PN1

THE COMMISSIONER: Right. Good morning all. Welcome back to the gift that keeps on giving, the part day public holiday issues. The conference so looking in that context the purpose of the conference is set out in the statement that I issued on behalf of the Commission on 25 October 2020. That's reference number 2020 FWC 5110.

PN2

The principal purpose of today's conference, of course, is to enable me to provide a report to the Full Bench that's responsible for finalising the relevant Modern Awards. Now, the Full Bench will obviously, ultimately, resolve any issues and issue any determinations that need to be made but it is appropriate through this process to define and, if possible, narrow some of the issues and, of course, to facilitate the process for the Full Bench. So that's fundamentally what we're about today.

PN3

Now many of you have supplied some written submissions already which is helpful and I have read those. They will be supplied, in full, along with my report for the Full Bench. So it's not necessary to repeat your written submissions today and I will also provide a copy of today's transcript along with the report to the Full Bench. Therefore, I suggest that you might use today's conference to clarify any matters in addition to your written submissions and if you're one to respond to anything raised in any other parties submissions then do so.

PN4

But it would seem to me that there are three themes that have emerged from both the background paper and the written submissions. So, firstly, the scope of the part-day public holidays and as part of that it seems to me the two issues arise. So whether the definition or whether the provision should cover part-day public holidays beyond those presently nominated, bearing in mind that the present provisions nominate Christmas and New Year part day public holidays.

PN5

Now if the provision is not to be extended to other part-day public holidays the question might be 'Why not?' because on face value the same sort of issues tend to arise. The second issue about the scope of the provision is whether the version as drafted in the most iteration whether the scope would extend part-day public holidays beyond those already provided by the schedule. That is beyond those that are already public holidays by virtue of section 115A or prescribed under a law of the State or a Territory under section 115(1)(b). So where the provisions were to be extended beyond that scope and if so whether that's appropriate.

PN6

One of the issues that would arise in that context, of course, is if the part-day public holiday schedule had a wider scope than the substantive public holiday provision in the Modern Awards whether that would be the appropriate figure given that the two are meant to be read together. So the second sort of major theme that arises is that the degree of adoption of common provisions through some sort of model provision which was sort of discussed in the discussion paper.

PN7

Now the view and this is almost a common view appears to be that some rationalisation might be appropriate but the Commission should avoid having provisions that have no work to do. So, for instance, making reference to an annualised hours arrangement when there's no annualised hours done in the award. And there also appears to be some common ground that a special provision should be retained, where necessary, including the fast food and the timber industry, for example.

PN8

The third theme of issues are the drafting suggestions that were raised in the discussion paper and some of the responses that have been provided that are from my point of view, I think, the submissions on the drafting issues are clear. They stand for themselves but it might be appropriate if anyone wants to respond to any other submissions that have been made on the drafting issues then I would invite you to do so.

PN9

All right. So, look, there's no particular magic to any order that you might make your submissions today because I thought it might be appropriate to start with those organisations that sort of have the broader interests first, only as a way of providing some sort of rational order for people making contributions. But in the end it doesn't matter, and in that context I think Mr Harrington we might start with the AiG?

PN10

MR HARRINGTON: Thank you, Commissioner. I'm happy to kick off. We've sent correspondence and made submissions to the Commission indicating our view that the current part day public holiday schedules have been operating without any great difficulty. But the questions which were raised in the Commission's statement have been reviewed, and as you would have seen our submissions, after some further analysis of those provisions we've taken to the view that there are a number of matters where the schedule could be improved.

PN11

The versions of the part-day public holiday schedule have been looked at and we have come to the view that a number of points should be raised in the context of this conference and maybe it will be helpful to go question by question and then perhaps deal with any additional issues which emerge from our reading of the plan and they redrafted it.

PN12

We would like an opportunity to put our opinion on some of the other problems raised by the various parties to these proceedings but I think it may be worth mentioning that while we are using this conference as an opportunity to ventilate and further elaborate on the issues which were dealt with in the written submissions we have had a lengthy amount of time to consider the other parties' respective proposals. And depending on what comes out of this conference in the form of a report to the Full Bench, or any provisional views which are subsequently expressed by the Commission, we would appreciate the opportunity to confirm our positions at a later date.

PN13

But, look, taking one issue at a time the first question which was raised regarding the application of the part-day public holiday schedule to holidays other than Christmas Eve and New Year's Eve, our view is, and they have been expressed in our written submissions that even though the part-day public holiday schedule was originally expressed to be narrowly applied only to those two holidays the issues which it was meant to tackle - various award entitlements relating to the public holidays which were expressed in terms of a full day entitlement or a 7.6 hour entitlement, could easily apply to another part-day holiday, including some of the regional or the local public holidays that are available in certain parts of New South Wales.

PN14

If the schedule isn't extended to other part-day public holidays our real concern would be that potentially the entitlements available in respect of these are different to those available on Christmas Eve and New Year's Eve or at least that presumption might arise. We do not consider that to be warranted by the original intent behind it, including the schedule, which was to deal with the inconsistencies relating to applying the general public holiday provisions in the Award to part-day to public holidays.

PN15

So we understand that NECA have made a submission which opposes the extended operation of the schedule at least for the Electrical Award. But on that point we'd note our submission is premised on an assumption that extending the operation of the schedule will not result in any additional obligations imposed upon employers, regarding an employee's right to refuse to work on a public holiday. Our view is that the entitlement is already available under the NES. With respect to that it's the penalties. Those are available under the Electrical Award where an employee works on a public holiday because I think the relevant clause is 31 and that just reflects an entitlement to public holidays under the NES. So our view is that penalties are already available under the Electrical Award where work is undertaken on the part-day public holiday under the NES.

PN16

And just finally, just in saying the availability of a substitute day, again, we consider that to be an existing entitlement under the Electrical Award and that one provides that an employer and an employee might agree or may agree to substitute another part-day - swap a part-day - that would otherwise be a part-day - a public holiday under the NES.

PN17

So with respect to NECA's submissions we agree that the part-day public holiday schedule shouldn't be amended to extend entitlements with respect to part-day public holidays that aren't already available or aren't already present in the relevant awards but with a number of exceptions which we have canvassed in our written submissions we don't think that's what the Commission is proposing the unions do.

PN18

Importantly, though, we raised this in our written submissions, we considered it important that the definition of a part-day public holiday should not be extended beyond what's currently covered under the NES. So we think that proposed 8.1 in each of the draft schedules should be read as defining a public holiday to encompass one which is declared by a law of a region of a State or Territory. Or it could be read that way.

PN19

Section 115 of the Act refers to public holidays, including part days that might be observed in a region of a State or Territory but which are declared under a law of a State or Territory but not under a law of a region or a Council area. So it's a fine distinction but we think it's an important one. Our submissions to seek impress the importance of consistency with the NES. So the proposed variation that we put that paragraph 15 of our latest submissions are that was intended to avoid what we think would have been an unintended outcome of broadening the definition of a part-day public holiday beyond what's encompassed by that term in the NES.

PN20

So I might pause just in case anyone wants to jump in but we can go on and just deal with that second issue which you've raised concerning consistency across the various versions. But, Commissioner, if you're happy with me to go on and discuss the other points I can. But do you want to provide an opportunity for the other parties to jump in on that topic?

PN21

THE COMMISSIONER: Well, look that might be useful because I do notice you have alluded to Mr Harrington with some, I think, employer groups have indicated the concern about the first issue that I raised, that is, expanding the scope of the part-day public holidays beyond the Christmas Eve and New Year's Eve. So it might be worth hearing from those and anyone else that wants to make a contribution in relation to the scope of the provision more generally.

PN22

MR JERVIS: Thank you, Commissioner, can you hear me okay?

PN23

THE COMMISSIONER: I can, Mr Jervis, yes.

PN24

MR JERVIS: Jervis here, initial G, from NECA.

PN25

THE COMMISSIONER: Yes.

PN26

MR JERVIS: We agree with the general thrust of Mr Harrington's submission and, indeed, that's what we were - our submission was focused on - that is extending rights that don't currently exist. Clause 31.1 of the Electrical Award defers to Division 10 of the NES which, as you know, recognises regional or local public holidays, be they full day or part-day, declared under the law of the State or Territory.

PN27

Our concern was that and I think Mr Harrington has alluded to this that public holidays declared by local government or regional governments go beyond what's permitted by the NES, and that is really the thrust of our submission. To retain the schedule as is is not inconsistent with the general scheme of the Electrical Award. The Electrical Award already refers to the NES in a number of respects including at 14.1 Notice of Termination, 15.1 Redundancy Pay, 21.1(a) - sorry - Annual Leave, 29.1; Personal Carer's Leave and Compassionate Leave and Community Service Leave.

PN28

So that was our primary concern. I'm glad that Mr Harrington would pick up on that and that's really the thrust of my submissions. Just for completeness we agree with the submission of AiG at clause 10 and we agree with the amendment proposed at clause 15 of their submission. We haven't informed the view about whether or not there should be a single schedule as proposed by question six and we agree with the submissions of AiG addressed to questions one and two under drafting issues. Thank you, Commissioner.

PN29

THE COMMISSIONER: Thank you, very much. So does anyone else want to be heard on the question of the scope of the provision?

PN30

MR RYAN: Commissioner, it's Ryan, initial P, for the Australian Hotels Association.

PN31

THE COMMISSIONER: Yes, Mr Ryan.

PN32

MR RYAN: We have an interest in the Hospitality Industry Award 2020. We unfortunately did not file a position statement prior to today but we broadly agree with the submissions of Ai Group, both in relation to the definitional issue that has been incorporated in relation to laws of a local government authority we think consistent with the and in support of the submission of Ai Group that it should be as the definition should be consistent with what is in section 115 of the Act at the moment.

PN33

In relation to extending it to all public holidays there has always been over the last several years some ambiguity as to how you deal, particularly in New South Wales where we have a range of local show days, race days, and other special events that operate for part of a day. There has always been some ambiguity that how you treat those days, vis-à-vis local - part-day public holidays that would fall on Christmas Eve or New Year's Eve so we would have no objection to it being extended across all part-day public holidays.

PN34

In relation to some of the matters that have been raised in the statement and addressed in the broader submissions of Ai Group we might just touch on those progressively as they come up through the course of today's conference.

PN35

THE COMMISSIONER: Right. Good. Thank you, Mr Ryan. So anyone else on the question of the scope of the provision?

PN36

MS SOSTARKO: Commissioner, it's Rebecca Sostarko here from Master Builders Australia.

PN37

THE COMMISSIONER: Yes.

PN38

MS SOSTARKO: We would too apologise. We haven't provided any materials in advance of the conference but just briefly we have made a number of submissions throughout the course of this matter and our position hasn't changed with respect to this current scope which is that we certainly are not aware that the schedule in its current form has caused any problems with respect to the Construction Award. So be it the Onsite and Joinery Awards and that we certainly continue to hold the view that clause 41 of the Onsite Award and respectively 35 of the Joinery Award, adequately deal with conditions relevant to public holidays and discharge the intent of the Act, section 115 of the Act. So, therefore, although we note that the sum of the submissions of the parties and, in particular, those of AiG that there may be some amenity in extending that scope it would be our primary position that that not occur.

PN39

THE COMMISSIONER: Just on that, so do I take it that the MBA says the same issues don't arise? And if so why would that - how would that be the case?

PN40

MS SOSTARKO: When you say 'issues', do you mean issues of confusion amongst our members in terms of how that schedule is applied?

PN41

THE COMMISSIONER: No. What I mean by that is that the part-day schedule was introduced in order to provide clarity about how part-day holidays, public holidays would operate as against full-day public holidays and on face value there is a requirement to clarify that for Christmas Eve and New Year's Eve why wouldn't the same apply to a half-day public holiday?

PN42

MS SOSTARKO: And those that are declared, for example, in New South Wales.

PN43

THE COMMISSIONER: Yes.

PN44

MS SOSTARKO: Well, all I can say, Commissioner, is that this is not an issue that has been raised with us and, therefore, given some of the concerns that other parties have raised just now and in submissions about the differences between whether it's prescribed or otherwise, I would be certainly with - we would be cautious in - if was there to be any amendment to that scope that it was very clear that those are public holidays that are prescribed under the relevant State legislation. But, as I say, all I can say, Commissioner, is that this is not something that has ever been an issue for us and therefore we would be reluctant, unless, there was some cogent rationale behind these types of changes that are advanced by the parties to support those.

PN45

THE COMMISSIONER: I understand. Thank you very much.

PN46

MS SOSTARKO: Thank you.

PN47

THE COMMISSIONER: All right. On the scope? Any further contributions? No? All right then. We might then move to the second sort of class of these lists that have emerged and that is that the degree of adoption of the common provisions. Now, the observation I made at the outset is look there is some sort of differences between the parties but they are at the margins. Effectively, there's almost a unity ticket here, as I would see it, but if anyone wants to make a contribution in addition to their submissions then please do so.

PN48

MR HARRINGTON: Commissioner, Harrington, initial H, for the Ai Group. Just concerning that distinction between version two and version three currently, we think they are too minor to justify maintaining the difference. Each of these versions covers a mix of awards. Some contain an annualised salary provision or annualised wage arrangements provision and some of them don't. But the distinction doesn't seem to run along that line. Just looking at the existing versions, prior to the (indistinct) redraft. The minor differences appear to be in 8.1 and the existence of an additional 8.2(h) in version two. And 8.1 is just worded slightly differently but not in the manner which, in our view, would imply separate intended meaning. And 8.2(h) seems to confirm the capacity for employees to substitute a part-day public holiday but that's already made quite clear in 8.3.

PN49

So we wouldn't object to there being a single version but we would submit that a distinction should be maintained between those schedules which apply to those awards which contain an annualised wage arrangement provision and those that don't.

PN50

Reference is then proposed to clause 8.2.3 and 8.2.6 of the schedules to annualise wage arrangements, the provisions are probably are unnecessary and confusing in those awards which lack them and might conflict with 138 which they said a Modern Award can only include terms to the extent necessary to achieve the Modern Awards objective. So one option might be for version one to apply to those awards which lack an annualised wage arrangement provision.

PN51

THE COMMISSIONER: Thank you. All right. Anyone else on this question? No? All right. Thank you. And, thirdly, then in relation to the drafting issues. As I mentioned at the outset again there are a number of responses to the issues that arise from the discussion draft that was issued by the staff of the Commission or prepared by the staff of the Commission. I think they were largely self-explanatory but if parties want to either add to their written submissions or comment on the propositions or submissions that are made by other parties then this is an opportunity to do so. Who'd like to do that?

PN52

MS ADLER: Commissioner, it's Ms Adler from the Housing Industry Association. If I could just comment on the proposed version attached to the submission dated 16 October.

PN53

THE COMMISSIONER: Ms Adler, I apologise for interrupting you but your line appears to be breaking up a bit.

PN54

MS ADLER: I apologise, your Honour. I'm not quite sure how to fix it.

PN55

THE COMMISSIONER: Neither am I but - - -

PN56

MS ADLER: I'll turn my camera off and see if that helps.

PN57

THE COMMISSIONER: That's a good start.

PN58

MS ADLER: All right. Is that any better?

PN59

THE COMMISSIONER: I'm not sure yet but perhaps see how we go.

PN60

MS ADLER: Okay. I'll keep talking (indistinct) difficult to hear me. Just very briefly in respect of the CFMEU's submission that the 16 October (indistinct)

PN61

THE COMMISSIONER: No, Ms Adler, I'm afraid we're only getting like every second or third word. So, perhaps I might - can I get you dial back into the conference and sometimes that makes a difference.

PN62

MS ADLER: Sure. I'll do that right now.

PN63

THE COMMISSIONER: All right. Thank you. We'll just wait for you. Thank you.

PN64

MS ADLER: Thank you.

PN65

THE COMMISSIONER: All right. Welcome back, Ms Adler.

PN66

MS ADLER: Thank you, your Honour. Can you hear me better now?

PN67

THE COMMISSIONER: That's very good, thank you.

PN68

MS ADLER: Okay. All right. Apologies for that. So just, as I said, hopefully, referring to the CFMEU's submission dated the 16 October there was an attachment to that schedule that made some proposed amendments to the part-day public holiday redrafted schedule that was attached to the Commission's statement and just for the sake of absolute clarity we would oppose the changes suggested by the CFMEU.

PN69

THE COMMISSIONER: All right. Well, look in that context it might be helpful if we hear from the CFMEU and then Ms Adler you might then confirm the particular matters you want to raise to my attention.

PN70

MR MAXWELL: Thank you, Commissioner. Commissioner, in regard to the changes that we propose to the draft schedule a number of them sought to clarify that or I suppose to limit the entitlement to the part-day public holiday to the period of the public holiday just to remove any possible ambiguity that a person may say, 'Well, the award says I'm entitled to that day as a part-day public holiday.' Well, then the condition should apply to the whole day. So we sought to clarify that by saying it only applies to the period of the public holiday to make that clear and make sure there is no ambiguity.

PN71

The other change in 8A.1 was to just include a reference to the - to a half-day because in New South Wales some of the part-day public holidays are called half-day public holidays. And it just sought to make sure that there is no ambiguity as to the application of the schedule. In 8.2 - - -

PN72

THE COMMISSIONER: Sorry to interrupt you. So do you say that the term 'half-day' is used in the New South Wales legislation?

PN73

MR MAXWELL: It is for some days, yes.

PN74

THE COMMISSIONER: Okay. Thank you.

PN75

MR MAXWELL: In 8.2.2. the change there was mainly to make it clear that I mean because under the Construction Award it refers to daily hirer employees, full-time weekly hirer employees and part-time weekly hirer employees that we want inclusion of the reference to daily hirer employees to make sure there's no ambiguity as to the application of the schedule to daily hire employees.

PN76

The other changes in 8.2.5 was to deal with the separate issue of rostered days off under the Construction Award which would also have application to other awards that deal with rostered days off. Now I know that the HIA has raised an issue in regard to the accrual of the RDO on public holidays, and I think this matter perhaps needs to do the work because I don't think anyone's suggesting that an employee who works on a part-day public holiday or who takes a part-day public holiday to receive more than 0.4 hour accrual for that whole day and so the wording, I think, in the schedule would need to be changed to address that specific issue that was raised by the HIA. I think that's all the - it deals with the main reasons why we have opposed the changes.

PN77

THE COMMISSIONER: Thank you, Mr Maxwell?

PN78

MS ADLER: Thank you. I guess, in the first instance, the addition of half-day and the specificity around part-time, weekly, full-time weekly et cetera. We just don't think it's necessary and that's really why we oppose it. The wording, 'during the period', again that would be an issue that would apply to more than just the Construction Award. So if it was something to be, a suggestion in this particular schedule I wouldn't see why it wouldn't be a relevant consideration for others. Having said that, again, we just don't think it's necessary.

PN79

Moving to the issue with the RDOs, as Mr Maxwell said, we raised an issue with the accrual piece in our submission and I won't go into that. That's in writing for everybody to read. Having said that I think that the wording proposed would potentially be at odds with an approach that we would suggest in terms of how to deal with accruals and how to deal with any RDO entitlement that might to happen arise on a public holiday.

PN80

There was one matter that I would raise in terms of an existing provision in the award which is clause - just bear with me.

PN81

THE COMMISSIONER: Certainly.

PN82

MS ADLER: 33.1(c)(3) which basically says that you're not to roster an RDO on a day that is a public holiday. And I notice that in AiG's submission I think they raise a similar issue in their other awards that have similar wording, which may solve the problem that we raise, but wanted to give that some more consideration. But I think on that accrual point and in respect of the words that the CFMEU has added to 8.2.5 we probably do need to think about that a little bit further.

PN83

THE COMMISSIONER: All right. Thank you very much. All right. Does anyone want to be heard in addition to their written submissions on the draft and issues?

PN84

MR HARRINGTON: Harrington, initial H, for Ai Group. Look, it seems that we've moved on to discussing the issues which the CFMMEU have raised regarding the relevant award but I understand there are a number of other allied points regarding the drafting issues which have been raised by other parties, Local Government Australia, regarding the Local Government Industry Award but since we currently are talking about the Building Awards I'm happy to jump in on that point provided we can settle back and potentially just deal with some of those issues which were raised regarding their Local Government Industry Award.

PN85

THE COMMISSIONER: Sure.

PN86

MR HARRINGTON: Thank you. Just concerning the CFMMEU's submissions and we've not had any separate discussions on any of these points but regarding their preference for each schedule to be tailored to be award specific we consider that much of the utility in having a schedule at all was to avoid the necessity of conducting a wholesale review of each of the provisions regarding government public holidays and relevant awards and making amendments in the body of the award. While we consider that there's a sense in avoiding inconsistencies and ensuring that tailoring is undertaken where necessary, our view is that that sort of tailoring is best done when a problem with an existing schedule, the schedule redrafted in plain language is noted by an interested party.

PN87

But just looking at some of the more specific points which have been raised by the CFMEU they proposed, including an explicit reference to daily hire employees and the part-day public holiday schedule. Specifically, in proposed 8.2.2, 8.2.4 and 8.2.5 and we know that each of these provisions refers to an employee who is usually rostered to work ordinary hours on the part-day public holiday and our view was that it might be considered inconsistent to speak of when a daily hirer employee is usually rostered. Those sorts of employees are paid a follow the job loading in respect of the incidents of loss of wages for periods of unemployment between jobs. Whether or not that's incongruous, you know, it might be something for discussions. But we think the parties, specifically the CFMMEU, the HIA, the MBA and ourselves might benefit from an opportunity to have some further discussions on this point.

PN88

So we appreciate that we only had a limited time to review the CFMMEU's submissions regarding daily hire and we consider that further negotiations might be beneficial to ventilate any of the CFMMEU's concerns which it seeks to resolve by the variation that is proposed. But just regarding some of the other points which they've raised, the CFMMEU's proposed amendment to the schedule on the Building Award refers to the words 'During the period of the part-day public holiday, rather than on the part-day public holiday.' We think that's probably unnecessary. A part-day public holiday is defined by the NES and the relevant State-based legislation to encompass only the relevant hours in which it operates. And our view is that any entitlement or provision in a schedule which refers to hours on a part-day public holiday won't encompass hours within that 24-hour period which aren't in the part-day public holiday or aren't part of the public holiday, as it's been gazetted or proposed.

PN89

So, if the Commission is minded to accept the CFMMEU's change on this point we consider that a consistent approach should be taken across the schedules to avoid any presumption that a different meaning is intended by the words, 'during the period of a part-day public holiday', as opposed to 'on the part-day public holiday'. Just regarding that issue with the half-day public holidays they have raised an issue with there being no mention of the half-day public holidays in the schedule and proposed that 8.1 be amended to state Schedule A applies on the part-day or a half-day declared or prescribed by law of the State or Territory and we think that will probably be confusing. There is no indication that part-day public holidays wouldn't even encompass the half-day public holiday or any public holiday which is expressed to be made up of a smaller part of that 24-hour period.

PN90

So, we wouldn't support the CFMMEU's submission on that point. But probably a more pressing issue and this is definitely more substantive regards the minimum periods of engagement. So in 8.2.3 the CFMMEU have proposed an amendment which would confirm that employees must be paid the public holiday penalty rate for the minimum period as provided for in the award applicable to the hours worked during that holiday.

PN91

Now, we think this raises an issue with minimum engagement periods, generally, which shouldn't apply to impose a minimum number of hours. Where the employee is already being engaged during that 24-hour period which includes the part-day public holiday but those hours might only partially overlap with the public holiday. So, for example, the minimum engagement period, generally, for a public holiday requires four hours and that's what the holiday (indistinct). We think that would be unclear if employees already worked five or six hours after the time of the public holiday and only as the final hour overlaps with the public holiday. I understand that part of the utility of the minimum engagement periods is to ensure that there is some economic sense in an employee coming into work, taking into account travel and other costs and these will be satisfied if the minimum engagement period was already met earlier in the day prior to a public holiday commencing.

PN92

So it's worth noting that your report issued in the original 2012 review - December 2012 - which led to the inclusion of the part-day public holiday scheduling most Modern Awards did refer the minimum engagement period as a source of ambiguity regarding the part-day public holidays but it said that these might require assessment as part of a more comprehensive review of the provisions within Modern Awards.

PN93

So look we oppose the CFMMEU's amendment, referring to minimum engagement periods but consider that, generally, a new clause (indistinct) in the schedule which provides an exception to part-day public holidays where that minimum engagement period has been satisfied elsewhere in the 24-hour period which contains the part-day public holiday. And this hasn't been canvassed with the other parties and we understand that they'd need to give us some consideration.

PN94

THE COMMISSIONER: Yes.

PN95

MR HARRINGTON: But just that one last point regarding the CFMMEU's submissions regarding banking RDO entitlements and I think Ms Adler from the HIA raised this. 8.2.5 as proposed by the Commission says that where an employee is usually rostered to work ordinary hours during as heard a part-day public holiday and doesn't work because they're on an RDO then they're taken to be on the public holiday for those hours and they have to be paid the rate applicable for their ordinary hours during that time. And the CFMMEU has proposed that an additional point be added to provide that and the accrued RDO entitlement that would have been payable for such hours will be banked and be available to be taken at another time agreed between the employer and the employee. And look, we'd oppose that change.

PN96

There is no clear equivalent apart for public holidays falling on RDOs generally, under the Building Award and I think Melissa Adler alluded to clause 33.1(c)(iii) and that already deals with the interaction between RDOs and public holidays and provides a roster issued in accordance with clause must not require an employee to take an RDO on the day that is a public holiday.

PN97

So we agree that the current clause 8.2.5 probably doesn't adequately reflect 33.1(c) and that former envisages that RDOs and public holidays might fall on the same day. But our view is that a tailored schedule for the Building Award might simply reflect 33.1(c)(iii). We might just add that clause 33.1(d) envisages banking of RDOs by agreement. So the CFMMEU's proposed amendment appears to mandate (indistinct) which we think might be inconsistent with 33.1(d).

PN98

Just looking at what the HIA proposed regarding or what they've said regarding RDOs on public holidays. The accrual of .4 of an hour for a part-day public holiday we agree would be inappropriate where only a small amount of the employee's ordinary hours overlap with a part-day public holiday and the HIA have highlighted this issue which might suggest that an award-specific approach is needed and that we agree that the HIA have raised an issue that needs to be resolved for the Building Award. One fair approach might be that the entitlement to accrue .4 of an hour towards an RDO might be linked to a 24-hour period which contains a part-day public holiday and this might resolve the matter by avoiding an excessive accrual where an employee's ordinary hours only marginally overlap the part-day public holiday. But these are proposals which we'd expect the other parties and the Commission would need time to consider.

PN99

THE COMMISSIONER: I understand, thank you. Mr Harrington, you indicated you wanted to also deal with another drafting submission or a submission about drafting I should say.

PN100

MR HARRINGTON: Sorry, I just had myself on mute. Yes. That's right, Commissioner. We understand that the Local Government Association proposed adding accrued days off to clause 8.2.5. We note in our own submissions that a number of awards otherwise provide for the interaction between public holidays and accrued days off and we agree that a provision (indistinct) of the award otherwise deals with the situation then (indistinct) the operation of the provision regarding RDOs in that a draft schedule could be confusing. But we might just note that 28.5 of the Local Government Industry Award says only employees who are working a seven-day rotating roster system and who are rostered day-off on a public holiday still get paid for the public holiday and the following clause says that if a public holiday falls on an employee's accrued rostered day off the next working day will be substituted.

PN101

So these provide for entitlements with respect to the interaction between public holidays and RDOs in the award that are different to 8.2.5 in version two or 8.2(d) of the current version two where an employee is taken to be on a public holiday, where an employee's RDO falls on the public holiday and they don't work as a result. Just pursuant to clause 28.5, employees only get paid for a public holiday. They don't work while rostered off if they're working a seven-day rotating roster system. And under clause 28.6 accrued rostered days off give rise to a substitute public holiday.

PN102

So, look, for those reasons we support the Local Government Industry Association submission that probably a tailored clause might be necessary but the LGA's proposal might conflict with 28.6 which says that if an accrued rostered day off falls on a public holiday the next working day will be substituted.

PN103

So the LGA's proposed alteration to 8.2.5 provides that an employee would be taken to be on a public holiday where it coincides with an RDO. So, look, we just suggested some redrafting might be needed but acknowledge that whatever provision is ultimately included in the Local Government Industry Award needs to be consistent with 28.5 and 28.6. But that's all we have on that award. Thank you, Commissioner.

PN104

THE COMMISSIONER: All right. Thank you. I don't think we have anyone from the LGA on the call. No. All right. So does anyone else wish to be heard in relation to the drafting issues?

PN105

MR RYAN: Commissioner, it's Ryan, initial P, for the AHA.

PN106

THE COMMISSIONER: Yes, Mr Ryan?

PN107

MR RYAN: Just on some drafting issues we agree with the Ai Group submission in relation to the referencing to personal carer's leave. In relation to the accrued day off and rostered day off concepts we don't have a firm position as to whether they're in or they're out but if they are in they should be consistent with and provide clarity in relation to the entitlements that would otherwise apply in the main body of the Hospitality Award and not provide any additional benefit that - for part-day public holidays.

PN108

In relation to the issue of minimum engagements and work performed as part of one continuous shift that traverses over a - holiday. This issue arose in the review of the Hospitality Industry Award and the Full Bench dealing with that award dealt with the issue in a decision which is referenced 2018 FWCFB 7263. It's set out at approximately paragraph 68 to 70 of that decision and the outcome of that decision is that the Full Bench said that you could count hours worked on the non-public holiday and the public holiday if they were part of one continuous shift together for the purposes of meeting the minimum engagement. What they then did is provide a provision in the Hospitality Award and that provision is presently to clause 29.4(c) of the Hospitality Industry Award 2020 and it says, 'Hours of worked performed on the day immediately before a public holiday or immediately after a public holiday that form part of one continuous shift are counted as part of the minimum hours worked for the purpose of this clause.

PN109

So I just make that submission because a Full Bench has dealt with that concept, at least in relation to the Hospitality Award. I thought that might assist the Full Bench in determining the issue in this matter. Unless there's anything further that's the submission for the AHA.

PN110

THE COMMISSIONER: Thank you, Mr Ryan. Any further submissions?

PN111

MR HARRINGTON: Commissioner, Harrington, initial H, from the Ai Group. Just one last point if we could just look at some of the points which were raised in the submissions by the Pharmacy Guild.

PN112

THE COMMISSIONER: Yes.

PN113

MR HARRINGTON: Just regard with the relevant rate of pay to be applied on a public holiday. They have highlighted it and the issue relating to the rate to be paid to employees applicable where an employee exercises their right not to work on a public holiday. And the rate in the current schedule is ordinary rate of pay, and that rate has been described in the plain language redraft, as the rate of pay applicable to an employee's ordinary hours in that 8.2.2 and that same grade is described as the applicable rate for a part-time employee as they're usually rostered to work ordinary hours on a part-day public holiday but they don't work because they're on annual or personal carer's leave.

PN114

Now the rate that's used for the purposes of sections 116 in the Fair Work Act if an employee is absent from their employment on a day or a part-day that's a public holiday is the employee's base rate of pay for their ordinary hours of work on the day or the part day. And the base rate of pay is described in section 16 of the Act as being the rate of pay applicable to the employee for their ordinary hours of work. But with a listed of exceptions, including incentive base payments, loadings, monetary allowances and penalty rates and any other separately identifiable amounts. And just we consider the best course to be simply to refer to the rate applicable under the NES and this would ensure that a different rate of pay wouldn't be inferred if the time taken off on a part-day public holiday as opposed to a full day public holiday. So in most if not all cases the Modern Award will refer to the NES and won't separately provide a higher rate of pay, where an employee exercises their right not to work on a public holiday.

PN115

Under the relevant changes for the terminology of the rate could be made to clauses 8.2.2 and 8.2.4 in each version of the schedule. Those are our submissions of that point regarding the rate of pay.

PN116

THE COMMISSIONER: All right. Does anyone wish to engage with that issue?

PN117

MR HARRIS: Commissioner, it's Harris 'S' from the Pharmacy Guild.

PN118

THE COMMISSIONER: Yes, Mr Harris?

PN119

MR HARRIS: I don't mind AiG's point coming forward but it actually goes against what's written with the Pharmacy Industry Award from the plain language redraft and where the terms 'minimal hourly rates' been used on that terms. That's why the application has been or the suggestion has been put forward to the Bench.

PN120

THE COMMISSIONER: Okay. So, Mr Harris, is that consistent with the approach that's taken in the body of award?

PN121

MR HARRIS: Yes. Correct, Commissioner.

PN122

THE COMMISSIONER: All right. Thank you. Anybody else wish to be heard?

PN123

MR MAXWELL: Commissioner, just briefly. In regard to the reference to clause 29.4(c) in the Hospitality Award.

PN124

THE COMMISSIONER: Yes. Just let me grab that? Yes, Mr Maxwell. Yes, go ahead.

PN125

MR MAXWELL: I've had a look at that clause and the CFMMEU would not be opposed to a modified form of that being included in the schedule but with the reference to the part-day public holiday.

PN126

THE COMMISSIONER: All right. Thank you. All right. Anybody else wish to be heard on that issue or anything else? Just while you're thinking about that I should indicate that the likely - following the normal process that the Commission has adopted in relation to matters of this kind the normal process would be that I will settle on the issue a report to the Full Bench which won't have any conclusions in it. It's not my role to do that and I'm not a member of the relevant Full Bench but does effectively bat-up the issues and the options and the propositions that underpin those various proposals. And almost as a matter of course the Full Bench will then in all probability provide an opportunity for parties to make submissions on the report and the context and the report before making any determination and I will recommend that process as part of the report. And I emphasise that because look I think there are a number of issues that have been raised both in the written submissions and in relation to the exchanges today which have freshly been helpful. Secondly, they have raised a number of incidental issues themselves but they also provide scope, I think, for some progress made by some discussions between the parties, perhaps facilitated by the Commission - perhaps independently - and the Full Bench would be minded, I think, to provide an opportunity for that to occur as well. So I just emphasise that and this is unlikely to be the final opportunity to comment on some of these issues, particularly the drafting issues which certainly, in my view, require some further consideration and a further opportunity for parties to give submissions.

PN127

All right. Well, anything further?

PN128

MR MILLER: Commissioner, it's Mr Miller, initial G, here from the AMWU.

PN129

THE COMMISSIONER: Yes, Mr Miller.

PN130

MR MILLER: I might just raise one issue briefly and that issue probably has been resolved by what you have said just now, Commissioner, in terms of the process from here but I'll just raise it anyway as a matter of record.

PN131

THE COMMISSIONER: Sure.

PN132

MR MILLER: At page 17 of the submissions filed by the AiG, the AiG raise an issue regarding (indistinct) between the part-day public holiday schedule and those awards that are contained in the entitlement for an additional day's pay or equivalent entitlements and circumstances where an employee's roster doesn't require them to work on the public holiday. So it's not clear - entirely clear to me from the AiG submission to the extent to which AiG is making a specific proposal to vary the schedules to I suppose pro rata that full day pay entitlement. But to the extent that the Commission is trying to deal with that submission in any way which it sounds like, Commissioner, from what you've said just now that that's certainly not the case at least at this early stage, we would just reserve our rights and seek an opportunity to be heard at the appropriate time.

PN133

THE COMMISSIONER: All right. Okay. Well, without any suggestion that option won't arise I wondered, Mr Harrington, whether you wanted to say and clarify whether AiG is seeking any particular proposal or proposing any variation there? Or were you merely responding to propositions that other parties had raised?

PN134

MR HARRINGTON: I think the part of our submission that Mr Miller is referring to just regarded that section which was dealing with clauses which provide for full-day entitlements where (indistinct) to work on the day that's the public holiday. Certain awards provide additional entitlements which are expressed in terms of 7.6 hours or an additional day of annual leave.

PN135

Our concern is that and this was expressed back in 2012 with respect to the (indistinct) industry awards the award doesn't contain a provision like that then a provision in the part-day public holiday schedule which addresses that is probably unnecessary but there are additional issues which were raised towards the end of our submission which Mr Miller might not have been referring to, but this is probably an allied issue, that if part-day public holidays and entitlement of the part-day public holiday arises that shouldn't necessarily give rise to a full day entitlement in terms of 7.6 hours.

PN136

So, depending on what Mr Miller's referring to there are two separate issues expressed there that no, we have not suggested any specific amendment at this stage but we would rely on our rights to do so after the report is issued.

PN137

THE COMMISSIONER: All right. Thank you. All right. Anybody else? No? All right. Well, look, firstly thank you to those organisations who have provided the written submissions, and secondly, thank you for the contributions you made today. I propose to provide a report to the Full Bench as scheduled at the earliest opportunity. You'll of course get a copy of that or access to that, even though the (indistinct) and as I foreshadowed I will be making a recommendation to the Full Bench. That provides a further opportunity to the parties, not just to comment on the issues raised in the report but also providing an opportunity for relevant parties with an interest in the award to also have some independent discussions about some of the matters that have been initially raised today.

PN138

So, thank you all for your participation. We'll head down that path and the Commission will be adjourned. Thank you all, and good morning.

ADJOURNED INDEFINITELY [11.26 AM]