PN1

JUSTICE ROSS: Could I have the appearances please, and if you can indicate which of the awards that's listed at 9 am you have an interest in. Just start from the left and move your way along.

PN2

MR S CRAWFORD: If it please the Commission, Crawford, initial S, from the AWU appearing in relation to all of the listed awards except for graphic arts, printing and publishing.

PN3

JUSTICE ROSS: All right. Thanks. There's no need to stand. It's all right.

PN4

MS T WALTON: Walton, initial T, for the Transport Workers Union and I have a single interest here in the Waste Management Award only.

PN5

JUSTICE ROSS: All right. Thank you.

PN6

MR B FERGUSON: Ferguson, initial B, and Bhatt, initial R, for the Ai Group appearing in relation to all of the awards this morning.

PN7

MR L IZZO: Izzo, initial L, seeking permission to appear for ABI NSWBC in relation to all the awards listed for 9 am.

PN8

JUSTICE ROSS: Thank you.

PN9

MR H ARJONILLA: May it please, Arjonilla, initial H, for the AMWU. We have got an interest in all awards save the Plumbing and Fire Sprinkling Award, your Honour.

PN10

MR S MAXWELL: If the Commission pleases, Maxwell, initial S. I appear on behalf of the Construction, Forestry, Mining and Energy Union. I appear in regard to the Waste Management Award and the Manufacturing and Associated Industries and Occupations Award.

PN11

JUSTICE ROSS: Thank you.

PN12

MR A BAUMGARTNER: If the Commission pleases, Baumgartner, initial A, for the Motor Traders Association of New South Wales, also for the Victorian Chamber of - sorry, Victorian Automobile Chamber of Commerce, the Motor Trades Association South Australia and Western Australia.

PN13

JUSTICE ROSS: Thank you.

PN14

I've received correspondence from the Fire Protection Association. They have an interest in the Electrical Electronic and Communications Contracting Award, the Manufacturing Award and the Plumbing and Fire Sprinkling Award. And they indicate their support for the inclusion of a model term in those three awards. So the purpose of the conference is to simply go through comparing the current award with the model term to seek the views of the parties as to whether or not there is a consent position as to what should be done in each of the awards and if there isn't, then a party who wants to change what's in the current award will make an application.

PN15

We would also encourage the parties after the conferences to continue to engage with their respective counterparts in an effort to reach a consent position in relation to any variation, and we'll publish a statement some time next week setting out the time period within which any application is to be filed. It's convenient because they're broadly similar to deal with the first award. Do you have the same list that I've got, award 21?

PN16

MR FERGUSON: Electrical?

PN17

JUSTICE ROSS: Yes. It might be - well, anyway, the Electrical Award, the Food Manufacturing and the Manufacturing Award, because they're similar. They each provide that wages due are to be paid on the day of termination or forwarded to the employee by post the next working day. So if we can deal with those together. The difference between - well, there are a number of differences but for present purposes the central one is that the current award clauses are limited to wages due. That is they don't extend to accrued annual leave under the NES. So those with an interest in those three awards, electrical, food manufacturing and manufacturing, what do you want to do about those?

PN18

MR ARJONILLA: Your Honour, with respect to the Electronic Communications Contracting Award we're not the lead union with respect to that award. We don't - not the lead union with respect to that award. The CPU's not here but our default position is that the existing payment of wages on termination clause should remain as is, so there's presently no need to amend it.

PN19

JUSTICE ROSS: And is that the case in relation to - your union is appearing in relation to the three awards?

PN20

MR ARJONILLA: Correct, your Honour.

PN21

JUSTICE ROSS: All right.

PN22

MR CRAWFORD: We support that. The AWU supports that view, your Honour.

PN23

JUSTICE ROSS: All right. Any union have a different view? Mr Maxwell?

PN24

MR MAXWELL: No, your Honour.

PN25

JUSTICE ROSS: No? The employers?

PN26

MR FERGUSON: From our perspective we're of the view that the clauses should vary. We would just like a short period of time to confirm that we will run the case and what that will look like.

PN27

JUSTICE ROSS: Yes. No, that's fine.

PN28

MR FERGUSON: But we'd be very interested in having some discussions before we make a decision about what it would look like.

PN29

JUSTICE ROSS: Yes, I'd certainly encourage you to have those discussions. It may be that you - look, I don't want you to see this as a binary thing. That is either you've got to have the model term or nothing, though it may appear that way. But if you're able to reach a consent position that is a compromise between your respective positions that reflects the circumstances in the particular industry covered by the award and its history, then the Full Bench would place significant weight on that consent position. It wouldn't necessarily determine the outcome and I can't speak for my colleagues, but speaking for myself I'd give it significant weight.

PN30

So I'd encourage you to have those discussions. There are some deficiencies in the current provisions from the point of view of the unions and there are some issues that the employers are going to want to change as well, and you may be able to reach a landing that improves the operation of the clause from both of your perspectives. Okay, well that's those three.

PN31

Can I go to the Graphic Arts Award which is different. It provides that on termination all moneys due must be paid on the day of termination though for dismissals without notice they're to be forwarded to the employee by post by the end of the next business day. The unions who have an interest in this award, the same position?

PN32

MR ARJONILLA: The same position, your Honour.

PN33

JUSTICE ROSS: The employers that have an interest, the same position?

PN34

MR FERGUSON: The same position.

PN35

SPEAKER: The same position, your Honour.

PN36

JUSTICE ROSS: All right. The same answer. So I would encourage you to have a discussion about that and see where you go. The Pharmaceutical Industry Award, it is similar to the other three awards I dealt with first. That is it's confined to the wages due to the employee. I'm not quite sure why these clauses are expressed in the alternative because it doesn't make any sense to me. It says they must be paid on the day of termination or if you don't want to do that you can forward them two business days after termination, which is really another way of saying that they must be paid or forwarded within two business days after termination.

PN37

The issues for the unions here are it's confined to wages and it's two business days whereas the model term speaks of calendar days not business days, and that may mean that depending on when the termination takes place a period of time that's considerably longer than two calendar days. Who are the unions with an interest in this? The AWU?

PN38

MR CRAWFORD: Yes, your Honour.

PN39

JUSTICE ROSS: Anybody else? No? Okay. Yes, Mr Crawford?

PN40

MR CRAWFORD: Your Honour, similarly to a position I expressed yesterday, we'd be willing to seek final instructions on whether we would be willing to consider the insertion of the model termination for this award. As you've indicated, weighing the current provision against the model term involves a balancing exercise of there are positives and negatives both ways so we are willing to seek further instructions on that.

PN41

JUSTICE ROSS: If we can adopt – do I take it the employers who have an interest consistent with their previous position would support or not oppose the model term going into this award.

PN42

MR FERGUSON: I think that's likely. Yes.

PN43

MR CRAWFORD: That's our position, your Honour.

PN44

JUSTICE ROSS: Mr Crawford, we'll proceed on this basis, as we did with the matters yesterday. If you can advise by 4 pm next Friday, 10 August, just confirm what your union's position is. If it is that you don't oppose the model term going in, then we'll proceed to publish a draft variation determination in respect of this award when we're publishing the others because we need to finalise the provisional views, et cetera in relation to the other matters, and once that comes out the parties will have an opportunity to comment on it. Okay?

PN45

MR CRAWFORD: Thank you.

PN46

JUSTICE ROSS: I think seafood processing it provides similarly, wages due to employees, so it's confined in that sense. And similarly expresses this odd alternative, "must be paid on the day of termination or forwarded to the employee within 48 hours". It's not clear whether "forwarded" means – well, it could mean anything but presumably if you pay by EFT within the 48 hours you'd satisfy it, and if you posted a cheque you'd satisfy it too.

PN47

Is the AWU the only union with an interest in this order?

PN48

MR ARJONILLA: And the AMWU, your Honour.

PN49

JUSTICE ROSS: What do you want to say about it?

PN50

MR ARJONILLA: For the AMWU, your Honour, the position is that we seek to retain the existing provision. That's not to say we're not willing to have discussions around it, but the position is that we seek to retain it.

PN51

JUSTICE ROSS: All right.

PN52

MR CRAWFORD: We support that position, your Honour.

PN53

JUSTICE ROSS: And same position from the employer representatives. I'd suggest that you do have those discussions. You'll be provided with a reasonable period of time to have them, and we'll set out in the statement what the end point is as to when a party would need to indicate whether they wished to pursue a variation, but it will be some weeks after the statement, so you'll have an opportunity, and you can seek liberty to extend that time if the discussions are progressing.

PN54

Waste management. This is a curious provision.

PN55

MR FERGUSON: Just when you can.

PN56

JUSTICE ROSS: Sorry.

PN57

MR FERGUSON: When you can get around to making the payments.

PN58

JUSTICE ROSS: Yes, that's pretty much it. This provision provides:

PN59

The employer must pay to an employee who leaves or is dismissed all money due to the employee as soon as possible.

PN60

I think it would be fair to say it lacks certainty. And I think the TWU has an interest in this award. Any other unions have an interest? Everybody. Okay.

PN61

MS WALTON: Everybody.

PN62

JUSTICE ROSS: Who would have thought?

PN63

MR ARJONILLA: The scope is the subject of ‑ ‑ ‑

PN64

JUSTICE ROSS: Let's start with the TWU. What do you say about this?

PN65

MS WALTON: Your Honour, on the basis that this particular clause hasn't given rise to any dispute ever that anyone in the organisation can recall I don't know that it's problematic, and to that end we hadn't sought that it be varied, however, having had discussions at the table this morning I understand the Ai Group particularly is intending to make a variation if we're not minded to support it. But I think, in the circumstances, it's probably worthwhile the parties having some discussions about how we might tidy that up and make it a little more definitive.

PN66

JUSTICE ROSS: Sure. I think the Full Bench would want to have a look at that clause too. So ‑ ‑ ‑

PN67

MR FERGUSON: We're not note sure we'll make the application.

PN68

MS WALTON: You might not need to.

PN69

JUSTICE ROSS: Yes. So if you don't end up getting anywhere in your – is the position broadly the same for the other unions? Has anyone got a different view? No. If your discussions don't land somewhere I think we'll call it back on. Because unlike the other clauses that make provision for payment on termination, it doesn't specify any sort of time period.

PN70

MS WALTON: That's right.

PN71

JUSTICE ROSS: So it does raise a question about whether it's uncertain and warrants variation on that basis. So I'm content to leave it to you to have the discussions, but perhaps unlike the others we might take a more active role in that one. Okay?

PN72

MS WALTON: Right.

PN73

JUSTICE ROSS: Let's then go to Plumbing and Fire Sprinkling. Yes. So it does provide for moneys due, but only in circumstances where notice is given. So it only deals with termination by notice, and it's notice in accordance with clause 17. I'm not sure what clause 17 – Mr Maxwell, do you ‑ ‑ ‑

PN74

SPEAKER: Your Honour, we have no interest in this award.

PN75

JUSTICE ROSS: Does anyone have any interest in this award from the unions?

PN76

MR FERGUSON: We do.

PN77

JUSTICE ROSS: What's clause 17? Does someone have that in front of them?

PN78

MR FERGUSON: I'd have to have a quick look, but I assume it's the notice of termination. Sometimes it's dangerous to ‑ ‑ ‑

PN79

JUSTICE ROSS: Yes. But why would the notice ‑ ‑ ‑

PN80

MR FERGUSON: Clause 17.1, your Honour, just simply provides notice of termination is provided for in the NES.

PN81

JUSTICE ROSS: Yes, okay. No, so it's notice by an employer.

PN82

MR FERGUSON: Does it have a clause about the employee giving notice?

PN83

MR ARJONILLA: It does, 17.2. So it also deals with ‑ ‑ ‑

PN84

JUSTICE ROSS: So it's termination by notice by either the employer or the employee. So it doesn't apply to summary dismissal. And, again, it's got this, you know, hybrid world when really the end effect is that you can send the money by registered post. I'm assuming you would read that distributively, so registered post within two working days but maybe not. But in any event, if the employee is normally paid by EFT transferred into their account, in two working days.

PN85

MR CRAWFORD: Your Honour, given the CEPU is the primary union responsible for this award we'd be reluctant to express a view without talking to them, but we would undertake to go away and discuss with them, and then confirm the position, most likely of both unions, after that.

PN86

JUSTICE ROSS: That would be helpful. If you could do that by the end of next week, then we'll have a better idea of where we are, and I encourage you to have discussions with the relevant employer interests. I take it your position is the same, that you ‑ ‑ ‑

PN87

MR CRAWFORD: Yes.

PN88

JUSTICE ROSS: Okay. Let's deal with the Vehicle Manufacturing Repair Services and Retail Award. Just out of interest weren't they going to take manufacturing out of this? Has that happened or is that still going?

PN89

MR BAUMGARTNER: Yes. Well, it hasn't happened yet. It hasn't happened but that's the plan.

PN90

JUSTICE ROSS: Where is it up to? Where is it up to?

PN91

MR BAUMGARTNER: Where is it up to? Well, at the moment we're looking at the final exposure draft.

PN92

JUSTICE ROSS: Okay.

PN93

MR BAUMGARTNER: And we haven't done the plain language side of it, so we don't know whether that will have to be ‑ ‑ ‑

PN94

JUSTICE ROSS: No, I'll have the pleasure of that shortly. No, no, it's ‑ ‑ ‑

PN95

MR BAUMGARTNER: Apart from that we've agreed the respective coverage clauses to pick up the vehicle manufacturing into the manufacturing award. And that's all been sorted and I believe Brent might know exactly where that's up to in terms of the final drafting. So as far as our ‑ ‑ ‑

PN96

JUSTICE ROSS: I don't think this one is in the plain language.

PN97

MR BAUMGARTNER: It's been excluded at the moment, so whether it gets brought in at a later date of the – is a matter I suppose.

PN98

JUSTICE ROSS: Yes, I'm not sure the RS & R Award was part of the second tranche. I thought it was manufacturing, but in any event I don't think ‑ ‑ ‑

PN99

MR BAUMGARTNER: If it's left out, that's fine.

PN100

JUSTICE ROSS: I don't think we've made a decision about that issue yet.

PN101

MR BAUMGARTNER: Yes.

PN102

JUSTICE ROSS: In any event there would be the so-called light touch plain language review that would apply to all awards so just to remove any Latin phrases or anything else that's sufficiently curious.

PN103

MR BAUMGARTNER: We've been doing a bit of that anyway, I suppose, as we've gone through the process.

PN104

JUSTICE ROSS: Yes. No, I think that's true of most awards. Okay, so it's still sort of chugging along. All right. It doesn't affect this clause though, does it?

PN105

MR BAUMGARTNER: No. No, this is separate.

PN106

JUSTICE ROSS: This clause provides a suite of options really.

PN107

MR BAUMGARTNER: It does, yes.

PN108

JUSTICE ROSS: And it really would seem to enable the employer to pay wages due, so it's not even as broad as it wouldn't include accrued annual leave. "At the employer's place of business on a stated day not later than seven days after the termination."

PN109

MR BAUMGARTNER: Yes. Yes, it's effectively similar to the model clause apart from it's only wages.

PN110

JUSTICE ROSS: Yes, and if you require them to attend then you have to pay them four hours ordinary pay.

PN111

MR BAUMGARTNER: Yes, well that would be in the context of wages by cash.

PN112

JUSTICE ROSS: Yes.

PN113

MR BAUMGARTNER: So it's an old school clause in that sense.

PN114

JUSTICE ROSS: Yes.

PN115

MR BAUMGARTNER: It does need updating in our view.

PN116

JUSTICE ROSS: Yes.

PN117

MR BAUMGARTNER: So we're content with the model term apart from an issue with commission payments under clause 25.4 of the exposure draft.

PN118

JUSTICE ROSS: Yes.

PN119

MR BAUMGARTNER: Where we won't know what the payments are for some of the vehicle salespersons at the time. Potentially that wording might be okay because it talks about payments due at the time.

PN120

JUSTICE ROSS: Yes.

PN121

MR BAUMGARTNER: But we're reluctant to just accept that argument, because the Fair Work Ombudsman might say we have to pay all of the moneys for the vehicle salespersons as well.

PN122

JUSTICE ROSS: Yes, okay. Yes.

PN123

MR BAUMGARTNER: So we need some exclusion in there for payments to vehicle salespersons. So we don't see it as a very complex issue that, you know, couldn't be resolved. But I think it can be resolved.

PN124

JUSTICE ROSS: Yes.

PN125

MR BAUMGARTNER: Whether the unions want to support that approach or not, I don't know.

PN126

JUSTICE ROSS: All right, what do the unions say?

PN127

MR ARJONILLA: Your Honour, the clear instruction I received from the vehicle division was that the clause should remain as is. Having said that, I'm very happy to have a discussion with my friend following this to see if there's any way that it can be refined.

PN128

MR BAUMGARTNER: Yes.

PN129

JUSTICE ROSS: All right, anyone else?

PN130

MR FERGUSON: We'd be keen to participate in those discussions and form a view after that. I would note that clause (f) also seems to be something that needs to be grappled with.

PN131

MR BAUMGARTNER: 25.4(e) and (f) is really the issue. Is that what you're talking about?

PN132

JUSTICE ROSS: Yes.

PN133

MR FERGUSON: Yes, (f) authorises deductions in a way that might not be caught by the other proceedings.

PN134

JUSTICE ROSS: No, no, that might be - well, for that matter it might be union dues.

PN135

MR FERGUSON: It might be. It could be anything.

PN136

JUSTICE ROSS: It could be maintenance payments. It could be anything really. But it is in a separate category I think. It's authorised in writing by the employee. It's not the withholding of moneys.

PN137

MR FERGUSON: No.

PN138

JUSTICE ROSS: Relating to a failure to give notice, for example.

PN139

MR FERGUSON: No, that's right.

PN140

MR IZZO: For our part, your Honour, we concur there would be some merit in amending the clause and see the model clause as a good starting point for that. The reality is that as far as we see it there is an ability to pay not later than seven days so we think having regard to that there's probably some room for fruitful discussions with the unions.

PN141

JUSTICE ROSS: Yes.

PN142

MR IZZO: To see if we can come to an arrangement that also accommodates the commission payment.

PN143

JUSTICE ROSS: All right. I'd encourage you to have those discussions. The statement will give you an idea about what outer limit is in terms of notifying in the event you haven't been able to reach an agreement notifying an application to vary. Okay, anything else in relation to those awards? I was just wondering whether we can deal with any of the ones at 11.30 but is there anyone else involved in the mobile crane hiring?

PN144

MR MAXWELL: I think the MBA may express an interest.

PN145

JUSTICE ROSS: Okay. All right, timber?

PN146

MR MAXWELL: Your Honour, I understand I think Ms Wyles from our manufacturing division - - -

PN147

JUSTICE ROSS: Another part of the multi-headed hydra will be coming in.

PN148

MR MAXWELL: - - - has a video link.

PN149

JUSTICE ROSS: All right. All right, I'll adjourn till 11.30.

ADJOURNED INDEFINITELY [9.23 AM]