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Fair Work Act 2009                                                    





s.156 - 4 yearly review of modern awards


Four yearly review of modern awards

AM2015/1 – Family and Domestic Violence Leave Clause









11.06 AM, TUESDAY, 1 MAY 2018


JUSTICE ROSS:  Can I have the appearances, please.  Firstly, in Sydney.


MR N WARD:  Your Honour, I continue my appearance for the Australian Chamber, ABI and the New South Wales Business Chamber.


JUSTICE ROSS:  Thank you, Mr Ward.  Mr Ferguson?


MR B FERGUSON:  If the Commission pleases, Ferguson, initial B, for the Australian Industry Group.


JUSTICE ROSS:  Thank you.


MS L BIVIANO:  If the Commission please, Biviano, initial L for the Transport Workers' Union.


JUSTICE ROSS:  Thanks, Ms Biviano.


MR H MCMASTER:  If the Commission pleases, McMaster, initial H for the Australian Transport Industrial




JUSTICE ROSS:  Thank you.  And in Canberra?


MS J PRIDEAUX:  Your Honour, Jill Prideaux for the Australian Public Service Commission.


JUSTICE ROSS:  Thank you.


MR D JOHNS:  If it please the Commission, Johns, initial D, for the National Road Transport Association.


JUSTICE ROSS:  Thank you.


MR S HARRIS:  Your Honour, Harris, S, for the Pharmacy Guild of Australia.


JUSTICE ROSS:  Thank you, Mr Harris.  And in Brisbane?


MR A NASH:  If the Commission pleases, Nash, initial A, for the CPSU.


JUSTICE ROSS:  Thank you.  And in Melbourne?


MS S ISMAIL:  Your Honour, Ismail, initial S for the ACTU.


JUSTICE ROSS:  Thank you.  Any other appearances?  No.  There are two matters to be dealt with at the mention.  One is the, as we recorded, in the decision issued on 26 March, we exempted from the general finding three particular awards; the Australian Government Industry Award, the Road Transport and Distribution Award and the Road Transport Long Distance Operations Award.  Interested parties in those awards during the course of the proceedings had indicated that they wanted to run a case about the particular features of their award and why the outcome of these proceedings should not apply to them.


The second matter, which we might deal with first, is the Bench has now developed a draft model term reflecting the outcome of what we think reflects the outcome of the decision, and we want to provide the opportunity to interested parties to comment on that model term.  The process would be then once the model term is settled with further proceedings if necessary, then draft variation determinations would be made in relation to all of the modern awards save for the three that I've mentioned.


So let's turn to the second matter first and that's what's the process for finalising the model term.  Assuming we get out a statement this week, what do you propose as to how we deal with it?  Mr Ward?


MR WARD:  Your Honour, I'm hoping it's not going to be particularly contentious given that a large proportion was by agreement in the principle place.




MR WARD:  Might it simply be convenient to mirror the process we discussed for the earlier matter.


JUSTICE ROSS:  Sure.  Yes.


MR WARD:  Given that at least the three principal parties are involved in both.  If we mirrored that process ‑ ‑ ‑


JUSTICE ROSS:  All right.


MR WARD:  And can I just raise one practical matter that Ms Ismail raised during the adjournment.  She's not back from Europe until into June.


JUSTICE ROSS:  Until when, sorry?


MR WARD:  Some time into June.  So in terms of reply if we could have that on 15 June.  Bear with me, your Honour.


JUSTICE ROSS:  No, that's fine.


MR WARD:  I think your Honour said sort of a month, and then a period for reply.


JUSTICE ROSS:  That's okay.  I can work backwards from when the reply is ‑ ‑ ‑


MR WARD:  If received 1 June then a month we'd need to reply on the 15th.  So any time from the 15th on to reply would suit Ms Ismail.


JUSTICE ROSS:  Yes, no problem.


MR WARD:  Can I also just raise one last thing as well?  The decision does discuss this notion of a revisitation in 2021, and I'm not wishing to mozz anybody about whether or not they're going to be here in 2021, but ‑ ‑ ‑


JUSTICE ROSS:  I'm pretty sure I will be.  I'm not sure about the rest of you.


MR WARD:  I won't make a joke.  It's all right.  I won't make a joke.  It's okay.  I'm just wondering, was there any initial view as to what that might involve, or was that something that we would canvass later on?


JUSTICE ROSS:  No, not really.  I think – look, what that might involve is very dependent on how the broad policy debate emerges.


MR WARD:  Yes.


JUSTICE ROSS:  As was mentioned in the decision, and I'm not raising this to engage in the broader debate about it, but one of the issues around access to personal carer's leave is the general view of all parties about the impediments to that process.  Those impediments may in part be addressed via regulation.


MR WARD:  Yes.


JUSTICE ROSS:  And if that happened then that's an issue that would be considered further.  But, look, it's difficult to predict at this stage.


MR WARD:  No, that's fine, your Honour.


JUSTICE ROSS:  I think – can I put it this way, speaking for myself, it's intended to see, well, what's been the effect of what's been determined.  Do we have any information about uptake, those sorts of issues, because understandably enough there was some information about those issues during the course of the proceedings, but obviously not about what we've decided.  So we want to see if it's creating any practical problems or issues for parties rather than just closing it off.  We didn't want to leave the impression that, well, this is what we're doing and we're going to stick with it type of issue.  We would see how it worked in practice.


But, look, I can certainly indicate that, for those of you who will be here, that there would be a conference well before we initiated anything to canvass what the parties may want to deal with in that review process, and everyone would have an opportunity to contribute to that.  So there's no fixed view from the Commission's end, other than we recognise that it's a novel step into this area; yes, I think it's generally agreed that it's a significant social problem, and it would provide an opportunity to see, well, what has been the impact of what has been determined.


MR WARD:  I think we were principally interested in whether we had any homework to do in the intervening period.


JUSTICE ROSS:  That's an interesting question.


MS ISMAIL:  Your Honour, can I make a contribution at some point?


JUSTICE ROSS:  Yes, sure - no, certainly.


MS ISMAIL:  I suppose I raise this issue because we found ourselves in the situation previously, for example, in the Family‑Friendly case, where there has been a comment by the Commission that we don't have evidence around impact, and I can foresee a situation where we get to 2021 and there hasn't been the monitoring possibly or the research about the implementation of the clause and we find ourselves in a position where we don't have the evidence we need to conduct a proper review.




MS ISMAIL:  And I suppose the question would be is there going to be consideration given to some kind of monitoring process to ensure that we've got the data we need when the time for the review comes around, and it's more a question - we don't have any fixed views on it, but it might be something for the parties to turn their mind to now or the Commission to have a think about.


JUSTICE ROSS:  Yes.  I think I'd probably make the observation I don't think that was the only issue with your case in the Family‑Friendly, but - - -


MS ISMAIL:  No, not at all.  That wasn't my point.


JUSTICE ROSS:  No, I understand.  I think I probably want to give some thought to the resource implications from our end, but look, you could envisage a process where there's a conference sometime later in the year once the things are done and dusted, and we collectively sit around and think about well, how are we going to monitor the impact of this and is there something the Commission can apply resources to; it may be that the Department can assist as well, so that we get a better idea of what the utilisation is.


MS ISMAIL:  It sounds like a sensible idea.


JUSTICE ROSS:  That sort of process, it strikes me, would be - I mean, it would be desirable if we could end up with a generally agreed approach to how we are going to monitor the impact, because otherwise we'll be faced with inevitably a swag of surveys and everyone attacking everyone else's survey.


MS ISMAIL:  Yes, your Honour, that's what I was hoping to avoid.


JUSTICE ROSS:  Yes - no, I'm hoping to avoid that too.  Can we leave at this stage that the parties can give some thought to it and once we're through the process of the model term, these three other awards, et cetera, and give you an opportunity to catch your breath, and then later in the year we'll have a conference and see how much progress can be made and sketch out the issue there.  That conference, I wouldn't intend it to do more than to discuss common approaches to monitoring.  I don't think it would be fruitful at this early stage to try and develop some agenda for the later proceedings.  I think we just wait and see, and then consult with the parties as that time gets closer.


Can I just, for the benefit of the parties who weren't here for the earlier matter, Mr Ward's suggestion essentially is that there would be a period of time, about four weeks, for parties to comment on the model term, and then a reply opportunity - I think you said the replies would be by 15 June - and we'd work out the dates.  There would be liberty to apply, that is, if you felt that more time was needed, et cetera, and once the reply submissions are in, there would be a short mention to deal with whether or not there was a need for any oral hearing or whether the Bench could determine the matter on the papers.  So that's the proposal in relation to the model term.  That doesn't deal with the three specific awards, but it deals with the finalisation of the model term generally.  Does anyone have a different view about that issue before I turn to the three awards?  No?


MS ISMAIL:  Your Honour, there was a bit of paper noise, so just to clarify that there's initial submissions filed on 1 June, a reply on 15 June, with liberty to apply, and the expectation is that there will be a model clause provided by the Commission this week?


JUSTICE ROSS:  Yes, that's right.


MS ISMAIL:  Thank you.


JUSTICE ROSS:  Can we go to the three awards that have been extracted, as it were, from the general findings we made in our earlier decision?  Who would like to go first on those?


MR D JOHNS:  Perhaps, your Honour, if I could?  It's David Johns in Canberra.


JUSTICE ROSS:  Yes, Mr Johns.


MR JOHNS:  NatRoad's (indistinct) matter did note at paragraphs 275 and 276 of the decision the opportunity for later proceedings.  My instructions are that based upon the Minister's announcement on 26 March, the Hon Craig Laundy, Minister for Small and Family Business, that the government would be legislating to include provisions in the Act basically negates the arguments that we would be putting forward.  Most interested in the term that would actually be decided by the Commission on the model term, but our preparation putting arguments and everything are basically mute now, sir.


JUSTICE ROSS:  Thanks, Mr Johns.  Mr McMaster?


MR MCMASTER:  Your Honour, I guess where we come from is what makes the two awards in the industry different from other awards within the AMOD system.  We also note that Mr Laundy has indicated the government's preference as far as this is concerned, and I have nothing else to add at this point in time.


JUSTICE ROSS:  Do I take it from what both you and Mr Johns have said that your organisations are not seeking to advance arguments as to why any resulting model term should not be inserted in the particular awards you've identified?


MR MCMASTER:  Not at this point in time now.


JUSTICE ROSS:  I always get nervous when people say "not at this point in time," because this probably is the point at - - -




JUSTICE ROSS:  No, okay.  All right, thanks.


MR JOHNS:  Your Honour, it's John in Canberra.  No, my instructions are that we would not be seeking to have the hearing now on the matter.


JUSTICE ROSS:  Thanks, Mr Johns.  Ms Biviano, that probably finishes the matter as far as you're concerned too?


MS BIVIANO:  That's correct, yes.


JUSTICE ROSS:  I take it you're not willing to argue?


MS BIVIANO:  I'm definitely not, your Honour, no.


JUSTICE ROSS:  Thank you.  Ms Prideaux, can I just go to the Public Service Commissioner then in relation to the Australian Government award?


MS PRIDEAUX:  Yes.  Thanks, your Honour.  Yes, we previously, you know, basically were of the view that it wasn't necessary in our context to have this included given that we have a high standard of paid personal and uncapped miscellaneous leave.  Given the government's position on the inclusion of this in the National Employment Standards, we'd also like to seek to discontinue our objections.


JUSTICE ROSS:  All right.  Thank you.  Then I'll cover those matters off in a short statement later in the week indicating that the initial objections taken by those parties are no longer pursued and that it would seem to follow that any resultant model term would then be inserted in each of the modern awards, and we'll attach a draft model term which we think reflects our earlier decision.  There are, perhaps I should forewarn you, some minor changes - I emphasise "minor" - to the agreed clauses, but we'll see what your reaction is to it.  Give some thought to - on that program.  If you think that a conference would be helpful then I'm certainly open to that to see if we can work through any issues.  The changes don't deal with any of the particularly vexed matters that we've dealt with in conference and were ultimately agreed.  Okay?  All right.  Well thank you all for your attendance.  We'll issue our statement later in the week.


MR NASH:  Sorry, there is one other matter that - - -


JUSTICE ROSS:  Sorry, yes?


MR NASH:  There is one other matter that's in issue we'd like to raise.


JUSTICE ROSS:  Yes, certainly.


MR NASH:  We're not sure if this is the exact forum for it, but we were seeking to clarify the process in relation to the review of the Australian Government Industry Award - - -


JUSTICE ROSS:  I'm sorry, you're just breaking up a bit, Mr Nash.


MR NASH:  Sorry.  Is that better?  We're seeking to clarify the process for the review of the Australian Government Industry Award more broadly, because obviously this is not the only common issue matter that may be relevant to the Government Industry Award.  We raised this issue with the Commission in July last year.




MR NASH:  We're clear now that the enterprise awards are going to be reviewed after this process is over.


JUSTICE ROSS:  That's right.


MR NASH:  But we're still not aware that the Australian Government Industry Award has been scheduled for review yet; wondering if you could provide any further clarity on it.


JUSTICE ROSS:  No, it hasn't, and look, I think in the first instance if you can discuss it with the employer parties, but my preliminary view would be I'd want to wrap up the Groups 1 to 4 awards, or the drafting and technical issues in relation to those awards, and the current common issue proceedings.  By that, I mean there is the standard clauses:  family‑friendly, domestic violence, the payment of wages common issue.  I anticipate - the best indication I can give you at this stage is that we'll reach a conclusion on all of those issues by the end of July, and we have largely concluded all of the technical and drafting issues in the awards in Groups 1 to 4.  We've issued decisions on most of those issues.  There are some outstanding issues.  Some provisional views were expressed.  I expect all of those matters to be completed by the end of July as well.  The parties have put submissions in.  We've just got to deal with all of those.  So I'd be proposing that we deal with what we've got on our plate at the moment, that if all of that goes to plan we would then release revised exposure drafts of the modern awards in Groups 1 to 4 sometime in August.  The timeframe, I can't be more precise than that because of the number of wage rates in the exposure drafts that are currently out.  They need to be updated and the rest of it.  Once we've issued those revised exposure drafts, then I'd have a conference with the parties in respect of the award you have an interest in, and the enterprise awards, to put the question to them about what process are they looking for in the review of their awards.  It's simply a resource issue at the moment.  Unless there are good reasons to bring it forward, my preference would be to finish what we have before we start off a new exercise.  I'm not foreclosing a party to an enterprise award, or indeed, in your case, the award you're a party to.  If there's some reason for bringing it forward then by all means send in some correspondence and I'll deal with it, but absent such a request, that's broadly going to be the process.  We'll finish what we've got and then we'll look at what we've got left.  Okay?


MR NASH:  Yes.  That sounds like a sensible approach.


JUSTICE ROSS:  All right, nothing further?  Thank you very much for your attendance.  I'll adjourn.

ADJOURNED INDEFINITELY                                                        [11.27 AM]