PN1

THE DEPUTY PRESIDENT: Good morning, and thank you all for attending this morning at rather short notice, and my apologies for that. I had actually listed this matter I had thought three weeks ago. But for reasons that I'm yet to fully understand a notice wasn't sent out to the parties, so I would've been pretty lonely here although I might have reached agreement. Anyhow, there are swings and roundabouts in these things.

PN2

But the purpose of my listing this matter for conference is I've had this discussion with the other Members of the Bench and we thought before finally deciding what to do with the matter we'd give the parties an opportunity to see whether some modicum of agreement can be reached and that really flows from the correspondence from the Ai Group suggesting that a conference might be of some assistance.

PN3

On my reading of the positions of the parties who have filed submissions in relation to the abandonment of employment clause, I'll use that term for present purposes, you seem to be a bit apart in terms of the structure of the relevant provision, and Mr Smith, correct me if I'm wrong, but the Ai's position seems to be that the proposition that it advances, or alternatively no clause is ‑ ‑ ‑

PN4

MR SMITH: That's correct, your Honour.

PN5

THE DEPUTY PRESIDENT: Yes.

PN6

MR SMITH: It would be timely just to make a few comments to explain what our position is.

PN7

THE DEPUTY PRESIDENT: Of course.

PN8

MR SMITH: And the reason why we pursued this matter with such vigour from the start of the Commission deciding to have an abandonment employment case ‑ ‑ ‑

PN9

THE DEPUTY PRESIDENT: Yes.

PN10

MR SMITH: ‑ ‑ ‑ was because of the, what turned out to be, a widespread misunderstanding about the effect of the Iplex decision, and now that that is understanding - and it's been corrected, and there's now a clarification in the January decision, that abandonment, you know, genuine abandonment, that it has to stand up on the facts.

PN11

THE DEPUTY PRESIDENT: Yes.

PN12

MR SMITH: It's actually a renunciation of the employment contract, and termination at the initiative of the employee, not the employer. Now that that issue has been clarified, we're not particularly concerned about whether there is a clause that remains or not. You know, if there is to be one, then it should obviously be consistent with what abandonment of employment is.

PN13

THE DEPUTY PRESIDENT: Yes.

PN14

MR SMITH: In our view the AMWU's clause is completely based on what seems to be an ongoing misunderstanding, because it talks about termination of employment by the employer.

PN15

THE DEPUTY PRESIDENT: Yes.

PN16

MR SMITH: But, you know, we note the AWU's preferred position is to not have a clause and we're comfortable with that position, so if that settles the matter then that's acceptable to us.

PN17

THE DEPUTY PRESIDENT: Yes, all right. AMWU?

PN18

MR NGUYEN: Deputy President, we would say that there should at least be a clause about the consultation requirements if an employee is going to decide to terminate, but, I mean, it's a difficult thing to talk about because obviously every different employer, particularly in the award system, is going to behave differently. The way that the AiG or the way that Mr Smith has just described his organisation's view and their approach to it might be something that a peak body might advise its members, but we're talking about in the context of award proceedings, like a lot of the awards are regulating conduct of small to medium enterprises and also employees, individual employees, without union representation.

PN19

THE DEPUTY PRESIDENT: Yes.

PN20

MR NGUYEN: So that process is more about providing something that's sort of facilitative and directed to the majority – I think now the majority of people who are regulated by awards who are not necessarily of an understanding. And we've included in doing our submissions, in earlier submissions, about the Commission's research in relation to the level of understanding about the terms and conditions in awards amongst employees and also for small to medium enterprises; that research that the Commission – commissioned by Sweeny.

PN21

So we think there should at least be a clause in there that does facilitate and direct and provide for employers to consult and for them to have a framework within which they can say, "Okay, I need to do these steps before I decide that I'm not going to roster someone on any more in the future", or not contact them any more, or pay out their entitlements.

PN22

THE DEPUTY PRESIDENT: There's a balance to be struck between, on the one hand, having a provision which in effect mitigates the risk that an employer might face for either an unfair dismissal claim because there hasn't been, as a matter of fact, an abandonment of employment, or alternatively a breach of contract claim because there hasn't, as a matter of fact, been an abandonment of employment. Against the prospect of putting in provisions in an award which adds the additional element that if they're not complied with that they'll be in breach, as well as potentially a breach of contract and an unfair dismissal claim. So those are the kind of competing considerations that seems to me that the clause needs to address. It can't be such just to be overly prescriptive to make it unfair on an employer faced with circumstances where there is a lengthy unexplained absence.

PN23

But I understand the point that you make, Mr Nguyen. Does anybody else want to say anything about it?

PN24

MR BARLOW: I think, your Honour, for the CPSU we'd certainly support the AMWU's position as we have previously, and I think the January decision which had before it, at that stage, an earlier draft proposal that the AMWU had contained in its submissions ‑ ‑ ‑

PN25

THE DEPUTY PRESIDENT: Yes.

PN26

MR BARLOW: ‑ ‑ ‑ regarding abandonment, in some ways, pointed the union parties to where they might be minded to go, which was, well, it's quite clear from our decision you can't have certain parts of the current abandonment of employment clause, but you could have other parts, and I think Michael, there, was talking about facilitative and consultative obligations, which are more likely than not to be incidental or otherwise to a matter that can happen in an award.

PN27

So in some ways I think that's been the focus of the union parties. If you can put in a minimum level of fair steps to follow where a situation like this arises, then that is something we might be able to agree to. I think the central problems we had with the AiG's proposal was it still wanted to deal with the issue of abandonment of employment at large, like most of its clause was a definition of abandonment of employment, whereas the union parties were more focused on the procedural aspect. You've got an unexplained absence, the employer should take certain steps before it acts on that unexplained absence to identify if it is actually some form of explained or unexplained absence before they took action, Commissioner.

PN28

THE DEPUTY PRESIDENT: Yes, all right. Yesterday evening I just jotted down some notes. I'll float something with the parties to see whether this might be something that the parties can live with. And it's trying to build on the framework that was there previously, and the desire to have some, at least on the part of some parties, some obligations to consult before any step is taken.

PN29

Perhaps a clause to this effect:

PN30

This clause applies to an absence from work by an employee of three or more consecutive working days where the whole of the absence is unauthorised, not explained, or occurs without notification, whether before or as soon as reasonably practicable after the absence commences.

PN31

So that's the scope of the absence that the clause would trigger the consultation obligation. The consultation obligation would be that:

PN32

If an employee is absent as described in paragraph (a) –

PN33

Or whatever the number might be –

PN34

the employer shall, before taking any other step, take reasonable steps to contact the employee, provide the employee with an opportunity to explain the absence, and give genuine consideration to the explanation.

PN35

And that would be the extent of the obligation. So it picks up the three day notion without characterising it as anything in particular.

PN36

MR SMITH: Your Honour, I think there's merit in the framework. The aspects of it that we would prefer to be amended is because the issue that's before the Commission is about abandonment of employment, this would be much broader than abandonment of employment, and in terms of "before taking any other any other step", we would prefer that it still be a clause about abandonment of employment, and to have those words, but perhaps clarify. Instead of "before taking any other step", it might say something like, "before confirming the employee's abandonment of their employment". You know, something to that effect to make it clear that we're really talking about a situation where the employee has abandoned employment. We just wouldn't want any implication that this is really going to be misunderstood as implying that the employer has to terminate a person in these circumstances.

PN37

THE DEPUTY PRESIDENT: That the employer has to. Yes, I ‑ ‑ ‑

PN38

MR SMITH: Or would, because it isn't a termination by the employer as the Bench has held.

PN39

THE DEPUTY PRESIDENT: Yes. What if it said rather than "before", we could just delete the words "before taking any other step", and it might simply say, "In circumstances where X applies the employer shall take reasonable steps to do" the three things. So it takes out "before any other step".

PN40

MR SMITH: Yes, I think that might be acceptable, your Honour. We'd just like to think about the words.

PN41

THE DEPUTY PRESIDENT: Yes. I'm just ‑ ‑ ‑

PN42

MR SMITH: But that leaves all of the contentious issues to ‑ ‑ ‑

PN43

THE DEPUTY PRESIDENT: Yes.

PN44

MR BARLOW: Your Honour, just to speak to that quickly, the minimum requirements for process here, I think, are important if you're creating an obligation to do certain things before you do other certain things. Now, obviously Mr Smith and I may disagree as to whether or not you should put in something about confirming the employee has abandoned their employment. That was one of the critical problems we had with the clause that they proposed. But I think the issue would be they may or may not have abandoned their employment. They may have misconducted themselves. They may have done a number of different things that would be established on the facts, having contacted them, and so, in that sense, I think the notion that this process should be followed before other action is taken, whatever those other actions may be, is an important concept here, and if we can do that without dealing with it as abandonment or confining it just to abandonment I think might be something that the unions would be able to give serious consideration to.

PN45

THE DEPUTY PRESIDENT: Each of you has constituents that you'd need to talk to about with these things, and I appreciate that I've just floated it without any particular notice, so what I might do is – and perhaps if I draft a set of words, circulate it to the parties, and give the parties, say, three weeks or so to comment on them, and you shouldn't take this as an indication that the Full Bench or I are wedded to any particular words, because we're not. This is literally something that I tried to put together taking into account the different views of the parties last night. So it's to facilitate discussion not as a view because my present inclination, and, again, it's not a final view, but my present inclination is, unless the parties agree to something, we'd prefer to put nothing in. That would be my position, at this stage. So that if we're going to put something in that regulates or creates an obligation to consult then I would prefer it to be an agreed position.

PN46

MR BARLOW: Thank you, your Honour. I appreciate you providing that opportunity to us. One thing I would note from the union's position, and the draft clauses have been circulated, has been a timeframe; 21 for the AMWU, and 14 days for the AWU. Would you be minded to create a minimum time period in which reasonable efforts should be made as the current clause was intended to do when it was first constructed?

PN47

THE DEPUTY PRESIDENT: I don't have a view on it. My initial reaction is that reasonable steps contemplates a timeframe in and of itself, and that varies depending on the circumstances of the absence, how difficult it is to contact the employee, and so on. So I'm not sure that a timeframe was necessary, but if the parties want to insert a timeframe within which those steps might be taken, that's fine. But the issue will be this, that in not every circumstance of a three day absence will there be abandonment.

PN48

MR BARLOW: Yes.

PN49

MR SMITH: Your Honour, as we all know, the timeframe in the existing clause was put in there 50 years ago, whenever it went in.

PN50

THE DEPUTY PRESIDENT: Yes.

PN51

MR SMITH: Because it was seen as the point in time where the person could be deemed to have abandoned their employment.

PN52

THE DEPUTY PRESIDENT: Yes.

PN53

MR SMITH: And we know that concept can't continue, so that was the framework ‑ ‑ ‑

PN54

THE DEPUTY PRESIDENT: Yes, I understand.

PN55

MR SMITH: ‑ ‑ ‑ for the outer limit of the timeframe. There's just one other issue that I'd like to clarify, and that is where would those words actually go? And we'd assume that we keep the existing clause 20, because existing clause 20 is a very practical clause that again has been there for 100 years or something that has very broad application.

PN56

THE DEPUTY PRESIDENT: Yes.

PN57

MR SMITH: So those words, would they fit as ‑ ‑ ‑

PN58

THE DEPUTY PRESIDENT: They might fit as part of that clause. Another option might be, again thinking off the top of my head, issues about abandonment, but the clause might be dealing with the subject of making inquiries as to whether there has been abandonment. It might be a separate clause or it can be a clause dealing with unexplained absences, which, in some circumstances, might be amount to abandonment. Again, I'm not fussed about ‑ ‑ ‑

PN59

MR SMITH: Our preference, your Honour, would be to have the clause as clause 21 still. If it's not called abandonment, it's called unexplained absences, but not to disturb existing clause 20, which is a different concept.

PN60

THE DEPUTY PRESIDENT: Not disturb clause 20, yes. Yes, all right, well, we can worry about the title later. I understand that position. I'm simply going to draft it as a freestanding clause and see whether or not we can agree on a set of words and then we can see whether we can agree on where it goes. I'll circulate that early next week and I'll give the parties three weeks to provide comment on it, and see where we go from there. Is there anything else? Thank you again. Thank you very much for your attendance at short notice. I very much appreciate it.

PN61

MR SMITH: Thank you, your Honour.

ADJOURNED INDEFINITELY [8.51 AM]