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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                       1057323

 

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT

 

AM2019/17

 

s.156 - 4 yearly review of modern awards

 

Four yearly review of modern awards – Finalisation of exposure drafts – newly constituted Full Bench
(AM2019/17)

Sydney

 

10.20 AM, WEDNESDAY, 9 OCTOBER 2019


PN1          

JUSTICE ROSS:  Could I have the appearances, please, firstly in Sydney?

PN2          

MR N KEATS:  Good morning, your Honour, my name is Keats, initial N, solicitor for the CFMMEU and MUA division.

PN3          

MS R BHATT:  Your Honour, Bhatt, initial R, appearing for the Australian Industry Group.

PN4          

MS M O'NEIL:  Your Honour, O'Neil, initial M, from the Real Estate Employers Federation.

PN5          

MR J ARNDT:  Arndt, initial J, appearing for ABI and New South Wales BC.  I appear with my colleague, Ms Whish .

PN6          

MR C DELANEY:  Delaney, initial C, for the Australian Security Industry Association.

PN7          

MS A AMBIHAIPHAR:  May it please the Commission, Ambihaiphar, initial A, on behalf of the CPU.

PN8          

MR G MILLER:  May it please, Miller, initial G, for the AMWU.

PN9          

MR S MAXWELL:  If the Commission please, Maxwell, initial S, for the CFMMEU, construction general division.

PN10        

MR S CRAWFORD:  If it pleases the Commission, Crawford, initial S, for the Australian Worker's Union.

PN11        

MS L BEHATA:  If it pleases the Commission, Behata, initial L, for the TWU.

PN12        

MR S BULL:  If it pleases the Commission, Bull, initial S for United Voice.  Sorry, I had to leave the room briefly.

PN13        

JUSTICE ROSS:  Sure.  May I have the appearances in Melbourne, please?  Can you speak into the microphone.

PN14        

MR M RIZZO:  Yes, your Honour, Michael Rizzo on behalf of the ASU, your Honour.

PN15        

JUSTICE ROSS:  Thank you.

PN16        

MR P RYAN:  Ryan, initial P, for the Australian Hotels Association.

PN17        

MS V WILES:  Wiles, initial V, for the CFMMEU, manufacturing division.

PN18        

MS J ANDREWS:  Jacinta Andrews, Independent Schools Victoria.

PN19        

JUSTICE ROSS:  I'm sorry, for who?

PN20        

MS ANDREWS:  Independent Schools Victoria.

PN21        

JUSTICE ROSS:  Thank you.

PN22        

MS F NETHERCOTE:  And Felicity Nethercote, also for Independent Schools Victoria.

PN23        

JUSTICE ROSS:  Anybody else?

PN24        

MS WISCHER:  Your Honour, if I may, Wischer ‑ ‑ ‑

PN25        

JUSTICE ROSS:  You need to go to the microphone otherwise we can't hear you.

PN26        

MS K WISCHER:  Sorry.  Your Honour, Wischer, initial K, for the Australian Nursing and Midwifery Federation.

PN27        

JUSTICE ROSS:  Thank you.  Anybody else in Melbourne?  No.  Brisbane?

PN28        

MR A NASH:  Nash, initial A, for the CPSU.

PN29        

JUSTICE ROSS:  And in Canberra?

PN30        

MR R CALVER:  If it please the Commission Calver, initial R, for the National Road Transport Association.

PN31        

JUSTICE ROSS:  All right.  Thank you.  Let's go through the matters in the order they're identified in the statement published yesterday.  A number of minor errors have been identified in the exposure drafts at paragraph 9.  Does any party contest any of those proposed corrections or errors?  Nobody - yes?

PN32        

MS O'NEIL:  No, your Honour.  However, I do have an additional one.

PN33        

JUSTICE ROSS:  We'll come to that in a minute.

PN34        

MS O'NEIL:  Thank you.

PN35        

JUSTICE ROSS:  Nobody contests in Sydney.  Anyone contest in Melbourne?  No.  Canberra?   Brisbane?  No, all right.  Additional minor errors?

PN36        

MS O'NEIL:  Yes.  Thank you, your Honour.  In relation to the Real Estate Industry Award in clause 17.4 of the exposure draft dated 2 September 17.4(a) should read '17.2 or 17.3 shall entitle an employee' et cetera.

PN37        

JUSTICE ROSS:  Which group is the Real Estate Award in?

PN38        

MS O'NEIL:  It's in group 3, your Honour.

PN39        

JUSTICE ROSS:  What's the clause?

PN40        

MS O'NEIL:  It's clause 17.4.  It's on page 26.

PN41        

JUSTICE ROSS:  Of the Real Estate Industry Award?

PN42        

MS O'NEIL:  Yes.  That's correct, your Honour.

PN43        

JUSTICE ROSS:  That's not my page 26.

PN44        

MS O'NEIL:  Okay.

PN45        

JUSTICE ROSS:  What was the clause again?

PN46        

MS O'NEIL:  It was in relation to the motor vehicle allowance.

PN47        

JUSTICE ROSS:  Yes, what's the clause number?

PN48        

MS O'NEIL:  I have 17.4 which it was in the exposure draft.

PN49        

JUSTICE ROSS:  Yes, well, it's not.

PN50        

MS O'NEIL:  Okay.

PN51        

JUSTICE ROSS:  Allowances in the exposure draft that I've got in front of me at least are clause 10.

PN52        

MS O'NEIL:  In relation to clause 10.4 just to ensure that 10.4(a) refers to clauses 10.2 and 103.

PN53        

JUSTICE ROSS:  So at the moment 10.4(a) says:

PN54        

Nothing prescribed under clauses 10.1 or 10.3 shall entitle the employee to be paid any motor vehicle allowance.

PN55        

MS O'NEIL:  Yes.  And it should read 10.2 or 10.3.

PN56        

JUSTICE ROSS:  Yes, all right.  No, I follow that.

PN57        

MS O'NEIL:  Thank you, your Honour.

PN58        

JUSTICE ROSS:  The second matter concerns the range of provisional views in respect of the exposure drafts.  A number of exposure drafts.

PN59        

MR RYAN:  Sorry, your Honour, if I may, it's Ryan, initial P, in Melbourne.  We had an additional error to raise as well.

PN60        

JUSTICE ROSS:  Right.

PN61        

MR RYAN:  It's in clause 2 of the Hospitality Award.

PN62        

JUSTICE ROSS:  Which group?

PN63        

MR RYAN:  4(f).  This was raised in our submission ‑ ‑ ‑

PN64        

JUSTICE ROSS:  No, just a minute.

PN65        

MR RYAN:  ‑ ‑ ‑of 26 April.  It's a very minor error.

PN66        

JUSTICE ROSS:  Yes.

PN67        

MR RYAN:  In clause 2 there's a definition for hospitality industry and it reads:

PN68        

Hospitality Industry is defined at clause 4.2.

PN69        

Our proposed amendment is ‑ ‑ ‑

PN70        

JUSTICE ROSS:  I can't hear you.  Can you speak into the microphone.

PN71        

MR RYAN:  Sorry.

PN72        

JUSTICE ROSS:  Clause?

PN73        

MR RYAN:  In clause 2, the hospitality industry is defined, and it reads as follows:

PN74        

Hospitality Industry is defined at clause 4.2.

PN75        

JUSTICE ROSS:  Yes.

PN76        

MR RYAN:  It's missing the word 'in'.

PN77        

JUSTICE ROSS:  Okay.  Any other changes?

PN78        

MR RYAN:  Not for the AHA.

PN79        

JUSTICE ROSS:  Sorry?

PN80        

MR RYAN:  There's no further changes for the AHA.

PN81        

JUSTICE ROSS:  All right.  Can we go to the range of provisional views set out in paragraphs 11 to 99?  Can you indicate whether any of those are contested and identify which paragraph?  In Sydney?

PN82        

MS BHATT:  Your Honour, may I remain seated while I address you?

PN83        

JUSTICE ROSS:  Sure.

PN84        

MS BHATT:  Your Honour, in relation to the Waste Management Award, paragraph 53 of the statement, AI Group does not oppose the provisional view that's expressed, but we're of the view that if that variation is adopted that a footnote may need to be inserted in the tables to ensure that the tables - the rates are clear.  I can identify what we say that should be.

PN85        

Does your Honour have a ‑ ‑ ‑

PN86        

JUSTICE ROSS:  No.  For the moment just identify the award or provisional view people have got a problem with and then we'll deal with it when we come to deal with the Waste Management Award I think.

PN87        

MS BHATT:  Yes, your Honour.

PN88        

JUSTICE ROSS:  Any others.

PN89        

MR CRAWFORD:  Your Honour, in relation to paragraph 34, that's the provisional view for the Pharmaceutical Industry Award.  We've got some concerns about the implications of the drafting there.

PN90        

JUSTICE ROSS:  What's the page number - paragraph?

PN91        

MR CRAWFORD:  Paragraph 34.

PN92        

JUSTICE ROSS:  Did you put in a submission in reply?

PN93        

MR CRAWFORD:  No.  No, we haven't, your Honour.

PN94        

JUSTICE ROSS:  It might've been helpful if you'd done that.

PN95        

MR CRAWFORD:  Yes, I accept that, your Honour.

PN96        

JUSTICE ROSS:  We'll come to that one at the end of the day.  Any others in Sydney?  No?  In Melbourne?  Canberra or Brisbane?

PN97        

MR CALVER:  Your Honour, in respect of paragraph 46 relating to the Road Transport and Distribution Award we accept the provisional view of the Full Bench and note that the first dot point under paragraph 155 where we raise the same issue can be resolved if the provisional view of the Full Bench as expressed in paragraph 6 is adopted.

PN98        

JUSTICE ROSS:  All right, let's go to the Waste Management Award.  Who else here has an interest in that award?

PN99        

MR MILLER:  The AMWU does.

PN100      

JUSTICE ROSS:  All right.

PN101      

MS BHATT:  Your Honour, the schedule of hourly rates prescribes the relevant rates, the public holiday penalties, as a percentage of the ordinary hourly rate.  The public holiday penalty regime in this award is somewhat different to other awards because the public holiday clause requires that full-time employees be paid a weekly wage and then be paid a penalty for the hours that are worked on a public holiday.

PN102      

The format adopted in the exposure draft expresses the penalty that's payable for the hours worked on a public holiday, but it doesn't make clear that the amount referable to that day, which would be a portion of the weekly wage, is also payable.  It suggests that for work on a public holiday, you're only entitled to, for example, 150 per cent of the hourly rate.  That is not in fact the case.  You are still entitled to the weekly wage that would be payable for work performed on that day.

PN103      

If I can suggest a form of words that we say should be inserted as a footnote to the table of hourly rates, which is:  'Payment for work on a public holiday is in addition to any amount payable in respect of the weekly wage (see clause 21.5(b)).'  That footnote, we say, should be inserted at A.2.1.

PN104      

JUSTICE ROSS:  'Payment for work on a public holiday is in addition to any amount payable' - I'm sorry, I missed the rest.

PN105      

MS BHATT:  'In respect of the weekly wage (see clause 21.5(b)).'

PN106      

JUSTICE ROSS:  Is there any opposition to that course from ABI?

PN107      

MR ARNDT:  No, your Honour.

PN108      

JUSTICE ROSS:  From the AMWU?

PN109      

MR MILLER:  No, your Honour.

PN110      

JUSTICE ROSS:  Anybody else wish to be heard on that?  All right, thank you, Ms Bhatt, we will adopt that suggestion.

PN111      

MS BHATT:  Thank you, your Honour.

PN112      

JUSTICE ROSS:  Let's go to the pharmaceutical matter and paragraph 34.

PN113      

MR CRAWFORD:  Your Honour, so the proposal is to essentially group together the full-time and casual weekly ordinary hours provision, but an issue may arise because I guess for full-time employees, the figure is essentially a mandatory amount of ordinary hours, whereas for casual employees, it's more of an outer limit, so a casual employee is not guaranteed the average of 38 hours.  A lot of other awards refer to, for example, an average or the lesser of the hours required to be worked or an average of 38 hours.  I think the Mining Industry Award and the Oil Refining Award are two examples of that.

PN114      

JUSTICE ROSS:  What's the problem with the proposed amendment?

PN115      

MR CRAWFORD:  Your Honour, it could indicate that a casual employee is guaranteed the 38 ordinary hours as a full-time employee is.  That wouldn't necessarily be the case.

PN116      

JUSTICE ROSS:  All right.  Ai Group, if it's based on your - - -

PN117      

MS BHATT:  It is.

PN118      

JUSTICE ROSS:  Yes.

PN119      

MS BHATT:  I understand the concern that Mr Crawford has raised.  I'm struggling to see a solution on my feet.  I think that's an issue that does need to be addressed.  In light of the issue Mr Crawford has raised, I'm not sure that the proposal that has been put by Ai Group - well, I think it inadvertently raises another issue.  Would your Honour grant me leave to consider the issue and file a short note?

PN120      

JUSTICE ROSS:  That's fine.  Can you do it in consultation with the AWU and ABI?

PN121      

MS BHATT:  Yes.

PN122      

JUSTICE ROSS:  And see if it can be put forward as an agreed position.

PN123      

MS BHATT:  Yes, your Honour.

PN124      

JUSTICE ROSS:  I don't think anyone disagrees there's an issue, it's just a question of how to resolve it.  You don't disagree there's an issue with it, Mr Crawford, you just think the solution that's raised creates a problem?

PN125      

MR CRAWFORD:  Yes, your Honour.  I suspect we might be able to sort it out.  We've had similar issues in other awards and we've generally been able to sort them out.

PN126      

JUSTICE ROSS:  All right.  The exposure draft, there's nothing else in relation to the provisional views.  Sorry, not the exposure draft, the background paper identifies at paragraph 105 and that deals with the awards in which there are no other matters in group 1.  At 137, it sets out that no contested issues are identified in the award - it's set out there - in group 2, and then we go to paragraph 157 of the statement and it says no contested issue have been identified in the group 3 awards, which are there set out, and then, finally, in group 4, there are no contested issues identified in respect of the awards at paragraph 178.

PN127      

Then what's left is the modern awards by groups 1, 2, 3 and 4 in relation to which there are issues between the parties.

PN128      

Can I turn firstly to those that we say there don't seem to be any issues raised in the submissions that we haven't already dealt with either in the provisional views or in the minor errors, or we have dealt with them in another way, they will go to a conference or they will go to another Bench, et cetera.  Just with that group, which is what we had anticipated we're not here to talk about, does anyone disagree or say that, yes, there are in fact issues we have overlooked, which is entirely possible given the number of submissions, in some of those awards that I have mentioned or referred to?

PN129      

MR KEATS:  Your Honour, there are some matters where the exposure drafts refer to matters that will be dealt with by a Full Bench shortly.  I'm not sure whether they fall into that third category.

PN130      

JUSTICE ROSS:  Which?

PN131      

MR KEATS:  If I can take you to the Seagoing Industry Award, which is in group 3C, clause 6, the effect of temporary licences, it says that the issues remain outstanding and will be dealt with shortly.  The submissions have been done.  I'm not sure whether that falls in the third category of the - - -

PN132      

JUSTICE ROSS:  No, we're not dealing with - anywhere where there's another Full Bench dealing with them or we have referred - some parties in this process have made submissions that are really directed to another Full Bench that's dealing with an issue.  No.

PN133      

MR KEATS:  And there's one issue where it says it will be dealt with after the Full Bench.  We are not dealing with that either?

PN134      

JUSTICE ROSS:  No, we're not, no.

PN135      

MR KEATS:  Okay.

PN136      

JUSTICE ROSS:  That will be the case in respect of a number of these exposure drafts.  For example, the Part-time/Casual Bench handed down a decision recently.  That might impact on this as well.  We are only dealing with the exposure drafts as published in February and March at this point.

PN137      

MS BHATT:  Your Honour, at paragraph 105, the Vehicle Manufacturing Repair Services and Retail Award is identified.

PN138      

JUSTICE ROSS:  Yes.

PN139      

MS BHATT:  As certain members of this Bench, at least, are certainly aware, there are some ongoing issues, as I understand it.

PN140      

JUSTICE ROSS:  No, no, there are, yes.

PN141      

MS BHATT:  And that might fall within a similar bucket.  My understanding is that the issues arise from the exposure drafts, but perhaps not technical and drafting issues, I think they are more substantive in nature and perhaps that answers my question.

PN142      

JUSTICE ROSS:  Yes.

PN143      

MS BHATT:  But I thought it prudent to raise that.

PN144      

JUSTICE ROSS:  No, no, I understand there are ongoing issues in that award.

PN145      

MS BHATT:  Thank you.  At paragraph 57, the Telecommunication Services Award is identified.

PN146      

JUSTICE ROSS:  Yes?

PN147      

MS BHATT:  The CPSU filed a submission in respect of this exposure draft and we responded from page 37.

PN148      

JUSTICE ROSS:  Yes, this is about where they say it correctly - is that the one or is that - - -

PN149      

MS BHATT:  No, it is.  It's a very similar issue to - I think it's the Contract Call Centres Award.

PN150      

JUSTICE ROSS:  It is, yes.

PN151      

MS BHATT:  Which is dealt with later in this statement.  We would say that that means that the Telecommunication Services Award also has an outstanding issue.

PN152      

JUSTICE ROSS:  Yes, I follow, all right.  Perhaps if you can bring it up when we come to deal with the Contract Call Centre Award because it's the same parties and the same issue really.

PN153      

MS BHATT:  Certainly.  Then one final matter.  At paragraph 178, the Joinery Award, the Mobile Crane Hiring Award and the Plumbing Award are listed.

PN154      

JUSTICE ROSS:  Yes, I will come and deal with that when we deal with the On-site Building Award, but HAA has made a submission pointing out that there was a statement issued in April in which it was - it dealt with a submission by the MBA that in respect of that construction group of awards, the exposure draft process await the determination of the Construction Full Bench.

PN155      

MS BHATT:  Yes.

PN156      

JUSTICE ROSS:  And when we got to that, I was going to indicate that that's what we will do, so we won't deal with those today.

PN157      

MS BHATT:  Thank you, your Honour.

PN158      

JUSTICE ROSS:  So, if your only interest is on the On-site Building Award, that's the answer to that issue.  When the exposure drafts come to be republished following the Full Bench decision, we will have regard to the issues ABI raises and if we think they are right, we will at least make the amendments in the exposure draft and all parties can comment on them at that stage.  Okay?  I have a mention of those awards in early December, so if there are any dates that don't suit you in early December, if you would let my associate know.  All right?  Does that deal with that issue?

PN159      

MS BHATT:  Yes, your Honour, thank you.

PN160      

JUSTICE ROSS:  Let's then start with the list that we have previously identified on the running sheet.  We will start with group 1.  The four awards here that raise issues in contention are Security Services Asphalt, the Meat Industry Award and the Poultry Processing Award.  If we go to the Security Services Industry Award, both ABI and ASIAL raise an issue about the definition of 'monitoring centre' in the exposure draft.  Does United Voice have any issue with the submissions that are put by ABI and ASIAL in respect of that issue?

PN161      

MR BULL:  No, your Honour, we don't see that there's any particular issue, but we are happy to concede that if our friends see a problem, there may be a need for some amendment.

PN162      

JUSTICE ROSS:  Yes.

PN163      

MR BULL:  It seems to relate to whether you could be at the site or off the site.

PN164      

JUSTICE ROSS:  Sure.

PN165      

MR BULL:  Both definitions seem to allow that, but if there is some peculiarity that we have missed, we are happy to not quibble.

PN166      

JUSTICE ROSS:  All right.  Mr Arndt, can I just go to you then?  If you look at the definition in the exposure draft - do you have that?

PN167      

MR ARNDT:  Yes.

PN168      

JUSTICE ROSS:  I understand from your submission and the other employer organisation the critical bit is sites that are not co-located with the centre.  That seems to be the nub of the problem, doesn't it?

PN169      

MR ARNDT:  That's correct.

PN170      

JUSTICE ROSS:  If the exposure draft read, 'Monitoring centre means a facility that remotely monitors intruder alarm systems' and put that bit in brackets, but then say, 'from sites that are not co-located with the facility', does that meet the concern?

PN171      

MR ARNDT:  I believe it does, your Honour.  That placement pretty much mirrors where it is in the current award.

PN172      

JUSTICE ROSS:  It does.

PN173      

MR ARNDT:  So I think it will do the same thing.

PN174      

JUSTICE ROSS:  What about ASIA, you are happy with that?

PN175      

MR DELANEY:  We agree with that.

PN176      

JUSTICE ROSS:  Okay.  United Voice, you're content with that?

PN177      

MR BULL:  Yes, your Honour.

PN178      

JUSTICE ROSS:  All right.  Let's go to United Voice's submission relating to clause 14.4 of the exposure draft.  You say that clause 21.6(a) of the current award has been deleted and you propose a variation to 14.3?

PN179      

MR BULL:  Correct.

PN180      

JUSTICE ROSS:  ABI and ASIAL?

PN181      

MR ARNDT:  That clause was deleted after a decision in November 2018.  The additional words which are sought to be put back, they don't seem inconsistent with that decision.  Personally, I'm not entirely sure what they add to it, but, other that, we don't oppose it.

PN182      

JUSTICE ROSS:  Just bear with me.  When you say they were deleted, have you got the reference to the decision?

PN183      

MR ARNDT:  The reference is - it's actually [2018] FWCFB 6755.

PN184      

JUSTICE ROSS:  Yes, at?

PN185      

MR ARNDT:  Paragraph 10.

PN186      

JUSTICE ROSS:  So it deleted this operationally impracticable?

PN187      

MR ARNDT:  The reason why it deleted it is because the amended clause or the exposure draft clause at that time, as I understand it, introduced a paid entitlement, a paid meal break entitlement, where one didn't exist before in the current clause.  By deleting that whole clause, it has taken out the definition of what 'operationally impractical' means.  So, in that sense, we don't oppose the reintroduction of that definition, notwithstanding we don't think it adds anything to how the clause would be interpreted or how the clause would actually work.

PN188      

So, we query whether it's necessary, but we don't oppose it and it certainly doesn't run contrary to the original Full Bench decision which deleted it.  The deletion of it was in relation to a different issue.

PN189      

JUSTICE ROSS:  Yes, all right.  Bear with me for a moment.

PN190      

MR ARNDT:  If it helps just to note, your Honour, I think the footnote in the statement that was published, footnote 72, is actually a footnote to an incorrect - it's an incorrect footnote.

PN191      

JUSTICE ROSS:  Right.  I follow.  If you go to the statement, Mr Bull, at paragraph 113, it sets out what you are proposing.  Can you just check the words in red?  Is that what you are proposing?

PN192      

MR BULL:  Yes, I believe so.

PN193      

JUSTICE ROSS:  I'm not sure it makes sense.

PN194      

MR BULL:  I didn't draft it.

PN195      

JUSTICE ROSS:  It's sort of a double negative in search of a - - -

PN196      

MR BULL:  I suppose it's trying to define what's operationally impracticable.

PN197      

JUSTICE ROSS:  Yes, but it doesn't really say that.

PN198      

MR BULL:  No.

PN199      

JUSTICE ROSS:  It will be operationally impracticable unless - - -

PN200      

MR BULL:  It's trying to say, I think, it's impractical if you can't leave the premises.

PN201      

JUSTICE ROSS:  Why is that operationally impractical?

PN202      

MR BULL:  Well, they are security guards, they have to watch things, and if there's no one else to replace you, I suppose.  If you've got to, you know, always have someone in the gatehouse and the person who is going to fill in for 20 minutes can't fill in, that would make it operationally impracticable to have your break.

PN203      

COMMISSIONER BISSETT:  So what then follows if they don't get the break?  Is there something else that follows?

PN204      

MR BULL:  I am unable to assist at this stage.  Usually there's some sort of penalty, but there may just be a contravention of the award which - - -

PN205      

COMMISSIONER BISSETT:  You're trying to protect against?

PN206      

MR BULL:  Trying to protect against.

PN207      

MR ARNDT:  If I might attempt to assist.  The 2018 decision, which, as I said, the reference is incorrect in the statement, that decision specifies that a paid meal break doesn't arise, so I think the question from the Bench is a very good one:  what actually happens?  If you go through the definition of what is operationally impracticable, it doesn't appear - well, it doesn't arise in a paid meal break, it doesn't seem to really take us anywhere, and if I were going to guess, I would say that that's why the definition was taken out in the 2018 decision because it doesn't really take us anywhere.

PN208      

JUSTICE ROSS:  All right.  Is there anything you want to say for ASIAL?

PN209      

MR DELANEY:  I have nothing to add to that, your Honour.

PN210      

JUSTICE ROSS:  All right.  Anything further on this point?

PN211      

MR ARNDT:  No, your Honour.

PN212      

JUSTICE ROSS:  We don't think the proposed variation is necessary or particularly helpful, so we don't propose to make it.

PN213      

MR BULL:  If the Commission pleases.

PN214      

JUSTICE ROSS:  Let's move to - I think those were the only issue for the security matter.  Let's move to the asphalt

PN215      

MR RYAN:  Your Honour, may I be excused?  It's Ryan for the AHA Melbourne.

PN216      

JUSTICE ROSS:  Yes, certainly.

PN217      

MR BULL:  Might I also be excused?

PN218      

JUSTICE ROSS:  Yes, sure, nobody needs to ask.  Just out you go.  Let's go to the Asphalt Award.  ABI's made a submission which is opposed by the Ai Group.  Have you had a chance to reflect on - - -

PN219      

MR ARNDT:  I have had a chance to reflect on that.  We proposed a solution to a problem which was an imperfect solution.  Might I just go back to the actual problem which we have, which is the fact that the schedule F definition of - - -

PN220      

JUSTICE ROSS:  Just bear with me a moment, Mr Arndt, I'll just - - -

PN221      

MR ARNDT:  We'll go to, it's if it helps, 115 of the statement.

PN222      

COMMISSIONER BISSETT:  Pardon?

PN223      

MR ARNDT:  115 of the statement.

PN224      

JUSTICE ROSS:  Yes, schedule F?

PN225      

MR ARNDT:  So the only issue we have is that where it says casual ordinary hourly rate means the hourly for a casual employee for the employee's classification specified in clause 10.

PN226      

JUSTICE ROSS:  Yes.

PN227      

MR ARNDT:  If you go to clause 10 it doesn't have casual hourly rates.  It just has base or day worker full-time hourly rates.

PN228      

JUSTICE ROSS:  Well is it intended to say means the hourly rate for a casual employee - but it's for the employee's classification specified in 10.  That just sets out skill levels.  So in other words, I mean look, I would read it that you go to 10, you work out well, which skill level - what's the employee's classification?  If it's skill level 3, for example, then their minimum hourly rate is $20.87.  Then one goes back to it, and then you say plus the casual loading et cetera.  Isn't that - - -

PN229      

MR ARNDT:  I think that's how I would read it as well, only because - - -

PN230      

JUSTICE ROSS:  Then we're done, Mr Arndt, so.

PN231      

MR ARNDT:  May I just suggest one possible alternative?

PN232      

JUSTICE ROSS:  Yes.  Well you're going to have to persuade Ms Bhatt before you get to us.

PN233      

MR ARNDT:  Ms Bhatt hasn't heard this possible alternative.  Mr Crawford has and he was - - -

PN234      

JUSTICE ROSS:  So you're just lining everybody up.

PN235      

MR ARNDT:  He was interested in it, your Honour.  He was interested.  Instead to change the current exposure draft, the casual ordinary hourly rate means the hourly rate for the employee's classification specified in clause 10 plus the casual loading industry allowance and inclement weather allowance.

PN236      

JUSTICE ROSS:  Yes, I follow.

PN237      

MR ARNDT:  Exactly.

PN238      

JUSTICE ROSS:  So it means the hourly for - - -

PN239      

MR ARNDT:  The employee's classification specified in clause 10 plus the casual loading, industry allowance and inclement weather allowance.

PN240      

JUSTICE ROSS:  So you just delete a casual employee 4?

PN241      

MR ARNDT:  That's right.  Ms Bhatt?

PN242      

MS BHATT:  No objection.

PN243      

JUSTICE ROSS:  You're okay with that, Mr Crawford?

PN244      

MR CRAWFORD:  Yes, I am, Your Honour.

PN245      

JUSTICE ROSS:  I think that's the only outstanding issue for that award.  Then the Meat Industry Award.  Is the AMIEU here?  No.  The first issue is the addition of the expression 'ancillary products'.  Is there something you want to say about that, Ms Bhatt?

PN246      

MS BHATT:  Only very briefly to supplement the written submissions we've filed.  Having revisited the issue, to the extent that it relates to clause 8.5(b).

PN247      

JUSTICE ROSS:  Yes.

PN248      

MS BHATT:  That clause essentially prescribes an alternate span of hours for certain types of work.

PN249      

JUSTICE ROSS:  Yes.

PN250      

MS BHATT:  I think our submission says that the additional words shouldn't be inserted because it might create some uncertainty as to the coverage.

PN251      

JUSTICE ROSS:  Yes.

PN252      

MS BHATT:  I think that might more specifically be described as a concern that it potentially alters the span of hours for certain types of work in circumstances where we don't know when that work is undertaken and whether it's intended that this different span of hours apply.  So it's on that basis that we say that the Commission shouldn't make the proposed change.

PN253      

JUSTICE ROSS:  Well as I understand it the AMIEU and ABI were not opposed to it but they weren't exactly advocates for it either.  Is that fair, Mr Arndt?

PN254      

MR ARNDT:  That's a fair characterisation.

PN255      

JUSTICE ROSS:  Well if that's where we are; one party's opposed because your concern is it might actually expand the operation of these particular clauses, and none of the other parties are enthusiastic, we would not include the additional words.  If on reflection AMIEU wants to put an affirmative case as to why they should, they can make an application to vary the award and it can be dealt with.

PN256      

There's an issue around higher duties and here the - - -

PN257      

MS BHATT:  Your Honour - - -

PN258      

JUSTICE ROSS:  Yes.

PN259      

MS BHATT:  - - - sorry, just before we get to that issue.  The issue with ancillary products and whether those words should be inserted also arrives as in the context of two other clauses.

PN260      

JUSTICE ROSS:  It does.  Clause A2.4 and schedule H?

PN261      

MS BHATT:  I don't mean to overstep, I'm not sure if it's convenient to deal with those issues together because there's some relationship between them.

PN262      

JUSTICE ROSS:  But if we're not going to add the words 'and any ancillary products' to any of those.

PN263      

MS BHATT:  I understand.

PN264      

JUSTICE ROSS:  Yes.  Unless you think we should.

PN265      

MS BHATT:  No.

PN266      

JUSTICE ROSS:  No, right.  Higher duties.  This is an issue about the different thresholds.

PN267      

MS BHATT:  I think we've said all that we can say about it in our written submissions.

PN268      

JUSTICE ROSS:  Yes, all right.  Well we'll resolve that on the material we've got.  In relation to the next issue, this is the five and the 12.5 per cent.  As I understand it, Ai Group doesn't oppose an amendment being made to address the issue.  It's just the form of the amendment and you want to confine it to what the provision actually says, and I think one of the issues is the AMIEU proposal refers to cleaning employees but - and they refer to the word penalty, whereas the actual clause talks about cleaners and rate.  That's the nub of it?

PN269      

MS BHATT:  Yes, it is, your Honour.

PN270      

JUSTICE ROSS:  Nothing further in relation to that?

PN271      

MS BHATT:  No, your Honour.

PN272      

JUSTICE ROSS:  The last one is the AMIEU's proposed amendment to clause 16.1(b).  Anything further you want to say about that?

PN273      

MS BHATT:  No, your Honour.

PN274      

JUSTICE ROSS:  Right.  No other issues with Meat?  Let's go to Poultry.  I think the only issue here is higher duties which raises at least one similar point about the higher threshold but the - you agree that the words 'four hours or less during one day' should be inserted.  If we look at the exposure draft in para 10.5, which is extracted at the - in the statement, where would that go?

PN275      

MS BHATT:  10.5(b).

PN276      

JUSTICE ROSS:  Yes.

PN277      

MS BHATT:  I'm reading the second line from the - - -

PN278      

JUSTICE ROSS:  Yes, 'for four hours or less'.

PN279      

MS BHATT:  'Or less during one day'.

PN280      

JUSTICE ROSS:  Can I take you back to the Meat Award for a moment, Ms Bhatt.

PN281      

MS BHATT:  Yes, your Honour.

PN282      

JUSTICE ROSS:  Just if you look at 12.1 of the exposure draft, can you see that?

PN283      

MS BHATT:  Yes.

PN284      

JUSTICE ROSS:  The issue between you is the exposure draft says, 'An employee required to perform the duties', et cetera.  The award says, 'An employee engaged' et cetera.  The AMIEU submit there's a different - I'm not sure if the characterisation of their submission's right or the exposure draft's not right.  Because we say there the clause the AMIEU submit provides a threshold et cetera.  Clause 12 of the exposure draft provides for a higher duties paid (indistinct) employee is 'required by the employer to perform the duties of the position'.  Whereas it doesn't actually say that in 12.  The reason I've gone to it is it does say that in the Poultry Award but not in the meat exposure draft.

PN285      

MS BHATT:  I'm just looking at the submission that was filed by the union.

PN286      

JUSTICE ROSS:  Yes.

PN287      

MS BHATT:  The submission appears to have been reproduced accurately, it's paragraph 11 of their submission.

PN288      

JUSTICE ROSS:  Yes.

PN289      

MS BHATT:  It might be the submission slightly misstates what the exposure draft in fact says.

PN290      

JUSTICE ROSS:  Right, they may have put the same submission that they were advancing in the poultry matter.

PN291      

MS BHATT:  Yes.

PN292      

JUSTICE ROSS:  All right, well I understand the issue that you put on poultry.  Anything further you wanted to say about that?

PN293      

MS BHATT:  No, thank you, your Honour.

PN294      

JUSTICE ROSS:  Right.  Let's go to the Nurses matter.  The issue here in short are the competing submissions that the AMNF, the PHIEA and ABI about well, what's the leave loading for shift worker based on; 4, 5, 6 weeks et cetera,  and each of you have different views about that.  In looking at the current exposure draft clause, clause 17.8, and you compare that with clause 31.7 of the award, both of which are set out in the statement, the exposure draft is not seeking to change, not in any significant way, the language that's used in the current award.  Which gives rise to a question about well, if we're not changing it and we can make it clear for that matter in any decision that it's not our intent to change the meaning of 31.7, then two options present themselves.

PN295      

One, we could try and resolve the conflict between the parties.  We would then have to consider well, how would we give effect to any such resolution and at least two of you are going to be unhappy with the outcome of that.  Alternatively, bearing in mind that this doesn't seem to have been an issue with the current wording, it's only arisen because a question was asked of you, we could simply leave the wording in the exposure draft as it appears at clause 17.8 of the exposure draft, each of you say you've got a different - you would interpret that differently but we don't need to resolve your difference.  If the matter arises in a dispute well ultimately the court would determine.  I suppose it's a long way of saying I'm starting to regret asking the question.  No, you can remain seated, Mr Arndt, it'd be easier I think.

PN296      

MR ARNDT:  From the perspective of ABI, I mean we're content to go down the second simple alternative course.

PN297      

JUSTICE ROSS:  So we'd simply leave 17.8 in the exposure draft as it appears.  We would note in any decision dealing with this that we're not expressing a view about the competing interpretations of the current 31.7, or what is now 17.8, nor is it our intention to change the legal effect of the current clause 31.7 that deals with annual leave loading.  The AMNF?

PN298      

SPEAKER:  (Indistinct)  Thank you, your Honour.  We would be happy with option 2 to leave the clause as drafted.

PN299      

JUSTICE ROSS:  Right.  Well I think you can take it that that's the option we'll be adopting.  Let's go to the Road Transport Long Distance Operations Award.  The statement sets out in dot point form a number of issues raised by NatRoad.  Let's go through those clause by clause.  Clause 3.2.  Can I - I think I'd read the Ai Group's submission that it agreed but it suggested an alternate response and I wasn't sure what that was.

PN300      

MS BHATT:  I think the alternate proposal is that  either the definition of long distance operation and interstate operation be included in the coverage clause and that the schedule containing definitions refer readers to the coverage clause, or those two definitions, or the reverse.  I think the proposition was that there need not be duplication, the definition shouldn't be included in two.

PN301      

JUSTICE ROSS:  Yes, okay.  So you should have both of them in the coverage clause or both of them in schedule F.

PN302      

MS BHATT:  Yes.

PN303      

JUSTICE ROSS:  TWU?  Yes, what do you think about this?

PN304      

MS BEHATA:  I don't have any specific instructions on this, your Honour, but I think we would agree they should be in the same place.

PN305      

JUSTICE ROSS:  Right.  NatRoad?

PN306      

MR CALVER:  Your Honour, the issue is because the definitions are dependent one on the other, either submission would satisfy my instructions.  So long as they're together and not replicated.

PN307      

JUSTICE ROSS:  Right.

PN308      

MR CALVER:  So in other words if the AiG suggestion is adopted that's fine.

PN309      

JUSTICE ROSS:  Let's got to the proposed change at 6.4(g).  Ai Group contends that the proposed change is not necessary as 6.4(g) deals with the work of a part-time employee and it may be confusing to introduce the idea of duties into the second part.  What does NatRoad want to say in response to that?

PN310      

MR CALVER:  Well it's used in the award when we deal with casuals and full-time workers in respect of the notion of loading and unloading.  The expression is being considered by the Federal Circuit Court and the part-time provision is new so it may well have been overlooked that the term duties should be consonant with other provisions in the award.  I don't believe that any confusion would arise by clarifying that the work of a part-time employee encompasses duties as expressed in both the allowance the provision relating to a casual, your Honour.

PN311      

JUSTICE ROSS:  So you're proposing to put this - I see.  Why would you use duties in the introduction to (g) - so on your proposition it would read:

PN312      

A part-time employee may agree to an employer request for them to

PN313      

rather than - what, you would take work out there and put - where's the change?

PN314      

SPEAKER:  The change relates to loading and unloading, your Honour.

PN315      

JUSTICE ROSS:  Yes.  So what, you take out 'work' from there and you put in 'duties,' is that the idea?

PN316      

SPEAKER:  That's to be consistent with the way it's expressed in respect of loading and unloading in the definition of that term, and in respect of casual work, your Honour.

PN317      

JUSTICE ROSS:  Where does the definition of that term appear?

PN318      

SPEAKER:  I think in clause 11.6, but let me check.

PN319      

JUSTICE ROSS:  Yes.  I see.  It says, 11.6(a), 'when an employee is engaged on loading and unloading duties.'

PN320      

SPEAKER:  Yes, sir, that's it.

PN321      

JUSTICE ROSS:  And at 6.5(c) refers to duties as well.

PN322      

SPEAKER:  Yes, and because these provisions have been subject to Federal Circuit Court decision where the notion of duties link back to the definition of loading and unloading and - - -

PN323      

JUSTICE ROSS:  No, we understand.  All right.

PN324      

SPEAKER:  Yes, correlated with work - - -

PN325      

JUSTICE ROSS:  No, it's fine.

PN326      

SPEAKER:  Yes - consistency, yes.

PN327      

JUSTICE ROSS:  Yes.  No, we get the message.  Okay.

PN328      

SPEAKER:  Yes.

PN329      

JUSTICE ROSS:  Can we go to 6.5(b)?  Was there anything the TWU wanted to say about 6.4(g)?

PN330      

MS BEHATA:  No.

PN331      

JUSTICE ROSS:  No?  6.5(b)?  So what change would Ai Group have to what's proposed by NatRoad?

PN332      

MS BHATT:  Well I think NatRoad's submission is that CPK, which appears in brackets, should be deleted, and we say that it's not necessary to delete it.  CPK, as I understand it, is a commonly‑used and understood term in the industry as a form of remuneration.  I think NatRoad's point is that CPK as an abbreviation is not used elsewhere in the exposure draft.

PN333      

JUSTICE ROSS:  Is it defined?  Isn't it defined in (g) just above?  There it talks about 'cents per kilometre (CPK).'

PN334      

MS BHATT:  Yes.

PN335      

JUSTICE ROSS:  Why would you take it out of casual employment and not part‑time employment, Mr Calver?

PN336      

MR CALVER:  It should be properly defined or deleted as an abbreviation, your Honour.  That's all - - -

PN337      

JUSTICE ROSS:  Well it is defined.  It appears after 'cents per kilometre (CPK).'

PN338      

MR CALVER:  Yes, look, we would be prepared to withdraw that submission.  It's not a matter of moment.

PN339      

JUSTICE ROSS:  Okay.  Clause 7?  Mr Calver, the change to clause 7, just take me through that.

PN340      

MR CALVER:  Your Honour, these two awards, the Road Transport (Long Distance Operations) Award and the Road Transport and Distribution Award operate hand‑in‑hand, and the first two levels of a transport worker appear only in the Road Transport and Distribution Award, so that when you reach - - -

PN341      

JUSTICE ROSS:  I see, yes.

PN342      

MR CALVER:  - - - when you reach level 3 in the Road Transport and Distribution Award, currently that would be equivalent to level 1 in the Long Distance Award.  So because of the consonance of the definitions and the way in which the awards are structured, the exposure drafts determine that levels 1 and 2 would be recognised in the Long Distance Award, which we support, but - - -

PN343      

JUSTICE ROSS:  No, I follow.

PN344      

MR CALVER:  Just in (a) doesn't tell the reader enough.

PN345      

JUSTICE ROSS:  No, sure, and you want to put a note in saying these grades are not used to classify employees covered by this award?

PN346      

MR CALVER:  Yes.

PN347      

JUSTICE ROSS:  Do you want to reference to the other award?  So these grades are used in the Road Transport and Distribution Award - - -

PN348      

MR CALVER:  The note already does that.

PN349      

JUSTICE ROSS:  - - - but not used to classify employees in this award?

PN350      

MR CALVER:  The note at the end of clause 7 already does that, your Honour.  It reads, 'Grade levels in this award align with' - - -

PN351      

JUSTICE ROSS:  Yes, I see.  So given the note already does that at the end, what are you proposing you put in the note instead of 'NA?'  'See note below?'

PN352      

MR CALVER:  We could put, 'See note below.'  'These grades are not used to classify employees covered by this award:  see note below' would be even more clear, because that's a relationship which is - - -

PN353      

COMMISSIONER BISSETT:  Or you could just shift the note.

PN354      

MR CALVER:  It needs clarity, because it's quite often not understood.

PN355      

JUSTICE ROSS:  You could just put the note at the top.  Instead of grades 1 and 2, and then 'NA,' you just have the note and then you go to grade 3 below.

PN356      

MR CALVER:  Anything for greater clarity of that relationship would be acceptable, your Honour.

PN357      

JUSTICE ROSS:  All right.  Are you content with that, Ms Bhatt?

PN358      

MS BHATT:  Yes, I am.

PN359      

JUSTICE ROSS:  TWU?

PN360      

MS BEHATA:  Yes.

PN361      

JUSTICE ROSS:  All right.  This is the issue raised about clauses 8.2 and 9.2.  As Ai Group notes, we see what the proposal is, but we're not sure what the amendment is.

PN362      

MR CALVER:  Well I can provide a form of words, your Honour.  The words that appear in the first line of 8.2(a) say, 'Where applicable, hours of work will be in accordance with' - - -

PN363      

JUSTICE ROSS:  Yes.

PN364      

MR CALVER:  And then we merely put, 'Fatigue management rules/regulations, as defined in schedule F.'

PN365      

JUSTICE ROSS:  Fatigue management/rules - sorry, rules/regulations?

PN366      

MR CALVER:  'Fatigue management rules/regulations, as defined in schedule F.'

PN367      

COMMISSIONER BISSETT:  And you delete the rest of the words then in 8.2(a)?

PN368      

MR CALVER:  Yes.  Yes, because - - -

PN369      

JUSTICE ROSS:  Yes.

PN370      

COMMISSIONER BISSETT:  Because it's defined.

PN371      

MR CALVER:  Your Honour, that forms part of that - that is the definition.  So the basic point is why have a definition then replicate the words elsewhere when it's already defined.

PN372      

COMMISSIONER BISSETT:  Thank you.

PN373      

JUSTICE ROSS:  Yes.

PN374      

SPEAKER:  No opposition.

PN375      

JUSTICE ROSS:  No opposition, all right.  Clause 11.1(a)?

PN376      

MR CALVER:  It's a continuation of the point about the grades 1 and 2.  We just believe that having a rate that's then struck out is misleading.

PN377      

JUSTICE ROSS:  Yes.  So just have the note - instead of the strike‑out, the note saying:  'These grades are not used to classify employees covered by this award?'

PN378      

MR CALVER:  Yes, your Honour.

PN379      

JUSTICE ROSS:  Okay.  No opposition?  Can we go to clause 11.4(a)?  Does the current award - this is whether - the short point is that the cents per kilometre to two decimal places in clause 11.4(a), but in schedule A are to four decimal places, and you would prefer that they're consistent and your preference and Ai Group's preference is that they're consistent to two decimal places.  What's the position in the current award?

PN380      

MR CALVER:  It's two decimal places.

PN381      

MS BHATT:  That's right, your Honour.

PN382      

JUSTICE ROSS:  All right.  So if it's two decimal places in each, is anyone opposed to that?  No?  TWU?

PN383      

MS BEHATA:  No.

PN384      

JUSTICE ROSS:  All right.  Can I just go back to schedule A and the reference there to the Full Bench decision?  Did the Full Bench decision insert that schedule at four decimal places?

PN385      

MS BHATT:  I can't recall, your Honour.

PN386      

JUSTICE ROSS:  Anybody know?

PN387      

MR CALVER:  I'm sorry, your Honour, I don't have that reference.

PN388      

JUSTICE ROSS:  Mr Calver, it might be resolved on the basis that they're referring to two different things.  I don't think they're inconsistent.  11.4 is referring to cents per kilometre, and schedule A is referring to dollars per kilometre.

PN389      

COMMISSIONER BISSETT:  That's why one is in 4.

PN390      

JUSTICE ROSS:  Yes.

PN391      

MR CALVER:  Well this is a new notion, your Honour, expressing it in terms of dollars.  The whole industry, as AIG emphasised, revolves around the notion of the CPK rate.  Expressing it in that way may cause confusion.

PN392      

COMMISSIONER BISSETT:  So the question is consistency between 11.4(a) and the table at schedule A1.  Then perhaps the schedule at A1 gets changed to cents per kilometre, which makes (indistinct) 41.11 and 41.86, so it's exactly - it is actually the same figure.  So perhaps changing it to cents per kilometre in schedule A.

PN393      

JUSTICE ROSS:  Yes.  Everybody happy with that?

PN394      

MR CALVER:  Yes.

PN395      

JUSTICE ROSS:  The codes?  They should be given their correct title.  Anyone - this is at clause 12.2, et cetera.  No opposition?  Then if we go to clause 12.3(a).  It refers to weekly employees.  This is about 12.3.  12.3(a), so a weekly employee required to purchase a work diary.  So rather than a weekly employee - yes - look, there are a couple of ways of dealing with this issue.  One would be 12.3(a) says, 'a full‑time or part‑time employee required to,' and deal with it that way, and don't have the definition, 'a weekly employee.'  Then it means the reader doesn't have to go to two places.  Everyone content with that?

PN396      

MR CALVER:  Yes.  Happy with that, your Honour, given it's an expression only used in two places in the draft.

PN397      

JUSTICE ROSS:  Well it's only used in 12.3(a), and it's then defined in the schedule, is that right?

PN398      

MR CALVER:  Yes, your Honour.

PN399      

JUSTICE ROSS:  All right.  12.3(c), the travelling allowance, so the word 'on' should remain in the text, and it's struck out at the moment.  So, 'An employee engaged in ordinary travelling on duty or on work, on which the employee' - yes, I see - yes, not a model of clarity, is it?

PN400      

MR CALVER:  You could take out the words, 'on which,' and replace them with, 'where,' for even greater clarity, your Honour.

PN401      

JUSTICE ROSS:  Right.  'An employee engaged in ordinary travelling on duty or on work, where the employee?'

PN402      

MR CALVER:  Yes.

PN403      

MS BHATT:  I think the submission we put, your Honour, was that the word, 'means,' which you struck out, should be retained.

PN404      

JUSTICE ROSS:  Yes, I see.  So if you take out 'on,' that would resolve the problem?

PN405      

MS BHATT:  Take out 'on' and keep 'means.'

PN406      

JUSTICE ROSS:  Yes.

PN407      

MS BHATT:  I think that resolves it.

PN408      

JUSTICE ROSS:  Does that solve your problem too, Mr Calver?

PN409      

MR CALVER:  Yes.  It's just it's not a meaning.  It's just not a - the only problem with that, your Honour, is it's not a meaning.  It's an event, which, where it eventuates, the employee is unable to return home.  But yes, outbreak of pedantry really.

PN410      

JUSTICE ROSS:  All right.  Well I'm not sure the submissions can take it any further, so we'll resolve that issue on the basis of what you've put.  Then RTO advances four additional points.

PN411      

MS BHATT:  Your Honour, the submissions identified at paragraph 154 appear to actually be RTO's submission about the Road Transport and Distribution Award.

PN412      

JUSTICE ROSS:  Okay.

PN413      

MS BHATT:  Not the Long Distance Award.

PN414      

JUSTICE ROSS:  Yes.

PN415      

MS BHATT:  I'm not sure if RTO is appearing today.

PN416      

JUSTICE ROSS:  No, they're not.

PN417      

MR CALVER:  So that was the point I was to make, your Honour.

PN418      

JUSTICE ROSS:  No, that's fine.

PN419      

MR CALVER:  They don't relate to the Long Distance Award.

PN420      

JUSTICE ROSS:  Yes, that's fine.

PN421      

MR CALVER:  So they're covered in paragraphs 155 to 156, if we want to look at them as - - -

PN422      

JUSTICE ROSS:  Yes, and I'm just checking they're the same ones that - they're the same ones that appear later?

PN423      

MR CALVER:  Yes.

PN424      

JUSTICE ROSS:  That's fine, and also they don't arise in this one.  So that concludes everything for the Road Transport (Long Distance).  Let's go to the Road Transport and Distribution Award.

PN425      

MR CALVER:  The first dot point is resolved, your Honour, if the provision view expressed earlier, as I mentioned, is accepted.  So I believe that that matter is put to bed.

PN426      

JUSTICE ROSS:  All right.  And 13.3(d)?

PN427      

MR CALVER:  Yes.  The definition in the award is, 'employee handling money,' which is misleading when you're looking for the allowance in relation to handling money.  We think the word, 'employee,' should be dropped and the manner of its expression clarified.

PN428      

JUSTICE ROSS:  Ai Group says it's already defined.  Do you want to go to that, Ms Bhatt?

PN429      

MS BHATT:  Yes.  I think the submission is that the term, 'employee handling money' is defined, which is at page 76 of the exposure draft.

PN430      

JUSTICE ROSS:  Yes.  So it means an employee who collects or pays out money, including non‑negotiable cheques, and who is responsible for the safe custody of the amount so collected to be paid out.

PN431      

MS BHATT:  And that's the term, 'employee handling money', that's used in the relevant allowance clause.  If NatRoad's proposition was to be adopted the definition would need to be redrafted because it's currently drafted by reference to the employee doing certain things, not the thing that is being done.

PN432      

JUSTICE ROSS:  Yes.

PN433      

MS BHATT:  We're just not sure that any of that is necessary.

PN434      

JUSTICE ROSS:  Yes.  Mr Calver?

PN435      

MR CALVER:  Well, there are two elements, your Honour.  The definition should speak as to its term.  It's about handling money.  It's not about an employee per se, so we'd like to see the definition changed to handling money, and as RTO expressed in their submission the definition doesn't express the period and industry practice is that it's payable for a weekly period hence the change that we propose.

PN436      

So the definition that you see there in the dot point would be, handling money refers to the process of an employee receiving and giving cash in an enterprise covered by this award in a weekly period  to cover Ms Bhatt's point about referencing an employee.

PN437      

JUSTICE ROSS:  13.3(d) where does it appear in there?

PN438      

MS BHATT:  It should be (e), your Honour.

PN439      

JUSTICE ROSS:  (e), okay.

PN440      

MR CALVER:  It should be (e), yes.  Thank you.

PN441      

JUSTICE ROSS:  Employee handling money as defined.

PN442      

MR CALVER:  So just to be clear, your Honour, we'd like it to drop the word 'employee' and we'd like for it to express the period covered which triggers the allowance.

PN443      

JUSTICE ROSS:  Yes.  All right.

PN444      

MR CALVER:  It's got the weekly rate there in any event so that, you know, it's doing no more than clarifying the monetary obligation accruing in that particular period.

PN445      

MS BHATT:  Yes, I have to say ‑ ‑ ‑

PN446      

JUSTICE ROSS:  The ‑ ‑ ‑

PN447      

MS BHATT:  Sorry, your Honour.

PN448      

JUSTICE ROSS:  Yes.  Does the TWU oppose the proposition that's being put?

PN449      

MS BEHATA:  I don't have a position on that at the moment, your Honour, but I think we don't have anything to say about it.  I think we'll leave it to the Commission.

PN450      

JUSTICE ROSS:  All right.  Ms Bhatt?

PN451      

MS BHATT:  Your Honour, I have to say looking at that part of the proposal from NatRoad that deals with the period of time over which the work is performed it's our understanding that the way the provision is applied in practice is the allowance is payable in any week that that work is performed.  I think that is the intention of the set of works proposed by NatRoad.  I'm not sure that it goes far enough.  I think RTO raises a similar point.

PN452      

JUSTICE ROSS:  They do.

PN453      

MS BHATT:  And we've suggested a form of words at paragraph 102 of our submission.

PN454      

JUSTICE ROSS:  Yes.  Bear with me for a moment.

PN455      

MS BHATT:  Yes, your Honour.

PN456      

JUSTICE ROSS:  So you would insert the following wording under the heading of clause 13.3(e) and above the table:

PN457      

An employee handling money will be entitled to a weekly allowance in accordance with the following table based on the highest amount of money that they are required to handle in a given week.

PN458      

MS BHATT:  Because there might also be an issue about which quantum of the allowance you're entitled to if you were handling different amounts of money in a given week.  This clarifies it's the highest of whatever you've handled.

PN459      

JUSTICE ROSS:  But wouldn't you also have to define what handling money means?

PN460      

MS BHATT:  Yes.  And on our set of words the definition of 'employee handling money' would remain in the definition schedule.  We're not proposing that that be deleted.

PN461      

JUSTICE ROSS:  All right.  Mr Calver, what do you say to Ai Group's proposal?

PN462      

MR CALVER:  Your Honour, it's another perfectly acceptable way of dealing with giving greater clarity.

PN463      

JUSTICE ROSS:  13.3, do you think the full title should go in, Mr Calver?

PN464      

MR CALVER:  Yes, your Honour.

PN465      

JUSTICE ROSS:  Nobody disagrees?  All right.  Yes, the schedule C point also arises on Friday in relation to tranche one and we'll deal with that then.  But speaking for myself, Mr Calver, I think you might be right because the note talks of the - the impression it may leave is that if you pay the monetary amount in the schedule then that means all of your obligations under the award including those to meal breaks, leave, et cetera, it's not confined to wages and allowances for example, so I think it's too broad as presently expressed, but it's an issue that we'll have out on Friday and we'll put out a provisional view about that prior to that hearing.

PN466      

MR CALVER:  Thank you, your Honour.

PN467      

JUSTICE ROSS:  There's this issue about hourly rates for oil distribution workers where, as I understand it, NatRoad says the issue has been abandoned.  The TWU says they're still pressing it.  Isn't that really a matter for - there's been a Full Bench dealing with the substantive claims in this award, hasn't there?

PN468      

MR CALVER:  I think that Full Bench is functus officio now, though, your Honour.  The point I made in the email to your associate dated 23 September is that the TWU had until 20 September to file submissions on its exposure draft.

PN469      

JUSTICE ROSS:  No, no, Mr Calver ‑ ‑ ‑

PN470      

MR CALVER:  Sorry.

PN471      

JUSTICE ROSS:  ‑ ‑ ‑we're not going to engage in whether they have or they haven't abandoned their claim.  We'll simply take the note out and ‑ ‑ ‑

PN472      

MR CALVER:  Okay.

PN473      

JUSTICE ROSS:  ‑ ‑ ‑we're not expressing a view about whether they've abandoned their claim or not.  If the TWU seeks to agitate that claim before the Full Bench in AM2016/32 that's a matter for them, and you can, Mr Calver, take whatever position you want in response to that.  We'll just take the note out for this point and we'll leave you both to it.

PN474      

MS BHATT:  Your Honour, can I just raise one issue about that, to the extent that it's relevant to the TWU's consideration of this.  The issue arises in the context of the exposure draft because of the schedule of hourly rates.

PN475      

JUSTICE ROSS:  Yes.

PN476      

MS BHATT:  As I understand it the debate is should the weekly rates prescribed by the current award be divided by 38 or 35 when being calculated for oil distribution workers.  The exposure draft appears to divide the weekly rates by 35.

PN477      

JUSTICE ROSS:  Yes.

PN478      

MS BHATT:  That might mean that the issue has resolved itself from the TWU's perspective and there is nothing further to agitate unless any employer party in the context of the exposure draft proceedings takes a different view, and to my knowledge no such party has raised that issue in these proceedings.

PN479      

JUSTICE ROSS:  Okay.

PN480      

MS BHATT:  But I just raise that for the union's consideration.

PN481      

JUSTICE ROSS:  Yes.  All right.

PN482      

MR CALVER:  Thank you.  That was a similar point to that which I was to make, your Honour.  That is that taking out the note does not resolve the issue.

PN483      

JUSTICE ROSS:  We'll take out the note and when this exposure draft comes up in the tranches when dealing with the finalisation and it's still an issue we can deal with it then.

PN484      

MR CALVER:  Thank you, your Honour.

PN485      

JUSTICE ROSS:  Can I go to the RTO points.  The first one is - I think this is the handling of money issue that we've already canvassed.  The second one, this is the shift allowances point, Ai Group notes that the term is actually defined.

PN486      

MS BHATT:  Yes, your Honour.

PN487      

JUSTICE ROSS:  And RTO is not here.  Anyone else supporting RTO's position?  No?  All right.  RTO's third point is around clause 15.4, and Ai Group says look, there may be merit in amending clause 15.3 to include a reference - can we just go to 15.3.

PN488      

MS BHATT:  That should say 15.4.

PN489      

JUSTICE ROSS:  No, there was ‑ ‑ ‑

PN490      

MS BHATT:  Probably a typographical error, in our submission.

PN491      

JUSTICE ROSS:  Yes, okay.  So ‑ ‑ ‑

PN492      

MR CALVER:  We would agree with that, your Honour ‑ ‑ ‑

PN493      

JUSTICE ROSS:  Can I just take you ‑ ‑ ‑

PN494      

MR CALVER:  ‑ ‑ ‑that there is merit in clarifying.

PN495      

JUSTICE ROSS:  Ms Bhatt, can I just take you to 15.4?

PN496      

MS BHATT:  Yes, your Honour.

PN497      

JUSTICE ROSS:  What would the change be?

PN498      

MS BHATT:  If your Honour will bear with me one moment.  The simplest might be to insert the words, 'of the ordinary hourly rate after 25 per cent'.

PN499      

MR CALVER:  We would agree with that, your Honour.

PN500      

JUSTICE ROSS:  All right.  TWU?

PN501      

MS BEHATA:  We're content with that, your Honour.

PN502      

JUSTICE ROSS:  All right.  Well, I think those are the only issues for the Road Transport and Distribution Award.

PN503      

MR CALVER:  I seek leave to withdraw, your Honour, in respect of my appearance given that those two awards are my sole interests today.

PN504      

JUSTICE ROSS:  Certainly.  Ms Bhatt, do you have something else?  Ms Whish, yes?

PN505      

MS WHISH:  I might just add to assist my colleague that ABI and NSWBC broadly support AiG's position.

PN506      

JUSTICE ROSS:  In relation to the Road Transport and Distribution Award?

PN507      

MS WHISH:  And the long distance.

PN508      

JUSTICE ROSS:  Yes, no problem.  Thank you.

PN509      

MS BHATT:  I just might note, your Honour, two things, in relation to the Road Transport and Distribution Award my understanding is that ABI also filed a submission dated 15 March.

PN510      

JUSTICE ROSS:  Yes.  I'm sorry about that, Ms Whish.  I don't know why I didn't - no, I've got it.  Yes.  Yes, sorry.  Yes.  I've got Ai Group's response.  Yes.  Just bear with me for a moment.

PN511      

MS BHATT:  Perhaps they're dealt with in an earlier ‑ ‑ ‑

PN512      

JUSTICE ROSS:  I think they are.

PN513      

MS BHATT:  I'm sorry, your Honour.

PN514      

JUSTICE ROSS:  I think it's dealt with either in ‑ ‑ ‑

PN515      

MS BHATT:  I'm sorry, of course.

PN516      

JUSTICE ROSS:  ‑ ‑ ‑the errors and omissions section.

PN517      

MS BHATT:  Yes, I withdraw that.

PN518      

JUSTICE ROSS:  Yes, it is.  Footnote -no, bear with me for a moment.  Yes.

PN519      

MS BHATT:  Paragraph 46.

PN520      

JUSTICE ROSS:  Forty-six, yes.  Yes.  So I think they've already been canvassed.  Okay.  So nothing else for those two awards?

PN521      

MS BHATT:  In relation to the Long Distance Award I just want to be sure that I haven't misled your Honour.  I identified earlier that RTO's submissions identified in the statement related to the Road Transport Distribution Award.

PN522      

JUSTICE ROSS:  Yes.  Yes.

PN523      

MS BHATT:  They have made submissions about the Long Distance Award that aren't picked up in the statement.

PN524      

JUSTICE ROSS:  Yes, at (2).

PN525      

MS BHATT:  Yes, your Honour.

PN526      

JUSTICE ROSS:  So they say that the words CPK - there are four:

PN527      

CPK should be defined to mean cents per kilometre in schedule F.

PN528      

What do the parties say about that?

PN529      

MS BHATT:  We say a definition is not necessary.  CPK as a term is not used in isolation anywhere in the exposure draft.

PN530      

JUSTICE ROSS:  It also appears immediately after cents per kilometres in the two points that we had the previous discussion about.  Anyone take a different view?  No?

PN531      

MR CALVER:  No, your Honour.

PN532      

JUSTICE ROSS:  The second one is subclause 6.5(c).  This is the loading and unloading.  They say it should be made clear the 25 per cent loading is paid on the minimum rate.

PN533      

MR CALVER:  It's not an issue that has occurred in practice from our perspective, your Honour.

PN534      

JUSTICE ROSS:  No.  Because it talks about the loading and unloading rate for their classification plus a loading of 25 per cent, so ‑ ‑ ‑

PN535      

MS BHATT:  And I think clause 11.6(c) of the exposure draft it perhaps deals more specifically with how the 25 per cent is to be calculated in the context of loading and unloading.

PN536      

MR CALVER:  And given that this has been subject - the provision has been subject to judicial consideration we would not want to change it.

PN537      

MS BHATT:  We don't think any variation is necessary.

PN538      

JUSTICE ROSS:  All right.  Can we go to 8.5(b) and 8.5(d).  It's said that they're inconsistent in how each determines the payment rate.

PN539      

MS BHATT:  We agree.  Can I propose a form of words ‑ ‑ ‑

PN540      

JUSTICE ROSS:  Sure.

PN541      

MS BHATT:  ‑ ‑ ‑to the extent that we haven't already.  In relation to 8.5(d) ‑ ‑ ‑

PN542      

JUSTICE ROSS:  Just bear with me for a moment.

PN543      

MS BHATT:  Yes, your Honour.

PN544      

JUSTICE ROSS:  Yes, sorry.

PN545      

MS BHATT:  I'll just read the clause:

PN546      

Employees must be paid for RDOs at 20 per cent of the applicable rate prescribed by clause 11.1.

PN547      

JUSTICE ROSS:  Sorry, Ms Bhatt, 8.5(d)?

PN548      

MS BHATT:  Yes.

PN549      

JUSTICE ROSS:  Yes.  So instead of what's there it would say, 'Employees'?

PN550      

MS BHATT:  'Must be paid for RDOs at 20 per cent of the applicable rate prescribed by clause 11.1'.

PN551      

JUSTICE ROSS:  So you'd insert the words '20 per cent at of the applicable'?

PN552      

MS BHATT:  Yes.

PN553      

JUSTICE ROSS:  Does anyone oppose that?

PN554      

MR CALVER:  No, your Honour.

PN555      

COMMISSIONER BISSETT:  Sorry, Ms Bhatt, should it be the 'applicable minimum weekly rate' so that it's consistent with 8.5(b)?

PN556      

MS BHATT:  Yes, Commissioner.  Thank you.

PN557      

JUSTICE ROSS:  So the words would be 'the applicable minimum rate'.

PN558      

COMMISSIONER BISSETT:  'Minimum weekly rate'.

PN559      

MS BHATT:  'Minimum weekly rate'.

PN560      

JUSTICE ROSS:  Yes, sorry, the '20 per cent of the applicable minimum' are the words to be inserted before 'rate'.  The last point raised by RTO notes that the term 'long distance operation' appears twice in schedule F and I think this is dealt with in your reply submissions, Ms Bhatt.

PN561      

MS BHATT:  It's similar to the point raised by NatRoad.

PN562      

JUSTICE ROSS:  Sorry?

PN563      

MS BHATT:  It's similar to the point raised by NatRoad which we discussed earlier.

PN564      

MR CALVER:  That's been dealt with, I think.

PN565      

JUSTICE ROSS:  Yes, all right.  Okay.  Nothing else in relation to this?

PN566      

MR CALVER:  No.  May I refresh my application to withdraw, your Honour?

PN567      

JUSTICE ROSS:  No, certainly.  No problems.

PN568      

MR CALVER:  Thank you.

PN569      

JUSTICE ROSS:  The Contract Call Centre Award.  Now, there's only, as I understand it, one issue in relation to this award, and the same issue arises in relation to ‑ ‑ ‑

PN570      

MS BHATT:  Telecommunications.

PN571      

JUSTICE ROSS:  ‑ ‑ ‑Telecommunications Award, and it's this, that it arises from the CPSU's submission which notes that in relation to the Contract Call Centres Award that schedule B 2.3 deals with overtime for casual employees and they submit that, 'We believe this to be accurate'.  And the rates in schedule B 2.3 apply to casual employees performing overtime and Ai Group contends that the casual loading is not payable during overtime during the current awards and that the rates in the schedule are as a result of an administrative error.  That's the short point?

PN572      

MS BHATT:  Yes, it is.

PN573      

JUSTICE ROSS:  Can I go to the CPSU.  Where in the current award do you say that casuals are entitled to overtime?

PN574      

MR NASH:  Our view is that the table is accurate and we think some of this has been clarified since these decisions were made by a Full Bench decision in the ANMF v Opal Aged Care, and referring to the clauses in the current award rather than the exposure draft, because I note the exposure draft has changed the wording slightly around these clauses, but to look if there's going to be a change in entitlement, we need to refer to the current award.  Clause 13.1 states:

PN575      

A casual employee for working ordinary time will be paid one 38th of the weekly wage plus 25 per cent.

PN576      

An identically worded clause in the Opal Aged Care decision held that this constitutes the ordinary wage or the ordinary rate for an employee and it's on that ordinary rate, including the 25 per cent loading, that the multiplier for overtime works, your Honour.

PN577      

JUSTICE ROSS:  Have you raised this issue with the Part-time and Casual Full Bench that's dealing with overtime for casuals?

PN578      

MR NASH:  Yes, we have and I note both the Contract Call Centre and the Telecommunications Services Industry Award are both under active consideration by that Full Bench.

PN579      

JUSTICE ROSS:  All right, well, if that's the case, then we would, at this stage, follow Ai Group's point and revert to the previous position and then, once the Full Bench rules on the question, we would then make the appropriate amendment to the schedule, because the schedule, as currently framed, may give the impression that we are pre‑empting the outcome of that other Full Bench matter where you say overtime for casuals is under active consideration in this award and the other award.

PN580      

MR NASH:  Your Honour, we would say that the current award, as it is written, we say gives that entitlement to the casual loading on overtime and changing the B.2.3 to explicitly state that there's no casual loading paid, we would argue that that would be a substantive change.

PN581      

JUSTICE ROSS:  No, no, we will just take the schedule out.

PN582      

MR NASH:  Okay.

PN583      

JUSTICE ROSS:  We won't deal with casuals and overtime at all.  We will wait until the other Full Bench makes a ruling on it and then we will give effect to it.

PN584      

MR NASH:  That sounds sensible, your Honour.

PN585      

JUSTICE ROSS:  We will do that for both awards.  That meets your concern as well?

PN586      

MS BHATT:  It appears that if the CPSU's position is pressed, then it would have to be dealt with.  It's not my understanding that the proper interpretation of the current awards is the subject of active consideration by that Full Bench.  Maybe it will be now because the position has been pressed and that will be what it will be.

PN587      

JUSTICE ROSS:  Yes, but, for the moment, we will take it out of the two exposure drafts and wait and see what happens.  Okay?  That resolves the issues in relation to those two awards.

PN588      

MS BHATT:  Your Honour, it doesn't.  The Telecommunication Services Award - - -

PN589      

JUSTICE ROSS:  Which group is that in?

PN590      

MS BHATT:  If your Honour will bear with me.  I'm told 3.

PN591      

JUSTICE ROSS:  Which group?

PN592      

MS BHATT:  Group 3.

PN593      

JUSTICE ROSS:  Group 3.

PN594      

MS BHATT:  Perhaps I can address your Honour on what the issue is.  It might be that the Full Bench doesn't need to turn to the relevant exposure draft or award.

PN595      

JUSTICE ROSS:  Yes.

PN596      

MS BHATT:  The CPSU filed a submission on 29 March which, in addition to the issue about casual rates, deals also with other rates that are prescribed in schedule B.2.4 which they say apply to shift workers and they have proposed various amendments to the headings to the tables.

PN597      

JUSTICE ROSS:  Yes.

PN598      

MS BHATT:  We have, inadvertently, not responded to that part of their submission and I am not in a position to be able to do that on my feet today.  It has come to our attention late in the day.  May I have a short window to review their submission and file a short note if we have any concerns?

PN599      

JUSTICE ROSS:  Sure, and if you have any concerns in relation to it, the CPSU will be given an opportunity to respond to those in writing as well.

PN600      

MS BHATT:  Thank you, your Honour.

PN601      

JUSTICE ROSS:  All right?  Let's then go to Educational Services (Schools).  The Independent Schools Victoria make a submission in relation to the definition of night shift.  Is the IEU here?  Is the ISV here?

PN602      

MS WISCHER:  Yes, we are.

PN603      

JUSTICE ROSS:  Have you had a discussion with the IEU about your proposal?

PN604      

MS WISCHER:  No, not to our knowledge, no.

PN605      

JUSTICE ROSS:  All right.  We will ascertain from the IEU whether - we will write to them asking them to indicate their position in relation to it and, as we have indicated, if the proposal is contested, it will be referred to a separate Full Bench to deal with it as a substantive issue.

PN606      

MS WISCHER:  Okay.

PN607      

JUSTICE ROSS:  If you are in contact with the IEU and you are able to ascertain their position in the meantime, if you could let us know as well, that would be helpful.

PN608      

MS WISCHER:  We will.

PN609      

JUSTICE ROSS:  Thank you.  No other issues in that award?

PN610      

MS WISCHER:  No.

PN611      

JUSTICE ROSS:  Then we are into Pastoral.  The meal break issue remains outstanding.  Do we have - we have got ABI's NFF here?  No?

PN612      

MR ROGERS:  Yes, your Honour, Rogers from the FF.

PN613      

JUSTICE ROSS:  Yes, Mr Rogers, okay.  The appropriate rate does appear to be - if we deal with the shearing shed expert rate, it does appear to be 2.63.

PN614      

MR ROGERS:  Yes, your Honour.

PN615      

JUSTICE ROSS:  Do you want to go through your other issues?

PN616      

MR ROGERS:  I don't know there's an awful lot that I can add to what we have already said.  2.63 appears to be correct.  It's just that there was a bit of discussion and it - - -

PN617      

JUSTICE ROSS:  No, no, I think that one's fine.  Is the other issue around the meal breaks which is currently reserved by the Pastoral Full Bench?  Is that right?

PN618      

MR ROGERS:  That's correct, and then there was an issue - I know that you're not interested in entertaining it - but there was an issue around the language in the change to clause 30.2, but you have expressed a view on that and I don't know that there's much more that I can add to it.

PN619      

JUSTICE ROSS:  Okay.

PN620      

MS WISCHER:  Your Honour, ABI just has a comment to make in relation to the plain language redrafting.  We agree with the NFF.  However, there is a decision of the Commission in relation to that.

PN621      

JUSTICE ROSS:  Yes.

PN622      

MS WISCHER:  That being said, there does appear to be an issue.  Perhaps we could take leave to see if there's a way to amend the wording so that it doesn't affect part-time employment.

PN623      

JUSTICE ROSS:  Certainly.  All right, if you can file something in the next few days and we will invite comment from other interested parties?  Anything further on Pastoral?  No?

PN624      

MR ROGERS:  Nothing from the FF, your Honour.

PN625      

JUSTICE ROSS:  Okay, thank you.  Let's go to Educational Services (Teachers) Award.  This is a question about the RDOs and the question that's asked after schedule A, 2.12.  The IEU has made a submission and the Associations take a different view.  Is there anything that you wish to add to the written submission from the ISV?

PN626      

MS WISCHER:  Yes, if we could just make one point.

PN627      

JUSTICE ROSS:  Sure.

PN628      

MS WISCHER:  We note that under clause 15 of the draft award, ordinary hours of work are averaged over 12 months, this recognises that teacher's work is variable during term time and that teachers are generally not required to attend during non term weeks.  In these circumstances we don't see that RDO's can be applied in schools and schools to our knowledge have not eve had RDO's.

PN629      

JUSTICE ROSS:  Yes.

PN630      

MS WISCHER:  Just one further point, by virtue of this averaging arrangement teachers are already provided with a substantial monetary benefit for any additional time worked during the non term weeks - during term weeks, beg your pardon.

PN631      

JUSTICE ROSS:  Thank you.  I think that's the only issue before us in relation to this award?

PN632      

MS WISCHER:  Yes, that's right.

PN633      

JUSTICE ROSS:  Thank you.

PN634      

MS WHISH:  Your Honour, ABI and NSWBC would agree with the comments made at paragraph 186 and that it's best kept in the schedule.  It does appear to be an entitlement under the Children's Services Award, hence it's been pulled across into what I might coin the Children's Services Schedule to the Teachers Award.

PN635      

JUSTICE ROSS:  I see, all right.  So you support the position of the Association?

PN636      

MS WHISH:  I do.

PN637      

JUSTICE ROSS:  The SCHCADS Award.  Yes, okay, well neither the ASU or National Disability Services are here.  Does ABI have a view about this?

PN638      

MS BHATT:  Our view was to agree - - -

PN639      

MR RIZZO:  Your Honour - - -

PN640      

JUSTICE ROSS:  I'm sorry Mr Rizzo, I'll come back to you.  I'll just deal with ABI's submission first. Yes.

PN641      

MS BHATT:  Our view on the papers is to agree with that of NDS.  It might be worthwhile to mention that at paragraph 400 of the decision that's referred to in the statement - sorry, at paragraph 188 of the statement, there's a decision that's referred to.

PN642      

JUSTICE ROSS:  Yes.

PN643      

MS BHATT:  That decision said that that particular matter about the note at 15.1 would be decided on the papers.  I wasn't actually sure whether or not it had been decided on the papers yet or whether that was pending.

PN644      

JUSTICE ROSS:  I don't know either.  Mr Rizzo, did you want to say something in support of your submission?

PN645      

MR RIZZO:  Yes, your Honour.  We would just like to adopt the position of the Commission at paragraph 189 of the statement of 8 October.  That's my instructions in relation to this award.

PN646      

JUSTICE ROSS:  Yes, I don't think that's we propose, I think that's just picking up from your submission so that's not our view.  I think you'd take 'we' out, so that's what you're seeking.

PN647      

MR RIZZO:  Sorry, your Honour, I misread that.  I thought - - -

PN648      

JUSTICE ROSS:  No, no, no, I don't think you misread it.  I think it's a typographical error.  'We' shouldn't be in there, so I don't think it's your error.  What do you say about the NDS's response?  See they broadly agree with you but they've got a different view on the notes.  Does their proposal about the notes cause you any concern?

PN649      

MR RIZZO:  Yes, they do, your Honour, because we have a view as we stated in our submission that it's in relation to the transitional pay equity order or the equal remuneration order may be required.  Now they propose slightly different wording and they've underlined some of their wording there in their submission but I think what we're proposing is clearer.

PN650      

JUSTICE ROSS:  Well I'm not sure I see what the difference is.  They're simply saying you might be entitled to an additional payment in accordance with either the applicable transitional pay equity order or the applicable equal remuneration order.  So both of your options include both instruments.

PN651      

MR RIZZO:  Yes, I'm not sure why the emphasis is, your Honour, on this word 'applicable'.  I'm not sure - it seems superfluous to me but it is emphasised in their submission so I don't quite understand the import of it.

PN652      

JUSTICE ROSS:  No, I'm not sure either.  I can see the force of putting in either/or but I'm not sure what applicable means.

PN653      

MR RIZZO:  No, neither am I.  That's why we'd rather have our wording which I think is just clearer.

PN654      

JUSTICE ROSS:  Do you have any view about this, Ms Wischer?

PN655      

MS WISCHER:  Not at this stage, your Honour.

PN656      

JUSTICE ROSS:  Right.  All right, well we'll decide that issue on the material that's been filed and I think those are the only issues aren't they, the notes?

PN657      

MR RIZZO:  Yes.

PN658      

JUSTICE ROSS:  Yes, all right.  Well we'll leave the SCHCADS Award.  We'll come to the Architects Award.  Look, is anyone who's present have an interest in the Architects Award?  No.  What's not clear in the submission by Platinum Employee Relations is they appear to be seeking a set of new wage rates and if that's right, then that should be the subject of a reference to another Full Bench.  I'll check whether there are any other matters that have been - or claims made in the Architects Award, whether a Bench has already been constituted to deal with them.  If it has then I'd be minded to send both of the submissions by Platinum and by the Architects Accreditation Council because they're proposing an updating of clause 15.2 but I'm not sure whether that has any implications for wages rates either.  But as neither are here we can't take it too much further.

PN659      

The last one before lunch was the Building On-site Construction Award, which we had dealt with earlier by not dealing with it, and that leaves us with at 2 pm we'll resume and deal with the Electrical Electronics and Communications Contracting Award and the Registered and Licensed Clubs.  Are either ABI or Ai Group in the Registered and Licensed Clubs matter?

PN660      

MS BHATT:  No, your Honour.

PN661      

MS WISCHER:  Yes, we are.

PN662      

JUSTICE ROSS:  I might ask you to - it does seem, I'll get you to raise this with them during the adjournment break that a number of the issues raised by Clubs look a lot like substantive variations, and it on the face of it may be more appropriate to have them dealt with by a Full Bench, a separate Full Bench to this one, given that we're only dealing with the technical and drafting issues associated with the translation of the current award into a simplified format.  There was a previous Full Bench constituted to deal with Clubs matters and that might be the appropriate place for a range of these issues.  So if you wouldn't mind if you should bump into them putting them on notice about that issue, Ms Whish, and then we'll deal with it later on.

PN663      

MS WISCHER:  Thank you.

PN664      

JUSTICE ROSS:  Nothing further?  We'll adjourn until 2 o'clock, thank you.

LUNCHEON ADJOURNMENT                                                          [12.10 PM]

RESUMED                                                                                                [2.02 PM]

PN665      

JUSTICE ROSS:  So we've got two remaining matters.  The Electrical Electronic and Communications Contracting Award and the Registered and Licensed Clubs.  Let's deal with the Electrical Award first.  I might take the appearances in relation to that award since there's been some shifts at the Bar table.  Who's got an interest in that award, in Sydney?

PN666      

MS A AMBIHAIPHAR:  May it please the Commissioner, Ambihaiphar, initial A, on behalf of the CEPU.

PN667      

JUSTICE ROSS:  Thank you.

PN668      

MS R BHATT:  Bhatt, initial R, for Ai Group.

PN669      

MR J ARNDT:  Barnes, initial J, and Ms Wischer for ABI and New South Wales Business Chamber.

PN670      

JUSTICE ROSS:  Thank you.  Anyone interstate?  Is the MEA present?  No.  The issues fall into two groups; ABI has identified a range of issues and rounding matters and they put forward a resolution at paragraph 1.4 of their submission.  That process would resolve the matters that have been raised by ABI.  As I understand it, Ai Group and the CEPU do not oppose the proposition outlined by ABI.  Is that right?

PN671      

MS BHATT:  That's correct, your Honour.

PN672      

JUSTICE ROSS:  Right, well that can be resolved on that basis.  Look, it's a pity the Master Electricians are not here because I had a number of questions about their proposal.  They're wanting to amend the definition of hourly rate of pay in B1.1.  At the moment the definition includes the industry allowance and the tool allowances and then B1.1(ii) talks about that there may be additional allowances that are payable.  The short point is they want to add the electricians license allowance into the definition in B.1.1 and picking up the point that the CEPU raises, it would necessarily follow that the rates would change to pick up that allowance.

PN673      

I think the difficulty is this, that - at least the difficulty I had with it was this.  That the ordinary hourly rate definition includes allowances that you know will be applicable to certain classification matters.  That is, you know that the industry allowance will apply to everybody and you know that the tool allowance will apply to electrical workers at Grade 5 and beyond.

PN674      

A difficulty with that in the electricians allowance is you don't know - I don't know at least, that might be a better way of putting it, to which grades that allowance would be payable.  It certainly wouldn't be able at 1, 2, 3, but I don't know where it cuts in et cetera, and I don't really see - I mean where do you begin and end with you know that sort of proposition.  I'm just not sure what it adds to it given that it's made clear in B1.2 that if an additional allowance is payable to those which are referred to in 1, well you've got an entitlement to that allowance.  Am I missing something or is it easier than I think it would be to give effect to what the MEA is doing, or proposing to do?

PN675      

MS BHATT:  I'm not sure that it would be any easier.  I mean it's for this very reason that we understand that the Commission has adopted the approach of calculating rates in the schedules based on - if I can call it the lowest common denominator.  It includes only the all purposes allowances that are payable to all employees covered by the award.  Any all purpose allowance that is payable to only a subset of those employees hasn't been included in the rates.

PN676      

JUSTICE ROSS:  Yes.

PN677      

MS BHATT:  We think the schedule makes abundantly clear that any such allowance is to be added to the rates that are prescribed.

PN678      

JUSTICE ROSS:  Yes.  Well that seems to make sense, it's consistent with the approach in others.  Does the CEPU have a different view?

PN679      

MS AMBIHAIPHAR:  No, not at this stage, not at all.

PN680      

JUSTICE ROSS:  Right.  I think that deals with the electrical award matters.  Can I go to the Registered and Licensed Clubs.  Can I take the appearances in respect of that matter?

PN681      

MR S BULL:  Commission pleases, Bull, S, appearing again for that award for United Voice.

PN682      

JUSTICE ROSS:  Thank you.

PN683      

MR M USHAKOFF:  Your Honour, it's Ushakoff, M.  U-s-h-a-k-o-f-f, appearing on behalf of Clubs Australia Industrial.

PN684      

JUSTICE ROSS:  Thank you.

PN685      

MS S WISCHER:  Wischer, initial S, on behalf of ABI and NSWBC.

PN686      

JUSTICE ROSS:  Thank you.  Well it seems you agree on one thing, that the amendment to the first sentence of clause 18.2.  This is to clarify the application of the first aid allowance.  So you agree on that - does everyone agree on that point?

PN687      

MR USHAKOFF:  Yes, your Honour.

PN688      

MR BULL:  Yes, your Honour.

PN689      

JUSTICE ROSS:  And just nothing else basically.

PN690      

MR USHAKOFF:  There may be some room for further agreement, your Honour, following some discussions earlier.

PN691      

JUSTICE ROSS:  Right.  In relation to the issue around the provision of tools, and this deals with clause 19.3(c)(i), there seem to be a counter proposal.  Have you landed anywhere on that?

PN692      

MR USHAKOFF:  Your Honour, we haven't landed anywhere on that specific issue but 19.3(i) obviously talks about cooks being reimbursed for the equipment and we believe that the subclause (9) is in reference to all other employees.  We simply wanted to clarify that cooks wouldn't be double dipping on both of those clauses, which we think is rather self-explanatory, if my friend agrees.

PN693      

MR BULL:  I don't think you can double dipping on an allowance which is a reimbursement allowance, so that would be I think fraud.  The concern we have is that unfortunately allowances are - they're indexed to different factors and so forth.  They relate to different things.  An all size fits all approach doesn't necessarily work, so we believe that it is appropriate to maintain distinct allowances for distinct things.

PN694      

JUSTICE ROSS:  Right.  There's an issue between you about the application of 13.1.

PN695      

MR USHAKOFF:  Yes, your Honour, that's correct.  With the junior employees in relation to an area where alcohol is sold, it our understanding and our position that employees that are serving alcohol or are working in an area where alcohol is served and involved in the provision of the service of alcohol should quite rightly be paid the adult rate.  This also reflects the position in the Restaurant Industry Award and also in the Hospitality Industry General Award, their relevant junior employee clauses talk about employees working as liquor service employees, and we feel that that makes perfect sense if someone is handling and dealing with alcohol and responsible for the service of alcohol, they should be paid the adult rate.  But someone is picking up glasses or someone working in the kitchen or working in an area or in another function where alcohol is not - where they are not performing alcohol service, we think that that should be clarified.  Otherwise as we have submitted the junior rates have no work to do because the whole club effectively is an area where liquor is sold.

PN696      

JUSTICE ROSS:  That's issue one, that's at paragraphs 213 to 214 of the statement.  Does ABI have a view about that issue before we move to the next one?  Ms Wischer?

PN697      

MS WISCHER:  At this stage we're broadly supportive of the proposition put forward by Clubs.

PN698      

JUSTICE ROSS:  Then we go to the second issue is at 217 to 218.  Is that right?  That's the - what the rate in clause 18.4 includes.

PN699      

MR USHAKOFF:  Yes, your Honour.  In relation to our maintenance and horticulture employees being employed on a casual basis, as is the case with mostly all casual employees across the country we believe they should be engaged and paid the appropriate loading, and the award should be reflected - should be amended to reflect that.  There are casual maintenance and horticultural employees and that they should be remunerated accordingly.  There's just some disparity in the maintenance and horticultural clauses and no provision being made for their casual engagement.

PN700      

JUSTICE ROSS:  There's an issue between 219 to 220 as we've discussed around this issue of the provisions for reimbursement et cetera, and lastly there's an issue between you about whether or not the late and early work penalty in clause 24.4 is paid on a pro rata basis.

PN701      

MR BULL:  If I can perhaps assist the Commission and we'll withdraw our objection to that in that the plain language draft does appear to thankfully reflect the terms of the current award, which talks about hours or parts of hours.

PN702      

JUSTICE ROSS:  So there's no issue arising in respect of 24.4?

PN703      

MR BULL:  That's correct.

PN704      

JUSTICE ROSS:  The course we propose to take in relation to the matters that are in dispute is to arrange for a conference to be held before a member of the Bench and the purpose of that will be to see if we can facilitate a resolution of the issues and, if we can't, to deal with some directions for the filing of further material because, look, to some extent the submissions filed are a bit declaratory, that is, you set out what your position is but there's not really much in the way of merit argument to support it and we, in relation to some of them, are going to want to know what the background to the provision is and how does it work in practice and there may be a need to bring evidence in relation to those issues as well.  So, rather than do it on the basis of what's before us, that is the course we would propose to adopt.

PN705      

All right?  Nothing further?  Yes, Ms Bhatt?

PN706      

MS BHATT:  Your Honour, may I raise an issue or housekeeping in relation to the proceedings on Friday?

PN707      

JUSTICE ROSS:  Yes.

PN708      

MS BHATT:  I ought to have raised this at the start of the day when the other parties were here and I do apologise.  The statement published yesterday has obviously proven to be a very useful - - -

PN709      

JUSTICE ROSS:  Yes.

PN710      

MS BHATT:  - - - tool in relation to today's proceedings.  We are keen to prepare in a way that assists the Commission and facilitates the efficient conduct of the  proceedings on Friday.  I'm not sure if your Honour is in a position to be able to give the parties any indication as to whether any documentation or background material will be published.

PN711      

JUSTICE ROSS:  Yes, it will.  Part of the problem is we have only just received the submissions in reply.

PN712      

MS BHATT:  Of course, and I don't mean to - - -

PN713      

JUSTICE ROSS:  Look, we worked on a draft overnight and hope to have it finished later today and we will hope to get it out tomorrow.  On the face of it, it's likely to follow a similar format to the one that was prepared for today's hearing.  There do seem to be a range of minor clerical cross-referencing errors, typographical errors, if I can categorise them that way.  There also seem to be a number of awards in which no matters are raised.  There are some general issues around operative date and around - they are connected, so, an issue Ai Group has raised about operative date, an issue ABI has raised about the part-time casual case and giving effect to that, et cetera.

PN714      

Can I indicate that one issue that arises - the metal workers have responded to the submission that we should issue the determinations and they should operate three months down the track or some period.  We have had a brief discussion about that issue.  It's not that we are adverse to the idea of providing notice, but one thing we want you to think about is, well, what happens if - let's say we issued variation determinations next week and they come into effect from 1 February or early February, and what happens if the Part-time and Casual Full Bench then issues variation determinations affecting those same awards?

PN715      

I am just anxious that we don't, in an effort to provide sufficient time, we don't provide more confusion.  Just have a think about how do we deal with variation determinations from other Full Benches that come into operation between when we issue the variation determination and when it comes into effect, and I think, look, by and large, the issues seem relatively straightforward.  There aren't very many of them, there have only been 10 or so submissions.  If we have any questions, then we will endeavour to put them in the statement to draw the parties' attention to them, and if we have a question that goes to put into a party, "Well, you have raised the issue, what form of words would you suggest?", we will endeavour to put that in the statement as well so people can put on notice about it.  All right?

PN716      

MS BHATT:  I am grateful, your Honour, thank you.

PN717      

JUSTICE ROSS:  No, no problem.  Anything else?

PN718      

MR BULL:  Your Honour, we may have forgotten the casual fitness instructors engaged in registered and licensed clubs.

PN719      

MR USHAKOFF:  Your Honour, I'm happy for that to be addressed in the proposed conference as an issue.  Thank you, your Honour.

PN720      

JUSTICE ROSS:  What was the issue about casual fitness instructors?

PN721      

MR BULL:  Well, they are an industrial peculiarity in the sense that they only have - there's a minimum hourly rate, which is $47.72, which is inclusive of the casual loading, and our view is that the plain English draft - they should be entitled to - if they work unsocial hours, they should be entitled to penalty rates.  There's absorption of the loading in this award generally with penalties, so we have suggested that in order to clarify that there's an entitlement to penalties, when appropriate, that you need to disaggregate it so you know what the base rate is and that they should be entitled to penalties if they conduct the aerobics class on Sunday and so forth.

PN722      

COMMISSIONER BISSETT:  Is there a current entitlement to penalties?

PN723      

MR BULL:  We believe so, yes, because the clause - - -

PN724      

COMMISSIONER BISSETT:  Yes, I wasn't clear from the way you had explained it whether it was clear in the existing award whether - - -

PN725      

MR BULL:  Well, the current award simply says "employees".  It excludes horticultural and maintenance people in certain circumstances, but, otherwise, it says that employees are entitled to penalties and so forth, and the nature of the work is that they are often very short engagements and so forth, intense, and it's appropriate that if they are - - -

PN726      

JUSTICE ROSS:  There's only so much aerobics you can do, Mr Bull.

PN727      

MR BULL:  I haven't done it for a very long time.  You've probably done more classes than me.

PN728      

JUSTICE ROSS:  I wasn't suggesting you draw on your personal experience.

PN729      

MR BULL:  I walk the dog, that's about it, up hills.  Anyway, maybe that can go to the conference.

PN730      

JUSTICE ROSS:  Yes, that's fine, I understand the issue now.  We will make sure that we canvass that as well.

PN731      

All right, thanks very much, we will adjourn.

ADJOURNED INDEFINITELY                                                            [2.21 PM]