PN1

JUSTICE ROSS: Could I have the appearances, please. Firstly, in Sydney.

PN2

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

PN3

JUSTICE ROSS: Thank you, Ms Dabarera.

PN4

MR C DELANEY: If the Commission pleases, Delaney, initial C, from the Australian Security Industry Association Ltd.

PN5

JUSTICE ROSS: Thank you, Mr Delaney. We have Ms Thomson from ABI by video‑conference. Is that right?

PN6

MS K THOMSON: That's correct, your Honour.

PN7

JUSTICE ROSS: All right. The agenda has been circulated. It was re‑published on 19 June. Has everyone got a copy of that?

PN8

MS DABARERA: Yes, your Honour.

PN9

MR DELANEY: Yes, your Honour.

PN10

JUSTICE ROSS: Has everyone got a copy of the summary of the agenda items for the conference which was also re‑published on 19 June?

PN11

MR DELANEY: Yes, your Honour.

PN12

MS DABARERA: Yes, your Honour.

PN13

JUSTICE ROSS: Can I begin then by going to item 1 on the agenda. This is seeking confirmation that the items which have been provisionally agreed and have now been included in the PLED, have in fact been agreed and there is no further action required in relation to them. You will see under 1(a), that's a reference to clauses 4, 10, 11, 12, 15, 19 and the relevant items which are referred to there. Does any of that cause any concern to any party?

PN14

MS DABARERA: Your Honour, just in relation to clause 19 and item 40, we are happy with the suggested amendment by the drafter, but we just wanted to note that the PLED has not yet been updated to reflect that amendment.

PN15

JUSTICE ROSS: It needs to be updated to reflect what has been proposed by the drafter at item 40. Anyone else? Anything else? No, Mr Delaney, nothing from you?

PN16

MR DELANEY: Nothing from me, your Honour.

PN17

JUSTICE ROSS: Ms Thomson, you're content?

PN18

MS THOMSON: Other than in respect of clause 15, which is the minimum rates - - -

PN19

JUSTICE ROSS: Yes.

PN20

MS THOMSON: I'm not sure if the same issue arises as we were dealing with in the Cleaning Award.

PN21

JUSTICE ROSS: Just bear with me for a moment. Yes, all right. The issue here, Mr Delaney, because you weren't in the other, is that the redraft of the introductory part of clause 15 doesn't make a lot of sense as it currently appears. For example, in 15.1 it says:

PN22

For a full‑time employee, the minimum hourly rate is specified in column 2.

PN23

MR DELANEY: Yes.

PN24

JUSTICE ROSS: If you look at column 2, it's the minimum weekly rate.

PN25

MR DELANEY: That's right.

PN26

JUSTICE ROSS: So what we are proposing to do is to collapse that down a bit and also to include a reference to casual employees. The real purpose of these introductory words is to make it clear that an employer has actually got an obligation to pay, because under some awards it sets out, "These are the rates of pay for these classifications," and all the rest of it, but nowhere does it say the employer has to pay an employee who is classified at that level.

PN27

In the next version of the PLED, there will be a redrafted version of those introductory words to clause 15 to reflect the discussion that has taken place in Cleaning. You will have an opportunity to comment on those when you see them. Okay?

PN28

MR DELANEY: Thank you, your Honour.

PN29

JUSTICE ROSS: All right. Thanks for drawing my attention to that, Ms Thomson.

PN30

MS THOMSON: Thank you.

PN31

JUSTICE ROSS: So nothing further in relation to those provisionally agreed matters? We can, with those changes, regard them as being completed. Can I go to attachment A to the summary of the agenda items for the conference. You will see there, there are proposed amendments that relate to particular item numbers. If we just go through those one at a time, item 24, I think this was an ABI proposal and it was agreed by United Voice. Does the proposed amendment resolve the issue from your perspective, Ms Thomson?

PN32

MS THOMSON: Yes, it does. Thank you, your Honour.

PN33

JUSTICE ROSS: Anyone else have any problem with it?

PN34

MS DABARERA: No, your Honour.

PN35

MR DELANEY: No, your Honour.

PN36

JUSTICE ROSS: All right. Items 26 and 27: this was an issue raised by United Voice initially, but United Voice and ASIAL both agreed to the retention of parts of the current award.

PN37

MS DABARERA: Sorry, your Honour, the proposed amendment does resolve our concerns.

PN38

JUSTICE ROSS: Does anyone else have anything they wish to say? Is everyone content? All right. The proposed amendment to 13.5 is fine. Item 29, a United Voice matter. This is the proposed amendment to 14.5. Does that resolve your issue?

PN39

MS DABARERA: Yes, your Honour.

PN40

JUSTICE ROSS: Anyone else have any problems?

PN41

MR DELANEY: No, your Honour.

PN42

JUSTICE ROSS: All right. Thank you. If we go to item 35, which is an ASIAL - yes, I think you initially raised the issue. There is a proposed amendment. I see, so they've included the reference to Thursday. Does that deal with your issue?

PN43

MR DELANEY: Yes, your Honour.

PN44

JUSTICE ROSS: All right.

PN45

MR DELANEY: I would have put it at the front, but it doesn't really matter that much.

PN46

JUSTICE ROSS: Is everyone else content?

PN47

MS DABARERA: Yes, your Honour.

PN48

JUSTICE ROSS: All right. Items 43, 44, 45 and 46, they relate to clause 21.3. I think ASIAL originally raised it. Well, you have each raised different points about this clause. Does the redrafted provision deal with your concerns and issues?

PN49

MS DABARERA: Your Honour, it deals with our concerns.

PN50

JUSTICE ROSS: ASIAL?

PN51

MR DELANEY: We have some concerns that there is no mention of overtime rates as a schedule, your Honour.

PN52

JUSTICE ROSS: I'm not sure what you mean by that.

PN53

MR DELANEY: This deals with overtime worked really for - well, we say that casuals don't get the 25 per cent casual loading on overtime. We think that should be stated in a schedule somewhere.

PN54

JUSTICE ROSS: Right.

PN55

MR DELANEY: They will get 150 per cent of ordinary hours of work - the ordinary rate, the base rate - but the 25 per cent loading doesn't apply. By not mentioning that in here, we think that that causes some confusion.

PN56

JUSTICE ROSS: What do you say is the position under the current award?

PN57

MR DELANEY: I haven't got that in front of me, but I think the current award - - -

PN58

JUSTICE ROSS: I have got the current award. Let me just - so overtime is dealt with in clause 23.

PN59

MS DABARERA: Your Honour, our position is that the current award is ambiguous as to whether or not the casual loading is received on overtime. We note that there is a matter relating to overtime for casuals.

PN60

JUSTICE ROSS: Yes.

PN61

MS DABARERA: In these circumstances, we would object to putting in a statement in the award stating that casuals do not receive the loading on overtime.

PN62

JUSTICE ROSS: Well, are you drawing this award to the attention of the casuals Full Bench?

PN63

MS DABARERA: Yes, your Honour.

PN64

JUSTICE ROSS: All right. That is where that issue will be resolved.

PN65

MR DELANEY: Fine.

PN66

JUSTICE ROSS: If it's resolved in your favour, then the clarification would be provided. If it's resolved in United Voice's favour, then there will be a relevant clause, as well. Either way I don't think we need to take it further. It will be without prejudice to your respective positions before the other Full Bench, okay?

PN67

MR DELANEY: It will be dealt with. Thank you.

PN68

JUSTICE ROSS: Then if we go to the proposed amendment in relation to additional paid annual leave for shift workers; 23.2. This was in respect of items 51 and 52.

PN69

MS DABARERA: Item 51 was ours, your Honour, and it resolves our concern.

PN70

JUSTICE ROSS: Are you content with that, too, Mr Delaney?

PN71

MR DELANEY: 23.2 is 51 and 52. They are fine by us, your Honour, yes.

PN72

JUSTICE ROSS: All right. Let's go to the proposed amendment to 23.3. This deals with items 53 and 54, which were I think raised by United Voice.

PN73

MS DABARERA: Yes, your Honour. It resolves our concerns in some respects. However, some elements of the current award have not been translated over. In that, in the current award in clause 24.11(b) - - -

PN74

JUSTICE ROSS: Just bear with me for a moment.

PN75

MR DELANEY: 24 or - - -

PN76

MS DABARERA: 24.11(b) of the current award.

PN77

MR DELANEY: The current award.

PN78

JUSTICE ROSS: Yes.

PN79

MS DABARERA: It states that:

PN80

Where the employee is provided with board or lodging by the employer, ordinary pay includes the cash value of that board or lodging.

PN81

JUSTICE ROSS: Yes.

PN82

MS DABARERA: My understanding of the proposed clause is that it only talks about cash value when talking about annual leave that's paid out on termination, but doesn't refer to the cash value of that loading being paid for annual leave paid when the worker is still working.

PN83

JUSTICE ROSS: Yes, but they're provided with the board and lodging.

PN84

MS DABARERA: My understanding of the current award is that because they're on annual leave they would be paid with that amount.

PN85

JUSTICE ROSS: Yes, but if they're still � so they're not entitled to board and lodging when they're on annual leave; they get a payment instead. Is that the ‑ ‑ ‑

PN86

MS DABARERA: Your Honour, I might just have a moment to look into that.

PN87

JUSTICE ROSS: No, that's all right. What we can do is put the proposed 23.3 in the next version of the exposure draft and if there are any residual issues about 23.3 you can let me know at that point and, I mean, in fact all the parties can. Are you content with that course?

PN88

MS DABARERA: Yes, your Honour.

PN89

JUSTICE ROSS: Item 55, and the proposed amendment to 23.3, and this is a temporary close down. This was United Voice.

PN90

MS DABARERA: Yes, your Honour, we're mostly satisfied with the clause. We have one comment in relation to 23.4(e) which is in relation to the public holiday. Now, in that proposed clause it says:

PN91

An employee must be taken not to be on leave on any public holiday that falls during a temporary close down period.

PN92

JUSTICE ROSS: Yes.

PN93

MS DABARERA: Under the current clause ‑ ‑ ‑

PN94

JUSTICE ROSS: YEs. Which is?

PN95

MS DABARERA: 24.9(c).

PN96

JUSTICE ROSS: Nine, yes. Nine?

PN97

MS DABARERA: (c).

PN98

JUSTICE ROSS: Yes:

PN99

Public holidays that fall within the close down period will be paid as provided for this award and will not count as a day of annual leave or leave without pay.

PN100

MS DABARERA: Yes, your Honour. We believe that the proposed amendment could be clarified by stating that it needs to be paid in accordance with the award.

PN101

JUSTICE ROSS: So it could � before the words, "an employee must be taken not to have taken leave on a public holiday", it could say � well, yes. No, I follow. All right. I'll put that issue back to the drafter and we'll see what they come up with.

PN102

MS DABARERA: Thank you.

PN103

JUSTICE ROSS: It can be put in the revised exposure draft without prejudice to the position of any party and everyone can have an opportunity to comment on it. Is there anything else in relation to anything in attachment A?

PN104

MR DELANEY: Your Honour, I just draw your attention, ASIAL has made submissions about annual leave payment on termination of employment and I think that's going to go to a Full Bench as well.

PN105

JUSTICE ROSS: Bear with me for a moment. Is that item 56?

PN106

MR DELANEY: Item 53 and 54, I think, your Honour. It's item 56 in here, isn't it, 2310.

PN107

JUSTICE ROSS: Yes.

PN108

MR DELANEY: Yes, sorry.

PN109

JUSTICE ROSS: No, that's all right. That has been referred to the plain language Full Bench.

PN110

MR DELANEY: Yes.

PN111

JUSTICE ROSS: We'll wait until we get to the end and then we'll clarify what's been referred and if anyone wants to say anything about what's been put in or make any further submissions, and we'll clarify whether you're happy for it to be dealt on the papers or you want an oral hearing, and we'll deal with it at that stage.

PN112

MS DABARERA: Sorry, your Honour, I do need to raise an issue in relation to item 56, and the referral to the Full Bench. It was my understanding, and I've checked the transcript from 8 November 2017, that that particular item was a substantive change to the award and was to be pursued by ASIAL outside of the plain language proceedings, and I understand that was agreed between the parties and wasn't meant to be dealt with as part of the plain language proceedings.

PN113

JUSTICE ROSS: Then ASIAL can give some thought to that and make an application to vary the award. It may end up being dealt with by the same Bench, but if you make the application and we'll process it.

PN114

MR DELANEY: We did make an application back in about 2012 on that one, your Honour. I'll do it again.

PN115

MS DABARERA: Sorry, your Honour, I guess the reason we raise that as an issue is we do think it's quite substantive and significant change to the award and we would be putting in potentially much more detailed submissions than we may in the plain language process.

PN116

JUSTICE ROSS: That's fine.

PN117

MR DELANEY: Yes.

PN118

JUSTICE ROSS: If you wouldn't mind putting in a separate application, Mr Delaney. We'll deal with it as a substantive issue and I'll list it for mention and programming and we'll see how we go.

PN119

MR DELANEY: Thank you, your Honour.

PN120

JUSTICE ROSS: There are other items that are listed in this document that, through various conferences, it's been agreed they'll be dealt with by the plain language Full Bench on the basis of the written submissions, and we'll still do that, but this particular one I'll list separately for mention and programing and get some idea about what sort of evidence is going to be called, that sort of thing. Okay?

PN121

MS DABARERA: Thank you, your Honour.

PN122

JUSTICE ROSS: Let's go to the agenda items starting with 2, and 2(a), which it's agenda item 3, which is a definition of shift worker. See the drafter's comments?

PN123

MR DELANEY: We're fine with that, your Honour.

PN124

JUSTICE ROSS: So that's been resolved on that basis?

PN125

MR DELANEY: Yes, your Honour.

PN126

MS DABARERA: Yes, your Honour.

PN127

JUSTICE ROSS: Let's go to clause 10, part-time employment. Well, that's ‑ ‑ ‑

PN128

MR DELANEY: That's resolved, your Honour, I think.

PN129

JUSTICE ROSS: Bear with me for a moment. I see, 12, 13, 14 and 15. So clause 10 has been resolved?

PN130

MR DELANEY: Yes, I think so, your Honour. We believe ‑ ‑ ‑

PN131

MS DABARERA: From our perspective it is, your Honour.

PN132

JUSTICE ROSS: Based on the revised PLD; is that right?

PN133

MS DABARERA: That's correct, your Honour.

PN134

JUSTICE ROSS: ABI have any issues? No?

PN135

MS THOMSON: No, your Honour. Thank you.

PN136

JUSTICE ROSS: Then clause 12.1 which is item 18. This is an ASIAL point. I think that's dealt with in clause 15 of the PLD, so it's probably covered there, and that probably ‑ ‑ ‑

PN137

MR DELANEY: Yes, I think we were splitting hairs, your Honour. I'm quite happy with that.

PN138

JUSTICE ROSS: Then we go to item 39. This is where ASIAL is maintaining the supervision allowance should be hourly. I think the issue, or the difficulty that you face ‑ ‑ ‑

PN139

MR DELANEY: We withdraw that, your Honour.

PN140

JUSTICE ROSS: All right.

PN141

MR DELANEY: So it'll make it easier.

PN142

JUSTICE ROSS: Yes. It's just in the current award, it's clearly a ‑ ‑ ‑

PN143

MR DELANEY: Yes.

PN144

JUSTICE ROSS: Yes.

PN145

MR DELANEY: I think it was an issue of custom and practice versus the black letter law.

PN146

JUSTICE ROSS: Yes, okay. Then if we go to (e) this is relating to 19.6, and item 41. Yes.

PN147

MR DELANEY: We're satisfied with that, your Honour.

PN148

JUSTICE ROSS: All right. Yes.

PN149

MS DABARERA: Yes, your Honour, we're satisfied with the way that it's placed out in the PLD at the moment.

PN150

JUSTICE ROSS: Is ABI content with that as well?

PN151

MS THOMSON: We're not going to press that one, your Honour.

PN152

JUSTICE ROSS: All right. Then if we go to clause 22, penalty rates, this is items 48 and 49. Bear with me for a moment.

PN153

MS DABARERA: Your Honour, with item 48, I think we just had a discussion about that earlier in relation to the casual loading.

PN154

JUSTICE ROSS: Yes. Just bear with me for a moment. Yes, I'm sorry, you were saying about the casual loading?

PN155

MS DABARERA: Your Honour, we did talk about it a little out of turn earlier, and it was agreed that we've got a position that is different to ASIAL's position, but it has been referred to the overtime for casuals Bench.

PN156

JUSTICE ROSS: Yes, I'm sorry.

PN157

MS DABARERA: Yes.

PN158

JUSTICE ROSS: Yes, you're quite right. Yes, that deals with that.

PN159

MS DABARERA: Yes.

PN160

JUSTICE ROSS: In relation to the penalty rate point, is that the same issue? Is ‑ ‑ ‑

PN161

MR DELANEY: We have no issue with this table, your Honour.

PN162

JUSTICE ROSS: Other than the proposition you want to agitate before the other Full Bench?

PN163

MR DELANEY: Absolutely.

PN164

JUSTICE ROSS: Yes. Does anyone else have any issue with 22.2 other than the question of whether casuals � well, the casual issue?

PN165

MS DABARERA: No, your Honour.

PN166

JUSTICE ROSS: No? Same for ABI?

PN167

MS THOMSON: Yes. No, your Honour. Thank you.

PN168

JUSTICE ROSS: All right. I think that deals with all of the items. I'll do a report setting that out and we'll provide a revised PLD reflecting what's been discussed today. You'll file your application on that substantive issue, and we'll list that for programming, and you'll pursue the casual matter before the casual Full Bench. Is there anything else?

PN169

MS DABARERA: No, your Honour.

PN170

JUSTICE ROSS: No? All right.

PN171

MS THOMSON: Thank you, your Honour.

PN172

JUSTICE ROSS: Thank you very much for your attendance. I'll adjourn.

ADJOURNED INDEFINITELY�� [11.32 AM]