PN1

JUSTICE ROSS: Could I have the appearances, please?

PN2

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

PN3

JUSTICE ROSS: Thank you, Ms Dabarera.

PN4

MR C DELANEY: If the Commission please, Delaney, initial C, from the Australian Security Industry Association, ASIAL.

PN5

JUSTICE ROSS: Thank you, Mr Delaney. And Ms Thompson?

PN6

MS K THOMPSON: Yes, thank you, your Honour; with permission for ABI and the NSW Business Chamber.

PN7

JUSTICE ROSS: Thank you. Following the last conference, I published a statement on 29 June and also caused to be published a list of outstanding issues, which sets out the submissions of the parties in respect of the issues, and in response to all that we received correspondence from United Voice dated 27 July indicating two things - or three things: one, in respect of item 40, the relieving officer allowance, that the exposure draft has yet to be updated to reflect the amendment that was proposed to resolve United Voice's concerns. That proposed amendment, I think, is on the first page of the document dated 13 August 2018, which sets out the list of outstanding issues, and we'll make sure that that change occurs in the exposure draft.

PN8

MS DABARERA: Your Honour, if I may?

PN9

JUSTICE ROSS: Yes.

PN10

MS DABARERA: There has been some confusion around that issue in item 40 and I do apologise - we've had some confusion about that as well. In relation to that issue what has happened is that in the exposure draft the relieving officer matter has split up in two clauses, in the sense that the definition is in clause 2 and the rest of the matter is in clause 19 of the PLED.

PN11

JUSTICE ROSS: Yes.

PN12

MS DABARERA: In our submission that you just referred to from 27 July, we raised the issue that the PLED has not been updated in accordance with the suggested revision; however, we recognise that it was updated, but that only clause 2, "Definitions", was updated, and clause 19.6(a) was not updated.

PN13

JUSTICE ROSS: Yes.

PN14

MS DABARERA: So we don't - in terms of the revised list of outstanding issues and the suggestion on the first page there, that's actually not what we support. What we support is the language that is currently in clause 2 prior to the latest revision, which says:

PN15

Relieving officer means an employee who, by agreement with the employer, is appointed by the employer for the purpose of relieving another security officer at short notice.

PN16

JUSTICE ROSS: So that's the one that is in the PLED of 16 July?

PN17

MS DABARERA: Yes, that's correct, your Honour, in clause 2.

PN18

JUSTICE ROSS: Yes. So you support that?

PN19

MS DABARERA: Yes.

PN20

JUSTICE ROSS: And that was the one that addresses your concerns, and do we need to do anything about 19.6?

PN21

MS DABARERA: Your Honour, our view was that 19.6 should reflect similar terms to clause 2; otherwise it may cause some confusion.

PN22

JUSTICE ROSS: Okay, but what would you need to change, because it refers to relieving officer allowance - what change would you propose?

PN23

MS DABARERA: We would propose that 19.6(a) should stay:

PN24

The employer must pay the employee who is appointed, by agreement with the employer, an allowance of $35.33 per week.

PN25

So it retains that concept that this appointment is by agreement with the employer.

PN26

JUSTICE ROSS: I don't really see why you need to do that. They're a relieving officer. The only person who can be a relieving officer, it's defined in clause 2. I mean, otherwise, for example, with on‑hire, wherever we mention that we'd have to say, "means an employee, by" - and you're just reinserting the definition each time, that's all.

PN27

MS DABARERA: Your Honour, our preference would be that it is amended in that sense, because we think that it could cause some confusion.

PN28

JUSTICE ROSS: What does everyone else think?

PN29

MR DELANEY: Your Honour, we can see your point clearly. In discussions earlier with the union, we understood where they were coming from. However, having listened to you now, we're quite happy for it to remain the same.

PN30

JUSTICE ROSS: So the definition means an employee who, by agreement with the employer, is appointed by the employer?

PN31

MR DELANEY: Yes.

PN32

JUSTICE ROSS: Okay, we'll leave that aside for the moment.

PN33

MS DABARERA: Your Honour, in our view what's essential there is retaining the concept within the current award that it's a position that you're appointed to by agreement.

PN34

JUSTICE ROSS: By agreement with who though?

PN35

MS DABARERA: The employer and the employee agree.

PN36

JUSTICE ROSS: Well, that's not what this says.

PN37

MS DABARERA: Our view is that what's currently in clause 2 is - so relieving officer means an employee who, by agreement with the employer - - -

PN38

JUSTICE ROSS: Yes, I'm not wild about the definition. If that is what it's supposed to mean, then why doesn't it just say so, that it means an employee who, by agreement between the employer and the employee, is appointed by the employer.

PN39

MS DABARERA: We wouldn't object to that.

PN40

JUSTICE ROSS: Yes, all right. Do you have any view about this, Ms Thompson?

PN41

MS THOMPSON: We agree, your Honour, that so long as the definition captures the agreement concept then the replication isn't necessary in the operative clause.

PN42

JUSTICE ROSS: Yes.

PN43

MS THOMPSON: But agree with you that the definition at the moment is a little bit confusing.

PN44

JUSTICE ROSS: I propose to change the definition, so:

PN45

Relieving officer means an employee who, by agreement between the employer and employee, is appointed by the employer for the purpose of relieving another security officer at short notice.

PN46

And I don't propose to make any change to 19.6. In relation to the third matter, this refers to the two options which were in the paper for the resolution of item 55, and those options are set out in the draft list of outstanding issues on page 6, United Voice is expressing a preference for option 1 and we've not received any indication from any other party. Does anyone oppose option 1?

PN47

MR DELANEY: No, your Honour.

PN48

MS THOMPSON: No, your Honour.

PN49

JUSTICE ROSS: Okay, then we'll go with option 1.

PN50

MS DABARERA: Your Honour, we did in our submission make a suggestion in terms of proposed language around option 1, and what we suggested was that where in the summary it has been suggested that the addition of the words, "The employer is to pay the employee as the award requires", we suggested that for clarity it should state:

PN51

The employer is to pay the employee for the public holiday, as the award requires.

PN52

JUSTICE ROSS: Any objection to that amendment?

PN53

MR DELANEY: No objection, your Honour.

PN54

JUSTICE ROSS: Ms Thompson?

PN55

MS THOMPSON: No, your Honour.

PN56

JUSTICE ROSS: All right. With that amendment we'll adopt option 1. I think we're left with two things. One is a subset of the Part‑time Casual Bench, which is dealing with the penalty rate issue, and the second is the - - -

PN57

MR DELANEY: The payment of accrued annual leave on termination, your Honour?

PN58

JUSTICE ROSS: Yes. So those are the only two sets of items. I think ASIAL has filed an application to vary?

PN59

MR DELANEY: We did, your Honour.

PN60

JUSTICE ROSS: United Voice has suggested that it be dealt with as a substantive issue. It doesn't matter to this extent, who deals with it and when. I'll be referring it to the Plain Language Full Bench in any event, and you've said that it should be the subject of a separate mention. Given we're all here now we may as well deal with it now. We have set out what you've said - what each party has said in relation to this issue to date, and that is on pages 8 and 9, I think, and the issue now is, well, what further opportunity do you want to say anything more about this. It's ASIAL's application, so let's hear from them.

PN61

MR DELANEY: I don't think we have got anything to add, your Honour. I think the substantive submission that we made has a lot more to it than what is on 8 and 9 here obviously.

PN62

JUSTICE ROSS: But in relation to this issue?

PN63

MR DELANEY: In relation to this issue, I think that the proposed amendment is satisfactory from our point of view.

PN64

JUSTICE ROSS: I'm not sure where that leaves us.

PN65

MR DELANEY: I'm sorry.

PN66

JUSTICE ROSS: You've made an application to vary.

PN67

MR DELANEY: Yes.

PN68

JUSTICE ROSS: And you've set out the proposed amendment - that's what you're seeking.

PN69

MR DELANEY: Yes.

PN70

JUSTICE ROSS: It's not our proposal; it's yours.

PN71

MR DELANEY: Yes.

PN72

JUSTICE ROSS: And we have set out there an extract from your application. What I want to know really is, is the Full Bench going to determine this matter on the basis of what appears at pages 8 and 9 of this document?

PN73

MR DELANEY: Yes, your Honour.

PN74

JUSTICE ROSS: Okay. Does United Voice wish to say anything further in relation to it, other than what you have set out in your - or do you want an opportunity to put something in?

PN75

MS DABARERA: Yes, we do, your Honour, because it does change the amount that employees get on annual leave.

PN76

JUSTICE ROSS: Yes.

PN77

MS DABARERA: And we do believe that we would need to look into some of the award history and need a period of four weeks or so to make a submission - or a shorter time, as your Honour determines. But we would need to look into it, because currently employees receive their ordinary pay plus the loading of 17.5 per cent on termination, and ASIAL's submission and proposed amendment would reduce that. They would get either/or, so it's fairly significant for employees in terms of the payment on termination, and we would want to make a reasonable submission on it, your Honour.

PN78

JUSTICE ROSS: All right. Can you put whatever you wish to say in writing by 4 pm on Friday 7 September?

PN79

MS DABARERA: Yes, your Honour.

PN80

JUSTICE ROSS: And anything ASIAL wants to put in reply by 4 pm on Friday the 14th.

PN81

MR DELANEY: Yes, your Honour.

PN82

JUSTICE ROSS: And ABI can put anything it wishes to say in relation to this issue on the 14th as well.

PN83

MS THOMPSON: Thank you, your Honour.

PN84

JUSTICE ROSS: Okay. But that will finalise the plain language exercise in respect of this award. There will be some consequential changes to the PLED following on the payment of wages on termination decision and the standard clauses decision, but we will make the amendments to the PLED for those, the ones we have discussed today, and then we will publish the next version of the PLED once we have determined the question of payment on termination, and that will only leave the penalty rate issue for casuals to be determined by the other Bench. Okay? Anything further? No?

PN85

MS DABARERA: No, your Honour.

PN86

JUSTICE ROSS: Good. Thanks very much.

ADJOURNED INDEFINITELY�� [4.50 PM]