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Fair Work Act 2009�������������������������������������� 1057325






s.156 - 4 yearly review of modern awards � Finalisation of exposure drafts � newly constituted Full Bench � Tranche 1



Four yearly review of modern awards




10.18 AM, FRIDAY, 11 OCTOBER 2019


JUSTICE ROSS:  Can I have the appearances, please, firstly in Melbourne?


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


JUSTICE ROSS:  Thank you.  In Sydney?


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


JUSTICE ROSS:  It might be easier if you'd just keep your seats, and you won't have trouble with the microphone.  Thanks.


MR G MILLER:  If the Commission pleases, it's Mr Miller, initial G, appearing with my colleague, Mr Rabaud, initial J.




MR MILLER:  For the AMWU, sorry.


JUSTICE ROSS:  Yes.  That's all right.


MR L IZZO:  If it please, Izzo, initial L, with Hamberger, initial H, appearing for ABI and NSWBC.


JUSTICE ROSS:  Thank you.


MS E SILUS:  Silus, initial E, for the CFMMEU, Mining Managing Division.


JUSTICE ROSS:  Yes.  Thank you.


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


JUSTICE ROSS:  Thank you.  What else have we got?  No other appearances?  All right.  We published a statement in relation to this matter.  It was published late yesterday. One of the reasons, or the reason for that was the AWU filed its submission late.  Mr Crawford, that submission was to have been filed by no later than 2 September.  It's not a submission in reply.  It's a submission that raises a number of issues as an initial submission.  Reply submissions were also to be filed by, I think, 20 September.  I think there was an extension granted in respect of that.  Sorry, 20 September was the time for the initial submissions, and submissions in reply by 2 October, which I think were subsequently extended with the hearing today.


I just want to put you on notice that if you do this again without seeking leave we won't be having any regard to your submission and we won't be posting it on the website.  Do you understand?


MR CRAWFORD:  I do, your Honour, and I apologise to the Commission and the parties for the late submission.


JUSTICE ROSS:  All right.  The issue is really the problem for the parties because they've only just received it.  We'll deal with that as best we can but if it gives rise to issues, we'll deal with them as we go through.  The statement also sets out the process by which we were proposing to deal with the matters today.  Can I just confirm that everyone has a copy of the statement?  Does anyone not have a copy?  Okay.


The first was to deal with the minor errors that are identified at paragraph 28 of the statement and in the footnotes.  And I wanted to invite any party who wishes to contest any of those errors that have been identified, to make a submission now.  Are any of those contested?


MS BHATT:  No, your Honour.




MR IZZO:  No, your Honour, not from us.


JUSTICE ROSS:  No?  All right.  Are there any additional errors or corrections that any party wishes to make?  No?  all right.  Let's go to what's been described as the general issues which are set out at paragraphs 9 through to 28.  And there are four of those.


In terms of the operative date matter, as you can see, Ai Group's proposed that when the variation determinations are made it's specified that the variations commence not less than three months after the date of the final determination.  The AMWU is not opposed to that sort of lead time.  We say at paragraph 12 that we accept that some lead time is appropriate, and our provisional view was that the variation determinations would be published in October and come into operation on 3 February.


We raise though at paragraph 13 that there's a potential problem with that sort of scenario.  That is, the legal instrument is published.  It doesn't operate for three months and in the meantime, another Full Bench makes a variation determination in respect of that award.  We've suggested one option for dealing with that would be variation determinations, final draft variation determinations could be published � well, probably it's more likely to be early November, with final determinations then being made in early December but operating from 3 February.  And we could have a conference in early December before the final determinations are made to deal with any determinations in respect of which there's been an intervening Full Bench decision.  But that's only a suggestion.  We're in the parties' hands.  Perhaps if I go to you first, Ms Bhatt because it's your proposal.


MS BHATT:  Thank you, your Honour.  If I start with the suggestion that's been proposed by the Commission, the publication of a final draft determination and a subsequent determination in, I think your Honour said December unless I've misheard you - - -




MS BHATT:  I suppose that reduces the risk that a determination is issued by another Full Bench varying the award but there still might be issues that flow from decisions that are issued that are dealt with either in conference or in some other way.  We have endeavoured to give the issue some thought overnight and it occurred to us that there might be two potential scenarios that are relevant.


One is where another Full Bench issues a decision that relates to the drafting of the exposure draft itself.  So for instance, the plain language redrafting Full Bench might issue a decision regarding the drafting of the casual conversion clauses or - - -


JUSTICE ROSS:  I think you can put that option out of your mind because I'm presiding on that Full Bench and I can assure you we won't be issuing any of those decisions before we publish these ones.


MS BHATT:  The second category is where a decision is made to vary the award itself.




MS BHATT:  Depending on the timing of that decision it might be that any variation that is sought to be made is such that it falls after 3 February in any event, and that Full Bench might give consideration to the determination and the decision that has been issued by this Full Bench to vary the award to reflect the final terms of the exposure draft.  Now no doubt the parties in those proceedings will make submissions about whether that's appropriate and regard will be had to the nature of the variation that's been made.


Where the Commission nonetheless determines that the variation should be made, or should be operative prior to 3 February of next year, we wondered if one option that might be available to the Commission is that that Full Bench issues a determination that varies the award as it applies at the time and either through that same determination or a separate determination, orders that the award be varied again once the award has been varied to give effect to this Full Bench's determination, but both of those commence operation on 3 February.


Because it might just be, your Honour, an issue of sequencing and the administrative exercise that's undertaken.


JUSTICE ROSS:  No, no, I follow.  And, look, it may be that � I'd apprehended that it might be the part-time and casual Full Bench.  If you look at the ones that are likely to have an influence it would be that one, it would be potentially the construction matter Full Bench, but none of these awards are in that group.  And I wonder, rather than the proposal we've put, it may simply be that, look, we'll � so we've expressed this as a provisional view because it might accord with your view, but I just want to canvass the others, that we'll consider what's said by the parties today.


We will determine all the outstanding issues and we'll make variation determinations.  We won't do the draft variation determination.  I think the risk with doing a further round of drafts is people will think it's another opportunity to further litigate everything we've already done.  And this process is intended to provide some finality.  But that variation determination would be published likely in the first half � by no later than the middle of November.  And it would then operate as we propose, on 4 February.


In the event there are any Full Bench decisions between now and the middle of November when we would publish these variation determinations that affect them we would call that matter on and seek the views of the parties to that award about how we proceed.  If a Full Bench makes a decision to vary the award between when we publish our variation determinations and the operative date of 4 February, we would call that matter on for a conference.


MS BHATT:  Yes, your Honour.


JUSTICE ROSS:  And we would take the responsibility to deal with those issues because, look, there's every likelihood that parties might be pursuing a matter and may not have their eye on all of the different balls in the air at the one time.  And they may forget to bring it to the attention of the other Full Bench.


MS BHATT:  Sure.


JUSTICE ROSS:  So we'll make sure that we track those and it may be that we're jumping at shadows.


MS BHATT:  It may be.


JUSTICE ROSS:  But I wanted to raise it because it's at least a possibility, but I think a conference just in relation to the particular award affected is probably going to be the cleanest way, rather than adopting an elaborate decision rule about how we might deal with it and that way the parties to the particular award affected are given an opportunity to be heard.


MS BHATT:  It may be as your Honour's already alluded to that we might be jumping at shadows.  Ultimately it might be only a very small number of awards that are affected.  If we look through the list of outstanding substantive matters that are still being considered by the Commission in the context of this review, happily that list is getting shorter and shorter.




MS BHATT:  I guess the other attraction to this course of action from our perspective is we have a concern, apart from parties even to re-litigate issues, is that the publication of final determinations gives industry some certainty.  We're concerned that for as long as the document are in a draft there will be a perception at least that well it's still in a draft form and we shouldn't really proceed on the basis that this will be the final instrument.


JUSTICE ROSS:  No, no, so to be clear the proposition is we'll issue a decision arising from today, dealing with the various issues in the 15 or so awards in which there's contest and we will publish variation determinations in respect of the tranche 1 awards by mid-November, and the would commence operation in early February as we've indicated.  If an issue arises about the intervening variation we'll convene a conference and deal with that.


MS BHATT:  I suppose the only other reason we proposed the course of action which is that the matter be considered by the Full Bench that has issued the other decision is because I wasn't sure if your Honour has a concern about whether once this Full Bench issues a decision to vary the award to reflect the final version of the exposure draft, whether it can vary or revoke that decision to issue - - -


JUSTICE ROSS:  I'm not - - -


MS BHATT:  And I - - -


JUSTICE ROSS:  I think it starts to do your head in if you worry about the various perambulations this thing might go convene a conference.  If an issue arises we'll have a conference and we'll sort it out, yes.


MS BHATT:  If the Commission pleases.


JUSTICE ROSS:  Parties in Sydney, so the proposition we'll make a decision arising from today once we've heard everyone.  We'll then publish variation determinations in respect of the tranche 1 awards by mid-November.  In the event - and they will operate from early February.  In the event that the relevant award is the subject of some other variation in the time between when we issue the matter, the variation determinations and early February, we'll convene a conference of the parties to discuss what we do about that.  Is there any opposition to that course?


MR CRAWFORD:  None from us, your Honour.


MR IZZO:  None from ABI and NSWBC.




SPEAKER:  No, your Honour.


JUSTICE ROSS:  Right, well that would be the course - that deals with the operative date.  The overtime for casuals matter, we set out ABI's submission, we set out a provisional view and look, this issue arises in relation to a number of individual awards as well.  Consistent with the provisional view, we were proposing that essentially the status quo position be adopted.  That is whatever the award says or provides now is what would be reflected in the exposure draft and the variation determination, pending the resolution of any outstanding issues by the Part-Time/ Casual Full Bench.  So we would not include schedules which are contested.  That's the essence of it.  Let's deal with that first before going to the AMWU matter.  Is there any opposition to that proposition?


MR MILLER:  Not from us, your Honour.


JUSTICE ROSS:  It might be easiest if I don't hear anyone I'll assume no one - otherwise we're going to go through eight people each time I ask that question.  So does anyone oppose that?


MS BHATT:  Your Honour, on its face that appears a sensible course of action.  Two things to mention. Firstly, I think there's been some development in respect of this matter this morning, it was listed for a directions hearing before Hatcher VP.




MS BHATT:  I wasn't in attendance but some of the other parties were, they're probably better placed to explain where that's up to and what implications that might have for the awards we're dealing with today.  The only other concern we have is that there are at least two exposure drafts that we've identified where apart from there being a dispute about the schedule of rates, there might be some concern that arises from the terms of the exposure drafts themselves.  From our perspective a concern that if those exposure drafts are finalised whilst that controversy remains live, that it has the effect of substantively changing the entitlement.


JUSTICE ROSS:  No, no.  That's why I say the status quo would remain.  If that's an issue, if an exposure draft has varied the language of an award in a way that a party feels pre-determines the question of whether or not casuals have an entitlement to overtime, for example, then we'd have to deal with that on a case by case.


MS BHATT:  I think the complexity that arises from those two awards is that the relevant language is the language that's used to define the purpose, the term or purpose and the term casual ordinary hourly rate.  Now I do appreciate that this is an issue that we're raising relatively late in the day and - - -


JUSTICE ROSS:  We'll deal with the - it's two awards in this tranche.




JUSTICE ROSS:  We'll deal with it when we get to them.


MS BHATT:  Right.


JUSTICE ROSS:  What arose out of the mention that is going to affect this - well it's not going to affect this process, it might affect the other one.


MR IZZO:  Your Honour, Mr Izzo here from ABI NSWBC. I'm not sure that what arose will necessarily affect what's being proposed.  Effectively where we're at in the other proceedings is that there is a suite of awards where it appears agreement has been reached on their interpretation and we've been give three weeks to inform the Commission whether the drafting of the exposure drafts reflects the parties' agreement about how the awards operates.  The drafting of the exposure drafts do not reflect the way the parties agree the awards operate.  We've been instructed to provide the Commission with revised drafting in relation to the exposure drafts.


JUSTICE ROSS:  Mr Izzo, sorry, those awards that you've been referring to, are any of them in tranche 1?


MR IZZO:  Mr Crawford's just indicated yes.


MR CRAWFORD:  Yes, there are, your Honour.


MS DABARERA:  There's a number.




MR IZZO:  There's several.  There's a large number for the - - -


JUSTICE ROSS:  Neither of those two descriptions are helping me.


MS DABARERA:  There's 12 on my count, I can identify what they are if it assists.




MR IZZO:  We're just performing an analysis now.  We're still counting, your Honour, there's at least seven.  So we think it's approximately nine, your Honour, the exact number could be - I mean I'm happy to inform you of which they are if that's of assistance as well but that's roughly the number.


JUSTICE ROSS:  How long have you got?


MR IZZO:  So in three weeks we were going to provide the Full Bench with confirmation of those awards, whether the current drafting of the exposure draft reflects the agreed position between the parties and if not some revised drafting.  Three weeks, and then Hatcher VP indicated that his Full Bench would then review what we've proposed to ensure whether is Full Bench is comfortable with what we're saying, at which point the Vice President didn't say this but I assume somehow the accepted drafting will be referred over to this exposure draft process.


JUSTICE ROSS:  Well what do you propose we do?


MR IZZO:  Your Honour, I don't think any of that interferes with what's being proposed in the statement.  I think the only issue in relation to the statement is if we ensure that the rates tables aren't included where the matter remains outstanding, so not rates tables for overtime, casual for present purposes.




MR IZZO:  If the parties are provided an opportunity before this Full Bench to indicate whether or not the current drafting of the exposure draft somehow is comprising the position of any of the parties, that should sufficiently address any concerns about these drafts proceedings.  So that would entirely address the issue of having the casual Bench operating simultaneously.  So I think right now I'm not in a position to indicate - - -


JUSTICE ROSS:  No, no, sure.  Can I just go back to the second proposition.


MR IZZO:  Yes.


JUSTICE ROSS:  I mean as you say we wouldn't include any schedules of rates at this time but deal with contested issues.  What was the second proposition?


MR IZZO:  The second is and it feeds a bit off what Ms Bhatt was saying, is if there is something in the text of the exposure draft itself, not the rates table, something in the text which indicates the loading and it is payable on overtime or isn't, which is inconsistent with the parties' view on how the award actually operates, then we may need to just draw that to the attention of the Commission.  So that we don't have effectively a new entitlement coming into place for a period of a few months.


JUSTICE ROSS:  We'll identify which of the awards are in that category as we go through them and we'll deal with that matter separately.


MS BHATT:  I think there will be some overlap between those issues that are being ventilated in these proceedings through submissions made by Ai Group, but also the submission filed a couple of days ago by the AWU and the variations that inevitably both of those parties at the very least will press forth in the other proceedings.  We're in the Commission's hands as to which Full Bench deals with those matters.


JUSTICE ROSS:  Right.  I think for the moment what we'll do is what we've indicated.  That is we won't include contested tables.  As we go through if there are issues of the nature that Ai Group's referred to we'll deal with them on an award by award basis, you can indicate what the issue is, and I'll raise the issue separately with the Vice President.


MS BHATT:  Thank you.


JUSTICE ROSS:  Can I go to the AMWU proposal and at paragraph 23 of the statement, what clarification can you give about what you're suggesting?


MR MILLER:  Apologies, your Honour, I missed that question.


JUSTICE ROSS:  Just look at paragraph 23 of the statement.


MR MILLER:  Yes.   Your Honour, if it assists I think we're content to withdraw that submission that paragraph 23 is referring to, on the basis that it's pretty clear that where the award's - where the casual entitlement for - sorry, where the overtime entitlement for casuals is being contested that's going to be dealt with by that separate Full Bench.  So we're content with that position and we don't take that any further.




MR MILLER:  In relation to where there is an agreement between the parties as to how the award operates in relation to the overtime entitlement for casuals and that issue has been agreed in relation to an award which is in tranche 1, I think we're content with the proposal which has been put forward, which is that that issue will also be resolved by that Full Bench.


JUSTICE ROSS:  Right.  Then let's go to the reference to National Training Wage.  This is simply noting that the cross-references about that have been necessary.  The third issue is the note in the schedule of rates, and the provisional view is that the note be deleted.  Is there any opposition to that provisional view?


MS BHATT:  No, your Honour.


JUSTICE ROSS:  No?  All right.  Let's go then to the award specific matters.  Rather than dealing with the provisional view separate to the contested issues I think we'll deal with it award by award and invite you to comment on the provisional views and the matters in contest.


If we go to the Aluminium Award you'll see there that there are a number of matters set out.  The first is the definition of 'ordinary hourly rate of pay,' and 'ordinary hourly rate.'   And the provisional view is to agree that we shouldn't have both.  But I think Ai Group had suggested that the expression, 'ordinary hourly rate,' be used throughout, is that right?


MS BHATT:  Yes, it is.


JUSTICE ROSS:  Yes, okay.  Then the provisional view would be to replace the expression, 'ordinary hourly rate of pay,' with the expression, 'ordinary hourly rate.'  Is that what you were arguing, Ms Bhatt?


MS BHATT:  Yes, it was.


JUSTICE ROSS:  Yes, so it's the converse of what we've suggested?




JUSTICE ROSS:  Yes.  No, that's fine.  It was just a mistake in characterising your submission, that's all.  So that's the provisional view, to accept the proposal.  Is there any opposition to that?  No?  Does it appear anywhere else other than the clauses and areas we've identified?


MS BHATT:  If Ai Group's proposal is adopted - - -


JUSTICE ROSS:  Yes, then it would, yes.


MS BHATT:  The clause numbers will be different.


JUSTICE ROSS:  No, no, that's fine.




JUSTICE ROSS:  Yes.  No, I follow.  No, that's fine.  Yes, there will be different clause numbers.  All right, we'd accept Ai Group's submission and we will replace the expression, 'ordinary hourly rate of pay,' wherever it appears in the exposure draft, with the expression, 'ordinary hourly rate.'


The second matter is the definition of 'roster' issue.  And a provisional view is set out at paragraph 39.  Is there any opposition to the provisional view?


MS BHATT:  Not from the Ai Group.


JUSTICE ROSS:  Nobody else?  We will adopt the provisional view.  The next issue is, 'ordinary hours of work,' and the points identified at paragraphs 40 to 42, and the provisional view is to accept the amendment proposed by Ai Group.  Is there any opposition to that?


MS BHATT:  Just a point of clarification, your Honour.  There appears to have been an error in the translation.  At paragraph 42 the clause number in brackets should be 14.1(e).


JUSTICE ROSS:  Yes.  In accordance with clause 14.1 and � rather than 14.11, it will be 14.1(e)?




JUSTICE ROSS:  Yes.  Subject to that change is there any opposition?  No?  The next issue deals with make up time and the provisional view is set out at paragraph 47.  Any opposition to the provisional view?  No?  All right.  The AWU raised two issues.  The first concerns clause 21.1(b).  And what's the view of other parties in relation to that proposition?


MS BHATT:  Your Honour, it's a complex issue.  I'm familiar with the decision that's referenced but I haven't had an opportunity to revisit it.  If the submission is pressed I think this is one where we would seek an opportunity to respond in writing.


JUSTICE ROSS:  I think the submission is pressed because it does raise an issue about the observation of the Full Bench in the other matter.




JUSTICE ROSS:  And speaking for myself I certainly think that the words in the brackets should probably come out because they are likely to give rise to more problems than anything else.  And I'm not sure about the provision, at all.  This a complex area, and making a suggestion about what an employer can do when we don't normally repeat what is in the NES or try and elaborate on, it seems to me to be a bit fraught.  But I certainly appreciate that the matter has been raised late and if Ai Group or any other party wish to say anything about it, if they could submit a note by 4 pm next Wednesday.


MS BHATT:  If it pleases.


JUSTICE ROSS:  And the AWU will have an opportunity to respond, or any other party, to that note and we'll see what it says.


The second issue is in relation to clause 27.2, and this is the proposal that suggests that a cross reference should be added to refer to 29.1(a)(2).  I think that was a typo in the submission, or we haven't picked it up correctly, Mr Crawford, because there is no 29.1(a)(2).  I think the reference is to clause 20.1(a)(3).


MR CRAWFORD:  It does look like a typo, in our submission, yes, your Honour.


JUSTICE ROSS:  All right, so any opposition to that?


MS BHATT:  Yes, your Honour.  Clause 20.2 of the exposure draft describes a different overtime payment for continuous shift workers, which we say applies also to work performed on a public holiday.  So it too should be referenced.


JUSTICE ROSS:  So it should say, clause 21.3; 20.1(a)(3), and 20.2?


MS BHATT:  Yes, your Honour.


JUSTICE ROSS:  Any opposition to that, Mr Crawford?


MR CRAWFORD:  No, your Honour.


JUSTICE ROSS:  All right.  That deals with the Aluminium Award.  Let's got to Ambulance & Patient Transport.  United Voice has proposed an amendment.  Is there any opposition to the proposal?  No?  All right.  Let's go to the Animal Care & Veterinary Services.  There are two provisional views expressed, one at 57 and one at 61 in relation to propositions advanced by United Voice.  Is there any opposition to the provisional views?  No?  all right.  Let's go to the Aqua Culture Award.  The AWU has raised three issues.  The first is in relation to clause 20.1(a)(ii) at paragraph 64.  The AWU is wanting to put in a reference to clause 21, as I understand it.  Mr Crawford, I thought clause 21 was a shift definition.  Why would that go in when the current award doesn't include a cross reference to that effect?


MR CRAWFORD:  The point we were making, your Honour, is that the shift definitions have implications for defining the ordinary hours of work.  And following from that, potentially, overtime rates, as well.  But if your Honour views that that amendment is unnecessary we'd be content to move on.


JUSTICE ROSS:  All right.  The second matter is in relation to clause 20.8(b).  And the AWU is seeking the change at paragraph 67.  Is there any opposition to that change?  All right.


The last change is in relation to clause 27.3 and the proposition set out at paragraph 69.  Is there any opposition to that proposed change?  No?  All right.


Let's move to the Banking & Finance and Insurance Award.  Ai Group has a submission.  A provisional view is expressed at paragraph 73 to accept the variation proposed by Ai Group.  Is there any opposition to the provisional view?  No?


Let's move to Cement Lime & Quarry.  This seems to have incited quite a bit of interest.  There are a number of issues.  Let's go through them.  The first, (i) on paragraph 74 deals with the definition of 'ordinary hourly rate.'  And a similar proposition, I think, arises in a number of awards.  And it may be resolved by wording to the effect that, 'Where an employee is entitled to an additional all purpose allowance, this allowance also,' I think it's the word, 'also,' 'also forms part of the employee's ordinary hourly rate.'


MS BHATT:  Yes, your Honour.


JUSTICE ROSS:  So you'd be content for it to be resolved on that basis?


MS BHATT:  Yes, your Honour.


JUSTICE ROSS:  Is there any opposition to that course in this award?  All right.


The next point is about casual conversion.  That goes for pages but the short point and the provisional view is at paragraph 81 and that is that the current casual conversion clause be inserted into the variation determination.  That is, the one and the current award.  There are here two awards.  Is there any difference between them in the two clauses?


MS BHATT:  I've not had an opportunity to undertake that exercise, your Honour.


JUSTICE ROSS:  All right.  So that's the provisional view, that the current award be inserted.  I don't apprehend there is any objection to that.  But we'll provide parties with an opportunity to just check whether there's a difference between the clauses in the two awards, and if there is, which one should be inserted, and if you can let us know that by 4 pm next Wednesday.


The next point is about clauses 4.4 and 4.5.  This is an issue raised by ABI.  At paragraph 83, we agree with ABI and we set out a provisional view.  Is there any opposition to that provisional view?  No?  All right.


The next issue deals with clause 27.2 and a submission by the AWU which is set out at paragraph 85.  Is there any opposition to the submission put?


MS BHATT:  Yes, your Honour.  The clause currently refers to 21.6.  21.6 makes clear that the public holiday penalty rates are paid in substitution for shift rates where relevant.  If the AWU's proposal was adopted I think it's rather clear that those public holiday rates are paid in substitution for the shift penalties.  Because that provision would purport to apply in all circumstances.


I should say we don't share the union's view about the application of clause 21.6.  We don't believe it's limited to shift workers.  We think it delivers an entitlement to day workers, as well.


JUSTICE ROSS:  Mr Crawford?


MR CRAWFORD:  That is part of the issue, your Honour.  We are just trying to ensure that penalty rate public holidays applies equally to day workers, as we understand that to be the position under the current award.  We have raised the issue because it does appear, if you look at clause 21.6 there are several references to shift, and an additional reference to the extra eight being in substitution of shift penalties.


JUSTICE ROSS:  All right.


MR CRAWFORD:  So we are simply looking to clarify the current public holiday penalty rate for day workers, as well.


JUSTICE ROSS:  So do I take it there is a contest between you and Ai Group about the payments made to day workers on public holidays?


MR CRAWFORD:  I'm not sure if there is a context in terms of the rate paid.  It's just whether or not an amendment to the exposed draft is necessary.  But AiG might need to confirm that.


MS BHATT:  I think that's right.  I don't think there's an disagreement about what the entitlement is if a day worker works on a public holiday.  I think the issue is just about how should that be expressed in the exposure draft.


JUSTICE ROSS:  And you're content with the way it's currently expressed?


MS BHATT:  Yes, your Honour.


JUSTICE ROSS:  All right.  Is there anything further either of you wish to say?


MR CRAWFORD:  No, thank you.


MS BHATT:  No, your Honour.


JUSTICE ROSS:  The next issue is about schedules C and D, and the submissions at paragraph 86.  And as we've said earlier we won't publish casual overtime tables that are contested, and this one being contested we wouldn't publish it.  Any opposition to that course?  No?




JUSTICE ROSS:  The Cemetery Industry Award, the AWU is raising a submission about clause 10.2 at paragraph 88.  They're raising two points.  I'll come back to the second one.  Is there any opposition to the first one at paragraph 88?  No?


The second is the proposition that the ordinary hours column in schedule B 2.2 can be deleted.  This actually appears at paragraph 102 of the statement but it's an incorrect reference to that award.  It applies to the Cemetery Award.  Anyone wish to say anything about that proposition?


Let's move to the Cotton Ginning Award.  The first relates to the definition of ordinary hourly rate, and Ai Group's submission is set out there.  Is there any opposition to Ai Group's submission?  No?


Let's move to the clause 4.2 coverage.  The AWU contests the Ai Group's submission.


MR CRAWFORD:  Your Honour, this is not a major issue for us at all, but could the alternate proposal possibly be clarified?


JUSTICE ROSS:  The one proposed by Ai Group?


MR CRAWFORD:  Yes.  Is it just the deletion ‑ ‑ ‑




MR CRAWFORD:  ‑ ‑ ‑of the words 'cotton ginning'.


JUSTICE ROSS:  I think their proposal is set out in a marked up exposure draft to their submission from memory.  But if we go to - if we look at clause 4.2, which appears at paragraph 91 what changes would you propose to make to that, Ms Bhatt?


MS BHATT:  So clause 4.2 the first sentence would read:


This award covers any employer which supplies labour on an on hire basis in the industries set out in clause 4.1.


And then it goes on.  And a ‑ ‑ ‑


MR CRAWFORD:  Yes, we don't have a problem with that.


MS BHATT:  A similar amendment would be made to clause 4.3, which is the next issue in the statement.


JUSTICE ROSS:  And you're content with that, Mr Crawford?


MR CRAWFORD:  Yes, your Honour.


JUSTICE ROSS:  The next issue deals with casual conversion.  Consistent with the provision at paragraph - or previous way we've dealt with these matters, paragraph 100 we set out the provisional view that the current casual conversion clause in the award would be inserted.  No issue with that?  All right.


Next issue is schedule A, summary of hourly rates, and it's Ai Group's submission.  I think that follows from the earlier ‑ ‑ ‑


MS BHATT:  Yes, your Honour.


JUSTICE ROSS:  ‑ ‑ ‑matter that wasn't contested, but any opposition to that?  No, all right.  Thank you.  That last matter that appears at paragraph 102 of the statement has already been dealt with and that relates to the Cemetery Award.


Let's go to the Funeral Industry Award.  The AWU makes three submissions in relation to this.  The first is about clause 11.2 and the submission is set out at paragraph 105.  Is there any opposition to the submission?  No?  All right.


There's an issue raised in relation to schedule 1.4.  This seems to - this is an issue with some complexity and it depends on how the rates are calculated and the construction of clauses 22.5 and 22.6, whether the rates are cumulative or in substitution.  And that's a matter that we'll set out a further process and some submissions about how that issue arises because it's only the subject of a short comment in the AWU's point, but that's an issue we want to return to and deal with in a little more detail and seek the views of the Fair Work Ombudsman, Mr Crawford.


The last point is in relation to schedule A 1.5, and AWU submits it's unclear why a 100 per cent day shift column has been included.  The reason it's been included is really to provide transparency because that's the base rate from which the other rates are calculated.  That's the reason, all right?  No other issues for that award?


Let's go to the Hydrocarbons Industry Upstream Award.  The AWU raises two issues, the first is at paragraph 110 and relates to clause 11.4.  Is there any opposition to the AWU's proposed amendment?  No?  All right.


The second is at paragraph 112, and it concerns clauses 21.1(b) and (c).  And it's submitted that a cross-reference should be added.  That submission is at paragraph 112.  Any opposition to that submission?  No?  All right.


Let's move to the Mining Industry Award.  The first issue is one raised by the AWU about the definition of casual ordinary hourly rate.  The submission is set out at paragraphs 114 and 115.  The AWU indicates they have no issue with the proposal by Ai Group.  The AMWU's submission is set out at 117, and at 118 we foreshadowed that we would invite Ai Group to respond.  And this is the issue about the insertion of the word 'also' as being a solution in not only this award but in the others.


MS BHATT:  There's no opposition to that course.


JUSTICE ROSS:  All right.  Thank you.  We'll resolve that on that basis.  In the Nursery Award.


MS BHATT:  Your Honour?




MS BHATT:  Before we move off the Mining Award, this is an example of an exposure draft where the rubber hits the road from our perspective in relation to the casual overtime issue.  Without taking your Honour through all the detail this is an award that the casual loading is expressed as being part of the all-purpose rate.  There are subsequent provisions of the award that we say deal with the calculation of overtime rates and say that those rates are payable in substitution for any other loading.  We say that includes the casual loading.


JUSTICE ROSS:  To put your mind at rest what we'll do is we'll set that award aside for the moment.  We won't issue any variation determinations in it.  We'll note that there's an outstanding issue and we'll have a conference with the parties to see where we go with that.


MS BHATT:  Thank you, your Honour.


JUSTICE ROSS:  Nursery Award.  AWU raised an issue about clause 13.2, ordinary hours of work, and its submission is set out at paragraph 120.  Is there any opposition to the submission put?  No?  All right.


There are a number of issues in the next award, the Oil Refining and Manufacturing Award.  The first issue relates to clause 11.3(a).  The AWU's submission is set out at paragraph 123.  Is there any opposition to that submission?


MS BHATT:  No, but in reviewing the AWU's submission another issue arising from the exposure draft has come to our attention which I've not had the opportunity to discuss with Mr Crawford.  But we would say that if that change is to be made then clause 22.5(b) of the exposure draft ‑ ‑ ‑




MS BHATT:  Point 5(b)


JUSTICE ROSS:  Just bear with me for a moment.


MS BHATT:  Yes, your Honour.




MS BHATT:  (b).




MS BHATT:  The reference to clause 22.5 ‑ ‑ ‑




MS BHATT:  ‑ ‑ ‑should instead be a reference to clause 22.


JUSTICE ROSS:  Do you have any view about that, Mr Crawford?


MR CRAWFORD:  That appears correct, and it looks like the current award just states 'under this clause'.




MS BHATT:  It's intended to reflect that position.


JUSTICE ROSS:  Yes.  So we would amend the cross-reference in clause 22.5(b) so it reads 'any payments under clause 22' are in substitution.


MS BHATT:  Yes, your Honour.


JUSTICE ROSS:  Then the next point relates to schedule C 2.1.  This is the issue raised by the AMWU and Ai Group, and we express a provisional view at paragraph 128.  Is there any opposition to that provisional view?  No?  All right.


The next issue relates to clauses 23.2 and 23.7(b).  This is a submission by the AWU.  We express a provisional view at 130, and that is that we agree with the AWU and that clause 23.2 be deleted.  Any opposition to that provisional view?  No?  All right.


The next matter is around clause 23.3.  This is an Ai Group submission to which the AMWU has responded.  We put our provisional view at paragraph 134 that the title be amended as proposed by Ai Group.  Is there any opposition to that provisional view?  All right.


The next matter relates to clauses 18.1(a)(i) and 18.2(b)(i) and the  AMWU, Ai Group and the AWU agree that the bracketed words should be deleted.  We agree with that and express a provisional view in that regard at paragraph 135.  Any opposition to the provisional view?  No?


The last issue deals with the schedule B 3 rates and we expressed the provisional view that I think accords with the proposition put by Ai Group and the AMWU that the contested tables not be included in the exposure draft.  Is there any opposition to that provisional view?  No?  Thank you.


MR CRAWFORD:  Your Honour, sorry, so does this extend beyond casual overtime into a contest about other rates?








JUSTICE ROSS:  So let's move to the Pharmacy Industry Award.  We agree with the submission put by APESMA and express the provisional view that the exposure draft and variation determination be amended to reflect the determination.  Any opposition to that provisional view?  No?  All right.


We'll move to the Premixed Concrete Award.  There are four issues in relation to this award.  The first is the definition of ordinary hourly rate.  A similar issue arises in Cement Lime and Quarry and Mining and Cotton Ginning I think.  And the solution there was to insert the word 'also'.  Is that also agreed here?


MS BHATT:  Yes, your Honour.


JUSTICE ROSS:  No opposition?  Thank you.  The next issues deals with the casual conversion clause, and at paragraph 149 we express the provisional view that the current casual conversion clause in the award be inserted into the exposure draft consistent with the approach we've taken elsewhere.  Any opposition to that?  No?  Thank you.


The next issue is about clause 11.2(a), the casual loading, and the AWU suggests an amendment.  Their submission is set out at paragraph 151.  Is there any opposition to that proposition?


MS BHATT:  No, your Honour.


JUSTICE ROSS:  No?  Thank you.  We'll adopt that.  The next issue deals with clause 20.2.  The AWU makes a submission in relation to this issue at paragraph 153.  Is there any opposition to the AWU's submission?


MS BHATT:  There's no opposition, but just to be clear that table also deals with minimum payments.  As we understand it there is no minimum payment required on a public holiday.


COMMISSIONER BISSETT:  So it won't specify one?


MS BHATT:  It shouldn't specify one.


JUSTICE ROSS:  Yes, all right.  Anything further in relation to that?  Let's move to the Salt Industry Award.


MR CRAWFORD:  Sorry, your Honour.




MR CRAWFORD:  Can I just maybe have until the time next Wednesday that you've given for other parties just to consider whether a casual or part-time minimum engagement might be relevant for inclusion?


JUSTICE ROSS:  In relation to - you're talking about the paragraph 153 issue?


MR CRAWFORD:  Yes, just AiG's ‑ ‑ ‑


JUSTICE ROSS:  The table.  Yes.




JUSTICE ROSS:  No, no, that's fine.  Perhaps if we can deal with it on this basis, if you can have a discussion with Ai Group and put as a joint note by 4 pm next Wednesday.  It'll either set out what you agree on, or if you don't agree about something set out what your respective positions are.  Okay.


MR CRAWFORD:  Thank you.


JUSTICE ROSS:  I think it's an easier way of doing it than have reply submissions.


MS BHATT:  Yes, your Honour.


JUSTICE ROSS:  Salt Industry Award, five issues.  Issue one is about clause 4.4, and Ai Group submit the word 'Salt' should be before 'Industry'.  This is at paragraph 156.  Is there any opposition to that?  No?  All right.


Next issue is about clause 22.2, and Ai Group's submission is set out at 158.  We expressed the provisional view that the heading be amended as proposed by Ai Group.  We say that at paragraph 159.  Is there any opposition to the provisional view?  No?


The next issue, third issue is clause 11.3(a).  And the AWU's submission is set out at paragraph 161.  Is there any opposition to that submission?


MS BHATT:  Yes, your Honour.


MR CRAWFORD:  There is.  Yes.




MR CRAWFORD:  There is, your Honour.


MS BHATT:  We say this award will fall into the same category as the Mining Award.


JUSTICE ROSS:  For that reason we'll adopt the same approach and set that award aside from the process and have a separate conference with the parties to identify where we go in relation to it.


MS BHATT:  Thank you, your Honour.


JUSTICE ROSS:  The fourth issue in respect of that award deals with clause 21.1, the definition of overtime.  The AWU makes a submission at paragraph 163.


MS BHATT:  Your Honour, we think that the change proposed is at the very least unnecessary but also potentially confusing, and if I can draw the AWU's attention to clause 21.2(a) of the exposure draft ‑ ‑ ‑




MS BHATT:  ‑ ‑ ‑and we say that by virtue of that provision the entitlement to overtime rates is not confined to the circumstances that are described in 21.1 which is what I understand the AWU's concern to be.  I appreciate I'm putting Mr Crawford on the spot and it might be that this is another one that we can discuss and come back to your Honour.


JUSTICE ROSS:  Yes.  Do you want to take that opportunity, Mr Crawford?  Have a think about that and if you put in a joint note 4 pm next Wednesday and let us know where you land on that?  You might ‑ ‑ ‑


MR CRAWFORD:  Yes, your Honour.  It doesn't look like there's a substantive dispute.  It's just a drafting issue seemingly.


JUSTICE ROSS:  Can you also involve - ABI has an interest in this award as well; is that right?


MR IZZO:  We do, your Honour.


JUSTICE ROSS:  If you can involve them in that discussion as well.  The last issue raised is relating to schedule B.1.1.  The AWU's submission is set out at 164.  Any common ‑ ‑ ‑


MR CRAWFORD:  Your Honour, given there'll be some further discussions between the parties and it sounds like this award might be stepped out of the process we would - it may be possible to not deal with that submission further.  We might reflect upon whether we press that point too.


JUSTICE ROSS:  All right.  If you can let us know by 4 pm next Wednesday.




JUSTICE ROSS:  The next award is the Seafood Processing Award.  The AWU raises two issues in respect of this award.  The first is around the casual loading and the AWU's submission is at paragraph 166.  Is there any opposition to that submission?  No?


The second issue is at paragraph 167.  The AWU submits that the reference to percentage of minimum hourly rate in schedules A.2.4 and A.2.5 should be percentage of casual hourly rate.  Is there any opposition to that?  All right.


Next issue deals with the Surveying Award.  The AMWU makes a submission about clause 11.2 of the exposure draft.  The submission is set out at paragraphs 170 and 171, and the proposed amendment is set out at paragraph 170.  Is there any opposition to the proposed amendment?  No?  All right.


SPEAKER:  Your Honour?




SPEAKER:  Could I just speak for a moment longer to this award.  This is one such award which has now been agreed with the relevant employers as part of the casual overtime proceedings, and that award will come out of that process.  However, it is also - the exposure draft to this award doesn't currently contain a table of casual overtime rates.  At schedule B.2 of the award there's rates dealing with ordinary hours and public holidays for casuals but we would also seek that that award include overtime rates.  Whether that be dealt with as part of this process or that other Full Bench.


JUSTICE ROSS:  Yes.  No, it won't be part of the process.  The other Full Bench can complete its work.  If they make a variation or a determination reflecting your agreement then there'd be a conference convened by us, this Full Bench, to see whether any other changes need to be made and how we marry the two of them up.


SPEAKER:  Thank you.


JUSTICE ROSS:  We wouldn't vary at the moment until the other Full Bench has made its determinations.


SPEAKER:  Thank you for that confirmation.


JUSTICE ROSS:  That's all right.  The Silviculture Award.  The AWU raises two issues about the exposure draft.  The first concerns clause 15.1 which is set out at paragraph 172.  The AWU submits the inclusion of an ordinary weekly rate column appears inconsistent with other exposure drafts.


Mr Crawford, the reason why it's here in this award is this award has a very unusual way of calculating these rates, and the ordinary weekly rate is calculated by adding the minimum weekly wage rate in clause 15.1, the special allowance in clause 17.3 and the industry allowance in clause 17.4(a) then multiplying that amount by 52 and dividing by 50.4 rounded to the nearest 10 cents.  So it's been included here because it provides a base point from which you make that fairly weird calculation.  So that's the explanation.


MR CRAWFORD:  Yes, that seems to make a lot of sense, your Honour.


JUSTICE ROSS:  The second issue you raised concerns clause 20.12(a), and you make the fair submission that the provision is a bit circular, and you submit that the public holiday rate of 250 per cent of the ordinary hourly rate should be inserted.  Is there any opposition to that proposition?  No?  All right.


Next award is the Water Industry Award.  An issue was raised regarding the note, notes appearing under 15.4 and 18.3.  The note under 15.4 is set out at 177 and Ai Group makes a submission at 178.  At paragraph 179 we indicate our provisional view that we agree with Ai Group and that the note be deleted.  Any opposition to the provisional view?  No?  All right.


The last award is the Wool Storage Sampling and Testing Award.  Four issues arise here.  The first is in relation to clause 11.3.  The AWU's submission is set out at paragraph 182.  Is there any opposition to that submission?


MR IZZO:  There is, your Honour.


MS BHATT:  And from Ai Group too.


JUSTICE ROSS:  And is that ‑ ‑ ‑


MR IZZO:  This is one of the interpretations - this pertains to the interpretation of whether a casual loading is payable on overtime and is the subject of what's likely to be a live contest in the Full Bench before Hatcher VP, your Honour.


JUSTICE ROSS:  So do you think this matter should be stood over - this award should be stood over as well for that reason?


MR IZZO:  I think so, your Honour.


JUSTICE ROSS:  Any opposition to that course?  No?  Well, we'll still go through the other matters.  We'll tidy up what we can.  The next issue is clause 22.2, shift work penalties.  We express the provisional view at paragraph 184.  Is there any opposition to the provisional view?  No?


The next issue deals with schedule B.1 and the AWU sets out its submission at paragraph 184.


MS BHATT:  Your Honour, we don't concur with the AWU's interpretation of the current award, but I think it would be useful for me to have a discussion with Mr Crawford and Mr Izzo about the issue especially if the award is to be held over.


JUSTICE ROSS:  That matter can be the subject of a discussion between the parties and eventually we'll have a conference in relation to the award about where we go next.


The final issue deals with schedule C.1.1 and we express a provisional view that the standard rate in schedule C.1.1 and the allowances in the table at C.1.1 be corrected as proposed by Ai Group.  Is there any opposition to that course?  No?  All right.


So just to the three awards that will be stood aside pending the outcome of the casual overtime Full Bench matter are the Wool Storage Award, the Mining Award.


MS BHATT:  And Salt.


JUSTICE ROSS:  And what was the other?


MS BHATT:  Salt Industry.


JUSTICE ROSS:  The Salt Industry Award.  Are there any other matters that any party wishes to raise?


MS BHATT:  Can I raise a housekeeping matter?




MS BHATT:  My list of homework has grown.


JUSTICE ROSS:  I can't hear you.


MS BHATT:  My list of homework has grown as the morning has unfolded.  I'm just conscious of the fact that we're appearing in other proceedings before your Honour next week in relation to the Social Community Homecare and ‑ ‑ ‑


JUSTICE ROSS:  Yes, yes, yes.


MS BHATT:  ‑ ‑ ‑which might impede my ability to attend to these matters.




MS BHATT:  If we need an extension we might make that application at the relevant time.




MS BHATT:  But we'll do our best.


JUSTICE ROSS:  No, that's fine.  Yes, that's fine.  Anything further from anybody else?  No?  Thank you very much.  We'll adjourn.

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