLE: Deputy President, can I just ask a question of the union in clarification, just coming out of something that Nathan said there that we had a concern that the union appeared to be saying that the shift work provisions in the award had no work to do either because any shift work outside of the span 6 am to 6 pm Monday to Friday then had to be overtime, but that doesn't appear to be what Nathan has just said. You're acknowledging – it seems that what you're saying is that there is ordinary time worked as shift work Monday to Friday and it's subject to the shift work penalties that apply and they're dictated by the time of day. If you work at a certain time of the day, if it's ordinary time, that's a shift work penalty that applies to it. Is that the case? I've got two questions. That's the first one.

PN96

MR KEATS: I think I've made it clear that there's a separate stream for shift work and it's not to be confused with ordinary hours. And I thought we had tried to make it plain by setting out the intent of the award in paragraph 4 of our 1 November submissions, that ordinary rate of pay is here, Saturday was here, Sunday is here, and public holidays there. Now that we've sort of added shift work to the list of problems I'm making it clear that shift work is its own regime in the award, and if you meet the criteria for that regime you're in the shift work regime.

PN97

MR STANTON: Okay. All right. We'll deal with it.

PN98

MR DOYLE: Do you see that ordinary hours can be worked at shift work on a weekend? And a public holiday for that matter.

PN99

MR KEATS: Sorry, can you just say that again?

PN100

MR DOYLE: Do you see the award permitting the working of shift work ordinary hours on a Saturday, Sunday and public holiday? Saturday, Sunday or public holiday?

PN101

MR KEATS: No, if you work on a Saturday, it's not useful to talk about that as shift work or ordinary pay. If you work on a Saturday you're being paid 150 per cent of your ordinary rate of pay, because Saturday is treated as a special day under this award with a way of paying it. Sunday is treated as a special day and it's paid as that under the award. Public holidays are treated as a special day.

PN102

MR DOYLE: We still think there is an issue in terms of how the working is characterised, whether it forms part of ordinary time or something else.

PN103

MR KEATS: Are you ‑ ‑ ‑

PN104

MR DOYLE: And there's implications that flow from that.

PN105

MR KEATS: ‑ ‑ ‑ proposing that on a Sunday you could work a shift and be only paid the 15 per cent shift loading?

PN106

MR STANTON: No, no, no.

PN107

MR DOYLE: No, I wasn't.

PN108

MR KEATS: Because that seems to be ‑ ‑ ‑

PN109

MR STANTON: No, no, no. No, no, we ‑ ‑ ‑

PN110

MR KEATS: ‑ ‑ ‑ one of the things that could be teased out of that.

PN111

MR STANTON: No. No, that's not what we say. You're safe.

PN112

MR DOYLE: We say the Saturday rates are clear and the Sunday rates are clear, and we've never made any other suggestion.

PN113

MR STANTON: Yes, we've addressed it in the submission. I'm just going to make this ‑ ‑ ‑

PN114

MR DOYLE: Our concern is just that even as a practical matter there needs to be provision for people to work ordinary hours over seven days of the week. Passenger ferries operate seven days a week.

PN115

MR KEATS: What's the practical concern about needing to give it the title? What's driving that concern?

PN116

MR DOYLE: The concern that there should be ‑ ‑ ‑

PN117

MR KEATS: You've got an agreed rate of pay.

PN118

MR DOYLE: Yes.

PN119

MR KEATS: What's driving your concern about the label?

PN120

MR DOYLE: If it's not ordinary time it has implications. For one thing, it may not qualify for superannuation for example. But then in turn that becomes problematic in terms of if it formed part of someone's 38 ordinary hours of work in a week, then there are questions about if it's not ordinary time and it's overtime is it reasonable overtime, even where it's necessary work. You see there are implications that flow from whether the work is ordinary time or it's overtime. That's why we say – and so we're saying we're not, as John mentioned before, we're not proposing to change anything. We just saying the award presently allows for this and we just – our concern is to ensure that it continues to allow for it.

PN121

MR STANTON: Just one point, that we'd discovered in the course of doing those submissions that there were two definitions of ordinary hourly rate of pay within the draft, and so we've just drawn attention to that, and suggested – well, that we delete one and retain the other, or adopt ‑ ‑ ‑

PN122

MR KEATS: And I'm just saying the one that we chose – and this is something which we consider was important so that's why we've chosen the other one.

PN123

MR STANTON: Okay. Which one are you choosing?

PN124

MR KEATS: The one in schedule D to the exposure draft. The difference is including where any allowance is specified as being included in the ordinary rate of pay. Whereas if you go to your definition, the one you chose, which is in schedule A ‑ ‑ ‑

PN125

MR STANTON: We didn't choose it, it was there. It says, schedule A, summary of hourly rates of pay. It's A1 ordinary hourly rate of pay, and then it has a definition.

PN126

MR KEATS: I'm not saying that you wrote it.

PN127

MR STANTON: We didn't write it. It was there.

PN128

MR KEATS: If you go to schedule D though, definitions of the exposure draft, if I can trouble you turn back to there, to schedule D for Delta.

PN129

MR STANTON: Of the?

PN130

MR KEATS: Of the exposure draft.

PN131

MR STANTON: Yes.

PN132

THE DEPUTY PRESIDENT: Depending on what version of the exposure draft, it might be schedule H.

PN133

MR KEATS: True.

PN134

MR STANTON: I've got ‑ ‑ ‑

PN135

MR KEATS: Have you got a schedule D definition.

PN136

MR STANTON: Yes, I've got agreement to take annual leave. I think – yes, you're right it's H. H is the one ‑ ‑ ‑

PN137

MR KEATS: There's an H depending on which version of the ‑ ‑ ‑

PN138

MR STANTON: Yes, yes, yes, that's the one. Yes. "Delete the definition at H and replace with", just to keep it consistent. Yes.

PN139

MR KEATS: But if you read what's in H, it's different to what's in A is my point.

PN140

MR STANTON: Yes.

PN141

MR KEATS: And we want what's in H, not what's in A.

PN142

MR STANTON: Okay. Whatever way it goes let me say isn't it just technical and drafting. Wouldn't you just adopt one uniform meaning for the same expression? That's the only point that we're making, and we draw it to the attention of the Full Bench and no doubt the Full Bench will return to it.

PN143

MR KEATS: We will ‑ ‑ ‑

PN144

MR STANTON: No doubt you've made a position in your submissions, so – okay.

PN145

MR KEATS: We're saying there should only be one as well. We just say it should be a different one. Should we shake hands.

PN146

THE DEPUTY PRESIDENT: Can we take it any further? It doesn't appear to be – I can't think ‑ ‑ ‑

PN147

MR DOYLE: Only, your Honour, I wonder if I could just float a proposition, it's without prejudice, and it's not representing any view of any party, but I'm just interested in the union's view. If the ordinary hours provision had included the word "day" in that short expression, would that have addressed all your issues? I mean the current award.

PN148

MR KEATS: Can you tell me where you'd proposed to put it before I answer?

PN149

MR DOYLE: I'm not proposing to put it anywhere. I'm just trying to ‑ ‑ ‑

PN150

MR KEATS: You're floating an idea.

PN151

MR DOYLE: I'm just trying to – I'm floating it ‑ ‑ ‑

PN152

THE DEPUTY PRESIDENT: It's got to hit somewhere.

PN153

MR DOYLE: ‑ ‑ ‑ to find out whether that is the concern. Whether that's the union's concern and whether, if it had said that, and it doesn't say that, and it doesn't say it in the award currently, and it doesn't say it in the exposure draft either, but if it had said that now whether you wouldn't have the concerns about what you think we're trying to do to the award or what changes we're proposing to make. That's the short clause dealing with ordinary hours of work. Is it 18.1?

PN154

MR KEATS: 18.2 says ‑ ‑ ‑

PN155

MR DOYLE: 18.2.

PN156

MR KEATS: ‑ ‑ ‑ of the award, "ordinary hours may be worked between 6 am and 6 pm for up to eight hours per day, Monday to Friday inclusive".

PN157

MR DOYLE: Yes.

PN158

MR KEATS: Where are you proposing to put your words?

PN159

MR DOYLE: What if that said the ordinary hours of a day work, of day work, or of a day worker.

PN160

MR KEATS: Then you would have to tell me how you're defining a day worker.

PN161

MR DOYLE: Okay.

PN162

MR KEATS: I'd need that before you could answer the question.

PN163

MR DOYLE: Right.

PN164

MR KEATS: Because there isn't a definition of day worker I don't think.

PN165

MR DOYLE: No. No, there's isn't and there's no definition of shift worker; is that right?

PN166

MR KEATS: Is a day worker someone who - you know, you need to unpack a bit more before you could answer that question.

PN167

MR DOYLE: Yes, there might be more to go with it to ‑ ‑ ‑

PN168

MR KEATS: Correct.

PN169

MR DOYLE: Yes. But is that essentially the nub of your issues, or ‑ ‑ ‑

PN170

MR KEATS: No.

PN171

MR DOYLE: No.

PN172

MR KEATS: I don't see that as being the nub of the issues. It may be something that could lead to a different way of solving the problem, but you'd need a lot more detail for us to grapple with that.

PN173

MR DOYLE: Yes. See, because the odd thing is we're not disagreeing about what you get paid on the weekend.

PN174

THE DEPUTY PRESIDENT: Yes, I understand that.

PN175

MR STANTON: True. Unusual as that sounds. It might seem that ‑ ‑ ‑

PN176

MR DOYLE: I suppose we can. We could but ‑ ‑ ‑

PN177

MR KEATS: I think returning to your question, Deputy President, we're at the end.

PN178

THE DEPUTY PRESIDENT: I think so. I think so. I think I'll report to the President that we've had an exchange of views, robust exchange of views, and the papers or the submissions of the parties are the positions of the parties.

PN179

MR KEATS: Correct.

PN180

THE DEPUTY PRESIDENT: You agree that the matter can be determined on the papers by the Full Bench?

PN181

MR KEATS: Yes.

PN182

MR STANTON: We do.

PN183

MR KEATS: We do.

PN184

THE DEPUTY PRESIDENT: A light at the end of the tunnel. Very long tunnel. Thank you, gentlemen. I probably won't see you before Christmas, so everybody have a happy Christmas and a safe New Year.

PN185

MR KEATS: You too.

PN186

THE DEPUTY PRESIDENT: Thank you.

ADJOURNED INDEFINITELY [2.57 PM]