Epiq logo Fair Work Commission logo






Fair Work Act 2009                                                    






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards





10.02 AM, THURSDAY, 21 JUNE 2018


JUSTICE ROSS:  Can I have the appearances please?


MR N WARD:  Your Honour, I continue my appearance for the Australian Chamber.


MR B FERGUSON:  Ferguson, initial B for the Australian Industry Group, your Honour.


JUSTICE ROSS:  Thank you and by phone in Canberra?


MR D JOHNS:  Yes, your Honour, Johns, initial D, National Road Transport Association.


JUSTICE ROSS:  Thank you Mr Johns.


MR B ROGERS:  Your Honour, it's Rogers, initial B appearing for the National Farmers Federation.


JUSTICE ROSS:  Thank you Mr Rogers.  In Melbourne?


MS S ISMAIL:  Your Honour, Ismail, initial S, continuing my appearance for the ACTU.


JUSTICE ROSS:  Thank you.  If I can just deal with some of the background and then we might discuss where we go from here.  In a decision issued on 26 March this year, a Full Bench rejected the ACTU's claim seeking a variation of all modern awards to include an entitlement to part time work or reduced hours for employees with parenting or caring responsibilities.


The Full Bench went on to express provisional views in respect of the variation of modern awards to incorporate a model term to facilitate flexible working arrangements and also set out the terms of such a provisional model term.  Interested parties - in a statement issued on 3 May, interested parties were invited to comment on those issues and submissions have been received from ACI, Ai Group, NAT Road, the ACTU, an organisation known as the FlexAgility Group and an individual Mr G Schuster who is described as an in-house lawyer though I don't think the entity for which he works is identified.  There's also been a reply submission filed by Ai Group dated 20 June.


First of all, have I missed any of the submissions?  No?  All right.  It occurs to me that there are a greater range of matters and divergence between the parties in respect of this matter than in relation to the family and domestic violence matter that I dealt with at 9 o'clock today.  I wanted to suggest to you a course of action and then invite your comment on that and whether you have an alternative course.


I was proposing to prepare a background document which would seek to summarise the range of submissions in respect of this issue, or this matter and then provide parties with an opportunity to comment on that document, both as to its accuracy and whether they wish to say anything further in relation to any submission made by any party.  Because I know only Ai Group has filed a reply submission and given the substantive areas of difference, I didn't want to impose some arbitrary cut off on comment.


We'd issue a statement, background document, some directions for the filing of material and at least my preliminary view was that after all that material has been filed, it could be determined on the papers, unless any party had a view about the desirability of an oral hearing in respect of the matter.


That was the proposition.  Really, I suppose the other matter I should mention is whether anyone wishes to resile from anything they've put in writing.  Now would be the time to do that, but any sort of corrections or nuances et cetera could probably be picked up in the response to the background paper that I've suggested.


What do you think?  And if not this, then what?


MR WARD:  Your Honour, can I start by categorising the issues - there are essentially two sets of issues.  One is what I've called the obligation to confer and the additional written obligations package and the other one is the casual service threshold package.


JUSTICE ROSS:  One is more about the content and the other is more - I guess, Ai Group's proposition that the proposed provisional model term negates part of the NES, that sort of argument.


MR WARD:  I've had a brief conversation with Mr Ferguson in between this matter and the last.  Mr Ferguson and I believe that we can potentially come up with some alternative drafting in relation to the obligation to confer and additional written obligations package, that at the very least would remove any objection from our side.


I'm trying to avoid, as much as possible, Mr Ferguson and I having the debate about these matters in a court room.  Nothing would give Ms Ismail greater joy.


MS ISMAIL:  Please carry on.


MR WARD:  Yes.  That would not be an attempt in any way to change the substance of what the Bench are looking to do.  It's more construction such that the anxieties that AiG have got, whether they're real or not, are removed.  We would like an opportunity to be able to confer and put that, because that might at the very least, if not completely, in large measure resolve that package.


JUSTICE ROSS:  It would make sense for those discussions to take place and we see where they get to and perhaps then have a further mention.


MR WARD:  Yes.


JUSTICE ROSS:  If you don't get anywhere, then we can adopt the process that's been outlined or something else.  Is that the idea?


MR WARD:  Yes it is, your Honour.  Yes.


JUSTICE ROSS:  How long do you think you'll be to - - -


MR JOHNS:  Your Honour, if I could just interject there a moment, please?




MR JOHNS:  It's Johns in Canberra.  NAT Road's submissions are largely in the same terms, perhaps not as comprehensive, but largely in the same terms as AiG's.  I would definitely be requesting that we're party to that discussion.


JUSTICE ROSS:  Sure.  Mr Ward is indicating that there's no - look, I can't direct, well I wouldn't be inclined to direct whose party to it, but Mr Ward is indicating he's happy to engage with you as well, Mr Johns, if that helps.


MR JOHNS:  Thank you.


MR WARD:  If it helps resolve the matter, we'll engage with anybody who we can go to.  Two weeks would be sufficient for that, so we could - and I'm optimistic that we'll be able to come up with something.  We'll have that filed within two weeks.


JUSTICE ROSS:  I wonder if just on your last comment engaging with anyone.  It might be worth - I'm not sure what the NFF's position is, but we can hear from Mr Rogers and given it's a relatively short delay, I don't imagine there'd be any problem, but it might be of assistance, once you've dealt with your group as it were, if you have a conversation with Ms Ismail and see whether there can be any sort of general agreed position, or at least narrow where you disagree, rather than then end up in a paper war.


MR WARD:  Yes.


JUSTICE ROSS:  If you're content to adopt that, then look, I'd probably give you a little more time, given that process.  I'll come back to you in a moment, Ms Ismail and anyone else who would wish to make a comment.  The proposition broadly would be that - well, I don't have to do anything, but there would be a three week period in which ABI would engage with the relevant employer organisations, then also have a discussion with Ms Ismail and then file something about where you've got up to in relation to that.


MR WARD:  Yes.


JUSTICE ROSS:  Then following the filing of that, I'd have a further mention to discuss where we might go.  Is that the - - -


MR WARD:  It is, your Honour, yes.


JUSTICE ROSS:  It may be when you file the material, if you think that mention might be useful as a conference, then by all means identify that.


Ms Ismail, are you content with that?  It's a relatively short period which may provide an opportunity for, or may negate the need for a more detailed debate around the propositions advanced at the moment by Ai Group.  Provided that you're given an opportunity to engage once the employers have come to their view, they will then talk to you about it before they file any material.  Are you content with that course?


MS ISMAIL:  Thanks your Honour, yes and contrary to your instruction, I spent most of the break between the mentions trying to convince the AiG to resile from their written position, unsuccessfully instead of reaching an agreement about these matters.  But can I just clarify that?




MS ISMAIL:  We're talking about ACI's and AiG's potential rewrite of the obligations relating to conferring and putting variations in writing and not the broader jurisdictional question.


JUSTICE ROSS:  Well, I think the proposition is and I'm not sure we need to characterise it as a rewrite or anything like that, but ACI is putting that they may have a summary drafting that may have the effect of addressing completely Ai Group's concerns about the jurisdictional issue.  If that is possible, and that's where it's at, so you may get to a position where if the model term looked like this, and Mr Ward's indicated that he's not intending to do violence to the model term, it's just there may be summary drafting.  We'll just have to wait until we see what that is.




JUSTICE ROSS:  If that meets Ai Group's concern, then the upshot of that is we wouldn't be having a jurisdictional argument, we would then potentially they would be having a debate with your initially around what those changes to the model term would look like.  Then something would be filed indicating where the parties are up to, and as I said, if you think - well after that, I'll have a further either mention or conference, depending on what the parties think would be worthwhile.


It's just difficult to tell at this stage.  It may be that ultimately the differences between you come down to, for example, Ai Group's proposition around the six versus the 12 months and if that's the position, well that's a fairly straightforward thing to deal with.  If we're into a broader jurisdictional thing, then I'll need to think about directions and the like.


MR WARD:  That's our position on the obligations to confer and additional written obligations package.




MR WARD:  Can I say that in relation to the casual threshold issue, there does appear, even if we get that resolved, there is most likely going to be, at the very least, a discretionary debate about that.  But as I anticipate it, there probably still is some jurisdictional argument that will be agitated at the very least by AiG, but possibly by others.


JUSTICE ROSS:  That's fine, but it's more confined to just that point, rather than at the moment, it's a broader jurisdictional piece saying you can't really do any of this.  It's slightly more sophisticated than that, but - - -


MR WARD:  We're a fair way back, but can I just say this.  For our purposes, if this still is a jurisdictional argument to be had, we would ultimately prefer, even if it's brief, an oral hearing.


JUSTICE ROSS:  Yes, look I think if that's where we are, that's probably going to be my preference as well, because it gives you an opportunity to engage with the parties about their views.  But let's see.  At the moment, the proposition is you'll have a discussion with the employer parties that have expressed an interest.  Once you've reached a - see where you've gone on that, if you've had some progress, then you'll discuss that with Ms Ismail and then file something in three weeks and I'll list it for mention after that.


MR WARD:  Your Honour, I should just say that to the extent that Mr Ferguson and I work of that, it will be collaborative in nature rather than me proposing something to him.


JUSTICE ROSS:  No, sure, that's fine.  I don't mind who files the response.


MR FERGUSON:  No, sensitivities.


JUSTICE ROSS:  No, that's fine.  Yes Ms Ismail.


MS ISMAIL:  I suppose your Honour, we don't want to waste - we think there's merit in taking a conciliatory approach to this, but we don't want to waste too much time tinkering with the clauses that the Commission has put which we think frankly, do the job properly, if we're then going to subsequently have a debate about whether or not the thing should be in there at all.


JUSTICE ROSS:  I think what's being put is that it may be that however one frames it, tinkering or reconstructing or whatever, as I understand it, leave aside for the moment this casual six versus 12 month issue.  Park that for the moment.  We're talking about the rest of the clause. What will be put to you will either be nothing or a proposition which says, if the clause was varied in this way, it would remove Ai Group's jurisdictional objection to those parts of the clause.


MR FERGUSON:  And it may remove a lot of our other issues that we raised.


JUSTICE ROSS:  Yes, it may remove all of their matters and may narrow the scope of any subsequent hearing.  But of course, it's only a couple of weeks.  Even if we were to publish a summary of submissions, it would probably take me a week to get to that and then some process after that in any event.  But I don't think it would be protracted.  I think it's a short opportunity to see if there's scope.  If there isn't, then I'll have the mention, we'll program it and we'll get on with it.


MS ISMAIL:  Yes, your Honour.  Thanks, we're content with that course of action.


MR FERGUSON:  One more issue of timing, just a period of leave between 7 and 14 July.  Ideally, I'd love to have accommodated in the sense of not having a final filing date during that period.  The date for the final exchange with the ACTU or to the Bench perhaps, fall squarely in the middle of that, even if it's just one day on the other side of that, would be sufficient from my end.  My office can advance it without me, but - - -


JUSTICE ROSS:  I'll visit you in the Seychelles.


MR FERGUSON:  I'll be there, yes.


JUSTICE ROSS:  I mean the three weeks takes up to 12 July and I wouldn't propose to have a mention till some time the week after, because I would want the opportunity of the parties who may not have been following it, to see whatever's filed, give some thought to it.  It's likely the mention would be in the week commencing 16 July.  I've just got to check.  I think I've got the appeal roster that week, but it won't take very long.


MR FERGUSON:  Indulgently seeking a date for filing at the very start of that week perhaps and then the mention at the very end of that week, if that can be accommodated.


JUSTICE ROSS:  Yes, I see.


MR FERGUSON:  Just so that I'm not - - -


JUSTICE ROSS:  No, that's fine.  Then the 16th for the coming back to me and then I'll pick a mention date later on in that week.


Was there anything the NFF wished to add?


MR ROGERS:  Yes, your Honour.  Can I just raise two points briefly?  Firstly, just to register my interest in engaging with the other employer parties in the discussions.  The other issue is that there is one matter that I'd like to raise in submissions and I realise that I've missed the deadline, they were due on the 13th.  I wonder if I might be given leave to just file a very brief - it wouldn't be more than two page submission, by close of business today?


JUSTICE ROSS:  Sure, that's fine.  I mean, I was going to, in any event, provide an opportunity, once we publish the summary of the submissions, but if you could do that, that would be fine, Mr Rogers.


MR ROGERS:  Thank you, your Honour.


JUSTICE ROSS:  All right, I'll adjourn and I won't issue directions, but I'll issue a listing in respect of the further mention / conference of this matter and it will be either later in the week commencing 16 July or shortly thereafter.  I'll just need to check my diary and we'll do that later today.


Thank you very much.  I'll adjourn.

ADJOURNED INDEFINITELY                                                        [10.21 AM]