PN1

THE COMMISSIONER: I'll take the appearances, perhaps starting in Sydney.

PN2

MR S BULL: If the Commission pleases, my name is Bull. I appear for United Voice with my friend Michael Robson.

PN3

THE COMMISSIONER: Thank you, Mr Bull.

PN4

MR L IZZO: Commissioner, Izzo, initial L. Seeking permission to appear on behalf of New South Wales Business Chamber ABI.

PN5

THE COMMISSIONER: Thank you, Mr Izzo.

PN6

MS S WELLARD: If it pleases, Wellard, initial S. Seeking permission to appear for the Australian Hotels Association, and the Accommodation Association of Australia.

PN7

THE COMMISSIONER: Thank you, Ms Wellard. That's it for Sydney. Yes, Melbourne.

PN8

MR J FLEMING: May if please the Commission, Fleming, initial J, for the ACTU. I seek leave to appear.

PN9

THE COMMISSIONER: Thank you, Mr Fleming. Look, given the circumstances and the fact that permission has been given in the substantive proceedings, I propose to grant permission to those parties seeking to be represented.

PN10

The purpose of this conference is set out in the statement issued by the Commission on 10 April. On face value, at least, there are two issues. One is to ascertain whether there are any outstanding claims related to public holidays that have not been referred to the Public Holidays Full Bench. Secondly, potentially, consequential changes to what might be best described as the TOIL provision for public holidays in the Restaurants Award and the Hospitality Award.

PN11

Depending upon the clarification provided by the employer parties, I suspect that these issues may, in fact, turn out to be the same. What I am proposing to do is seek clarification on the outstanding claims from the AHA and AAA and subsequently the ABI and then hear what other parties want to say about that.

PN12

Ms Wellard, perhaps I'll start with you. I've received correspondence, I think, on Thursday 20th, which was placed on the Commission's website. What that informs me, at least, is that the two organisations you represent confirmed the claim to vary clause 32.2(b). There are other public holiday related matters that were in the draft determination filed on 13 February.

PN13

Can I confirm whether there are any other public holiday claims that haven't been referred to the Public Holidays Full Bench?

PN14

MS WELLARD: Commissioner, my apologies, I have not taken complete instructions on that, because it is another person from the AHA that's been looking after the public holiday part of it. I understand that the part day holiday is being sorted out through the Public Holidays Bench. I'm just now quickly trying to identify what other claim, if any, there is in the draft determination.

PN15

I think Commissioner, that the rest of the draft determination largely picks up what is already in the Award, if I'm not mistaken. I think they are the only two issues, the part day holiday which is being dealt with in the Public Holidays Bench and the 32.2(b) issue of the 25 per cent.

PN16

THE COMMISSIONER: Ms Wellard, based on that then, my understanding is, as I predicted at the outset, in effect, at least in relation to the Hospitality Award, the two issues sort of merge into one. The question of the variation to 32.2(b) which as the second issue raised in the statement that was issued earlier this month.

PN17

MR FLEMING: Yes, Commissioner. I'm not sure about how they merge into one. Do you mean that that matter would be dealt with, with the Public Holidays Bench - or?

PN18

THE COMMISSIONER: No, no, what I mean by is that the issue that � there are two issues. One is whether there is any outstanding public holiday related claims that were falling between the two Full Benches, and I think the answer to that is no. But, so in light of that then, the indication is that the organisations you represent are pressing the claim in respect of clause 32.2(b).

PN19

MS WELLARD: Yes.

PN20

THE COMMISSIONER: But the claim in respect of 32.2(b) is in fact the second issue that the Commission has raised with your parties, in the course of the statement.

PN21

MS WELLARD: Yes, Commissioner, that's right.

PN22

THE COMMISSIONER: Thank you. Mr Izzo, perhaps I can turn to you now.

PN23

MR IZZO: Yes, Commissioner.

PN24

THE COMMISSIONER: I think the same question. Are there any other public holiday related claims that are in effect, following between the two Full Benches?

PN25

MR IZZO: No, Commissioner. The only matter that we're pressing in relation is a variation to clause 34.4(c) of the Restaurant Industry Award which we say is a consequential amendment based on the substantive decision that's been issued.

PN26

THE COMMISSIONER: I not in that respect, other than the rate itself, which is mentioned in what I've described as the TOIL provision, I think the other change as proposed in the draft determination, was the inclusion of the words other than casual employees. Is that correct?

PN27

MR IZZO: I'm not aware Commissioner, of a claim in relation to changing. If you'll just bear with me one moment. I wasn't aware that we'd made - - -

PN28

THE COMMISSIONER: Mr Izzo, if it helps, what I'm doing, is I'm looking at the draft determination that was filed on 13 February 2015, and in particular, the variation has highlighted in it, the changes from the current provision and there are two that are marked. One is the rate and the second one is the inclusion of those words that I've mentioned. I think the current 34.4(c) does not include that exclusion.

PN29

MR IZZO: Yes, Commissioner, and I think that might be pressed as well, on the basis that I think the entitlements because � yes, I think that's pressed as well, Commissioner. I apologise, I hadn't picked that up.

PN30

THE COMMISSIONER: No, that's fine Mr Izzo. Look, for what it's worth, I think it would have to follow because of course, to the extent to which we're talking about a consequential change to the reduction in the public holiday penalty rate, that hasn't applied universally. In that context, some exclusion of casual employees would be necessary if the proposal is to be considered.

PN31

MS WELLARD: Commissioner, can I just say, the AHA seeks the same change. The clause itself speaks of an additional day being added to annual leave, and that's just not open to casuals. It's our understanding that that clause was always applied to permanent employees, as opposed to casual employees, in any event.

PN32

THE COMMISSIONER: All right, thank you. Mr Bull, perhaps � you want to express any views about that?

PN33

MR BULL: Look, Commissioner, there's a general matter which I wanted to bring to your attention. Last night, or yesterday afternoon, we filed a document in which we indicated we've formed the view that the Commission's decision of 23 February, if affected by jurisdictional error and we intend to seek judicial review of the decision in the Federal Court of Australia.

PN34

THE COMMISSIONER: Yes, I've seen that submission.

PN35

MR BULL: Then I won't traverse it. And I'm only bringing it to your attention because I assume that - I haven't had any contact with the President's chambers, but there may be a direction's hearing or there may be some action that's taken. We need a clear path forward. We cannot seek prerogative writs at this stage, because the best advice is that one can only do that once determinations are made. But once determinations are made, we intend to expeditiously approach the Federal Court for relief.

PN36

The intended matters that we will seek to agitate in the Federal Court, are matters of substance that go to the principles upon which the Commission has determined that the reductions should occur. If we are successful and obviously, that's a big if � it will cast doubt upon the reductions and so forth.

PN37

We've noted in our document that we will, once determinations are made, and obviously, the President may provide us with another means to get across the hurdles that one has to traverse before you have a clear run to the Federal Court. We intend to seek a stay here, and then we'll seek a stay hopefully in the Federal Court, where there will be continuity industrially.

PN38

What I'm saying is, we don't want to waste your time because that's what we want to do. So, we don't support what my friends are proposing. These are consequential � they are properly consequential in the sense that they're flow-ons of the substantive decision. I understand the hospitality one is adjusting an ambiguous term in the award where it's just clarified that you get a day in lieu and so forth, so the day needs to be 75 per cent or 100 per cent. If left alone, the language will be opaque and the Restaurant Award is of a similar nature.

PN39

They are things, that if we are successful in the Federal Court, the consequences will not flow. I make that point. We can make some notional orders in terms of how we deal with these matters. We don't consent. I don't want to be a pest and demand arbitrations and so forth, but we would require � if you want to proceed to I suppose determining these matters or if you want to program them, we would ask that there be some evidence filed and we get an opportunity to reply and there's a hearing.

PN40

Another option may be to delay, and I'm not a fan of delay, I like to get things on. I am clearly foreshadowing to the Commission that what we've stated in our document is our intention. We want to as cleanly and as quickly seek judicial review. That's all I wish to say.

PN41

THE COMMISSIONER: Mr Bull I must say, I'm rather confused. I understand precisely what you've outlined in your written submission and obviously, the Full Bench will deal with that, presumably at a relatively early opportunity. In relation to these matters, and I understand it is appropriate for you to put that context, but I understand you're effectively saying that the Commission should finalise the matter so that you can take your judicial review.

PN42

MR BULL: I'm just indicating that � and we filed the document yesterday and I've heard nothing from the Commission about that document. Maybe we should just program this matter for a hearing.

PN43

THE COMMISSIONER: What I was going to go on and say is that what confused me about that is that I understood you to say that you oppose these changes because you oppose the reductions, that you accept they are consequential. What are we then sort of programming, if that's right? Or have I misunderstood your position.

PN44

MR BULL: There's a timing issue, in that we're intending to � we're going to seek stays and there's obviously a sort of balance of convenience argument in that it would be undesirable for any reductions to be operative for a period and if the Federal Court were to subsequently alter or annul the decision, it would obviously create industrial anarchy unscrambling the egg.

PN45

I'm asking for a timetable which is consistent with the reductions in the Sunday rate, which I suppose is the main game. Those determinations are the ones that we perceive as the green light for access to the Federal Court. Once the Commission makes the determinations to reduce the Sunday rate, that will be the starting gun goes off for us.

PN46

We don't agree because we don't agree and we don't agree, because we're going to the Federal Court and saying it's wrong. I can't turn up here and say I consent to them. They're consequential in a strict sense. I'm not going to deny the reality of them that they flow from the decision which we say is wrong.

PN47

THE COMMISSIONER: I'm just wondering what it is that you're programming?

PN48

MR BULL: I don't want to muck you around. We're programming a delay I think. And I'm being frank. They shouldn't commence the stuff to breach determination.

PN49

THE COMMISSIONER: You appreciate, I'm not making a decision about these. All I'm trying to do is scope out for the Full Bench what are the live issues and what the position of the parties is on those. My understanding is that United Voice opposes them because they are consequential to a decision that it opposes and is going to seek a judicial review of it.

PN50

MR BULL: I think that's a correct characterisation.

PN51

MS WELLARD: Commissioner, if I might, as I understand it, there will probably be two separate draft determinations. One that deals with and has already been issued, that deals with the public holiday penalty reduction and we're still working through the transitional potential arrangements for the Sunday reduction. This consequential amendment is connected only to the public holiday reduction. The public holiday reduction is due to take effect on and from 1 July this year.

PN52

We don't see any reason why there should be a delay with respect to issuing a determination on the public holiday penalty amount including the consequential clauses that need to be amended to deal with that reduction. That then may be the order which triggers a time frame to start ticking for the union to commence whatever action it's going to commence, but we don't see that it needs to be linked to or tied to or delayed because of the transitional discussions and the things that are still ticking away with the Sunday reduction.

PN53

MR IZZO: Commissioner, just further to what Ms Wellard said, it appears to us that in relation to the public holidays determination, this matter is inherently linked to the substantive decision. If this particular matter was to be aligned with the substantive decision about the reduction of public holiday penalty rates, if the Commission was to issue orders and then an appeal is made, then the approach the Commission takes to both types of orders would be the same.

PN54

If the Commission decides to stay its orders, then you would naturally stay the orders coming into effect from 1 July, as well as these consequential orders. If the Federal Court was to stay the orders, if the Commission does not, again, it's the same approach. I think there's actually quite a bit of convenience to having the two matters aligned.

PN55

What we think could be an appropriate course of action is this matter could easily be dealt with on the papers in the sense that the parties supporting determination could put in a brief submission within a short period of time. There would be an opportunity for reply and then the Commission, when it hands down its determination in relation to the substantive public holiday matter, could hand down, either as part of that determination, or as a separate determination, the consequential amendments.

PN56

Then if they're all to be appealed, they're all appealed and if they're not, they're not, then they're dealt with together. Because they really arise from the same factual dispute. It seems to us that that's a convenient way to proceed. The other option, which Mr Bull appears to be championing is to indefinitely delay the particular issue that we're talking about today until we see what happens elsewhere.

PN57

But it's probably not as convenient because if � we just think if there's any stays, they can apply as a whole. If there's not to be stays, then the principles that gave rise to the decision to implement the changes immediately, should result in all changes coming in immediately. I think it's better to have all the changes dealt with in the one basket which would necessitate promptly dealing with the matter which is before you today.

PN58

MR BULL: I might add, look I agree with Mr Izzo and Ms Wellard. I just was working on the basis that the assumption is the 1st July is going to be the date where determinations may take effect. One of the issues is that we can't assume that any � I use the term immediate effect and determinations being made, because there's a fight on at the moment about what the transitional arrangement is going to be and we want a transitional arrangement where nothing happens for two years. That obviously then, the issues of stays and so forth are irrelevant because we've got effectively a two year stay.

PN59

I agree with Mr Izzo. I think the appropriate way to deal with this matter is that a very brief submission should be made by the proponents of change. We will make a submission. I am familiar that I haven't marinated in this material, I've had other things to do and if I can find some way to oppose it, we will. It was a joke. I think looking at 1 July as the date that this will occur, is appropriate. Sorry if I was a bit confused before.

PN60

THE COMMISSIONER: No, I understand. That's helpful, thank you. Mr Fleming, is there anything you want to add?

PN61

MR FLEMING: Thank you, Commissioner. We don't have a position on this. The purpose of the attending today was just to see the status of these matters and to ensure that employees' interests were represented. As United Voice is clearly playing the contradictory role, we're happy to not be involved.

PN62

THE COMMISSIONER: Thank you. I think the appropriate course of action that I'll be recommending to the Full Bench is the one that's most recently discussed and that is dealing with effectively the potentially consequential variations to what I've described for present purposes, as the TOIL, public holiday TOIL provisions, on the papers, in the context of written submissions. Assuming that the Full Bench agrees with that approach, then directions will be issued shortly.

PN63

For what it's worth, I think that in the circumstances, that is the appropriate course of action, both for the convenience of the parties, and given the context in which we're operating and particularly also noting the position that United Voice has announced overnight and the fact that the Commission will need to deal with that in a global way as well.

PN64

All right, unless there's anything further, thank you all for your participation. A transcript will be loaded on the website in due course. I'll provide a brief report to the President and make the assumption that President agrees, or the Full Bench agrees with that course of action, directions will be issued in the near future.

PN65

MR IZZO: Commissioner, can I just raise one matter, which I just think, because there's a lot of moving parts, and I'm not ordinarily to try and make our workloads more difficult, but if the orders are made for the submissions to be filed in a relatively prompt time frame. For instance, one week for the employers and one week in reply for United Voice, I think that helps to bring things into alignment as quickly as we can.

PN66

MR BULL: That's a good idea.

PN67

MR IZZO: Which then means that whatever happens to � everything happens together. If we end up with the Commission giving us some more generous timeframe, which would usually be appreciated, we may end up disjointed for longer. Unless there's a difficulty from any of the parties, a week each is probably going to be better for everyone.

PN68

MR BULL: I would just indicate, I want a bit of time to just look at it. We can't cavil with the decision in this place.

PN69

THE COMMISSIONER: Yes.

PN70

MR BULL: You can have something up and running and sitting in the filing cabinet to come to life maybe, if we're unsuccessful.

PN71

THE COMMISSIONER: Very well. I'm sensitive to the issue that you've just both commented on, and for what it's worth that's why this conference was listed at this particular juncture with respect to the other proceedings - with respect to the timing of the other proceedings, so that the Commission can in fact, bring these matters to a finality in a common-sense way. As it turns out, that will probably suit more purposes.

PN72

Nothing further? Thank you, the Commission will be adjourned.

ADJOURNED INDEFINITELY�� [9.31 AM]