PN954

THE COMMISSIONER: Good morning. Before I take appearances I would like to welcome Mr Moran QC. Mr Moran has been appointed by the Commission to assist in the plain language rewriting with all of the matters as the expert, and by invitation has agreed to attend today to see if we can move these matters along. So thank you, Mr Moran, and I will take the appearances in Sydney, thank you.

PN955

MS R BHATT: Commissioner, it's Bhatt, initial R, appearing for the Australian Industry Group, and with me at the Bar table is Mr Ferguson, initial B.

PN956

THE COMMISSIONER: Thank you very much.

PN957

MS K THOMSON: Commissioner, Thomson, initial K, for the ABI New South Wales Business Chamber.

PN958

MS M ADLER: Adler, initial M, from the Housing Industry Association.

PN959

THE COMMISSIONER: Thank you. That's in Sydney, I will take the appearances in Melbourne, thank you.

PN960

MS R LIEBHABER: Liebhaber, initial R, for the Health Services Union.

PN961

MS K BIDDLESTONE: Biddlestone, K, appearing for the STA.

PN962

THE COMMISSIONER: Thank you.

PN963

MR T CLARK: Trevor Clark, ACTU.

PN964

MS V WILES: Vivienne Wiles for the TCFUA.

PN965

THE COMMISSIONER: Thank you. I am not sure � we don't have a frontal video of you there. You're very far away there. You will have to let me know who is doing the speaking there out of the ladies when you do speak, thanks, because I can't see you very well. All right. So I will take the appearances in Brisbane, thank you.

PN966

MR W DAVEY: Good morning, it's Davey, initial W, on behalf of the Australian Hotels Association, the Accommodation Association of Australia and the Motor Inn, Motel and Accommodation Association.

PN967

THE COMMISSIONER: Thank you, and in Adelaide.

PN968

MS K VAN GORP: Van Gorp, K, for Business SA.

PN969

THE COMMISSIONER: We have people in Canberra, do we?

PN970

MS S McKINNON: Yes. May it please the Commission, McKinnon, initial S, for the National Farmers Federation.

PN971

MS R SOSTARKO: Good morning, if it pleases the Commission Sostarko, initial R, for Master Builders Australia.

PN972

THE COMMISSIONER: Is that everybody then? Yes, all right then, very well. Parties, you saw the decision issued on Friday I hope. I am not sure if you have had enough time to read it, but the Full Bench determined where we would go with the guidelines, the plain language guidelines, and the parties are welcome to make submissions to those early February I think. Is it necessary to have any discussion today with respect to the guidelines? No? All right.

PN973

You will see there that certainly one thing that came out of the guidelines which I am very pleased is that when we are talking about � I think we were talking about each of the following, we are now going to be saying all of the following and then use the conjuncture of "and", so that will make it very easy to read and I am sure that nobody will get that wrong.

PN974

The transcript of the flexible provisions in the award was provided to the parties. I don't propose to go into that in any detail, because we need to get the plain language team ready with what the final version might work, the next version might look like. So today it is proposed to go through the remaining four clauses of the standard clauses. I am available until 4 pm. I don't know what all the parties availability is, but we did say that we would set aside a whole day. In Melbourne how much time do you have for today's proceedings?

PN975

MR CLARK: Speaking for my own part I would need to go by 4, but other than I am not sure whether anyone else has any - - -

PN976

MS BIDDLESTONE: Yes, 4 pm would be fine.

PN977

MS LIEBHABER: Similarly, Commissioner.

PN978

THE COMMISSIONER: All right. Anyone else have a problem that they need to leave before 4 pm? We will have breaks of course during the day. All right, we will do our best and it's not as though the main people need to leave. I have had a look at the four clauses and I think that the consultation clause is far too ugly to tackle straight up, and I think that that is the one that we might leave to the end. I enjoy succeeding in the smallest areas and then move to the biggest areas. I propose to deal with the termination clause first.

PN979

MR FERGUSON: We might just have some reshuffling at the Bar table if that's the case.

PN980

THE COMMISSIONER: Mr Moran and I met just for the sake of transparency this morning just to start discussions there, and I am sure Mr Moran understands the parties concerns that they put, that today is all about seeing if we can progress how we might get along with these clauses and see if progress can be made. I am sure that all the relevant courtesy and respect be afforded to Mr Moran if there are going to be supreme efforts to propose wording or favouritism to keep existing wording. We are on the path of seeing how far we can move along these clauses.

PN981

MR FERGUSON: For the Commission's benefit I have now got Ms Mandel, initial J.

PN982

THE COMMISSIONER: All right then. Termination � now, my understanding of this is that the existing word provides the link between what the employee needs to give and the employer. The redrafting doesn't provide that link, it simply sets out what the employee would need to give to the employer. Do the parties have any views as to whether the link is necessary?

PN983

MR FERGUSON: We have addressed this in some detail at pages 33 to about 36 of our submission. We say that the link is appropriate and should be maintained, and if I can give you the abridged version of the reasons for that.

PN984

We don't have any real difficulty with there being greater transparency in terms of setting out the notice periods and so forth, but the difficulty there is, or one of the difficulties is it uses the term such as "continuous service" in that table. Now that term is not actually defined in the award, and by linking the entitlements to the entitlement under the Act there's greater clarity as to what continuous service should mean. Now that issue itself is quite contentious. There have been Full Bench proceedings arguing over the meaning of continuous service as it's used in this context recently.

PN985

THE COMMISSIONER: There's a few chunks I guess that I would like to get to. Is there any difficulty in hearing the applicants in Sydney?

PN986

SPEAKER: No, that's fine.

PN987

THE COMMISSIONER: All right then.

PN988

SPEAKER: Not at the moment.

PN989

THE COMMISSIONER: All right. There's a few issues I think; there's whether the link is necessary or whether you simply state what the employee needs to give, the issue of continuous service, whether or not there needs to be said that the employee doesn't need to give any additional notice, and then fourthly what happens if the employee doesn't give the notice. They're the issues that I see arise out of the redrafting. In relation to the link itself is it strictly necessary for there to be a link to what the employer would otherwise give the employee, or can the award simply state in a table what the employee needs to give?

PN990

MR FERGUSON: We say that the entitlement should be the same, it should be reciprocal to mirror the current entitlements under the award. We don't notionally have any difficulty with the table setting out what obligation and entitlement is, but the difficulty is how to achieve that. We say that just putting in a table with the words "continuous service" doesn't get you there.

PN991

THE COMMISSIONER: All right, so that's the second issue. There's four issues as far as I see them. All right, if we deal with the issue of continuous service is it � in bold in the proposed redrafting, employees period of continuous service with the employer at the end of the date of those given, that is contained within the Act for the notice the employer needs to give.

PN992

MR FERGUSON: No. The Act contains a provision, which if memory serves, says that the meaning � I don't even know if it says continuous service is defined as such. I think it's section 22 if memory serves correctly.

PN993

THE COMMISSIONER: Yes.

PN994

MR FERGUSON: So it's utilised within the Act and it has a meaning affected by the Act, but there is a long history to the provision of any Act which would inform the proper interpretation of the Act � of the words as they are used in that context.

PN995

THE COMMISSIONER: All right, but just looking at section 117(3) of the Act, which is the table (indistinct) the employer needs to give - - -

PN996

MR FERGUSON: Yes.

PN997

THE COMMISSIONER: The wording in bold at the top of the table is what's proposed in the table. Is that an issue for the parties?

PN998

MR FERGUSON: It certainly is for us. There has been multiple proceedings in which the meaning of continuous service as utilised in this provision is contested. It's currently, or most recently been ventilated before a Full Bench in the context of the casual issues proceedings where the issue about whether service as a casual employee who subsequently converted to permanent employment counts for the purposes of continuous service within the section of the Act.

PN999

We wouldn't want an ambiguity to be inserted into the awards while this issue is potentially contentious. Now, if we just retain the current approach of saying that the entitlements are effectively the same as it is under the Act rather than just propping the words "continuous service" in we don't create this risk of potentially establishing a new and different entitlement for an employee.

PN1000

THE COMMISSIONER: What do you think the current award at 20.2 there requires (indistinct) to do, how much notice do they need to give?

PN1001

MR FERGUSON: The same as is required in the context of an employer, the amount of notice that an employer has to give the employee. Now that will be different on a case by case basis, and you consider that in the context of each instance. So it might be a different question arises in the context of casuals, or an employee who has been a casual and then converted to permanent employment. Different questions might arise as well where we have apprentices and so forth who convert to permanent employment.

PN1002

THE COMMISSIONER: But if it's the same as the employer wouldn't the bold in the table at section 117(3) be what the employer has to give the employee?

PN1003

MR FERGUSON: To understand that meaning of the Act we would say that you have to be guided by the context of the Act as a whole, the entire legislative scheme. You look at the other � you know, the section 22, you would look at the history of the legislative provision. I don't think it's that clear, if you just drop those words into an award that you have to go through all of that process. I don't think it becomes clear � just by using the words "continuous service" in the award that you're picking up all of the history and relevant context from the legislation. So there is no link to the Act if you just drop that in. So we are just concerned that parties might take a view that the words "continuous service" have a different meaning under the award than it does under the legislation.

PN1004

If the parties could come up with a definition what continuous service means that would be perhaps a way forward. Though given this matter has been fiercely ventilated between at least two Full Benches that I have been the applicant in I don't think that's likely.

PN1005

THE COMMISSIONER: All right. So you say because that would not provide the link to the Act?

PN1006

MR FERGUSON: We say the entitlement for employees should be the same as it is for employers, reciprocal if you will. Just putting the words in there doesn't provide sufficient clarity as to what is continuous service. We think it's creating a further uncertainty, and the risk that there might be a different entitlement under the award in terms of the substance to what applies in the context of the legislation. So we think the safest way to address this is to maintain the current approach of making sure the entitlement is the same as it is under the legislation by referencing legislation.

PN1007

THE COMMISSIONER: Wouldn't it currently be ambiguous then?

PN1008

MR FERGUSON: We say it's not. That's a matter for argument about whether the Act itself is ambiguous.

PN1009

THE COMMISSIONER: No, not the Act, wouldn't the current provisions in the award be ambiguous if it simply says � no, you say it's not because the link is there.

PN1010

MR FERGUSON: The link is there and it may vary in the individual instances depending on factual circumstances, so whether the person was a casual and then a permanent; that's the most contentious one, and it's not ambiguous because it is reference to another instrument if you will, and we accept that, and that's what we have said in our submissions. We are not notionally opposed to setting it out in the award, but the way it has been adopted we think raises all of these bigger problems. We don't see that a solution today can be achieved through the wording of the award, certainly not while there's still a Full Bench decision reserved in relation to this issue.

PN1011

THE COMMISSIONER: All right. Is there anybody else in Sydney who wish to speak to that point?

PN1012

MS THOMSON: Just maybe one comment around the use of continuous service. For example in the onsite award we have our own definition of what continuous service is, which may also differ from what's under the Act. So putting that word in the award again may create some more ambiguity with having different definitions of that term in the award compared to the Act, but otherwise we agree with what AiG has said.

PN1013

THE COMMISSIONER: Thank you. All right, in Melbourne?

PN1014

MR CLARK: I think maybe part of what's provoked this, Commissioner, is that not all of the existing awards, and in particular the Pharmacy Industry Award actually contains the table that the exposure draft contains. So you just had the sentence "notice of termination is provided in the NES", and then the second clause went on to say pretty much what it says now apart from the fact that there wasn't any table.

PN1015

MR FERGUSON: I think that's quite right.

PN1016

THE COMMISSIONER: So is it a standard clause or not?

PN1017

MR FERGUSON: No. Most awards don't include that table.

PN1018

THE COMMISSIONER: They don't?

PN1019

MR FERGUSON: No.

PN1020

MS THOMSON: So we just have the words under 20.2 and not the table, and the notice provided by the NES.

PN1021

THE COMMISSIONER: Do the parties agree that the table is helpful?

PN1022

MR FERGUSON: For all the reasons I have suggested, no. We wouldn't be opposed to the table if there could be clarity around continuous service, but absent that we think on balance the table is not helpful.

PN1023

THE COMMISSIONER: An employee picks up an award and then has to go and look at the Act, do they, to find out how much notice they need to give the employer?

PN1024

MR FERGUSON: Yes.

PN1025

THE COMMISSIONER: That's not helpful.

PN1026

MR FERGUSON: How is the employee going to know what continuous service means?

PN1027

THE COMMISSIONER: All right, but a table surely has to be helpful to give some clarity, if the employee says, "I've been here three and a half years, I need to give this much notice."

PN1028

MR FERGUSON: I think notionally we are not opposed to setting that out, but on balance because of the difficulties it creates we think it's unhelpful. If this problem didn't arise then it may be appropriate, but we think a problem does arise and that on balance the current approach, which to our knowledge has never created any difficulties � we don't say that to be unhelpful, if it wasn't for this further difficulty then we wouldn't be raising it, but it is a real complexity and I don't think that the parties are - - -

PN1029

THE COMMISSIONER: If a legal position can be maintained and a table is inserted then that's the best case scenario, isn't it?

PN1030

MR FERGUSON: Yes, if there was clarity around that issue and there was some certainty that there would be no capacity for the entitlement to vary between the two, employees and employer - - -

PN1031

THE COMMISSIONER: Yes. So if the legal position was maintained, there was no change to what the understanding is, but an employee picks it up and says, "I think I need to give three weeks' notice", then that's a more helpful position than currently exists in some of the awards where the employee would have to go and find out that information somewhere else. But you say perhaps the link needs to be maintained. Is that the union's position as well, that the link to what the employer has to give under the Act should be maintained?

PN1032

MR CLARK: Yes. It's reciprocal apart from that age related work.

PN1033

THE COMMISSIONER: All right. Mr Moran, if you can - - -

PN1034

MR MORAN: Yes. Commissioner, originally when it was drafted like this it was on the basis that it didn't seem right, it didn't seem helpful to say to the employee to find out what notice you have got to give you've got to have a look at the Act to find out what notice the employer has to give and then ignore the additional notice based on age of the employee. So the idea was to try and make it clearer on its face to put in what the employee has to give, but I accept the issue about continuous service and I am just wondering whether the problem could be overcome by putting in here a definition that says continuous service has the same meaning as in section 117 of the Act, and to my mind that would mean that's maintaining the legal position, because then it means whatever it means in 117. So everything would be the same. I just wonder whether that would be acceptable to the parties.

PN1035

THE COMMISSIONER: All right. Does anyone have any views today? Today is not the finalisation - - -

PN1036

MR FERGUSON: No. It's worth considering that as an interim, but I mean as I think through on my feet the obvious point is that that still leaves the parties having to refer to section 117, which isn't going to include a definition of continuous service when they go there � it's going to see the word "utilised", but they're going to have to look.

PN1037

THE COMMISSIONER: There is a definition at 22 of the Act.

PN1038

MR FERGUSON: A definition of service from memory, which is affected by 22.

PN1039

THE COMMISSIONER: The meaning of service, of continuous service in section 22.

PN1040

MR FERGUSON: That says for the period of time.

PN1041

THE COMMISSIONER: All right, but we need - - -

PN1042

MR FERGUSON: That's far more complicated. Without going through it we have spent a long time arguing about that meaning. The argument is about whether (indistinct) consistent throughout the Act (indistinct). But I appreciate the point that it would be easier to get (indistinct) of a number of weeks the party could look at the award and see that.

PN1043

THE COMMISSIONER: That's what I want.

PN1044

MR FERGUSON: It is a bit simpler, but we are very alive to ramifications that flow from the definition of continuous service, and we think in some ways the way the table has been written is even simpler, because it utilises the term continuous service, whereas in the Pharmacy Award I think it just uses services. So it's a step in the right direction perhaps, but - - -

PN1045

THE COMMISSIONER: All right. Perhaps with the plain language team if we can work with them on that to address those concerns I think it's important to get a table in there somehow, but not to change the legal effects. Would a table need � does it need to be stated � is it necessary to state that the employee doesn't need to give the extra week's notice if two years or more service if they were to pick this up and say, well this is what I need to give? Would it be necessary to add that in if you didn't provide the link to the employee giving the same amount of notice, so there's no confusion there?

PN1046

MR CLARK: You would still need to do that I think because the NES provisions facilitates (indistinct) if they say that awards can if the Commission wants them to say something about the notice that employees need to give, but it's not actually an NES provision, (indistinct) what employee knows.

PN1047

THE COMMISSIONER: All right. We might give some thought as to whether it's necessary. That's the question, is it necessary to put in that the employee doesn't need to give the extra week's notice if we are simply - - -

PN1048

MR FERGUSON: If you don't reference the legislation so you are not picking up the obligation I don't see why you would need to have that differential, but again our position is it should reference the legislation.

PN1049

THE COMMISSIONER: It's a circular argument, isn't it. If a link is brought back to what the employer has to give then of course you would need to state the employee doesn't need to give an extra week's notice, but if the link isn't there that may not be necessary, but then you want the link to some degree because of the continuous service issue.

PN1050

MR FERGUSON: And because that's the nature of the entitlement, it's intended to be reciprocal by its nature and if one changes over time - - -

PN1051

THE COMMISSIONER: All right. Looking at what's been put do the parties have any views as to anything that might solve it, or do you want the plain language team to go back and come up with something else and put it for consideration?

PN1052

MR FERGUSON: Obviously from AiG's perspective we would suggest the general approach adopted in awards other than the Pharmacy Industry Award, simply not including the table would address the issue, but I understand the Bench might want to give further consideration to (indistinct), but the difficulty that's been created would be overcome (indistinct) the table was removed and just the first lines at 20.2 were retained.

PN1053

THE COMMISSIONER: Mr Moran, do you have anything on the hop that you can assist with, or do we need to go away and think about it?

PN1054

MR MORAN: I guess as I said my initial position was that it was easier to set out clearly for the employee what they need to give, and from a plain language point of view that seemed to be the appropriate way of doing it. I think when you look at the 20.2 the table creates this issue because it just says the years of service and it leaves a question of what do you mean by years of service. I agree if you didn't have the table and you're prepared to ask the employee to go back to the award and translate what they need to give minus the extra week it works, but it didn't seem to meet the plain language requirements of having a clearer statement of what period of notice the employee needs to give.

PN1055

As I suggested if we put in a thing saying it has the same meaning as in 117 of the Fair Work Act there wouldn't be any argument about legal effect then because it would have the same legal effect, but I accept that means you have to go back to the Act. You won't find a definition in 117, but what you are saying it has the same meaning as in that section and whatever way that meaning is affected by 22 or anything else or by decisions would apply.

PN1056

THE COMMISSIONER: So would that solve a large majority of matters where an employee gives notice where their service is largely not contested? An employee looks at an award, it has a table, it says I have to give three weeks' notice. They go to their employer and give three weeks' notice. If the employer then wants to go and reconsider whether or not the employee has a longer amount or lesser amount of continuous service then that's where the employer goes back to the employee and says, well we need to have a discussion here. But the large majority of cases I imagine there really wouldn't be an issue as to how much service the employee has.

PN1057

MR FERGUSON: I suspect not. It's just as long as it's clear that there's a connection with the Act's entitlements.

PN1058

THE COMMISSIONER: Yes. I take the point.

PN1059

MR CLARK: It probably is � people are sensitive about the continuous service issue in relation to those matters my friend has referred to, but it is a bit of an issue � in terms of the casual thing it is a bit of an issue at the margins frankly, and I think that the practical sort of incentive output of this is that it's unlikely that an employer will say you need to give me more notice because you have actually been in continuous service for a much longer period and therefore I have to pay all these other things as well.

PN1060

THE COMMISSIONER: It's more likely to be the scenario, isn't it, that the employer says, no, you need to give me that much notice because you've only been a permanent for a shorter period of time.

PN1061

MR CLARK: That's what I am - - -

PN1062

THE COMMISSIONER: There might be an employee who thinks that they might have an extra three weeks work and they might get (indistinct), but the employer might turn around and say, well you've actually only got one year service as a permanent.

PN1063

MR FERGUSON: I think some employers will want notice, some won't. It's a case by case situation and they will expect a reciprocal amount and there's a capacity to made a deduction for amounts owing that's not provided. It's not an insignificant matter, but I appreciate that it won't arise in many cases. It might arise in more if there are casual conversion clauses put in many more awards. But as Mr Clark just said it is a particularly contentious matter at the moment.

PN1064

THE COMMISSIONER: Yes, but if what we are trying to do doesn't really change what's happening already � I mean if an employee now if you say has to go and find out somehow how much notice they give they approach their employer and say I think I need to give three weeks' notice there is still a discussion that will take place if there was some conjecture about how much service they really did have. All this is trying to do is I guess provide the table to give a head start.

PN1065

MR FERGUSON: And as I think we said in our submissions we are not opposed to the table per se, we just want to make sure the connection is maintained and we want to make sure that the parties don't argue that there's a different meaning in the context of the award as opposed to the content of the Act.

PN1066

THE COMMISSIONER: So a continuous service definition in the award versus one in the Act. All right. The parties are welcome to give some thought to this during any breaks that we have today and put any proposed wording, otherwise I am sure that we will need a period of time for parties to provide further submissions or the plain language team might go away and consider that and put something that's more palatable to the parties is probably how we will go about it, but if you think you have got the magic words don't be afraid to put them forward. All right, does that deal with (a)?

PN1067

MS THOMSON: Commissioner, maybe just a couple of observations about the note, if we could deal with that.

PN1068

THE COMMISSIONER: Above?

PN1069

MS THOMSON: Yes. I notice that there's a hyperlink proposed to part 2.2 division 11. I don't know whether that goes any way to solving the issue that we have been talking about, and also maybe more a question about why that was changed to a note as opposed to a provision of the award as it currently is at the moment. The reference to the National Employment Standard is currently a section of the award and it's a note now and what the thinking behind that was.

PN1070

THE COMMISSIONER: So you say the note doesn't have the same effect as 20.1 - - -

PN1071

MS THOMSON: I guess whatever effect it did have is probably questionable as a provision of the award. Anyway, it is impossible under the Act that you comply with the NES. If that was the thinking then obviously I accept that. It's just more of a - as I said, it's a question behind the thinking of changing that.

PN1072

MR MORAN: Commissioner, 20.1 really didn't seem to be in the nature of a legislative provision, it really seemed just to be stating, "Notice of termination is provided for in the NES", so the thinking was, "That really is just a statement to help the user, so why not put it in the note?" because it isn't actually making any fresh provision for the purposes of the award.

PN1073

THE COMMISSIONER: Yes. For a lay person, 20.1 doesn't provide a distinction that that is for the employer. When I look at that, I go, "Oh, okay, there's something here about employees involved", but 20.1 is not very clear that it's the employers' responsibility there whereas the note does say that it is a requirement of notice of termination by an employer. From my perspective, it is helpful. Do you say it should carry greater effect than a note?

PN1074

MS THOMSON: Not necessarily. Like I said, just given that, I suppose, removing a provision of the award, I suppose, we would probably see that as a significant change, so just wanting to understand the context behind why that was done and, again, as I said, the use of the hyperlink, I don't have the Act in front of me, but I don't know whether that link addresses a broader range of issues than just termination of employment, or notice of termination of employment, I should say.

PN1075

MR MORAN: It is just notice of termination and redundancy pay that division 11 deals with.

PN1076

THE COMMISSIONER: That is greater than, isn't it, from just the notice?

PN1077

MS THOMSON: Yes.

PN1078

THE COMMISSIONER: It is not just section 117, is it?

PN1079

MR MORAN: No.

PN1080

THE COMMISSIONER: Section 117 would be the distinct part.

PN1081

MR MORAN: Yes, so perhaps we should say "see 117".

PN1082

MS THOMSON: Or maybe you don't have the hyperlink in the note but you put something in the notice of termination under the table that we were discussing, so that it is more directed to what the reader is wanting more information about.

PN1083

THE COMMISSIONER: Sorry, you are not suggesting a table there?

PN1084

MS THOMSON: No, sorry, we were discussing having a reference to a section of the Act addressing the continuous service issue. Maybe it's more appropriate to include a hyperlink to that section in that part of the clause as opposed to a broad generalised link to a whole division of the Act.

PN1085

THE COMMISSIONER: I agree that probably the division is unnecessary, but 117 - the current provision, notice of termination is provided for in the NES. That is dealt with at section 117 and probably ends there.

PN1086

MS THOMSON: If we can get to a position where we have got the link there, do we really need the hyperlink? Does that make sense?

PN1087

MR FERGUSON: Is your concern to the hyperlink or to the additional wording as well?

PN1088

MS THOMSON: I am just concerned that if there is - I am assuming, sorry, that that is a hyperlink to a part of the Act and that if it goes to a broader section of the Act than is dealt with by the award or by this provision of the award, that may cause some confusion.

PN1089

MR FERGUSON: The difficulty is there are going to be exceptions and so forth, aren't there, later on?

PN1090

THE COMMISSIONER: Yes, that's right.

PN1091

MS THOMSON: We don't have to, you know, refer the redundancy section under the onsite award of the Act.

PN1092

MR FERGUSON: The thing is, as Mr Clark pointed out, there are exceptions that might not get picked up. If you follow the link to just that section, employers might think they have to give notice when, in truth, they don't.

PN1093

THE COMMISSIONER: Yes, at 123.

PN1094

MR FERGUSON: The other thing is that 117 does more than deal with just notice, it talks about prohibition on terminating an employee's employment (indistinct) notice provision provided and so forth, and the more you think about it, you think there might be real appeal to the current approach that notice of termination is provided for in the NES because it is not misleading, as opposed to the proposal, which I understand what is trying to be achieved, but there are more subtleties to this than what can be captured in a sentence and a hyperlink.

PN1095

THE COMMISSIONER: Unless you don't hyperlink it, you just simply say, "The National Employment Standards set out requirements for notice of termination by an employer" and leave it at that.

PN1096

MR FERGUSON: That would be safer.

PN1097

MS THOMSON: I think that is the ACCI submission, is it, that you remove any specific reference?

PN1098

THE COMMISSIONER: Yes, I think so, but I would like to make it clear that this is for an employer to give notice to an employee because right now 20.1 doesn't do that. It is very bland and benign, whereas if I'm an employer, I would say, "Oh, okay, that's my job up in" - either in a note or as part of the award - and then, if an employee gives notice, that is what they need to do in the next provision.

PN1099

MR FERGUSON: It may be totally technical, but there are probably submissions around whether the NES requires an amount of notice to be provided or it says that you can't terminate until the notice has been provided. I suspect it has been raised in another proceeding.

PN1100

THE COMMISSIONER: That is not what this provision in the award currently does, though. We don't want to insert things into the award that currently aren't there.

PN1101

MR FERGUSON: No, that is not a suggestion, it is just when you read through section 117, the way it's crafted, it's basically a prohibition on terminating someone unless a certain amount of notice has been provided.

PN1102

THE COMMISSIONER: Yes.

PN1103

MR FERGUSON: So it doesn't actually have a requirement per se to provide notice of termination. There are reasons for that, which is why the wording in 24.1 is currently is very accurate and I think, in a practical sense, the proposed wording is, but it doesn't strictly align with the technical effect of section 117.

PN1104

MS THOMSON: About the payment of termination pay, yes.

PN1105

MR FERGUSON: But where it raises an issue, I think from our perspective, is whether the hyperlink is removed.

PN1106

MR MORAN: I see the point that is being made, but it is interesting that the heading to 117 says "Requirement for a notice of termination".

PN1107

MR FERGUSON: And there is a requirement, but technically, the way that section of the Act is constructed - - -

PN1108

MR MORAN: It is about a restriction on termination.

PN1109

MR FERGUSON: That's right, and that's - it has implications for the remedies and so forth, that's right.

PN1110

MR MORAN: Whereas 118, in saying what a modern award must do, says, "It may include terms specifying the period of notice that you must give in order to terminate", so that is clear that it is - - -

PN1111

MR FERGUSON: I don't think it's of much practical effect because in either case, it's only a note and I think, at the moment, it's only a reference to the NES as well.

PN1112

MR MORAN: Yes.

PN1113

THE COMMISSIONER: I would certainly like to see something in there that gives an employer a heads up as to what they need to do but without necessarily directing them to the relevant sections in the Act because it's a rabbit warren. Anything that deals with the note in (a) or are we able to move on to (b)? All right. Mr Moran, you might like to speak to this.

PN1114

MR MORAN: Thank you, Commissioner. I have read the submissions of the parties and I do think there are some changes that could be made to make what is in (b) a bit clearer. At the moment, it says, "If the employee fails to give the required period of notice in accordance with the table, the employer may deduct the amount that would otherwise be payable to the employee on termination under this award and the National Employment Standards for the period of notice not given by the employee." I think it could be clearer what you are actually deducting from. That is a point that has been made and it could be that the employer may deduct from any amount due to the employee on termination any amount that would otherwise be payable to the employee on termination under this award or the National Employment Standard for the period of notice not given.

PN1115

I appreciate that this talks about the period of notice not given, which was just another side of the coin of what was dealt with in the current provision saying that you get an amount not exceeding the amount the employee would have been paid in respect of the period of notice of required less any period of notice actually given. So the intention was not to change that but just look at it from the other side of the coin.

PN1116

I didn't see the issue with the brackets. There were some submissions saying that putting parentheses around "on termination under this award or the National Employment Standards" somehow changed the meaning and I couldn't see that. But I think we do need to make it clear what it is we are deducting from.

PN1117

MR FERGUSON: I think we have suggested alternate wording at 132 of our submissions. I don't know how closely that aligns with the original wording (indistinct) whether that would sit well with the guidelines and so forth, but we have tried to provide greater clarity about two points: from what payment an employer may deduct the relevant amount and what amounts may actually be deducted. We have raised in the preceding paragraphs, paragraphs, I think, 100 and 232, a number of discrete difficulties that we perceive with the alternate wording, so it is not just the brackets. The brackets was one issue, but there are a number of other problems that we have carefully addressed. I don't think any party has disagreed, and I stand to be corrected, with what we have advanced.

PN1118

THE COMMISSIONER: Have you melded the two, have you?

PN1119

MR FERGUSON: We have tried to address all the problems that we have seen and we probably ended up - - -

PN1120

THE COMMISSIONER: Just the wording, "If the employee fails to give the required period of notice" - that is the existing.

PN1121

MR FERGUSON: Yes, and we have put "in accordance with clause E.1(a) in table X".

PN1122

THE COMMISSIONER: Yes.

PN1123

MR FERGUSON: Because there's the table and there is a separate obligation in E.1(a).

PN1124

THE COMMISSIONER: You have got, "The employer may deduct".

PN1125

MR FERGUSON: "From any amounts that would otherwise be payable to the employee on termination under this award or the National Employment Standards." So we are making it clear what you deduct from.

PN1126

THE COMMISSIONER: That is the proposed wording in plain language.

PN1127

MR FERGUSON: Yes.

PN1128

THE COMMISSIONER: Yes.

PN1129

MR FERGUSON: No.

PN1130

THE COMMISSIONER: It is.

PN1131

MR FERGUSON: No, under the proposed wording there is nothing specifying what you are deducting from, I don't think. Sorry, it's a difficult clause. Every iteration of it is difficult.

PN1132

THE COMMISSIONER: Yes, but it is not the words "any money due to the employee on termination under this award", you have gone to the - - -

PN1133

MR FERGUSON: Yes, we took out the words "the amount" because there may not be an amount.

PN1134

THE COMMISSIONER: So the existing wording talks about "money" and you haven't got that. So you have - - -

PN1135

MR FERGUSON: We have tried to meld.

PN1136

THE COMMISSIONER: You are melding?

PN1137

MR FERGUSON: Yes.

PN1138

THE COMMISSIONER: "The employer may deduct the amount that would otherwise be payable to the employee on termination under this award or the National Employment Standards." That is just removing the brackets from the proposed wording.

PN1139

MR FERGUSON: Yes. We have set it out a little bit differently. The brackets - there were a few difficulties we saw. It may just be the way we were reading it. Whether the brackets were trying to suggest the termination was somehow as regulated under the award or whether it was the amounts that were payable on termination. We just didn't quite know what the brackets were trying to achieve.

PN1140

THE COMMISSIONER: Then it is the balance that becomes quite verbose, which is, "An amount not exceeding the amount the employee would have been paid under this award, less any period of notice actually given." Is that done by the words proposed by the plain language team "for the period of notice not given by the employee"? I guess you have got "not exceeding". That is important, isn't it?

PN1141

MR FERGUSON: Yes. We have tried to make it clear that you have to work out the difference in periods and then work out the amount that would be payable for that period. We looked at this wording in other awards and there is no short form of words that achieves all of it because it is a little bit complex what we are trying to set out. We are open to alternatives, but, quite clearly, we think there are some deficiencies in the alternate drafts that have been put forward. We understand why it has been tried to be simplified. It is a difficult clause.

PN1142

THE COMMISSIONER: The question is - perhaps the first half might be okay with what you are putting, but can, after "employment standards", comma, can the work that you have done there, "an amount not exceeding the amount the employee would have been paid under this award in respect of the period of notice required by the employee, less any period of notice actually given by the employee", can that work be done by the words "for the period of notice not given by the employee"?

PN1143

MR FERGUSON: I don't understand how it can, unless you sort of try to rewrite the whole clause and break it up.

PN1144

THE COMMISSIONER: That was what I think I was thinking.

PN1145

MR FERGUSON: Yes.

PN1146

THE COMMISSIONER: Does "for the period of notice not given by the employee" attach any money?

PN1147

MR FERGUSON: No, because that is what we were trying to achieve, that you have the period of notice then reduce it by that amount and then the quantum of moneys is calculated by reference to the period.

PN1148

THE COMMISSIONER: Could you - "for the period equal to the payment of notice"?

PN1149

MR FERGUSON: Difficult because you don't pay the notice. It's a difficult concept. You need to work out the period and then you separately work out the payment.

PN1150

THE COMMISSIONER: Can you draft it that way?

PN1151

MR FERGUSON: We could rewrite the whole clause and make it much longer, which would potentially make it easier, but it just seems like it's a bit over-engineered at that stage.

PN1152

THE COMMISSIONER: Yes, but what if it did say at the end there, "for the period of" - what did I say? "For the period equal to the payment of notice not given by the employee."

PN1153

MR CLARK: Are you suggesting, Commissioner, in the third-last line of the AiG wording, so "paid under this award" and you would then insert "for the period of notice not given by the employee"? Is that the proposal?

PN1154

THE COMMISSIONER: I think there is some merit in what AiG is putting in the first half and then after the comma after "Standards", there becomes a large amount of words that the plain language team, I guess, had tried to make much shorter by stating "for the period of notice not given by the employee", but I think there are some difficulties that that doesn't really attach any money to it, so we need to get some sort of payment or money in there.

PN1155

MR CLARK: Yes, because the AiG's wording then goes on to the money and talks about - so "National Employment Standards, an amount not exceeding the amount the employee would have been paid under the award", perhaps then you could say "for the period of notice not given by the employee".

PN1156

THE COMMISSIONER: What you suggest there, Mr Clark, is that AiG's wording stays as is and then says "an amount not exceeding the amount the employee would have been paid under this award for the period of notice not given by the employee"?

PN1157

MR CLARK: I had thought that that is what you had proposed, but, yes, does that make it - it deals with the money issue, I think, keeping the money in there.

PN1158

MR FERGUSON: I think it does.

PN1159

THE COMMISSIONER: Yes, it is just then the period, which is trying to be captured by the period of notice not given rather than stating what they should have given less any period they should have, so I think it does shorten it.

PN1160

MR FERGUSON: So it is an amount not exceeding - when would the words "for the period of notice"?

PN1161

THE COMMISSIONER: After "the award", yes.

PN1162

MR FERGUSON: Yes, I see.

PN1163

MR CLARK: So all the words following "in respect of" would go from your draft and then you would put that "for the period".

PN1164

MR FERGUSON: Yes. At a glance, that may be an improvement.

PN1165

THE COMMISSIONER: Yes, that might get us there, if it is necessary. Sorry, are you appearing? Did you come in late?

PN1166

MR M NGUYEN: Yes, I did, Commissioner.

PN1167

THE COMMISSIONER: You are AMWU, aren't you?

PN1168

MR NGUYEN: Yes, I am, Mr Nguyen.

PN1169

THE COMMISSIONER: All right.

PN1170

MR NGUYEN: Thank you, Commissioner.

PN1171

THE COMMISSIONER: Mr Moran, do you wish to add anything to that?

PN1172

MR MORAN: No, I think we could look to try and do something based on that. It still would have the concept of the period of notice not given, which I think is a clearer way of doing it, and I think the opening half is fine, as suggested, that you deduct from any amounts that would otherwise be payable to the employee on termination under this award or the NES. I was thinking there about where it says "an amount not exceeding the amount". Wouldn't it be "the amount", the amount that you would have been paid under this award for the period of notice not given?

PN1173

MR FERGUSON: I don't think we need to replicate reference to the amount.

PN1174

MR MORAN: It is the actual amount that you would have got if you had have given the notice.

PN1175

THE COMMISSIONER: So you don't think the words "not exceeding" are required?

PN1176

MR MORAN: No, I think, as drafted like this, you would just be saying, "Look, what you deduct is the amount would have been paid under this award for the period of notice not given by the employee" because it's an actual amount, it's not a maximum amount.

PN1177

MR FERGUSON: That's right. It's a clause enabling a deduction.

PN1178

MR MORAN: Yes.

PN1179

THE COMMISSIONER: All right, how do you think it should read? Can somebody help so that the plain language team, when reading this transcript, can figure out where we are up to?

PN1180

MR FERGUSON: I will attempt. In total it will say: "If an employee fails to give the required period of notice in accordance with clause E.1(a) and table X, the employer may deduct from any amounts that would otherwise be payable to the employee on termination under this award or the National Employment Standards, an amount not exceeding" - sorry - "the amount for the period of notice not given by the employee". Trevor, is that right?

PN1181

MR CLARK: I thought that's what you were putting, sorry.

PN1182

MR FERGUSON: No, no, that's all right. I didn't write it down as we were going.

PN1183

THE COMMISSIONER: Is it "the National Employment Standards, the amount the employee would have been paid under this award for the period of notice not given by the employee"?

PN1184

MR FERGUSON: Yes.

PN1185

THE COMMISSIONER: All right. So, on the face of it, everybody is largely comfortable with that and we will see what it looks like when it has been - - -

PN1186

MR FERGUSON: Yes.

PN1187

THE COMMISSIONER: All right, very good. Are we done with the termination clause? All right, let's deal with redundancy then. Mr Moran, I might get you to speak to that.

PN1188

MR MORAN: Redundancy? There is really not very much to say about redundancy. F is a very short provision. I have read the submissions that said that it would be preferable to also refer in the note to subdivision C, and I think that is correct because subdivision C does provide exceptions to subdivision B, but I guess it raises the same issue as discussed before, whether the cross-reference is too broad there because it is referring to the whole of subdivision B as well as subdivision C. Subdivision B is redundancy pay and subdivision C is the exceptions, so, yes, I think it is okay actually. If it said C, part 2.2 division 11, subdivisions B and C of the Fair Work Act and then, in the second note, of course, the reference to clause 27 should really be a reference to clause B, consultation about major workplace change.

PN1189

THE COMMISSIONER: I guess the question that arises then is if all of that necessary when the current provision says, "Redundancy pay is provided for in the NES"? I know my eyes would glaze over if I see that note when I could have otherwise just read that it was provided for in the NES.

PN1190

MR MORAN: The original intention was to direct you to the particular part of the NES that you would find it, so it was just an attempt to be helpful.

PN1191

SPEAKER: That is very helpful.

PN1192

MR MORAN: Commissioner, are you suggesting that we should leave out the second note?

PN1193

THE COMMISSIONER: I don't have a view as yet on that. There's a lot more words there than there earlier were.

PN1194

MR MORAN: Yes.

PN1195

THE COMMISSIONER: What do the parties think an employee and employer picking it up would want? Do they want some guidance.

PN1196

MS WILES: Commissioner, it is Ms Wiles here from the TCFUA. We would strongly support the inclusion of a note. We think that a kind of reference to other consultation obligations is important, particularly around redundancy. In our experience, it is often an area of great disputation when people are advised of redundancy and they are not properly consulted.

PN1197

One of the issues, though, that I have just picked up in relation to the second note is that in the last line it says, "including changes that may involve redundancy". The consultation obligation, which has a definition of significant effects, would always include redundancy and it does include termination, so I think the use of the word "may" is slightly misleading. It could say "including changes that involve redundancy" because the consultation obligation would always be triggered in circumstances of redundancy because it is a significant effect.

PN1198

THE COMMISSIONER: "May" provides that the changes might be discussed and they may never eventuate, though.

PN1199

MS WILES: Although, in the context of clause 21, which is about an obligation to pay redundancy pay, it is sort of implied that redundancy is proceeding, in my view.

PN1200

THE COMMISSIONER: But you are wanting to give the employer the heads up that there needs to be consultation. You just can't go around making people redundant without the consultation. It is a cue, isn't it?

PN1201

MS WILES: I think that is right, I think that is an important trigger point for the obligation to consult. I think the reference is useful for employees and employers to know that there are additional obligations and entitlements around that issue.

PN1202

THE COMMISSIONER: Do the employers have any concern about there being the reference to the consultation clause?

PN1203

MS THOMSON: Commissioner, I don't think it is necessarily necessary really because we have already got - we will have an extensive discussion about the consultation provisions, no doubt, later on today. They are a stand-alone provision which is enforceable as its own provision of the award. Everyone has survived so far with a very simple redundancy clause. I think there is certain value in keeping the simple form as you suggested initially. I am not sure that we need either of those two notes in the form that they are at the moment, but depending on the views of the other parties, that might be something which is maintained.

PN1204

MS SOSTARKO: Commissioner, it's Rebecca Sostarko from Canberra for Master Builders. If I could also voice our support for what was just said in that we are of the view that neither of those notes are necessary and, in fact, are not only obviously adding to the length of the award but also can be unhelpful on a number of levels, particularly if there are changes in the legislation and then obviously the pinpoint referencing is going to quickly become out of date, which is obviously an issue across the awards.

PN1205

There is certainly no history that we are aware of that issues have arisen with award users not understanding their obligations under the existing provision. And that there is that awareness that the Act also needs to be referred to in conjunction with the award. So we would certainly advocate that the existing clause rather than the redraft, should be retained.

PN1206

THE COMMISSIONER: What does the current redundancy clause do? It sends you off to the NES. Then it talks about the situation of lower paid duties, and the notice period. It then provides for some period of job search. That's all it does?

PN1207

So the issue is, do we, as a Full Bench, want to give the users a heads up of where they can get more information regarding whether � not limited to where the amount that needs to be paid, but also the obligation to consult, which you say, Ms Thomson, is already in the award.

PN1208

MR CLARK: For what it's worth, I think that it would be a reasonably common feature of what we call redundancy disputes that somebody asserts that there hasn't been consultation about it. And one suspects that may even have been the reason why it's a requirement in the unfair dismissal jurisdiction for a genuine redundancy for the consultation to have occurred.

PN1209

So I don't think whoever suggested this type of note might have been included just sort of invented something. And maybe it is a matter perhaps when you get the members of the Full Bench together and see whether there is anything in their judicial experience about perhaps there being a common thread to redundancy disputes, that there's some assertion that there's been no consultation, and that might progress the matter.

PN1210

THE COMMISSIONER: The current provision says redundancy is provided for in the NES. Is that done by the first note? Well, yes, and perhaps more. But the second note, does that do more than what's provided for in the NES? Now, you've seen perhaps the decision of Friday dealing with the Pharmacy Award, where we're saying that whilst we won't unintentionally go out and change the legal effects of the award, but do we think it's a good idea to provide for the heads up about the obligation to consult when it's currently not in this section of the award?

PN1211

MR CLARK: Look, we - - -

PN1212

MS McKINNON: Commissioner, Ms McKinnon, from the NFF. If I could just sort of make the point that there are a number of provisions in the award which have relevance to other parts of the award. And so, for example, under each provision we could have a note referring people to the disputes clause, if needs be, but we've, I think, taken a decision not to do that because the disputes clause in the award stands on its own. And my submission would be that in the same way the consultation clause stands on its own, and it's not necessary to make the cross-reference.

PN1213

MS WILES: Commissioner, sorry, it's Ms Wiles again. In our consistent experience, employers often will just go to the redundancy clause and not look at any other obligations in the award, and that leads invariably to disputes, many of which come to this Commission on far too regular basis. So in our view we don't see that there's anything lost in including the note and, in fact, a lot could be gained by employers and employees, and for the resources of this Commission.

PN1214

THE COMMISSIONER: Yes.

PN1215

MR FERGUSON: I don't think we've raised any vehement opposition to the note. We understand the intention. In saying that, it doesn't mean we're necessarily convinced that it's absolutely necessary but to an extent it's a matter for the Full Bench to consider with the totality of award provisions.

PN1216

One concern we have about it is these continual references to other provisions of the award, make the instrument longer and more complex, and we just � unless there is a sound reason for it, shouldn't assume that every cross-reference is necessary. But in saying that, we don't have any vehement opposition to the note.

PN1217

THE COMMISSIONER: No. I think it's a simple matter.

PN1218

MR FERGUSON: Yes. Yes.

PN1219

THE COMMISSIONER: Either the three of us or a majority will say it's a good idea, or we don't think it's necessary.

PN1220

MR FERGUSON: I think one other issue to raise, and we may have already dealt with it, is I think the AMWU make reference or suggest that there should be another subdivision of the Act referred to if the hyperlink is to be included in the first note. What they, I think, point out is the provisions of the Act that deal with limits on the scope of the division dealing with redundancy.

PN1221

If the first note or the hyperlinks were to be retained, we've a new submission that you should include all the provisions. It may be that where we've got to is that the generic reference to the NES is probably a safer option.

PN1222

THE COMMISSIONER: All right. Mr Moran, you've said that we should include submission C.

PN1223

MR FERGUSON: C. Yes. That's just what I wasn't sure if I'd missed that.

PN1224

THE COMMISSIONER: Yes.

PN1225

MR FERGUSON: Yes.

PN1226

THE COMMISSIONER: If you're going to say you will include - - -

PN1227

MR FERGUSON: No, that's all I was trying to say.

PN1228

THE COMMISSIONER: Is that all that needs to be said with respect to the notes? We'll move onto transfer to lower paid job and redundancy. Mr Moran, you might wish to speak to that first.

PN1229

MR MORAN: Yes. Commissioner, it started off by looking at 21.2 which at the moment says:

PN1230

Where an employee is transferred to lower paid duties by reason of redundancy.

PN1231

What we tried to do was try and explain a bit what it was that we were talking about, by reference to what's in 119 of the Act, and therefore picking up 119 talks about that an employee is entitled to be paid redundancy pay if the employee's employment is terminated because the employer no longer requires the job done by the employee to be done by anyone.

PN1232

That really helped frame what was in paragraph (a). I think the comments have been made by some parties that it needs to go on and say as 119(1)(a) of the Act says:

PN1233

Except where this is due to the ordinary and customary turnover of labour.

PN1234

I can see that that point is a very valid point, and it really should have those extra bits. The paragraph (b) which has caused some issue, talks about "wishes to transfer". In drafting that we had thought, well, if you're talking about a period of notice you should be talking about things that actually happened before the transfer.

PN1235

But if the transfer actually happens straight away, I agree then you would just talk about transfers the employee. So it's really just whether it was intending to transfer or wishes to transfer, that was the thinking behind paragraph (b).

PN1236

MR FERGUSON: Before we move on from that, at paragraph 138 we suggest an alternate form of words which I think might align with the intentions of the draft. We suggest the wording:

PN1237

The employee is going to be transferred �

PN1238

be inserted.

PN1239

MR MORAN: Well, I think one of the difficulties is whether that fits in with the � if it's meant to go into G.1, because G.1 has got the opening words "If the employer be" - - -

PN1240

MR FERGUSON: If it was just "is going to be" � I see.

PN1241

MR MORAN: So you would have to say - - -

PN1242

MR FERGUSON: Is going to transfer.

PN1243

MR MORAN: Is to transfer the employee.

PN1244

MR FERGUSON: Is to transfer. Yes. I understand. You're trying to ensure that the obligation arises before the transfer.

PN1245

MR MORAN: Yes. Yes. The obligation to give the notice.

PN1246

MR FERGUSON: All we're saying is that, yes, it should be more than a wish.

PN1247

MR MORAN: The terms the old job and the new job were really just drafting terms, so as you could refer back. Looking again at paragraph (b), well, if it did say "is to transfer the employee" perhaps it could just say "to another job" and then have in brackets "the new job".

PN1248

MR FERGUSON: Yes.

PN1249

MR MORAN: There's been an issue raised about the lower classification, and I agree that that's not in 21.2, so it could just be a new job at a lower hourly rate of pay, which would seem to be equivalent to lower paid duties. If those changes were made then perhaps in G.2 where it says:

PN1250

The employee is entitled to be given written notice of the transfer �

PN1251

it could just say �

PN1252

transfer to the new job, of the same minimum period of notice as the employee would be entitled to on termination of employment.

PN1253

I accept the point that's been raised about "for a notice of termination of employment", didn't seem to be a very clear way of doing it. Therefore, G.3 would just talk about if the employer transfers the employee to the new job before the end of the minimum period of notice, the employee is entitled to receive a payment from the employer.

PN1254

There's been an issue in G.4 as to what the payment is, and it would seem that the full rate of pay is arguably not the correct description. 21.2 talks about ordinary time rate of pay, whereas I think the Act talks about base rate of pay. If we wanted to be confident that we were not changing anything, I guess you would say "ordinary time rate of pay". But I think the difficulty that was felt was what does it mean? Can we be clearer what that means?

PN1255

THE COMMISSIONER: Right. There's a bit to get through there. I think the earliest thing we talked about there was the issue of the ordinary and customary turnover of labour, and I'd like to hear any concerns out of Melbourne if that were to be inserted.

PN1256

MR CLARK: The broader concern that wasn't raised in the preceding discussion is that the current clause in the instrument and in the exposure draft just says - - -

PN1257

THE COMMISSIONER: Sorry, you'll need to speak up, Mr Clark.

PN1258

MR CLARK: An issue that wasn't raised in this discussion, that sort of goes a bit more fundamental to all of this, is that the initial clause and the exposure draft clause commenced with the words "Where an employee is transferred to lower paid duties by reason of redundancy." Now, the assumption that's being made in the drafting is that the NES somehow defines or confines what redundancy � not redundancy pay, but redundancy means in any particular situation.

PN1259

If you read the authorities, if you read cases like Amcor or Spotless or even the recent high case involving the MUA somewhere in Port Kembla, it's pretty clear that the word "redundancy" takes a different colour in different contexts. If the intention in this process is to lock down the meaning of redundancy based on cues as to when a redundancy pay entitlement arises under the NES, then you are most certainly changing the legal effect of the provision, which only refers to redundancy.

PN1260

There's this issue of confining it to continuous employment and changing the references from duties to jobs and so forth, is further steps along that direction. There will be occasions in drafting awards where you can't be confident that using the same word in the same situation is always going to have the same meaning. That's in the situation that you're in today. And to attempt to lock it down to something else, is, you know, can only happen if there's an intention to change the legal effect.

PN1261

THE COMMISSIONER: So what's your current understanding of the provisions as they stand now? If somebody is in job A or performing the duties of job A, and that's no longer going to be done but they then accept the alternative position and they start doing that on a certain date, but they would have otherwise received three weeks' notice had they been dismissed, they get the difference between, say, $1,000 a week ordinary time earnings versus $800 a week ordinary time earnings. That's as simple as it is, isn't it, or am I missing something?

PN1262

MR CLARK: Well, it's the equation of the concept of redundancy to the situation where redundancy pay is payable really is what's happening in the drafting that raises those issues. I mean, under this clause you might be taken � the redrafted clause you might be taken down and saying, well, that's kind of suitable alternative employment. Nothing's payable at all. There's nothing to be paid to this person.

PN1263

You know, it's always going to be a little bit fraught, and locking it down is not something that we can do without a decision that says, you know what, we've decided as a commission that all of these High Court cases that says the definition of redundancy takes its view from its concept, shouldn't be the law and the safety net any more, and we're changing it.

PN1264

MR FERGUSON: Sorry, Mr Clark. Mr Ferguson. We've suggested, and Ai Group has suggested, some minor amendments to the definition that has been proposed, to include a provision dealing with the ordinary customary turnover of labour. Are you suggesting that if that definition of redundancy was adopted, that that doesn't accord with what the old test case standard or notion of it was in the award context?

PN1265

MR CLARK: I know that in the award context there was quite a lot of discussion around ordinary and customary turnover of labour, including the observation that we can't really find the words that express what it is that we are intending so we'll use these ones. So they were never much of a gold standard, frankly.

PN1266

MR FERGUSON: No, but - - -

PN1267

MR CLARK: I think, you know, that discussion only arises if you accept that the task is to limit the transfer to lower paid duties to situations that would accord with a redundancy, and you take the cues as to what redundancy is from the redundancy pay entitlement in the NES. I think that what I'm saying is that's the wrong track.

PN1268

MR FERGUSON: But don't the provisions from the NES take their cues from the old test case standard, from the award system?

PN1269

MR CLARK: They do.

PN1270

MR FERGUSON: So wouldn't the use of the word "redundancy" in the award clause properly be considered to have the same meaning as the test case standard? So if you just used the same provisions, wouldn't you be properly articulating what the definition of redundancy as used in the context of awards is?

PN1271

MR CLARK: That's not what the cases say. The cases say that in particular you read it from the industrial context and the relationships and the custom and practice and what's been accepted as what redundancy means in particular situations.

PN1272

MR FERGUSON: The context of the instrument and so forth, if that's what you're referring to; and here we're talking about an award which has historical origins.

PN1273

MR CLARK: Yes. See, now we're having the argument, right, that - - -

PN1274

MR FERGUSON: Yes. No. I understand. Yes.

PN1275

MR CLARK: - - - that is an argument that you're able to have on the face of the clause as it is presented now. What I'm saying is that's what's being proposed is a departure from the current legal effect of the clause.

PN1276

MR FERGUSON: So do you say the word "redundancy" as utilised in that clause, doesn't mean what it means under the Act?

PN1277

MR CLARK: In many situations it will, and in some situations it may not.

PN1278

MR FERGUSON: But in the award context it may not.

PN1279

MR CLARK: Correct.

PN1280

MR FERGUSON: Is your view.

PN1281

MR CLARK: That's our view, yes.

PN1282

THE COMMISSIONER: Mr Clark, I earlier put an example of when I think this existing provision would apply. Are you able to explain how it might not apply or might otherwise apply?

PN1283

MR CLARK: Well, first of all, you're substituting the concept of duties for the concept of job.

PN1284

THE COMMISSIONER: No. Let's look at the existing words.

PN1285

MR CLARK: Yes.

PN1286

THE COMMISSIONER: Because that's what we're looking to re-work. I've used the example of somebody who is going to be made redundant but otherwise accepts another job at $800 a week instead of $1,000 a week, and if they would otherwise be entitled to three weeks' notice, they get three lots of $200 because they've started in the role immediately.

PN1287

MR CLARK: Yes.

PN1288

THE COMMISSIONER: So where else does this apply or doesn't apply? Because that's really � an employer picks this up and says, well, this is what I need to do. An employee picks it up and says, well, this is what I'm entitled to. Yes, there's many cases that can be run to argue that, okay, this transfer wasn't by reason of redundancy but what are we trying to cover here?

PN1289

MR CLARK: Well, you could have a person who a portion of their job functions are given to a contractor or a machine. They're still called the same thing, they still sit at the same desk, there still is a need for, let's call them a production supervisor. It's just what they do is different and they take a little bit of a pay cut for it. Now, under the existing clause, that person may still be entitled to a payment or notice. Under the proposal here, that entitlement is far less certain.

PN1290

THE COMMISSIONER: How is that the case? Is it because of the words "job" or "duties"? Because we need to get to a stage where we can cover off where they would have been entitled under the existing provision. They are still entitled under the new words but we need to get there.

PN1291

MR CLARK: Yes. What I'm saying is that the difficulty is being introduced because you're trying to define redundancy. That's the root point, which the award doesn't do, and the NES doesn't do. And the cases provide some, you know, common law definitions of redundancy, and also say that ultimately you've got to take the meaning of it from its concept. It doesn't have a settled single legal meaning.

PN1292

THE COMMISSIONER: So are your concerns in respect of G.1, are they?

PN1293

MR CLARK: Well, I do. The concerns apply to that clause, yes.

PN1294

THE COMMISSIONER: Would you rather it just simply say "because of redundancy"?

PN1295

MR CLARK: Probably. Yes.

PN1296

MS BIDDLESTONE: Commissioner, sorry, it's Katie Biddlestone. I just wanted to make the point that the words in the second line of the current provision in the exposure draft "by reason of redundancy" don't appear anywhere in the redrafted clause, and it appears that G.1(a) may have been included in replacement of that.

PN1297

I'm not sure if that was the intention. But I agree with Mr Clark in that if that is the replacement, then that wouldn't be correct. To ensure that it more closely reflects the current provision. It should be, "by reason of redundancy" needs to be included rather than actually trying to define what has actually happened for the transfer to have taken place.

PN1298

THE COMMISSIONER: Now, Mr Moran, can you perhaps provide some guidance as to why G.1 has been drafted as it is?

PN1299

MR MORAN: Yes. Commissioner, I think it really was an attempt to try and define what was meant by redundancy, so as to be helpful to the reader, but obviously there's an issue whether it has accurately covered completely what is covered by redundancy. So that was the purpose of it. It was then looking at what the Act says about when redundancy pay is payable, and using that description to describe redundancy.

PN1300

THE COMMISSIONER: So are the parties in agreement, are they, that they want to retain redundancy?

PN1301

MR FERGUSON: No.

PN1302

THE COMMISSIONER: No. Right.

PN1303

MR FERGUSON: Our submissions in paragraph 134 to 136, we've set out what we say should occur, which is a slight modification to the clause which, in effect, defines redundancy, so that it properly aligns with the Act. Our submission is that that appropriate reflects the test case standard definition of redundancy.

PN1304

I think what the issue is, is that there's a disagreement between the parties as to what the word "redundancy" means within the award context. And as I understand it, some parties are suggesting that it doesn't mean or it doesn't have a definition that squarely aligns with in all instances, that contained within the Act. So we're apart on the definition of that, and that's as I understand the context.

PN1305

So some are asserting that this is a substantive change, and we don't think it is a substantive change, and we've proceeded on that basis and, as such, have just tried to make sure that the drafting is as clear as possible. And the substantive change that we see is the omission of the reference to "ordinary and customary turnover of labour". We say that should go in.

PN1306

THE COMMISSIONER: So you think it should say "by reason of redundancy" except - - -

PN1307

MR FERGUSON: Well, G.1 should be amended, and in paragraph 135 we suggest the alternate wording. (a) should be amended so it says:

PN1308

No longer requires the job, the old job being performed by an employee to be performed by anyone, except where this is due to the ordinary and customary turnover of labour; and

PN1309

So there was, I think, hearing Mr Moran's submissions, that there was an inadvertent omission of those words, and we're just trying to insert those words in which we've taken from the Act, which we say in our submissions are aligned to the test case standard. So we say there's no change in the meaning of the clause. It's just making it simpler and easier to understand.

PN1310

THE COMMISSIONER: What do the unions say about that, if that was inserted?

PN1311

MR CLARK: Sorry. We accept that the ordinary and customary turnover of labour is part of the determinates of redundancy pay under the NES. So if the course you were going to adopt was to do what Mr Moran accepts was what I've put, which is to take the cues as to the meaning of redundancy in awards from the circumstances under which redundancy pay is payable under the NES, if that was the course that you were inclined to adopt, then you would pick up that exclusion. But we're saying that the decision to adopt that course is a change in the merits.

PN1312

THE COMMISSIONER: Isn't it just providing more certainty? Because you say that you would argue those sort of provisions anyway. Your submission, Mr Ferguson, is that that should be included because it aligns with section 119.

PN1313

MR FERGUSON: Well, which in turn aligns with the history of at least certain awards and relevant test cases. So, in our submissions we reference the history of the Metal Engineering and Associated Industries Award, and we identified that that wording, which is now adopted in the Act, is consistent with the clause that flowed from the 2004 redundancy case decision.

PN1314

So there is a history to the awards context, that we say would inform the proper definition of redundancy. So, as we view it, there is no change to the meaning of redundancy, by adopting this definition, provided our "ordinary and customary turnover of labour" provision is included.

PN1315

But I don't know that we can say that's the case for every award, but certainly we say that this proposal, and it's a common provision, would provide greater certainty, make it simpler and easier to understand, and it would align it with the test case standard and the with legislative standard. On that basis, it's a change that we wouldn't have any difficulty with. I mean, we haven't called for the change but we can't see a problem, and we can't see any merit to the ACTU's arguments.

PN1316

THE COMMISSIONER: Does anybody else wish to say anything with respect to G.1(a)?

PN1317

MS WILES: Commissioner, it's Ms Wiles. We support the submissions of Mr Clark. In our view, the NES does not provide a definition, per se, of redundancy. It simply describes circumstances in which redundancy pay is payable, and we think that difference is important. And so on that basis we do support Mr Clark's submissions.

PN1318

THE COMMISSIONER: Anyone else? I think we might cover G.1(b) and then we'll have a short adjournment. Mr Moran, what did you say could be done to G.1(b)?

PN1319

MR MORAN: I think the suggestion was that we should move away from the word "wishes" to say "is to transfer the employee to another job at a lower hourly rate of pay." The original intention was to try and separate what is to happen in terms of transferring the employee to a different job, from the requirement to give notice.

PN1320

It seemed to be if you write it in the past tense, you say that the employer has transferred. You wonder how that fits in with the period of notice that's to be given. Therefore, it would seem, rather than say it "wishes", to understand the issue about "wishes", if we said "is to transfer the employee to another job, the new job, at a lower hourly rate of pay", and we remove the reference to classification.

PN1321

THE COMMISSIONER: Are you still wishing to have references to "job"? To some � perhaps we can deal with that after the break. But otherwise you're saying "is to transfer the employee to a new job at a lower hourly rate of pay". All right?

PN1322

MR MORAN: Yes.

PN1323

THE COMMISSIONER: Does that help the parties?

PN1324

MR FERGUSON: The word "wishes" is replaced with "is"?

PN1325

THE COMMISSIONER: Yes, and get rid of the lower classification.

PN1326

MR FERGUSON: That addresses our concern. Well, I'm not sure about the removal of the words "lower classification".

PN1327

THE COMMISSIONER: The lower classification has been introduced by the team.

PN1328

MR FERGUSON: Yes. Sorry.

PN1329

THE COMMISSIONER: Because the existing only provides for the rate of pay being a lower rate of pay.

PN1330

MS McKINNON: Commissioner, Sarah from the NFF. I just make the point too about the hourly rate of pay. That some employees won't be employed on an hourly basis. They'll either be salaried employees or piece workers. So I wonder if it's necessary to talk about hourly, and if we could just talk about lower rate of pay or lower ordinary rate of pay?

PN1331

THE COMMISSIONER: Yes. So the current wording is "ordinary time rate of pay." So perhaps it could read "a lower ordinary rate of pay." Would anybody have any difficulty with that?

PN1332

MR CLARK: I don't know if that does work for piece workers though. I mean, me and Vivien are just looking at each other, confused about that, Sarah. You might have a view. Ordinary rate. The lower ordinary rate of pay for piece workers. They do have an ordinary rate, do they? I can't get my head around it.

PN1333

MS McKINNON: Yes, and the same for employees who are on an annualised salary, for example.

PN1334

THE COMMISSIONER: I like the lower ordinary rate of pay because you might have an employee who just by chance drops a classification and then becomes entitled to all these other allowances that they might not have been entitled to if they were the higher classification, and they could actually earn more by working different penalties, et cetera.

PN1335

You wouldn't want the employer then arguing, well, overall you're not worse off, if their hourly rate, which is the guaranteed provision, is lower. So that certainly works for me. So that it reads:

PN1336

is to transfer the employee to a new job, the new job at a lower ordinary rate of pay.

PN1337

MR FERGUSON: We would just need to think about that, I think, during the break. Because at the moment it talks about lower paid duties. We just need to think about that.

PN1338

THE COMMISSIONER: I think we'll have a short adjournment.

PN1339

MR CLARK: Sorry, before we finish that one, that new job is still kind of labelling something as a new job and it might not in fact be a new one. It's related to but not completely subsumed by the issues I was raising earlier.

PN1340

THE COMMISSIONER: Yes. I know that some of you aren't sold on that, and Mr Moran might have some thoughts over the break as to that issue. Let's adjourn until 11.15 Sydney time then. Thank you. We're adjourned.

SHORT ADJOURNMENT�� [11.04 AM]

RESUMED�� [11.27 AM]

PN1341

THE COMMISSIONER: So we might just close the door there, thank you. The parties' views on G.2 and the remaining subclauses?

PN1342

MR MORAN: Commissioner, could I just say having looked again at what we were just talking about in paragraph (b) of G.1 about how you describe the rate of pay. It seems to me it should really be the same as whatever goes into G.4 because this is that we're saying that the need for a payment is because you're on a lower paid job compared to what you were in. And therefore, for example, if you kept what was in 21.2 you'd be talking about a lower ordinary time rate of pay. So it's really whatever goes into G.4 should be what is in G.1(b).

PN1343

THE COMMISSIONER: Well, would you need a (b)? Or would you - well, tell me what you think if we need this Mr Moran?

PN1344

MR MORAN: Well, G.1 is saying that if the employer is to transfer the employee to another job at a lower something - the lower something really has to be what you're entitled to the payment for. So if the new job is at a lower rate of pay then that's what the description should be in in (b). So if it's ordinary time rate of pay or if it's base rate of pay it's whatever it should - it seems to me it should be the same description then that then measures the compensation that you get. The difference between the pay that you would have got, had you stayed in your old job and what you're going to get in your new job.

PN1345

THE COMMISSIONER: All right. But looking at what the existing clause does I mean it does what it needs to do and we're now introducing a lot more words. So how do we get to it being plain language? Doing what it needs to do but not being too verbose.

PN1346

MR MORAN: Well, G.1 was just meant to be an application clause saying, "Well, this is the situation in which this clause applies if the employer no longer requires a job to be done by anyone and is to transfer the employee to another job at a lower rate of pay." And then setting out - it's setting out in full then what happens if the employee is entitled to be given notice of the transfer of the same minimum period as you would get if the employee was being terminated and you're entitled to receive a payment if you get transferred before the end of the minimum period of notice and G.4 was telling you how much the payment was. So it was stepping through the various elements of this transfer. Admittedly longer than the current one, but unfortunately sometimes it does end up with more words in an attempt to try and make it simpler.

PN1347

THE COMMISSIONER: All right. But do you say that (b) then does by necessity need to reference G.4? Or can it do what we had said before the break?

PN1348

MR MORAN: I think it could just use the same description. So it is whatever G.4 - I know we haven't talked about G.4 yet - but it is whatever G.4 says. I'm not saying it should of course refer to G.4 but if G.4 talked about ordinary time rate of pay then (b) could talk about a lower ordinary time rate of pay. Or if G.4 talked about a base rate of pay it could be a lower base rate of pay.

PN1349

THE COMMISSIONER: So what then to say something significant is to transfer the employee to a new job at a - - -

PN1350

MR MORAN: Lower. At a lower ordinary time rate of pay or a lower base rate of pay. But we haven't discussed that as yet.

PN1351

THE COMMISSIONER: Well, we got to at a lower ordinary rate of pay.

PN1352

MR MORAN: Yes.

PN1353

THE COMMISSIONER: But you say that there should be some linkage perhaps to G.4(b).

PN1354

MR MORAN: Because that's the major of your compensation the difference between the two rates isn't it for the period for which you weren't given notice.

PN1355

THE COMMISSIONER: Yes, but is it necessary to link it to G.4(b)?

PN1356

MR FERGUSON: I think from our perspective if we were to depart from the use of the terms "lower classification" and "lower hourly rate of pay" and to insert a new notion of an ordinary hourly rate of pay which is not contemplating the current provision we'd need to give some further thought to that proposal beyond what we can do just here at the Bar table, including going back to the history with the current provision. I don't think you can automatically assume that there should be consistency within both parts of the clause but there may be some force to it but we'd need to give some consideration to these new proposals.

PN1357

Clearly, at the moment, there's contemplation of lower paid duties and there is some emphasis on the work as well. But there is of course logical force to the proposition that - well, if someone is not going to get less pay then why would the clause apply?

PN1358

THE COMMISSIONER: All right. I am mindful that there doesn't seem to be too much conjecture around the current wording. I understand we want to step through what the new wording - the steps are. Is there any way of condensing G.2, and G.3, into one?

PN1359

MR MORAN: Well, G.2 the concepts are different. G.2 is saying, "Well, you're entitled to be given the notice of the transfer" and tells you what the length of that notice is. And then G.3 is saying but if you're transferred before the end of the period of notice you're entitled to your payment. So I guess they were separate because they're seen to be doing two - covering off two different concepts.

PN1360

THE COMMISSIONER: Could they be squashed together? Even if you don't get it then you receive a payment.

PN1361

MS THOMSON: I think just makes a very long complex sentence, Commissioner, to some extent which I think we're trying to move away from - having these sort of double-barrelled sentences which deal with a couple of concepts.

PN1362

THE COMMISSIONER: Yes. All right then.

PN1363

MR FERGUSON: Coming back to G.2 though, there's another issue, in the references written notice which is not currently a provision in the award. There is no obligation for written notice now. It's just a new obligation that has been proposed and we say should definitely come out. It's clearly a substantive change.

PN1364

MR NGUYEN: There is an obligation for written notice, sir. Isn't that in 117?

PN1365

MR FERGUSON: In the Act where you're dealing with termination of employment there might be an obligation for written notice which was a provision that flowed from the amendments to the legislation but the awards standard there has never been in the context of this clause as I understand it any requirement for written notice. We're not dealing with termination of employment here. We're dealing with the transfer of the lower paid duties. So it's just a new obligation that's being imposed which this isn't intended to do and there can be no justification for flowing from the words of the clause.

PN1366

THE COMMISSIONER: So if an employer has had conversations with somebody we no longer need a C9. We need to be employed as a C10.

PN1367

MR FERGUSON: They've told them of the notice and so forth you don't need to do it in writing.

PN1368

SPEAKER: I'm not sure about that because basically the transfer to lower paid duties is occurring in context of a termination - - -

PN1369

MR FERGUSON: No, it's not.

PN1370

SPEAKER: - - -which is the redundancy of the person's position.

PN1371

MR FERGUSON: It's not dealing with termination.

PN1372

SPEAKER: Well, it is. If a person's position is redundant they're being terminated from that position.

PN1373

MR FERGUSON: That's the position. Their position is redundant. That doesn't mean their employment has been terminated.

PN1374

SPEAKER: But they're being terminated from that position and they're being transferred to a lower paid position.

PN1375

MR FERGUSON: Their employment is not being terminated.

PN1376

THE COMMISSIONER: No, arguably they've accepted an alternative offer of employment.

PN1377

MR FERGUSON: That's right. Yes, or there may be the capacity within your contracts to move people between the different classifications - whatever the case may - be - the point is there's no termination of employment. So there's no need to align this entitlement with the statutory provisions dealing with termination of employment. And if this process was not intended to result in substantive changes. Now sure there may be some justified where there is some ambiguity or difficulty with the wording. But there is none here. It's just a new obligation that's being proposed. And I don't think necessarily intentionally - but if it should just come out - contentious.

PN1378

THE COMMISSIONER: Well, you have somebody earning $1,000.00 a week. They're now going to earn $800.00 a week. They have accepted the lower position. You don't think that that should be required to be put in writing?

PN1379

MR FERGUSON: No. This process wasn't intended. If somebody - if the unions want to run a case that say that that is necessary to meet the Modern Awards objective then they should. We don't think that that's a change that should be made and certainly not through this process. That's a merit based argument.

PN1380

I mean people have all agreed to this arrangement potentially in some cases. Why do you need to have another obligation?

PN1381

THE COMMISSIONER: They can agree orally, can they?

PN1382

MR FERGUSON: They can. Or it may be something that's already contemplated in their existing arrangements. Why would you need to now put an additional obligation for written notice which if an employer fails to comply with there'd be significant ramifications of that.

PN1383

Look, we've just tried to approach this with direct integrity and saying, "Well, that's not part of the existing obligations so this is a drafting process. We should impose a new one just for the sake of it."

PN1384

THE COMMISSIONER: What do other employers say about that? Is there a concern that it should be written in the Award that notice needs to be in writing for the transfers to new classification or there's ambivalence.

PN1385

MS THOMSON: I think it is a departure from the current concepts which are contained in the clause. We refer to the same period of notice must be given as if the employment had been terminated, not notices in - you know - that the wording is not to equate the two concepts with the termination of employment and as we were just discussing there is quite a different concept here. The employee - rather - has continuity of service. They have got ongoing employment. There is no payout of leave presumably and I think that's reflected in the current wording. It's the same period of notice as opposed to the same arrangements which would otherwise apply if the termination was occurring.

PN1386

MS McKINNON: Yes, Commissioner. Sarah, from NFF. I think that's right. I think if our focus here is on preserving the status quo, then the words in the current provision are the same period of notice must be given as if the employment had been terminated. So there is an assumption there that the employment hasn't been terminated and the requirement relates to the period of notice, not the fact of notice.

PN1387

THE COMMISSIONER: All right. And for the unions do you say that there's merit in that argument or it should just be tidied up and made clear so that lay people won't willy-nilly go about giving notice verbally?

PN1388

MR CLARK: I mean we accept that in some circumstances that - you know - it might be a change.

PN1389

THE COMMISSIONER: Mr Clark, you need to speak up.

PN1390

MR CLARK: In some awards it might be a change and we're not seeking to change it. With just some - sort of chatter amongst us - that we thought in some awards it already did provide for a written notice in these circumstances and that's what we were trying to find.

PN1391

MS BIDDLESTONE: Sorry, if I can just interrupt, Commissioner? It's Katie Biddlestone. The Pharmacy Industry Award - the current award at clause 16.1 actually provides that any change to classification of an employee must be advised in writing. So that - - -

PN1392

THE COMMISSIONER: But it's not the same clause.

PN1393

MS BIDDLESTONE: It's a different clause.

PN1394

THE COMMISSIONER: Well, that would have dual application then, wouldn't it? If somebody was transferred under the clause 21 there would still be an obligation under that clause wouldn't there?

PN1395

MS BIDDLESTONE: That's correct.

PN1396

THE COMMISSIONER: All right. But largely the unions are of the view that the argument put this morning is probably correct that - and changing it to in writing might alter the effect of the current provisions.

PN1397

MR CLARK: Yes.

PN1398

THE COMMISSIONER: All right then. We've heard Mr Moran, you say that it should be moved from full rate of pay to either ordinary time or base rate of pay. What are the parties views on whether it should be ordinary time as the existing provision or whether there should be reference to base rate?

PN1399

MS WILES: Commissioner, it's Ms Wiles here.

PN1400

THE COMMISSIONER: Yes.

PN1401

MS WILES: Our strong view is that it should remain ordinary time rate of pay.

PN1402

MS THOMSON: Commissioner, it may be that that's an award by award issue or would need to be dealt with in some instances on an award by award basis. We have got a definition of ordinary time hourly rate in our award. We don't use the term full rate of pay, base rate of pay, whereas I think a lot of other awards use different terminology to describe what that is. So there may be a baseline put in a model term subject to further award by award consideration.

PN1403

THE COMMISSIONER: Well, you can see that these five clauses are meant to cover the 120-odd awards but I am sure we're going to flexible enough to say that if there's any good reason why particular awards should have any changes well then that should be made clear.

PN1404

MS THOMSON: Yes.

PN1405

THE COMMISSIONER: We don't propose it's going to be a complete one-size fits-all I assume?

PN1406

MR FERGUSON: We've set out in our reply submissions that generally it should be an ordinary hourly rate of pay. There may be some award specific changes that would warrant a different approach but we're certainly very strongly opposed to the full rate of pay being used. We have set out in our submissions the reasons for that in quite a fair bit of detail.

PN1407

THE COMMISSIONER: Well, I think we have moved on from that.

PN1408

MR FERGUSON: The full rate of pay.

PN1409

THE COMMISSIONER: Full rate of pay. There's an acknowledgement there but is there any merit in base rate of pay as something that might form part of the Bench's decision?

PN1410

MR FERGUSON: No.

PN1411

THE COMMISSIONER: Here? Are we all comfortable with ordinary rate of pay subject to any award specific provisions?

PN1412

MR FERGUSON: Well, we have said ordinary hourly rate of pay, yes.

PN1413

THE COMMISSIONER: Yes. All right then.

PN1414

MR FERGUSON: And the base rate of pay would potentially pick up over-award payments which would be problematic.

PN1415

THE COMMISSIONER: Right. So we're not interested in base rates.

PN1416

MR FERGUSON: No. No.

PN1417

MS WILES: Commissioner, it's Ms Wiles here. I don't think that addresses the issue, I think raised by NEF around some employees don't receive an ordinary hourly rate of pay.

PN1418

THE COMMISSIONER: Well, the current provision talks about the ordinary time rate of pay. That's what we're trying to get to. So how would that affect employees in their current circumstance?

PN1419

MR CLARK: Well, it might just be that that particular award is used as the reference. It is in industry where out-workers or peak-workers are commonly engaged.

PN1420

THE COMMISSIONER: All right. Well, then for those other awards I am sure that they could then seek industry-specific wording but for the 120-odd awards - - -

PN1421

MR CLARK: Yes.

PN1422

THE COMMISSIONER: - - - then if we settle on a model - maybe that's where we land - just a model standard clause for each of these five and if parties have a particular reason to argue for alternative wording then I'm sure that that will be put. We're not going to say that - mandate this across this all 120-odd awards I don't expect. What further work can we do to transfer the low-paid job on redundancy this morning?

PN1423

MR FERGUSON: Bear with me. We have raised issues in relation to G.3, paragraph 144.

PN1424

THE COMMISSIONER: Well, without having to go through the document.

PN1425

MR FERGUSON: Yes. That's all right. I am just refreshing myself. In essence we make the point that clause G.3 does not set out an entitlement for an employer to make a payment instead of giving notice for the transfer to a lower paid job. Whereas the current position effectively enables employers just to make the payment rather than giving the notice that they're an issue. They're the ones who decide if you will, whereas that entitlement is not expressly provided for under the new clause.

PN1426

THE COMMISSIONER: Doesn't it at the end of the 21.2 talk about of notice still owing? So if an employer says, "Well, I am going to move you from C.9 to C.10", and they do it immediately and the employee would be entitled to three weeks' notice. Let's say it's the $200.00 differential. They get three weeks at $200.00 but if they give notice of that and then decide that halfway through it that they need to move the employee earlier then that would be the notice still owing, wouldn't it?

PN1427

MR FERGUSON: Look, certainly it seemed to suggest that an employer does have that right I think we've just - I'm reading through my submissions now or our submissions - I think we think that there should be an express contemplation of that right. Bear with me one second, Commissioner.

PN1428

So in the first - in paragraph or in clause 21.2 - the first sentence makes it very clear that the employer may at its option make the payment instead of giving the notice. Now, the redrafted clause appears to have a locked rate on the assumption that there is that right but it doesn't actually afford the employer the right the way the clause previously did.

PN1429

THE COMMISSIONER: Because it doesn't include the words, "At the employer's option"?

PN1430

MR FERGUSON: That's right. It doesn't expressly say that an employer has a right. Rather, it just gives an employee an entitlement in circumstances where the notice wasn't given to receive the payment. Now there may be arrangements outside of the award that enable the employer to transfer the employee, because it may be by agreement or may be contemplated in the contract, but currently the award actually gives an employer a right to transfer them to the role of paid duties instead - and without giving the notice - and we say that right should be retained.

PN1431

THE COMMISSIONER: Mr Moran are you able to help with that?

PN1432

MR MORAN: Yes, I guess - I mean looking at 21.2 the same period of notice must be given as if the employment had been terminated and the employer may, at the employer's option make payment instead. So I think the argument is that well, you don't need to give notice, you could just make a payment.

PN1433

MR FERGUSON: The option - to keep the payment. And I think the clause has been redrafted on the assumption that that right exists, but the clause doesn't actually give the right to the employer.

PN1434

MR MORAN: Certainly, the redrafting was done on the basis that there was an entitlement to be given on notice. It recognised that the employer could transfer you early - didn't have to sit out the period of the notice - and if you did there was an entitlement to your payment but I think - well, certainly the redrafting was assuming that there was a right to be given a notice.

PN1435

MR FERGUSON: Yes. But absent an award clause you can't assume that be the case in all instances.

PN1436

THE COMMISSIONER: Doesn't G.3 do that? If the employer transfers the employee to the new classification?

PN1437

MR FERGUSON: Well, it's recognising that that could arise in some circumstances. It may well arise because there's agreement or there's some underlying contractual arrangement to adhere to or some other award provision the (indistinct) has said and certainly assumes that those circumstances could occur but the current award actually says that the employer may at its option choose to transfer in effect rather than - and make the payment instead of giving the notice because it actually creates a right for the employer.

PN1438

THE COMMISSIONER: What about if the employer elects to transfer the employee?

PN1439

MR FERGUSON: Drafting on the run.

PN1440

THE COMMISSIONER: That's what we did last time.

PN1441

MR FERGUSON: Yes. No, we got there.

PN1442

THE COMMISSIONER: We've done so well today.

PN1443

MS THOMSON: Are you making it complicated by introducing the concept that the period of notice has to commence? If you've got rid of that?

PN1444

MR FERGUSON: Where's that?

PN1445

MS THOMSON: So before the end of the minimum period of notice. So that's kind of introducing a concept to my mind that the period of notice must commence.

PN1446

MR FERGUSON: I'm just not sure I'm with you but even if we'd adopted a different approach and we said the employer may transfer the employee to the new classification before the end of the minimum period of notice, you know, provided the employee receives a payment they'll then deal with a payment issue in a different way.

PN1447

THE COMMISSIONER: So that's putting a greater right on the employer.

PN1448

MR FERGUSON: Yes.

PN1449

THE COMMISSIONER: So G.3 might read, "The employer may transfer the employee to the new classification."

PN1450

MR FERGUSON: Yes. Before the end of the minimum period of notice.

PN1451

THE COMMISSIONER: And if so the employee is entitled to receive the payment from the employer.

PN1452

MR FERGUSON: Yes. If we were to keep the rest of the structure of this clause words to that effect.

PN1453

THE COMMISSIONER: Mr Moran?

PN1454

MR MORAN: I think, essentially, that's really what G3 is saying and it's saying that if the employer transfers the employee before the end of the minimum period of notice obviously it's implying that the employer has the right to do that.

PN1455

THE COMMISSIONER: Yes. Mr Ferguson is saying it's not good enough that it's implied. So if it were to read, "The employer may transfer the employee the new classification before the end of the minimum period of notice, and if so the employee is entitled to receive a payment from the employer." What do the other parties outside of Sydney think of that? Anyone have any objection to that?

PN1456

MR CLARK: I don't know that it necessarily solves the issue my friend's getting at.

PN1457

THE COMMISSIONER: Mr Clark, into the microphone thanks.

PN1458

MR CLARK: Sorry. I don't know that it necessarily completely solves the issue that I assume my friend's getting at which is that somebody can be found to be in contravention of the award for not giving notice notwithstanding the fact that they have made the payment.

PN1459

MR FERGUSON: No, that's - sorry, Mr Clark.

PN1460

MR CLARK: And I think that's the circumstance that everyone would like avoided but I don't have any difficulties with the proposition that absent anything else under the existing provision the employer chooses whether to make the payment or to give the notice and that there should be reflected in that.

PN1461

THE COMMISSIONER: All right. Any other concerns with that proposed wording? No? All right. G.4?

PN1462

SPEAKER: Sorry, Commissioner. Just before we move on. Is there a difference between the minimum period of notice and just the period of notice? And that it's in italics and bold does that indicate that it's defined somewhere else?

PN1463

MR MORAN: Commissioner, it was meant to pick up in 117 of the Act, the requirement for a notice of termination has got the minimum period of notice in italics. Bold italics. It was meant to be referring back to that or at least picking up that concept which was the period of notice that you have to be given on termination which is worked out under subsection (3) the one that we were talking about earlier this morning.

PN1464

THE COMMISSIONER: But that terminology is not what's used in even the clause we were talking about this morning in relation to the termination of the employment.

PN1465

SPEAKER: Yes, it sort of comes out of nowhere doesn't it?

PN1466

MS THOMSON: Yes.

PN1467

SPEAKER: And it's italicised and bold.

PN1468

THE COMMISSIONER: Is it necessary to be italicised and bold? Is it understood without it?

PN1469

MR MORAN: It's not necessary for it to be italicised and bold. The practise is if it's a defined term you would italicise it and bold it.

PN1470

THE COMMISSIONER: And the use of the term - I know you say it's from the Act - but if that's not used anywhere else in the award and there's no reference in this provision to the Act it sort of raises the question as to how the minimum period of notice differed from any other period of notice under the award. So you say that the word "minimum" is not necessary?

PN1471

MS THOMSON: I don't think - unless someone has a different view I just don't see how it would be necessary.

PN1472

THE COMMISSIONER: So that it would read "Is to be given notice" - or well, not written notice - "be given notice of the transfer to a new classification". Do we have problems with "classification" as well? We do, don't we?

PN1473

MS THOMSON: Yes.

PN1474

THE COMMISSIONER: All right. There's going to be some magic wand waves over G.2 of the same period of notice as the employee would be - I think - "minimum" probably isn't necessary. Are there any opposing views?

PN1475

MR FERGUSON: Commissioner, well - - -

PN1476

MS THOMSON: Is it contemplated in the event that the employer elected to give more notice than they were otherwise entitled?

PN1477

THE COMMISSIONER: Yes, but it's about I guess a right. Is it in the - see it talks about the same period of notice in the existing provisions. If you're going to use common language it will be limited to the same period of notice and the word "minimum" might need to go.

PN1478

MR MORAN: Yes.

PN1479

THE COMMISSIONER: Any other views there?

PN1480

MR NGUYEN: Commissioner, this raises a really interesting point about whether this clause actually complies with section 55 in the NES because it appears to be undermining the minimum standard in the NES applies for or transfer of employment situations that affect obligations of redundancy pay. The standard in the NES is that if you transfer someone they still have to receive their redundancy pay, unless there's a requirement about what the position needs to be that they're transferred to in order to avoid redundancy pay. And like for this clause to be produced here without an explanation about how it interacts with that clause about the redundancy pay might seem that they're only entitled to the notice and not to any redundancy pay.

PN1481

THE COMMISSIONER: Where is the section 55?

PN1482

MR NGUYEN: 120 - - -

PN1483

THE COMMISSIONER: Do you say?

PN1484

MR NGUYEN: 55 says that the award can't have any provisions that are inferior to the NES.

PN1485

THE COMMISSIONER: So in the case of an employee accepting the alternate role then how does that - - -

PN1486

MS McKINNON: Commissioner, if I could just interrupt? I think section 122 though is dealing with the situation where an employee goes from one employer to another which is not the same as going from one role to another.

PN1487

MR FERGUSON: Certainly the NES is dealing with termination of employment and that's not what this clause is dealing with. So along the same lines of what Ms McKinnon is saying we don't see how there could be any inconsistency.

PN1488

THE COMMISSIONER: No that's when a non-associated entity is there, Mr Nguyen.

PN1489

MR FERGUSON: Well, even if it is and it's dealing with - - -

PN1490

MR NGUYEN: Well, the equivalent one is 120(b)(i). The employer obtains other acceptable employment for the employee and there's like a whole range of authorities which say what acceptable employment is.

PN1491

MR FERGUSON: But that's only if redundancy pay is payable and you make an application to have the obligation reduced. Redundancy pay is only payable where you're dealing with employment being terminated. This clause isn't dealing with that scenario.

PN1492

THE COMMISSIONER: Yes. Only the Fair Work Commission can award payments under 120. This is the employee saying, "All right. I'll go from a C.9 to C.10. I'd like to stay in the business. I accept that I won't be paid redundancy but I will stay in the business and cop a one hundred, $200.00 pay deduction."

PN1493

MR NGUYEN: But the point of it is that of 120 is that they are entitled to the redundancy even if they accepted a position that's not acceptable under this - the terms of 120.

PN1494

THE COMMISSIONER: I don't think so. I think if you're going to - an employer is unlikely to make an application under section 120 because the employee will have agreed under the award.

PN1495

MR NGUYEN: But they do within these cases. The employees have moved to a new position and then the question is whether or not that new position is acceptable.

PN1496

THE COMMISSIONER: I think it would be employment with somebody else not with themselves.

PN1497

MR FERGUSON: Isn't it that the employment has to be terminated under section 119(1)?

PN1498

THE COMMISSIONER: Yes.

PN1499

MR FERGUSON: So if the obligation to redundancy pay only relies - if there's been a termination - - -

PN1500

THE COMMISSIONER: That's right.

PN1501

MR FERGUSON: Then 120 is only a mechanism for addressing the obligation in that context. Now this award clause operates where there's technically been no termination of employment.

PN1502

THE COMMISSIONER: That's right. 120 would be for - if they found them work with some other organisation and perhaps there isn't any recognition of their continuous service but they'd still make application to the Commission but it's not within itself - 119 it has to have been the termination there for them to become entitled to redundancy. See, under this provision here in this award there is no entitlement to redundancy. It's an agreement by an employee to take a lesser paid role. Well, we need to work on G.2 obviously.

PN1503

MR FERGUSON: And if the reference to "minimum period of notice" was removed just raise the question of what amount of notice are we talking about?

PN1504

THE COMMISSIONER: In which?

PN1505

MR FERGUSON: In G.2.

PN1506

THE COMMISSIONER: It's not I think the parties are comfortable with "period of notice" and so is Mr Moran. It's just the word "minimum".

PN1507

MR FERGUSON: And is that entitlement under the Act? The award? The contract?

PN1508

MR FERGUSON: I think it's the Act, isn't it?

PN1509

MR FERGUSON: I think it's the Act and I think that's what the draft has tried to accommodate. Perhaps is the problem in the way it's been done. But I think the intention could be the Act. Surely, you wouldn't have to give them the same entitlement as you might be under a contract.

PN1510

THE COMMISSIONER: So there's no reference at G.2 to how much is the period of notice?

PN1511

MR FERGUSON: No. And this may be that - you know - these clauses came from a time when there may have been only a week's notice under awards.

PN1512

THE COMMISSIONER: Well, what does the existing provision do? It requires the employee to give the same - - -

PN1513

MS THOMSON: They had have been terminated.

PN1514

THE COMMISSIONER: There's no reference to the Act is there? I mean if the contract provided for three months' notice, wouldn't they have to make good the three months' pay under the award?

PN1515

MR FERGUSON: I'm not sure that's right.

PN1516

THE COMMISSIONER: Why not?

PN1517

MR FERGUSON: I don't know the history - or the clause for this provision. This provision may have come from a time when awards dealt with notice of termination that may have provided only a week of notice.

PN1518

THE COMMISSIONER: Well, it says the same period of notice must be given as if the employment had been terminated.

PN1519

MR FERGUSON: I understand the issue and there is an issue but the point is this a clause that has come out of probably a much longer clause at some point and this is the remnants of that because the Act now deals with notice by employer. Surely the award wouldn't obligate - wouldn't require mirroring above award conditions that may go for many months. It doesn't seem necessary to meet the Modern Awards objective.

PN1520

THE COMMISSIONER: Do we need some historical views? Or is that not pressed by the unions? Do you understand what I am putting there in Melbourne? If it's not pressed then we don't have to go and do the research on it.

PN1521

MR CLARK: We prefer to kind of stick with the concept as it is now but we're not going to open up - - -

PN1522

THE COMMISSIONER: That's a good answer, Mr Clark.

PN1523

MR CLARK: Well, you put a position about what somebody might argue about the existing provision. They may or may not argue that but one can have very long arguments about the relationship between awards and over-award entitlements and pay and weeks' notice and all that sort of thing. Whoever loses or gains from it let's keep the faith with what we've got.

PN1524

THE COMMISSIONER: Well, it's not clear right now is it? I mean right now if the employee has a contract that says one month's notice and they've only been there for one - less than one year - does the employer need to make good the payment for the one month? Or just the one week because of the link back to the Act? I think it's good to at least get some certainty in a future award provision but there's currently no clarity.

PN1525

But what I'm trying to understand there and you may not be in a position advocates in Melbourne to say, but do you say it should simply be linked back to the notice that the employee would otherwise have to give under the Act and not any greater over NES obligation?

PN1526

MR CLARK: I can't really put any more on that today than what we have. We hadn't given any thought to before this.

PN1527

THE COMMISSIONER: Well, how about we assume that it's only in relation to the same as what you'd give under the NES and if you want to put something different to us well then we'll hear what you have to say there.

PN1528

MR CLARK: Perhaps something helpful I can say. You asked earlier, I think, about whether G.2 and G.3 could be combined. Couldn't you just say the employer must either (a) say whatever we're going to say about notice or (b) say whatever we're going to say about payment. And then leave that - - -

PN1529

THE COMMISSIONER: I think there's certainly some work that needs to be done on this clause. They might put some alternatives Mr Moran?

PN1530

MR MORAN: Yes. I mean it would be possible. If you were combining G.2 and G.3 I think the ways suggested by Mr Clark would work where you're saying you must either give notice or make payment. But you still have to say what the payment relates to. What is the period of notice that you haven't given, that whilst then transferred into your payment.

PN1531

THE COMMISSIONER: All right. I think we'll move on from G.2 and G.3 just to make use of time. G.4 assuming we move full rate of pay into some definition of ordinary time as a template knowing that there might be some awards that require some changes what does G.4 look like to the parties? And I guess we have got the issue of job as well haven't we?

PN1532

MR MORAN: Yes. The idea of the old job and the new job was really just a drafting device so as in G.4 you could then refer back to the old job and new job. It was really just a label being attached to the old. The duties that you had before compared to the duties that you will now have so that it made G.4 easier. And G.4 was really just a way of trying to translate what was 21.2 when they talked about the number of weeks of notice still owing. It was saying, "Well, this is how you work it out. It's the pay that you would have got in your old job, had you continued in your old job until the end of the period of notice and compared to the pay that you get in your new job."

PN1533

MR FERGUSON: If you go back to the TCR case what the Full Bench contemplated there was the distinction between the rate applicable to the former classification and the new classification. And this is why we had some reservations about saying, "Oh, well, you can just remove references to classification earlier on in the clause." There seemed to a contemplation that you did shift between classifications to a lower classification rate. And the rate, therefore, must be that attributed to the classification not that would be applicable for overtime and all other sorts of payments. It suggested that it would be, if anything, the minimum applicable award rate for the classification - excluding all other amounts that might be payable for disabilities and so forth that may be suffered.

PN1534

Now, I think in our reply submissions we have gone one step further and said you could have the ordinary hourly rate because that might include all purposes allowances which I think is a sort of a concession from our perspective. But we certainly see no benefit to this full rates. I think it - - -

PN1535

THE COMMISSIONER: No. We've moved away from full rate.

PN1536

MR FERGUSON: Yes. So G.4 would be quite - - -

PN1537

THE COMMISSIONER: But even if the words "ordinary rate" there replace "full rate of pay", we've still got "would have worked in the old job had the employee continued to be employed in that job" I think the Act at 122 talks about the first employer and the second employer for transfer of business. Can we talk about first - - -

PN1538

MR MORAN: You could give it a different label.

PN1539

THE COMMISSIONER: First role, second role.

PN1540

MR MORAN: You could certainly give it a different label. Yes, it doesn't have to "old job" "new job".

PN1541

MR FERGUSON: Is it the job that the unions have problem with?

PN1542

SPEAKER: Commissioner, can I just make a point? And I don't know if it helps or harms the discussion but potentially you have a situation where someone - let's say in our industry is on skill level three but they also receive a permanent leading hands allowance every week and have done for their whole employment. Now, they could be transferred to new duties whereby they no longer receive the leading hand allowance but they're still on the same classification as they were in the old job. So the issue around duties and job, even though it's nuanced can have a different effect I think.

PN1543

THE COMMISSIONER: Well, aren't they entitled to the leading hand allowance because they are responsible for supervising a number of employees? How would they lose that? They're no longer supervising a number of employees?

PN1544

SPEAKER: That's right. Because their duties have changed. So they may be a - you know - a textile operator, classification three and this is the other point in many awards the classifications aren't particularly extensive. There may fundamentally be only three or four key classifications and then within that employees are rewarded for taking on extra duties either on a temporary or permanent basis such as a leading hand allowance - or a head of table allowance in the clothing industry. So, you know, potentially there is a scenario where their position is made redundant. So that is the textile operator position and they go to a new position or a different position but no longer have that higher allowance for those additional duties.

PN1545

MR FERGUSON: But we don't accept that you'd necessarily get all the applicable allowances that might have accrued during ordinary hours of work and this is an issue that's been ventilated in great detail in the context of the Manufacturing Award and arguments over this clause and that has been referred to this Full Bench. But the point is if you go back to the TCR case, the 1984 case, and I can read the relevant provision it talks about the fact that you will get notice and then it says, "Alternatively, the employer shall pay to the employee maintenance of income payments calculated to bring the rate up to the rate applicable to his or her former classification in lieu thereof." So it's about the classification rate. So it's not about all of the other payments necessarily that one might receive.

PN1546

There is a lot of arguments that can be had about the phrase "ordinary time rate of pay". But I don't think we can just assume that people who don't shift the classifications but who may no longer receive a - you know - a particular allowance - - -

PN1547

THE COMMISSIONER: Yes. I mean - - -

PN1548

MR FERGUSON: - - - would get the benefit of that allowance.

PN1549

THE COMMISSIONER: - - - for me if you're no longer entitled to an allowance then that doesn't necessarily mean that your job has changed. I mean it might feel like that to the employee.

PN1550

MR FERGUSON: The duties may not be well paid.

PN1551

THE COMMISSIONER: Perhaps if we can talk about first role and second role they may be very closely aligned and it takes away the connotation of "old" and "new". If second role equals first role but for a few things the parties are either going to know whether they're entitled to it or not. But allowances - I don't know - - -

PN1552

MR FERGUSON: It is.

PN1553

THE COMMISSIONER: Either allowances apply or not. I don't know how much of an impact it has on whether the person's role has been made redundant. It really depends, I guess, on what else has been said in addition to the award entitlements.

PN1554

MS THOMSON: It depends on the nature of their engagement, doesn't it, Commissioner then? It's a question of are you engaged as the leading hand or were you engaged as the classification "X", and then on top of that performing those duties.

PN1555

THE COMMISSIONER: I think so. What have you been told? Did you sign on to say that you were a leading hand and therefore if it's taken away from you then it might very well be that you have lost the job and you agree then to accept the alternative role.

PN1556

SPEAKER: That's right. And this has been a practical issue in disputes we've had.

PN1557

THE COMMISSIONER: Well, I don't know if this is going to solve it.

PN1558

SPEAKER: No, I agree. I don't think it is but I'm just saying the understanding of what constitutes "duties" as compared to "job" is not necessarily straightforward in a particular case.

PN1559

THE COMMISSIONER: All right. Well, the current wording simply talks about their transfer to lower paid duties. Is that where we want to land? Is that a consent position? Or you think we can do better than that?

PN1560

MR FERGUSON: I think the difficulty is - the more I think about it, this issue is intermingled with the G.1 type problem of when precisely this clause actually applies. Is it where there's a lower classification and a lower rate of pay or is it, as the union seems to be asserting, that if there's some change in the circumstances, like the rule of an allowance that this would be triggered and you'd get notice. And I don't think that's right. If you go back to the contemplation of the TCR case but that's where we said we probably want to give some more thought to that and before we agreed to the removal of the words "lower classification" and insertion of the "ordinary hourly rate pay issue". And I just - because well not all these issues have been ventilated in anywhere near this much detail. A bit hard to be definitive.

PN1561

THE COMMISSIONER: All right. We're lucky to have Mr Moran here who's going to lead the team in putting its proposed wording. What do the unions want it to look like?

PN1562

MR CLARK: Sorry, this is G.4 you were going back to?

PN1563

THE COMMISSIONER: Yes. Well, what do you think G.4 might look like? You don't like "old job". You don't like "new job".

PN1564

MR CLARK: Well, I think we were talking about the ordinary rate of pay provisions.

PN1565

THE COMMISSIONER: Does the work need to be done up the front? And once the work's done up the front.

PN1566

MR CLARK: Sorry - - -

PN1567

SPEAKER: Commissioner?

PN1568

THE COMMISSIONER: Well, just hang on - just let me suggest this to the parties. If the work is done upfront and it's known that you move from one - your existing role to something else - then whatever else that is then you work out the difference between the two rates. So less work needs to be done at G.4. That's what you were getting to with Mr Moran with sort of linking but in terms of how you describe it doesn't it need to be done up front so that there's no argument later as to what the difference in rate of pay is? It's just the matter of facts.

PN1569

SPEAKER: Commissioner, if I can just add? I think in G.4 the focus should be on the employee's current rate of pay and the difference between that and their new rate of pay, rather than the position. So - - -

PN1570

MR FERGUSON: Isn't the rate of pay before the transfer and - - -

PN1571

SPEAKER: And the ordinary rate of pay after the transfer, rather than talking about - you know - "worked in the old job" and then working in the new job.

PN1572

THE COMMISSIONER: All right. So the rate of pay prior to the transfer and then the rate of pay following the transfer.

PN1573

SPEAKER: That's correct, yes.

PN1574

MR FERGUSON: So you don't think there's any assessment of the duties required in a transfer to lower paid duties course?

PN1575

SPEAKER: Well, isn't the payment on the assumption that the transfer is taking place? Is already - yes - that assessment should be done upfront, rather than talking about it in the payment provision.

PN1576

MR FERGUSON: I see. So you're saying there has to be some contemplation of the duties upfront - in G.1?

PN1577

THE COMMISSIONER: Yes, I think that's where the work's done.

PN1578

MR FERGUSON: Yes, I think G.1. That's right.

PN1579

THE COMMISSIONER: And G.4 just becomes a factual or mathematical calculation.

PN1580

MR FERGUSON: That's right, and I'm just saying I don't think they have to be - the logic has been the same. G.1 looks - when it applies - it has to be given that your pay goes backward.

PN1581

THE COMMISSIONER: Yes.

PN1582

MR FERGUSON: For it to apply but there also has to be a product of changing duties which result in the lower pay.

PN1583

THE COMMISSIONER: All right. I think that's what the wording does do. I don't think it does any more than that.

PN1584

MR FERGUSON: No, I think that's right.

PN1585

THE COMMISSIONER: It's just the terminology used. All right, Mr Moran do you think you've got something to work on there.

PN1586

MR MORAN: Yes. I think so. Certainly we'll move away from the full rate of pay. We can move away from talking about "old job" to "new job" and as you suggest, Commissioner, talk about first role, second role. G.4 then has to still talk about the period that you didn't work before you got - you didn't work and at your previous rate - you then get the payment to equal that and we won't talk about minimum period of notice. So I do think I've got a concept that we could come up with something for the parties to have a look at.

PN1587

THE COMMISSIONER: All right. Do you trust the process and we can move on from that and you can see what we come up with?

PN1588

MR FERGUSON: Yes. As long as we're afforded an opportunity. I think that's useful when we get to put a submission.

PN1589

THE COMMISSIONER: All right then we will move on to H - between leading during the (indistinct) notice period. Mr Moran, do you want to speak to that?

PN1590

MR MORAN: Yes. So again the concept in the redraft was to start off with an application clause saying when the clause applies. So it applies if you have been given notice of termination of your employment and circumstances in which you are entitled to redundancy pay. And then page two is saying, "Well, the employee may terminate the employment." - you know - during the period of notice and the requirement for the employer to pay at the full rate of pay for the hour that the employee would have worked had the employee continued to be employed until the end of the minimum period of notice is not affected by the early termination of employment.

PN1591

But I understand from reading the submissions that there are issues, whether this is actually an accurate translation of 21.3 does. The argument being at what 21.3 does was said that you weren't entitled to be paid for the remaining period of notice that the employer would otherwise have had to pay. So if you leave early you don't get paid for the remaining period of the notice. So I do think there is a bit of work - that still needs to be done in H to more accurately reflect what's in 21.3.

PN1592

THE COMMISSIONER: All right. So what are the concerns of the parties?

PN1593

MR FERGUSON: Ai Group raised concerns. The first is H.2. It provides that "An employee may terminate their employment at any time during the minimum period of notice required to be given by the employer." The concern is that that seems to suggest that an employer can just terminate their employment at any point. Now, there are provisions in most awards that require that they actually have to give notice in order to terminate their employment. They're not able to do that at any point. And this seems to be in conflict with those provisions. Many of those clauses also provide that where there isn't sufficient notice given that there's a deduction that can be made and we just don't want to see a tension arise between this clause and those other award provisions because it obviously would be particularly unfair if an employee could just terminate at any point.

PN1594

THE COMMISSIONER: Well, what does 21.3 do? It's terribly worded. So they have been informed that they're going to be made redundant and they may terminate during the period of notice.

PN1595

MR FERGUSON: But we say that needs to be read in the context of other award clauses that says if you terminate you still need to give notice. So the giving of notice is separate to the ability to terminate. Yes, you can terminate but you need to give notice in order to do that. Now, we're just concerned that the inclusion of the words "at any time" suggests to a reader that you can just do it without having first given the requisite period of notice.

PN1596

THE COMMISSIONER: Well, let's have a look at what the second half of 21.3 does. So let's say I'm going to make you redundant in four weeks' time and the employee after a week says, "Actually, I'm happy to leave now." What does the balance of 21.3 do? They're entitled to receive the benefits and payments that they would have received.

PN1597

MR FERGUSON: Under this clause - not the award generally - under this clause - - -

PN1598

THE COMMISSIONER: Which is what?

PN1599

MR FERGUSON: Had they - - -

PN1600

THE COMMISSIONER: What do they get in this clause?

PN1601

MR FERGUSON: It'll be in the provision dealing with redundancy. So they'll get severance pay. So in effect what the clause does - - -

PN1602

THE COMMISSIONER: Pursuant to the NES?

PN1603

MR FERGUSON: Yes. Now, there's a separate issue about - which I don't think any of us have raised - whether they actually get any benefit under this clause anymore, given it's under the NES.

PN1604

THE COMMISSIONER: Well, it says redundancy pay is provided for in the NES so it's - - -

PN1605

MR FERGUSON: I'm being very technical. We didn't raise it.

PN1606

THE COMMISSIONER: Yes. So it's sort of suggested that - - -

PN1607

MR FERGUSON: That it gets you there.

PN1608

THE COMMISSIONER: - - - to be entitled to benefits and payments they would have received under this clause might mean redundancy.

PN1609

MR FERGUSON: And it comes from a time when awards dealt with redundancy of pay.

PN1610

THE COMMISSIONER: All right. So had they remained in employment until the expiry of the notice, so they do get their severance - - -

PN1611

MR FERGUSON: But they don't get the bit of notice - the amount of notice goes on to what they didn't work. So you don't still get notice.

PN1612

THE COMMISSIONER: But all they do is forfeit the balance of the notice period.

PN1613

MR FERGUSON: Yes, pursuant to this clause. But if they didn't - they also failed to provide the relevant notice that another award clause may have required they may forfeit even more. This clause doesn't let them out of giving a week's notice, or two weeks' notice or three weeks' notice or whatever is required.

PN1614

THE COMMISSIONER: Really?

PN1615

MR FERGUSON: Mm.

PN1616

THE COMMISSIONER: Is that the union's view?

PN1617

SPEAKER: No. And I don't think that's the way it's worked in practise either. I don't think that was the - - -

PN1618

THE COMMISSIONER: So we have the employee was making - - -

PN1619

SPEAKER: I don't think that was - - -

PN1620

THE COMMISSIONER: Right. So we have employees - making people redundant - the employee says, "Actually I don't want to be here. I want to go. I've got another job lined up." And then you want to withhold some moneys from them.

PN1621

MR FERGUSON: Just take the (indistinct) transport company. They know they're going to close operations. They have got contracts to fulfil. They give their employees notice that their redundancies will come into effect at a certain point in time but they still expect their employees to give them an equivalent - an appropriate amount of notice if they want to leave earlier because they have secured some other job.

PN1622

Now, if the employee chooses to leave earlier they don't lose their severance pay as such under this clause but the other clause still operates as it ordinarily would. The employee is supposed to give notice that they're leaving. They can't just walk out the door of five minutes advance warning. I mean that would be profoundly unfair to employees. That's why we have those provisions saying that employees have to give notice too.

PN1623

THE COMMISSIONER: Right.

PN1624

MR FERGUSON: And it's supposed to be a fair and relevant safety net that involves consideration of both parties' interests.

PN1625

THE COMMISSIONER: So in practise they get their severance but they get some of it taken away do they?

PN1626

MR FERGUSON: Well, there may be a raft of other amounts that the employee has. There might be accrued annual leave and all sorts of things that the employer can deduct from. So that's why our concern that H.2 is suggesting that at any time after you have been told potentially many weeks down the line that you're going to be retrenched, you can just walk out. Now, I don't think that's in anyone's interest.

PN1627

MR CLARK: I thought that part of the work of that clause was to say that if you sort of failed and thought, "Look, I just want to go."

PN1628

MR FERGUSON: Yes.

PN1629

MR CLARK: I don't want to (indistinct).

PN1630

MR FERGUSON: Yes.

PN1631

MR CLARK: That the date be your redundancy. Like your redundancy and your period of service.

PN1632

MR FERGUSON: Yes.

PN1633

MR CLARK: And so the fact that you actually go earlier - - -

PN1634

MR FERGUSON: Yes.

PN1635

MR CLARK: - - - doesn't prejudice the amount of your redundancy payment. So you might end up going and say, "Oh, well if you go now that means you have only worked some nine years and 11 months for us, not 10 years. So you'll only get this much redundancy." And I think this is - - -

PN1636

THE COMMISSIONER: I don't think it does that, Mr Clark.

PN1637

MR CLARK: Avoid that - - -

PN1638

THE COMMISSIONER: It doesn't say that.

PN1639

MR CLARK: Yes. No, I think it's trying to avoid that consequence.

PN1640

THE COMMISSIONER: It says simply that they won't get the notice that they haven't worked. But it says that they will receive the benefits and payments they would have received had they remained in employment until the expiry of the notice.

PN1641

MR CLARK: That's right. So that's why I'm talking about the accrual. Like, you know, the difference between working - - -

PN1642

MR FERGUSON: Yes, I see.

PN1643

MR CLARK: - - - four weeks or five - five to four years or five years or whatever it is in terms of how big your payout is. That like they'll treat the fact that you go early doesn't prejudice - - -

PN1644

MR FERGUSON: Yes.

PN1645

MR CLARK: - - - the fact that your redundancy entitlement has been calculated on the basis of five years, instead of four years and 11 months or whatever.

PN1646

MR FERGUSON: Yes. You're saying it doesn't even deal with the redundancy entitlement. It just basically is telling you how to work out the dates.

PN1647

THE COMMISSIONER: It doesn't tell you how to - - -

PN1648

MR CLARK: Yes.

PN1649

THE COMMISSIONER: It doesn't do anything. If somebody, for example, in New South Wales had five years' service, if they finished on their proper end date, and if they wanted to bring forward � this existing clause still would make sure that it would be payable to pro rata long service leave. It wouldn't bring them forward to four years, 11 months and disentitle them to pro rata long service leave. That's not what the existing clause does.

PN1650

MR CLARK: Yes. But you're talking about the payments received under this clause is coming from an era when the actual redundancy payments, the table that said - - -

PN1651

MR FERGUSON: Yes.

PN1652

MR CLARK: - - - for one year of service or two years of service, or three years of service. Do you know what I mean?

PN1653

MS WILES: Can I just make a point that the term "benefits and payments" is a broader term than just dealing with redundancy paid, because there are benefits under the redundancy clause that extend beyond just the severance pay. But I think historically this clause had two things to do. One was to make it clear that if an employee left during the employer's notice period, that wouldn't disentitle them to benefits and payments under the clause generally.

PN1654

But also, secondly, as Mr Clark has outlined, it didn't meant that your period of service was, therefore, lessened or reduced by the employee leaving early. That's the way it has operated in practice.

PN1655

THE COMMISSIONER: I think we understand what the existing clause does. Does the proposed wording make additions, subtractions? Does it change it? Mr Ferguson, you say that H.2 causes you some problems?

PN1656

MR FERGUSON: Yes. Particularly the inclusions of the words added "in time". No one has objected to that or put anything against that proposition?

PN1657

MS WILES: Well, we object to that.

PN1658

MR FERGUSON: Did you?

PN1659

MS WILES: Yes. Because I said that in fact � I mean, you've said what you think the interpretation is of the current clause, and I've said that in practice it has been interpreted differently than that. That, in fact, employees could say � well, actually, you've given me notice and I want to leave within my notice period. And they're not required to give notice.

PN1660

MR FERGUSON: But the fact that some employers may let people leave because they don't want them there, doesn't really prove that the clause is intended to mean that, does it?

PN1661

MS WILES: No, but your submission doesn't prove it either.

PN1662

MR FERGUSON: To provide notice. No, but the words of the award in the other clauses do, that require employees to provide notice. Why would you just ignore those words?

PN1663

MS WILES: Well, I'm not ignoring them but I think historically this clause dealt with redundancy differently. It accepted that the termination by redundancy was a different set of circumstances than a normal run of the mill termination, because employees are put in a different position.

PN1664

THE COMMISSIONER: I can see both arguments. It will be a matter I will further consult with. Certainly the President has been - - -

PN1665

MS WILES: Commissioner, sorry.

PN1666

THE COMMISSIONER: - - - around for a very long time, and will have a fair idea of whether or not 21.3 was intended to override other provisions of the award, in his view.

PN1667

MR CLARK: Maybe something that's instructive is to look at the comparison between the way 20.2 ends, and the way 21.3 ends. So 20.2 sort of says, well, if you leave early you're supposed to give your notice, but if you don't give your notice then you're not going to be paid your accrued entitlements up until the end of the notice period.

PN1668

Whereas this is saying, well, with redundancy, if you do leave early, you'll still get your redundancy period calculated as if you stayed until the end of the period.

PN1669

MR FERGUSON: But it doesn't say you'll still get all your annual leave.

PN1670

MR CLARK: 21.3 doesn't deal with that, no. 21.3 - - -

PN1671

MR FERGUSON: No. So it makes the severance pay sacrosanct, if you will, on one view.

PN1672

MR CLARK: It would make the redundancy pay sacrosanct.

PN1673

MR FERGUSON: Yes. Sorry.

PN1674

THE COMMISSIONER: Well, it's more than the redundancy pay. It's the redundancy pay and other benefits.

PN1675

MR CLARK: Other benefits under the clause.

PN1676

THE COMMISSIONER: The clause.

PN1677

MR CLARK: Yes.

PN1678

MS WILES: Yes. Things like just having time off to look for other employment, et cetera.

PN1679

THE COMMISSIONER: Yes. Could I just raise one other issue, is that - - -

PN1680

MR FERGUSON: How would you get time off if you're working?

PN1681

THE COMMISSIONER: Take an example. If Mr Ferguson's interpretation is correct and an employee is given four weeks' notice of redundancy, if the employee then has to give four weeks' notice of redundancy, then this clause would have no work to do, effectively; or less work to do, actually. Less work to do because it's the same four weeks and they couldn't leave early.

PN1682

MS WILES: Well, what it does is it protects. That, you know, an employer couldn't say, well, I've made you redundant, and then you have then terminated your employment. You're no longer entitled to your severance pay.

PN1683

THE COMMISSIONER: That's one function. I agree with that. Yes.

PN1684

MR CLARK: Yes, I don't think there's any opposition to the idea that that bit around severance pay sort of works. If you don't work your notice period, you don't get paid your notice period, and because it's not the employer telling you to go early, you don't get the money either.

PN1685

THE COMMISSIONER: It may be that this requires arbitration. We'll see on that point and I'll have discussions.

PN1686

MR CLARK: I don't think there's actually terribly much between us, actually.

PN1687

THE COMMISSIONER: I think there is. You've got one party saying that if the employee pulls up stumps early, then we can withhold, we have the right to withhold the balance of their notice period from any other moneys that we hold, bar the severance pay. That could be four weeks' pay. That's a big issue.

PN1688

MR CLARK: But, sorry, who's saying that, sorry?

PN1689

THE COMMISSIONER: Ai Group.

PN1690

MS WILES: I think Mr Ferguson is talking about a requirement for the employee to provide notice.

PN1691

MR FERGUSON: Yes. Yes.

PN1692

MS WILES: If they choose to shorten the period of notice provided by the employer, in circumstances of redundancy.

PN1693

THE COMMISSIONER: Yes. So the employer gives four weeks' notice of redundancy.

PN1694

MS WILES: Yes.

PN1695

THE COMMISSIONER: The employee says, well, actually I'm out of here today, thanks. Then the employer could withhold four weeks' pay of moneys that it holds.

PN1696

MS WILES: Yes. But I think that's what the provision does now.

PN1697

THE COMMISSIONER: Well, that's what you say it does.

PN1698

MS WILES: Yes.

PN1699

THE COMMISSIONER: It's not agreed by the unions that it does that.

PN1700

MR CLARK: But that's what - - -

PN1701

MR FERGUSON: I think the thing that's developed here today in the course of this issue being ventilated, is whether the second sentence is intended to have the effect of setting a date for the calculation of severance pay entitlements, so that you calculate those as though the notice was actually given.

PN1702

Or whether it was intended to have that effect and to make the severance pay entitlements, or the redundancy pay entitlements sacrosanct in terms of the operation of another clause which might enable a deduction in the event that there was not proper notice given. I don't think we were fully alive to that issue when we first advanced these submissions.

PN1703

As I said, I don't know that there's been much put in reply to them before this conference. Now the mind wonders whether the other clauses are actually intended to enable where an employee chooses not to provide the proper amount of notice, an ability to deduct from severance pay, as well as any other amount. I don't want to go so far as to put that submission without giving some further thought to that provision.

PN1704

From our view we certainly say that the clause doesn't enable an employee just to terminate without notice. So the other clauses still operate, and those other clauses enable a deduction from other amounts that may be payable under the award or the NES. There's a question now about whether those clauses would enable deduction from severance pay as well or whether this clause operates to prevent that.

PN1705

THE COMMISSIONER: I don't think they do. I mean, I think there's some work to be done with the employees entitled to receive the benefits and payments they would have received under this clause had they remained in the employment until the expiry of the notice. I think that's clear.

PN1706

MR FERGUSON: I see there's two ways to read that, which is why I'm hesitating to put that further because, yes, they may have that entitlement in that clause, but there may still be the operational work for another clause to do, that says that effectively the employer has rights to deduct some from that.

PN1707

THE COMMISSIONER: But not from their severance.

PN1708

MR FERGUSON: That's the point where I'm - - -

PN1709

THE COMMISSIONER: Yes.

PN1710

MR FERGUSON: Well, I don't think we've gone that far but I don't think we can concede necessarily that that's right, in light of the issue or the work that this clause may perform that Mr Clark has suggested, which is actually this clause does suggest a date for the calculation of entitlements.

PN1711

THE COMMISSIONER: I think we'll hear further from the parties after you've had some time to consider it but I think you're a fair way apart there.

PN1712

MS WILES: Commissioner, it's Ms Wiles, sorry, can we just go back to clause H.1?

PN1713

THE COMMISSIONER: Yes.

PN1714

MS WILES: There has been a change from the current clause in that it says:

PN1715

Clause H applies if an employee has been given a written notice of termination by their employer �

PN1716

et cetera. The current clause doesn't specify that it has to be written notice, and whilst I understand that the NES requires an employer to give written notice, it is possible that read literally, this is in the exposure draft, if the employer didn't give written notice, then the clause wouldn't be triggered at all.

PN1717

THE COMMISSIONER: So you say the NES requires an obligation for written notice.

PN1718

MS WILES: Yes.

PN1719

THE COMMISSIONER: If the employer simply said to an employee orally, "I'm making you redundant", and the employee then says, "All right. Well, I don't want to work my full weeks. I'm leaving", do you think there could be an exposure there to the employee to not be entitled to their severance pay?

PN1720

MS WILES: I think there's an exposure to a possibility that this clause could then not be triggered because the fact of the written notice, which is the requirement in H.1, hadn't been given.

PN1721

THE COMMISSIONER: So that scenario I just put there, could expose an employee?

PN1722

MS WILES: I think so. Potentially, yes. So I guess it's about compliance really. Even though the NES requires an employer to give written notice, in our experience it's not unusual or not uncommon for employers not to give written notice. That they simply give verbal notice.

PN1723

MS McKINNON: Commissioner, Sarah, from NFF. I mean, I think when you look at the Act and the award together, there would be no loss of severance pay because section 119 would operate independently of whether written notice had been given. I think all that would happen is that the employee wouldn't then forfeit the notice entitlement potentially if there was a technical requirement for the writing to be given for this clause to apply.

PN1724

THE COMMISSIONER: I think the award does something that the Act doesn't. This award says if the employee has been given notice and they say, "Well, I'm out of here", they still get their severance pay. The Act doesn't do that.

PN1725

MS McKINNON: Well, I think it does. I mean, section 119 says an employee is entitled to be paid redundancy pay if the employee's employment is terminated for the reasons, and that's a question of fact.

PN1726

THE COMMISSIONER: You might have an employer then say, "Well, your employment has not been effected because I wasn't going to terminate you properly for another four weeks."

PN1727

MS McKINNON: Yes, and then you'd have an unfair dismissal and an argument over whether the termination was at the initiative of the employer.

PN1728

THE COMMISSIONER: No, I think this award provision currently does something. You want to make sure that it continues to do something, and not leave an employee exposed by a gotcha. So we need to make sure that that is still there.

PN1729

MR CLARK: I mean, 21.3, if we're right about what we say about 21.3 giving a beneficial construction to the period of service for the purposes of calculating redundancy pay, so it's to benefit an employee, it would be curious if you were to amend it now and to make its operation entirely conditional on the employer complying with its obligation to give the notice in writing.

PN1730

THE COMMISSIONER: Are there any employers who have any concern if the word "written" is removed from this proposed clause?

PN1731

MS WILES: No, Commissioner.

PN1732

MS McKINNON: No, Commissioner.

PN1733

THE COMMISSIONER: All right. There's no's in Sydney. No's in Adelaide. All right. Well, we might do that then.

PN1734

MS THOMSON: I think there was another point raised by the NFF which is probably useful to talk about now, if they'd still like to press it, which is that notice can be given by another entity than the employer. That's in addition to this clause which wasn't in the previous provision, that the requirement of notice be met by the employer.

PN1735

MS McKINNON: It's a technical point and, I mean, in one sense the liquidator will stand in the shoes of the employer, but they not actually be the employer, and I think the words "by their employer" don't appear in the current provisions.

PN1736

THE COMMISSIONER: I see. So it's the word "by their employer".

PN1737

MR MORAN: We could leave those out. Yes. I mean, I think it would be more faithful to 21.3 not to have those words, because it is true that they are not there in 21.3.

PN1738

THE COMMISSIONER: So it would just be read:

PN1739

Notice of termination in circumstances � - -

PN1740

MR MORAN: Yes.

PN1741

THE COMMISSIONER: Right. Do the parties want to see the reference to section 119?

PN1742

MS McKINNON: Commissioner, our view is that if that provision is referenced we also need to reference the other provisions of the Act which turn off the entitlement to redundancy pay.

PN1743

THE COMMISSIONER: Yes.

PN1744

MS McKINNON: So section 121 and 122.

PN1745

THE COMMISSIONER: Yes. So where we'd earlier included � sorry, that's - - -

PN1746

MS McKINNON: Alternatively - - -

PN1747

THE COMMISSIONER: Yes. We'll just refer to subdivision B perhaps.

PN1748

MS McKINNON: That might be the simplest.

PN1749

THE COMMISSIONER: Well, no, because C imposes the minutes as well, doesn't it? Division 12. What do you think, Mr Moran?

PN1750

MR MORAN: Yes. It's true that it's not sufficient to say 119. In the sense it's not sufficient to say 119, 121 and 122. You know, so you have to have 123. So maybe it is subdivisions B and C. Not division 11.

PN1751

MR FERGUSON: How would you explain the nature of those subdivisions? The preceding sentences talk about the entitlement. Those sections then talk about circumstances where you're not entitled.

PN1752

MR MORAN: But it's the entitlement to redundancy pay, and then those sections are talking about when there isn't an entitlement.

PN1753

MR FERGUSON: Just if you're going to suggest that there is an entitlement to redundancy pay, if you see merit in that, there's probably also merit in pointing out that often there is not, in a substantive sense.

PN1754

MS McKINNON: It might be cleaner to talk about sections 119 to 123, because once you start talking about subdivisions, you end up with subdivisions in divisions in parts in chapters, and it can get quite long.

PN1755

MR FERGUSON: And whether people know how to, you know, find the subdivisions, et cetera.

PN1756

MS McKINNON: Yes.

PN1757

THE COMMISSIONER: So perhaps it just simply reads:

PN1758

See sections 119 to 123 of the Fair Work Act.

PN1759

MR MORAN: Yes.

PN1760

THE COMMISSIONER: That might cover H.1 and then H.2 is:

PN1761

The employee may terminate their employment during the period of notice required to be given by their employer.

PN1762

MS McKINNON: Commissioner, my view on that one, I mean, period of notice is a phrase we've used earlier but in this case it's not quite clear that it's notice of termination. I don't know if I'm wrong about that but "during the notice of termination" maybe.

PN1763

MR MORAN: Yes, and I think we could use � if way back in G.2 we end up talking about the notice of termination of employment, it really is the same, so perhaps we should talk about the notice of termination, during the period of the notice of termination, which is what 117 of the Act talks about, the notice of termination.

PN1764

MS McKINNON: Yes, and it's a well-understood concept.

PN1765

THE COMMISSIONER: All right, then. It's suggested also that H.3 doesn't do the work that 21.3 did because it's simply making sure that the tap is off, but it doesn't provide the benefits of payments.

PN1766

MR MORAN: Yes. I think H.3 really needs to be reworked closer to what it was in 21.3.

PN1767

MR FERGUSON: There's a full rate of pay issue there as well.

PN1768

MR MORAN: Yes.

PN1769

THE COMMISSIONER: Yes.

PN1770

MR FERGUSON: Then the note, we'd say, comes out because full rate of pay should come out.

PN1771

THE COMMISSIONER: Yes. The note should go, should it?

PN1772

MR FERGUSON: Yes.

PN1773

THE COMMISSIONER: What do the parties want to do? Do you want to move onto job search entitlement before lunch or after lunch?

PN1774

MR MORAN: Sorry, can I just ask, Commissioner, the only point I'm not clear about where it has ended up is in relation to whether the employee has to give notice of termination. In redoing this plain language re-draft, we had looked at what was in 21.3 saying an employee may terminate their employment, and had worked on the basis that they didn't need to give notice, for the reason that one of the parties articulated, because the period of notice is the same. So I wasn't sure where that has ended up in the discussion.

PN1775

MR FERGUSON: We say that they need to give notice.

PN1776

MR MORAN: Give notice.

PN1777

MR FERGUSON: In accordance with whatever requirement of the other clause is. Now, from a drafting perspective, a cross-reference to that clause.

PN1778

THE COMMISSIONER: But that's not agreed.

PN1779

MR FERGUSON: No, I know, but - - -

PN1780

THE COMMISSIONER: The unions, you say, don't you, that this overrides clause 20 because of the unique circumstances of the employee being made redundant?

PN1781

MR FERGUSON: That's right.

PN1782

MS WILES: Yes, that's our submission.

PN1783

MR FERGUSON: But there are other instances where the clauses have not been agreed, but I think the draftsman is going to have a look at an alternate form of words. We've got ones there. This deals with the way the unions say it works now. The alternative approach would be to readjust that, so that it's written to make it clear that it's operating in conjunction with the other award clauses.

PN1784

THE COMMISSIONER: Yes. Well, we're not intending to put two sets of, you know, alternatives, are we?

PN1785

MR FERGUSON: No.

PN1786

THE COMMISSIONER: All I propose to do is have a chat to the members of the Full Bench and say where do they think it goes. They might have various views.

PN1787

MR FERGUSON: Yes. I suppose what I'm saying is in the event that their views accord with ours, then another set of words might throw up more issues. So the point we've gone to earlier on is that in some cases our views haven't been adopted, so there might be another round. I'm just - - -

PN1788

THE COMMISSIONER: So you say if the views are that, yes, we still need to give notice, then reference should be made back to the termination clause.

PN1789

MR FERGUSON: Have a go at writing it in plain language, in a way that's consistent with the other clauses of the award.

PN1790

THE COMMISSIONER: For the unions, do you say that if the view is that this does override, then we should make that clear?

PN1791

MS WILES: Yes. I think that's our general view. Yes.

PN1792

MR FERGUSON: As I said, given now that these issues have been raised, even if that view is reached on a provision basis, we want the opportunity to deal with that.

PN1793

THE COMMISSIONER: There's no finality to this at all.

PN1794

MR FERGUSON: Yes. No. I figured.

PN1795

THE COMMISSIONER: This is still months away.

PN1796

MR FERGUSON: Sadly, I assumed that.

PN1797

THE COMMISSIONER: But right now I see it could be read either way, so that's a problem, an existing problem. Do you think we can get through job search entitlement before our luncheon break? I'll take that as a yes. Mr Moran, what did you seek to do here?

PN1798

MR MORAN: Again, so job search entitlement 1.1, when I look at it, I can see instantly an issue where it says:

PN1799

Where an employer has given an employee written notice of termination �

PN1800

I think going back to what we've just discussed, there may be an issue whether the word "written" should be in there because it isn't in the existing 20.3 �

PN1801

that the employer must allow the employee paid time off over one day during the period of the notice, for the purposes �

PN1802

and there's a missing "of" in 1.1. It should say:

PN1803

for the purpose of seeking other employment.

PN1804

Then 1.2 is saying, well, if the notice is given in circumstances on which you're entitled to redundancy pay, the requirement at 1.3 applies, that you get one day each week for the purpose of seeking other employment. 1.4 that:

PN1805

If the employer has allowed paid time off of more than one day �

PN1806

and there's an issue, and I can see it in the submissions, at the moment it says "one day per week" �

PN1807

during the minimum period of notice, the employee must provide proof of attendance at a job interview.

PN1808

1.6 is saying that if you fail to produce proof, you're not entitled to be paid for the time off in excess of one day. So looking at the submissions of the parties, there are a number of issues, and one seemed to be whether the words "per week" should not be in 1.4. So that if you're allowed paid time off of more than one day during the whole period, you must produce proof of attendance.

PN1809

Another issue in 1.6, that if you fail to produce proof, you're not entitled to be paid for the time off. At the moment the draft is saying for the time off in excess of one day, the existing 21.4(b) says you're not entitled to payment for the time absent, and the argument being that that means the whole period and not just the excess period. So it really was just an attempt to set out in a clearer format what was in 20.3 and 21.4.

PN1810

MS THOMSON: But also one provision is dealing with the job search entitlement generally, and one provision is dealing with the job search entitlement on redundancy and what flows from that, if anything.

PN1811

MR MORAN: Yes, and this was bringing them together because they were both about job search entitlements.

PN1812

MS THOMSON: Yes.

PN1813

MR MORAN: Saying why did there need to be in different clauses.

PN1814

THE COMMISSIONER: So are you suggesting, Mr Moran, that where it's terminated at the employer's initiative, other than redundancy, it be grouped into this job search entitlement course.

PN1815

MR MORAN: That was the idea because it was all about job search entitlement. The argument was, well, why don't we just run them all together, whether it's in a situation of redundancy or whether it's just an ordinary notice of termination.

PN1816

THE COMMISSIONER: Where would it sit? In its own clause?

PN1817

MR MORAN: In its own clause, yes.

PN1818

THE COMMISSIONER: If I'm an employer, I'd like to see 1.1 under the termination clause. If I'm an employee, that's where I'm going. I may not go so far as to look further in the award. I'd probably like it where it most comfortably sits.

PN1819

MR MORAN: I think the difficulty we have, when we look at 20.3 on its face it looks like it's applying to all situations where an employer has given notice of termination to an employee. I mean, it doesn't say in circumstances other than circumstances of redundancy. To get that more limited interpretation, you've then go to read onto 21.4 to say, well, if it's given in circumstances of redundancy you get an extra period off.

PN1820

But I can see the argument that you could either group them altogether with redundancy, so you find about redundancy in the one place; and you group the non-redundancy one with the termination provisions.

PN1821

MS THOMSON: But it may be also that not all awards have both provisions.

PN1822

MR MORAN: Yes.

PN1823

MR FERGUSON: What about you put a note on it. We had the same initial thought, is that people don't generally look up an award for a job search entitlement.

PN1824

THE COMMISSIONER: No.

PN1825

MR FERGUSON: They look up an award for entitlements in relation to termination of employment, or for redundancy. Then they stumble across the job search entitlement provision. We didn't want to take issue with the whole structure if it was a big position, but it did occur to us that it seemed very unlikely that anyone would ever, ever look up job search entitlements. There may be some note or some guide.

PN1826

THE COMMISSIONER: I think 1.1 should live in the termination clause.

PN1827

MR MORAN: Okay.

PN1828

THE COMMISSIONER: I think where we deal with redundancy job search entitlement, there should be some clarity as to � I don't know. Is it in addition to the one day off that they get, or does that count for your first week?

PN1829

MR FERGUSON: There's no notional week, I don't think.

PN1830

THE COMMISSIONER: So when you look at the existing 21.4, they're allowed one day each week. Is that in addition to the one day in 20.3, or is it - - -

PN1831

MR FERGUSON: No. We would have thought no.

PN1832

THE COMMISSIONER: No.

PN1833

MR FERGUSON: This is the more specific provision, and you would apply it.

PN1834

THE COMMISSIONER: Then it might need to say that.

PN1835

MS WILES: Commissioner, can I make - - -

PN1836

MR FERGUSON: That should deal with (indistinct).

PN1837

THE COMMISSIONER: Yes.

PN1838

MR NGUYEN: You didn't apply that approach to this one. That's 21.3.

PN1839

THE COMMISSIONER: Ms Wiler, is it?

PN1840

MS WILES: Ms Wiles, yes. Just an observation that, for example, generally I think the union parties here generally oppose that the entitlements remain separately. So, for example, under the notice of termination clause, and then separately under the redundancy clause.

PN1841

But, for example, in the current TCF Award, the respective entitlements are dealt with separately, and then in terms of the redundancy entitlement it makes it clear that the entitlement applies instead of the earlier entitlement, just the general termination entitlement. So I think there is a way to keep the entitlements under their separate provisions but make it clear which applies when, in which circumstances.

PN1842

THE COMMISSIONER: Very good.

PN1843

MS SOSTARKO: Commissioner, just on another point � it's Ms Sostarko for Master Builders. I just wanted to raise the point that the redraft at 1.1 now has changed the expression slightly in that it's changed from in the original clause from "must be allowed" to "must allow" in terms of time off, and we would submit that the subsequent effect being that the provision now operates that the entitlement is something that the employer must provide as a matter of course, rather than it simply being in response to an employee's request. So I think that's the inference that perhaps can be taken from the redraft.

PN1844

MR MORAN: The intention behind it was to move away from the passive voice, so the "an employee must be allowed" to make it into the active voice that the employer must allow it. But you're suggesting then that that means that it's an absolute entitlement even if it's not asked for.

PN1845

MS SOSTARKO: That's correct. It's now a positive obligation, so to speak.

PN1846

THE COMMISSIONER: Well, if it were to say "the employer must allow the employee" then what does "for the purpose of seeking other employment" do, if the employer says, "No, you must take one day off", and the employee doesn't then go seek other employment? I guess the issue is, I mean, there's times where an employer terminates an employee and the employee says, "Well, I have no intention of seeking other work."

PN1847

MR FERGUSON: So you get no paid lead.

PN1848

THE COMMISSIONER: Currently. But does that change because the employer must allow them? So do we � are we all comfortable with it saying "must be allowed"?

PN1849

MS THOMSON: Is there another way to resolve that though then, to keep it away from the passive voice? So "must allow upon request" or something like that? I don't know if that is in keeping with the principles.

PN1850

THE COMMISSIONER: So there's no evidentiary requirement, is there, for this one day?

PN1851

MR FERGUSON: Not for the first one.

PN1852

THE COMMISSIONER: No.

PN1853

MR FERGUSON: I don't have a view. Does it really have a different meaning? If all you're doing is allowing, that's why you don't have to give it to them. If they don't take it, they don't take it. If they don't actually want to seek other employment, they can't get a day off. I just don't know that there's a difference.

PN1854

THE COMMISSIONER: No. I take the point raised there by Ms Sostarko, that it does impose a greater obligation on the employer than currently needs to be met. Is there the convenience? Where's that? That's 1.7.

PN1855

MR MORAN: It's 1.7.

PN1856

MS WILES: Commissioner, it's Ms Wiles. We've just had a quick discussion amongst the union parties here, and we're quite comfortable if it goes back to the current wording. So "must be allowed."

PN1857

THE COMMISSIONER: I think we'll get the team to do some work on that one. There's general consensus that that perhaps should live in the termination clause. Then work needs to be done to introduce some entitlement under the redundancy clause, but I think it should make clear that it doesn't entitle the employee. For example, if this clause applies, then 20.3 doesn't. Is 1.3 more confusing than 21.4(a)?

PN1858

MR CLARK: Sorry, before we get to that, have people got views about "paid time off" versus "without loss of pay"?

PN1859

THE COMMISSIONER: Sorry, Mr Clark, what was that? We can't hear you?

PN1860

MR CLARK: In 1.1, there's a difference between "paid time off" and "without loss of pay". Could that perhaps be of some significance?

PN1861

THE COMMISSIONER: Yes. I think "without loss of pay" suggests that they're entitled to whatever they should have been paid, had they been at work; whereas "paid time off" might mean ordinary time earnings.

PN1862

MR CLARK: If that were the way it was likely to be read, then that would concern us.

PN1863

THE COMMISSIONER: So:

PN1864

The employee must be allowed up to one day off over the period of notice without loss of pay for the purpose of �

PN1865

so assuming some work is done at 1.2 to introduce this into the redundancy clause, then at 1.3 - - -

PN1866

MR MORAN: Commissioner, I think, looking at it again, it's probably unnecessary to talk about the minimum period of notice. You just need to say that � well, then, again there's an issue of saying the employer must allow the employee, whether that is the employee must be allowed.

PN1867

THE COMMISSIONER: Yes.

PN1868

MR MORAN: Whether it's paid time off without loss of pay, of up to one day each week during the period of the notice, is probably sufficient, without having to talk about a minimum period of notice because that's not a concept in 21.4(a).

PN1869

THE COMMISSIONER: 21.4(a) sits quite comfortably with me. Perhaps if you and the team can do whatever work you think is necessary.

PN1870

MR MORAN: Yes.

PN1871

THE COMMISSIONER: Because, I must say that each week of notice � sorry � one day time off for each week, sits more comfortably to me than of up to one day each week for the purpose. One day each week of what?

PN1872

MR MORAN: Yes.

PN1873

MR FERGUSON: But so if you remove the minimum notice reference, then if you were given advance notice, six months' notice, you'd just get a day every week for six months?

PN1874

MR MORAN: But that's what 21.4(a) seems to be saying, isn't it? It doesn't talk about the minimum period. It just talks about each week of notice.

PN1875

MR FERGUSON: We've made our submissions by reference to the proposal. I'm just wondering whether when you read that in the context of how it was originally framed, the notice was intended to capture a shorter period of notice. I understand we can't get that from the words.

PN1876

Bit seems odd that a clause could ever - in a work clause would require one day a week for six months, if you were told in advance that a power station was closing or something like that. It seemed to be a very generous entitlement. Now, I appreciate that that limitation isn't there in the words, when viewed in isolation, but that's the difficulty working from a summary document.

PN1877

THE COMMISSIONER: I think I obtained an earlier concession that the unions � that they don't have to hold themselves to, but it was a thought. Is it your same position here, out of Melbourne, thanks, if this is limited to the same period of employment under the NES, of notice?

PN1878

MR CLARK: No. No, that's not our view.

PN1879

THE COMMISSIONER: So if parties were given six months' notice, they would be entitled to one day off each week?

PN1880

MR CLARK: Yes.

PN1881

MR FERGUSON: If there was an alternative proposal advanced, we would want to think about that and respond to that, because that seems an odd outcome.

PN1882

THE COMMISSIONER: But that example that you're using, I mean, that would be unheard of for award-dependent employees. I mean, you know, our experience probably the greatest amount of notice ever given was about two or three months. So I think you're overstating the case. But in circumstances where - - -

PN1883

MR FERGUSON: But that's (indistinct) industry. One industry.

PN1884

THE COMMISSIONER: Boeing shuts up shop in Sydney and gives a couple of years notice, doesn't it?

PN1885

MR FERGUSON: Well, yes, it did, if my memory serves. I don't know if it was years but it was a long period of time.

PN1886

THE COMMISSIONER: A very long period of time.

PN1887

MS WILES: I suppose the other issue is that you're only looking at this through the eyes of an employer, when it was in fact - - -

PN1888

MR FERGUSON: I'm actually not. It would be odd if an award discouraged employers from giving their employees advance notice of redundancies. Whereas if an employer was faced with the proposition of having to give a day of paid leave to all their redundant employees, for six months, then no sensible employer would give them advance notice.

PN1889

MS WILES: Well, except sometimes it's - - -

PN1890

MR FERGUSON: Surely that's in the interest of - - -

PN1891

MS WILES: No. Except in some circumstances it's actually in the employer's interest for people to obtain alternative work and leave earlier. I mean, we see that all the time.

PN1892

MR FERGUSON: Sometimes.

PN1893

MS WILES: We see that all the time in manufacturing. Employers are quite happy for people to leave earlier if they can get another job. In any event, we don't support the narrow interpretation that you're placing on that clause. That's generally our position here.

PN1894

THE COMMISSIONER: Thank you. That provides some clarity there. That's another one that we'll have to go away and consider, and see whether this may become an arbitrated matter. There's currently no agreement as to what it means. It's good it's being ventilated. There's an evidentiary case where there is more than one day off in each week?

PN1895

MR FERGUSON: Yes.

PN1896

MS McKINNON: I think it's more than one day. Just generally.

PN1897

MR MORAN: So we will be deleting "per week" from 1.4:

PN1898

The employer is allowed paid time off of more than one day during the notice period.

PN1899

THE COMMISSIONER: What does 21.4(b) do now? (a) gives the right of one day off each week, and then (b) says if they've been allowed more than one day during the notice period. Does that make any sense at all?

PN1900

MR CLARK: If you had a three-week notice period, you might have three - -

PN1901

MR MORAN: Yes, that's right.

PN1902

MR CLARK: Is that what - - -

PN1903

THE COMMISSIONER: Yes, but (a) says you can have it off, but (b) says is it on your second day, there's evidence required.

PN1904

MR FERGUSON: Right. So the first one, no evidence; but if you want more than one, you have to produce evidence.

PN1905

THE COMMISSIONER: So I have a four-week notice period. Week 1, I go for a job interview, I don't need to provide evidence. But week 2, I'm allowed the day off, and I need to provide evidence?

PN1906

MR CLARK: Yes.

PN1907

MS WILES: Yes.

PN1908

THE COMMISSIONER: Then does 1.4, with the removal of "per week", does that work?

PN1909

MR FERGUSON: Yes. It's what we've proposed.

PN1910

THE COMMISSIONER: What about the minimum period of notice?

PN1911

MR FERGUSON: Well, we've been operating on the assumption that there is a minimum period of notice in the proposal. If the Commission is going to reconsider that, we'd like to consider the proposal, any new proposal, and make submissions. For the reasons articulated, we think there's merit in the minimum period of notice proposal. But we didn't call for it. It was there and we hadn't contemplated anything other.

PN1912

THE COMMISSIONER: But otherwise, are the parties comfortable with 1.4, with those changes?

PN1913

MR FERGUSON: Yes.

PN1914

MS WILES: Yes.

PN1915

THE COMMISSIONER: What do the parties think of 1.5, 6 and 7?

PN1916

MR FERGUSON: Yes. So we said in 1.6, the words "in excess of one day per week" should be deleted.

PN1917

THE COMMISSIONER: Yes, because the first one is a � well, should it simply be "paid time off" - - -

PN1918

MR FERGUSON: Yes.

PN1919

THE COMMISSIONER: - - - "in excess of one day"? Because you don't want the argument, I think somebody has put here, that if that were deleted then perhaps that first day off would not be paid. Because it's only 1.4 - - -

PN1920

MR FERGUSON: Yes.

PN1921

THE COMMISSIONER: Because it's linked back to 1.4, then it's okay?

PN1922

MS WILES: Commissioner, can I just raise another issue, sorry, to go back to 1.4. So the requirement is to produce proof of attendance at a job interview. So the word "job" has been added. So the current 21.4 says "attendance at an interview" and we say that has broader application. So it could be an interview with, you know, a recruitment agency or a job agency, whereas that's been narrowed in 1.4 to specifically a job interview.

PN1923

THE COMMISSIONER: Yes.

PN1924

MS WILES: So we say that the word "job" should be deleted.

PN1925

THE COMMISSIONER: So it should read, "attendance at an interview"?

PN1926

MS WILES: Yes. That's our position.

PN1927

THE COMMISSIONER: Yes. Does anyone have any concerns about that? No?

PN1928

MS WILES: No.

PN1929

MR FERGUSON: Did it say interview before?

PN1930

THE COMMISSIONER: Well, it said "interview", as in the proposed wording said at a job interview. I mean, it may be an interview for purposes of a subcontractor or something like that.

PN1931

MR FERGUSON: We don't raise - - -

PN1932

THE COMMISSIONER: So a statutory declaration is sufficient. That's the same, isn't it? 1.6, the issue is should 1.6 end after "for the time off" or should it end "for the time off in excess of one day"? We think because 1.4 draws the link, it should finish after the words "for the time off". Is that the employer's position?

PN1933

MR FERGUSON: Yes.

PN1934

THE COMMISSIONER: Any objection to that?

PN1935

MR CLARK: Sorry. Is it the first free day, if you don't provide a stat dec when there's no evidentiary requirement? Is that the intention?

PN1936

THE COMMISSIONER: What was that, Mr Clark?

PN1937

MR CLARK: Is the intention that you lose the first free day as well, or - - -

PN1938

THE COMMISSIONER: No. Because of the link of 1.4.

PN1939

MR CLARK: Right.

PN1940

MS LIEBHABER: I think we would think we should keep the one day because it makes it clearer in the award.

PN1941

THE COMMISSIONER: Yes. Because 1.4 still introduces � well, where is the - - -

PN1942

MR FERGUSON: I'm just wondering whether the issue we're raising flows from the fact that we were dealing with two separate entitlements, and whether there was a melding of the notice and evidence requirements that are now not as problematic as we thought.

PN1943

THE COMMISSIONER: But under 1.4 that's where you get one day off for free to seek other employment, but it's your second and third and fourth that you need to introduce the evidence. I'd prefer it, that the 1.6 read:

PN1944

is not entitled to be paid for time off in excess of one day.

PN1945

MR FERGUSON: Yes. That's okay. We won't press it. That's' fine.

PN1946

THE COMMISSIONER: All right. That's agreed.

PN1947

MS BIDDLESTONE: Commissioner, can I just make - - -

PN1948

MR FERGUSON: So just "per week" comes out. Yes.

PN1949

MS BIDDLESTONE: Sorry, can I just - - -

PN1950

THE COMMISSIONER: Yes.

PN1951

MS BIDDLESTONE: - - - make the point that if the job search entitlement is a separate entitlement in termination of employment and redundancy, then a fair bit of the detail in these clauses will not be necessary because the job search entitlement under termination of employment doesn't go to the provision of evidence because it's only one day off during that period.

PN1952

THE COMMISSIONER: Yes. I think 1.1 could live in the termination clause.

PN1953

MS BIDDLESTONE: Yes. I think if you separate that out in the redundancy, then the issue between, you know, one day or more than one day is not going to be an issue. So that would have to be thought about if they are separated out in terms of the drafting.

PN1954

THE COMMISSIONER: I don't know that that's the case, because 21.4(b) essentially gives the employee one day off during the � having been notified of redundancy, where they don't need to produce evidence; and every day thereafter, they do. So it's one for free. That still needs to be reflected. I think it is reflected if at 1.6, it finishes "in excess of one day" so it's made clear that they do get one day for free without needing to produce any evidence.

PN1955

MR MORAN: I mean, I think as I understood the suggestion, it is that if we were separating them out and putting in the provisions just for termination and not termination in circumstances of redundancy, we only need the 1.1 and the 1.7. We don't need the bits in between about stat decs and proof of attendance at interviews, because it's an absolute right to get one day off. You only get one day for the whole period, and you don't have to prove that you were in an interview. But you need, well, it's really I.7. You need that because you've still got to say it's to be taken at a time convenient to the employee after consultation with the employer.

PN1956

THE COMMISSIONER: That might need to go in both.

PN1957

MR MORAN: It has to. Yes, the point seven has to go in both.

PN1958

THE COMMISSIONER: Yes.

PN1959

MR MORAN: And the point one only goes in the other one.

PN1960

MR FERGUSON: See, if we do split them up again, I'm sorry, is there a need to do such radical redrafting?

PN1961

MR MORAN: Just for what we've � there's the issue of the per week would need to change, et cetera.

PN1962

MR FERGUSON: Yes. No. No. No. I know that.

PN1963

MR MORAN: But it wouldn't be radically different.

PN1964

MR FERGUSON: No.

PN1965

MR MORAN: It would - - -

PN1966

MR FERGUSON: No, I suppose not. I'm just trying to look at - - -

PN1967

MR NGUYEN: Is I.7 currently in 21.4?

PN1968

THE COMMISSIONER: No.

PN1969

MR NGUYEN: Which part is it?

PN1970

MR FERGUSON: Because clause (c) is going to have to come back in, isn't it?

PN1971

THE COMMISSIONER: Yes.

PN1972

MR FERGUSON: Once you separate them.

PN1973

MR MORAN: You mean the point about being convenient to the - - -

PN1974

MR FERGUSON: Yes. The entitlement applies instead of clause 20.3.

PN1975

MR MORAN: So is the argument where it's in 21.4, that it didn't need to be taken at a time convenient to the employee after consultation with the employer?

PN1976

MR NGUYEN: There's no requirement for consultation.

PN1977

THE COMMISSIONER: I see. Where you take a day off, having been made redundant, that doesn't need to be at a time convenient to the employer?

PN1978

MS BIDDLESTONE: No.

PN1979

MR NGUYEN: Well, it doesn't need to consult with the employer.

PN1980

MS BIDDLESTONE: I.7 only applies to termination.

PN1981

THE COMMISSIONER: Yes.

PN1982

MS BIDDLESTONE: Not redundancy.

PN1983

THE COMMISSIONER: Not redundancy. Yes. So it goes in following 20.3, the I.1. Does then � is it even necessary to have the one day off in the redundancy clause, if you're going to get it at 20.3? Could that be that that applies universally? Then the job search entitlement for redundancy is in addition to 20.3, less a day. We've made such great progress.

PN1984

MR MORAN: I mean, that directly raises the last point we were talking about, about the time convenient. That if you made that 20.3 apply in redundancy, then you would be saying that that applies.

PN1985

THE COMMISSIONER: No. Yes. Let's not go there because really if an employee is made redundant and they don't get the benefit of what's in 20.3, then they get to have a day off in that first week, or any other week, at a time that suits them.

PN1986

MR FERGUSON: Sorry, so if they're made redundant but they don't get a day off under 20.3 for some reason?

PN1987

THE COMMISSIONER: No, sorry. I was trying to see whether or not I could make that universal, but you can't.

PN1988

MR FERGUSON: Yes.

PN1989

THE COMMISSIONER: They're different.

PN1990

MR FERGUSON: It operates differently.

PN1991

THE COMMISSIONER: Yes. All right. So if we have a lunch break, then when we return, shall we tackle dispute resolution? All right, then. How long do the parties need? 30 minutes or 45?

PN1992

MR FERGUSON: 30.

PN1993

MS WILES: 40.

PN1994

SPEAKER: 30.

PN1995

THE COMMISSIONER: 30 minutes. All right, then. We'll resume then at 2 pm then. Thank you. We're adjourned.

LUNCHEON ADJOURNMENT�� [1.29 PM]

RESUMED�� [2.09 PM]

PN1996

THE COMMISSIONER: We are ready to deal with the dispute resolution, are we? Mr Moran?

PN1997

MR MORAN: Commissioner, the main attempt here was to try and break up some of the longer paragraphs in the existing award. 23.1 is broken up, effectively, into two parts, one dealing for the resolution of the dispute through immediate discussions at the workplace and the second, D.3, then getting on to more senior levels of management and then, D.4, going on to the referral to the Commission. So the intent was certainly not to move away very much from what was in the rest of it; it is just particularly 23.1, to try and split it up a bit and to begin the clause in D.1 with an application clause saying that it sets out the procedures to be followed if a dispute arises about a matter or about the NES.

PN1998

However, having read the submissions, I see there are some issues about the way some things have been done, and I should explain, too, that in D.2, when it talks about the "parties to the dispute", the intention was in the other paragraphs, in D.3, when it talks about "the parties", the intention was that that would be read as being the parties to the dispute, but I can see that that hasn't been clear, so it's probably good in D.3 and D.4 to add in the words "to the dispute" and not rely on that implication.

PN1999

THE COMMISSIONER: I see. So in D.4, where it says "a party", it would need to read "a party to the dispute"?

PN2000

MR MORAN: "To the dispute." That was certainly, in drafting, what was intended. That was referring back to what was in D.2, which said "the parties to the dispute". Those are the parties we are talking about.

PN2001

Then in D.7, for shorthand, it just said "any person or body", but I can see that there is a feeling that we shouldn't use "body", we should talk about "organisation" or "association", as in the 23.5.

PN2002

The one place where we talked about "a party to the dispute" in D.8, paragraph (b), the submissions are that we should not have "who is a party to the dispute", that that applies to all employees, and I can see, looking at 23.6, that that would seem to be a fair reading of it.

PN2003

THE COMMISSIONER: All right. So if we start at D.1, the parties are comfortable, aren't they, that it sets out - there's going to be (indistinct) with this - an issue with saying about the National Employment Standards; is that right?

PN2004

MS BHATT: Yes, it is, Commissioner. If I can speak slowly, it is Ms Bhatt for Ai Group. This is a concern that our organisation raised and that is that the award currently expresses the application of a discrete resolution clause as applying in the event of a dispute in relation to the NES. We say that that phrase "in relation to" is of broader import than the word "about". "About" suggests a very (indistinct) matter. The crux of the dispute is the NES. "In relation to" appears to contemplate something broader. There must be some connection. The connection might be direct, it might be indirect.

PN2005

The words in the current clause also reflect what is in the Fair Work Act. Section 146 states that a modern award must include a term that allows for a dispute resolution procedure and it says that such a clause must provide a procedure for settling disputes about any matters arising under the award and in relation to the National Employment Standards. I think one of the concerns that we might have raised in our submissions is whether the redrafting might give rise to some concern about whether the provision is then consistent with that provision of the Act. The proposal that was put by us was simply that the word "about" be replaced with "in relation to".

PN2006

THE COMMISSIONER: Anyone have any objections to that?

PN2007

MS WILES: No, Commissioner.

PN2008

THE COMMISSIONER: Mr Moran?

PN2009

MR MORAN: Yes, I accept that, yes.

PN2010

THE COMMISSIONER: All right, thank you. Does that deal with all D.1?

PN2011

MS THOMSON: I think so, Commissioner.

PN2012

THE COMMISSIONER: All right, D.2, who wishes to speak to that?

PN2013

SPEAKER: I am comfortable with D.2.

PN2014

MS BHATT: The Ai Group hasn't identified any concerns.

PN2015

THE COMMISSIONER: It looks pretty benign. Is there anybody with any concerns with respect to D.2? No? So it's D.3 where we move into the "as soon as practicable" versus the "timely manner"? Is that the concern?

PN2016

MS BHATT: It is, Commissioner, and if I may speak to that again, it is a matter that we had raised. We say that the current clause describes the manner in which the parties are to endeavour to resolve the dispute, that is, they must do so in a timely manner, so they must do so in a way that is time sensitive and it must not be undertaken in a way that is tardy. However, the clause doesn't appear to require or it doesn't suggest a sense of urgency, it doesn't impose a timeframe, it doesn't require an undue degree of haste in the way that parties go about dealing with the dispute.

PN2017

THE COMMISSIONER: What it doesn't say is "as soon as practicable".

PN2018

MS BHATT: No, it doesn't.

PN2019

THE COMMISSIONER: All right. I think the unions would disagree with you there, that it doesn't require the time-sensitive - well, it doesn't say either "as soon as practicable"?

PN2020

MS BHATT: That's right. I think there's some consensus from the ACTU at least - I am not aware of the position of the other unions - that the words in the redrafted clause should be substituted with what we find in the current clause.

PN2021

THE COMMISSIONER: Is there anybody who objects to "as soon as practicable" being replaced with "in a timely manner"? No? That is all right, Mr Moran. Is that all for D.3 or are there other things?

PN2022

MS THOMSON: Have we accepted Mr Moran's observation that we are adding the words "to the dispute" after "parties" in those relevant clauses as well, the first instance of that?

PN2023

THE COMMISSIONER: Yes, I think that was put and nobody suggested that that was objectionable. So, "The parties to the dispute must then try to resolve it" - is that right? Everybody is happy with how D.3 would then look?

PN2024

MR MORAN: Commissioner, at the very end, the words "as appropriate", which appear in 23.1, I had left them out because I had read them as just saying, "It's whatever levels of senior management that's appropriate" and I thought, "We don't need to say that", but I can see from the submissions that it is said, "Well, it actually could mean 'only if appropriate', so you don't have to consult if it's not appropriate to consult with them". So there may be an argument for bringing back a reference to "as appropriate".

PN2025

MS SOSTARKO: Commissioner, on that point - Ms Sostarko from the Master Builders - D.2 and D.3, we would submit that there could be some benefit in perhaps converting those two clauses because they are, in many ways, replicated, with the exception of the consultation with senior levels of management, so in the interests of trying to reduce the length of the award, whether that would be a consideration.

PN2026

THE COMMISSIONER: I think it assists the party if there's a step, so I think that is the purpose of it, saying, "All right, well we tried to resolve it at the workplace level" and then if it's not - you can see it flows through at the beginning of D.4 as well. I take your point, but what wording could you suggest to get rid of the first part of D.3? "If not resolved then there will be discussion between the employee and employees concerned and more senior levels of management", or "If not resolved" - we need to get the "timely manner" in there, don't we? Would you simply, say, get rid of "If the dispute is not resolved", if you get rid of "through discussion", as mentioned in clause D.2?

PN2027

MR MORAN: I guess, reading it in context, you would then say, "Well, it must be talking about the means of resolution mentioned in D.2, so you could.

PN2028

THE COMMISSIONER: It might be unnecessary then.

PN2029

MR MORAN: Yes.

PN2030

THE COMMISSIONER: So, "If the dispute is not resolved, the parties to the dispute must then try to resolve it in a timely manner at the workplace through discussion between the employer or employees concerned and more senior levels of management as appropriate"?

PN2031

MR MORAN: Yes, I am not sure about the exact words "as appropriate", but I guess the concept is if that - as I said, I had read it originally, "as appropriate", meaning the appropriate levels of management, but arguably it has got both senses, the appropriate levels of management and also only if it is appropriate to do it.

PN2032

THE COMMISSIONER: Yes, that is my concern.

PN2033

MR MORAN: I think anyone coming to this and reading "as appropriate" wouldn't get that dual sense from just reading it, so whether we could talk about "the employees concerned and appropriate more senior levels of management, if required", or something like that.

PN2034

THE COMMISSIONER: The problem is that it is just replicating what is already there and "as appropriate" could have that dual meaning in the existing.

PN2035

MR MORAN: Yes.

PN2036

THE COMMISSIONER: It might be that someone chooses that this step need not be followed.

PN2037

MR MORAN: Yes. So you are suggesting just keep it as it was, "as appropriate"?

PN2038

THE COMMISSIONER: "As appropriate" has a greater link to the senior levels of management than "if appropriate".

PN2039

MR MORAN: Yes.

PN2040

THE COMMISSIONER: "If appropriate" might lend you to believe that you don't need to follow this step.

PN2041

MR MORAN: Yes.

PN2042

THE COMMISSIONER: "Management, as appropriate" might just mean what it is intended to mean. I think we know what it means, but does that mean that is what a lay person would? What if, instead of the words "as appropriate" between "more" and "senior" - sorry - "and" and "more" "and, as appropriate".

PN2043

MR MORAN: "Or senior levels of management", yes.

PN2044

THE COMMISSIONER: You have got a pained look on your face.

PN2045

MS THOMSON: I am just trying work my way through it. I think the thing that we want to avoid is employees thinking that they don't have to escalate the dispute before they go off to the Commission. We want to ensure that there are people of appropriately senior role within the organisation consulted about the dispute before it goes off to the Commission for it to deal with so that there is an opportunity to deal with it within the organisation, but I also hear that there might be some concern about which senior manager might be appropriate. If the case is that a particular senior manager or a particular manager might be involved, then it might be appropriate to pick another manager to escalate it. I don't know how you resolve that, however.

PN2046

THE COMMISSIONER: If it read as per my suggestion "in a timely manner between the employee or employees concerned and, as appropriate, more senior levels of management."

PN2047

MS THOMSON: Is that giving the employee the discretion to decide not to do that? We want to avoid that to the extent possible.

PN2048

THE COMMISSIONER: Where does the discretion lie now? Does it lie with the employer?

PN2049

MS WILES: Commissioner, it's Ms Wiles here. This is actually quite an important issue on the ground in many industries because employees are actually required and management are, employers are, to follow the dispute resolution procedure, there often are levels of disputation about which senior levels of management are meant to be involved. For example, we have had disputes where we have written to what we thought was the appropriate person, a senior HR manager, and then been told, "No, it's not that person, it's somebody else." Do you know what I mean? I am not saying that can be fixed in this clause but I think there is a kind of real issue here about which members of senior levels of management are appropriate. Our view is that the words "as appropriate" should be reinserted as they currently are.

PN2050

THE COMMISSIONER: Does anyone have an opposing view that it should read "and more senior levels of management, as appropriate"?

PN2051

MS THOMSON: No.

PN2052

THE COMMISSIONER: You don't like that?

PN2053

MS THOMSON: We don't oppose that, I'm sorry.

PN2054

THE COMMISSIONER: You don't oppose that? Sorry. So it just leaves it as it currently lives. Can we move to D.4. Any issues with D.4?

PN2055

MS BHATT: I think there might be a few issues, Commissioner. One is resolved if the words "to the dispute" are inserted after the words "a party".

PN2056

THE COMMISSIONER: Yes.

PN2057

MS BHATT: So I won't deal with that any further. There is another issues that arises about the point in time at which a dispute can be referred to the Commission. We say that the legal effect of the current clause has been changed. Effectively, under the current dispute resolution clause, a dispute can be referred to the Commission if it is unable to be resolved, that is, it cannot be resolved in circumstances where all appropriate steps under clause 23.1 have been taken. We say that is a fairly high hurdle, and appropriately so.

PN2058

Clause D.4 requires simply that there have been some discussions pursuant to D.2 and D.3 and that the dispute is not resolved. So there must be some discussions and the discussions must have been unsuccessful and that is enough for the dispute to be referred to the Commission. It seems that under the redrafted clause, you could refer a dispute to the Commission at an earlier stage in the process than you can right now.

PN2059

THE COMMISSIONER: You say that a dispute not being resolved is different to a dispute that is unable to be resolved?

PN2060

MS BHATT: Yes, I do. I think that the current clause, when you read "unable to be resolved" with the requirement that all appropriate steps must be taken, effectively requires the parties - if I can use this term - to exhaust their options at the workplace. I don't think the redrafted clause has that effect. I think you have to have a go, I think you have to have some discussions and if you don't succeed, that's all you need.

PN2061

THE COMMISSIONER: D.4 proposes that steps D.2 and 3 have been followed by the parties, so that, I think, will cover your "all appropriate steps" unless you have something else to say about that. Is it then just left with a dispute that is not resolved versus unable to be resolved?

PN2062

MS BHATT: Commissioner, I think our position would remain that the requirement to undertake all appropriate steps is a higher bar or a higher threshold than a requirement to simply participate in discussions pursuant to D.2 and D.3. The way I read the redrafted clause, D.2 and D.3 require you to have some discussions with your supervisor, you then go to some senior level of management. As long as you have done that, that's enough. Immediately that is enough. I think that the requirement that you take all appropriate steps requires something more than that. It might mean, if we are looking at this in the context of a bigger business, that you go to someone that sits above, being the direct manager, if the dispute cannot be resolved, you pursue some other course of action that is available to you within the context of the workplace. I think the current clause requires you to do all of that.

PN2063

THE COMMISSIONER: You don't think the words "try to resolve" in D.2 and D.3 do something more than what 23.1 does?

PN2064

MS BHATT: I think that the words "try to resolve" mean that you have to make an attempt or to have a go, but that's it.

PN2065

THE COMMISSIONER: They do more, don't they, than what is currently in 23.1? 23.1 just simply requires discussions and, if it is not resolved, then they move to the next step. What would you say? Do you have proposed wording for D.4?

PN2066

MS BHATT: I think our proposal would be that the words that are currently used in the clause should be reinserted.

PN2067

THE COMMISSIONER: Would it read, "If the dispute is not resolved" - you don't need it to regurgitate about an award and dispute in relation to the NES, do you?

PN2068

MS BHATT: No, I don't think so, Commissioner.

PN2069

THE COMMISSIONER: "If the dispute is not resolved or is unable to be resolved at the workplace through discussions as required in clauses D.2 and D.3"?

PN2070

MS BHATT: Commissioner, if I can read it from the start, we say it should read as follows: "If the dispute is unable to be resolved at the workplace and all appropriate steps under clause D.2 and D.3 have been taken, a party to the dispute may refer the dispute to the Fair Work Commission."

PN2071

THE COMMISSIONER: So it is very much 23.2 with the bit referencing the award or the NES taken out?

PN2072

MS BHATT: I think that's right.

PN2073

MR MORAN: Commissioner, I guess I didn't replicate the words "all appropriate steps" and just talked about "discussions" because 23.1, on its face, only talks about that you must try and resolve the dispute by the discussions with the immediate employer and, if that doesn't work, then you go to a more senior level of management. It doesn't talk about steps other than discussion. Looking at it, I thought, "Why do we need to talk about other steps; isn't it just discussion?"

PN2074

THE COMMISSIONER: 23.1 says that the parties will endeavour to resolve the dispute, so it is a bit more than just discussion, which I think you have done in D.2 and 3 by saying "try to resolve".

PN2075

MR MORAN: Yes.

PN2076

THE COMMISSIONER: I think that has the same meaning, but I guess D.4 is 23.2, so Ai Group says it should specifically say you can only go to the Fair Work Commission if all appropriate steps under the clause above have been taken.

PN2077

MS BHATT: Part of the concern is that the redrafted clause could potentially allow a party, an employer or an employee, to superficially move through the relevant steps and rush to have a dispute referred to the Commission. The way the current clause is drafted - but we say that can't be done.

PN2078

THE COMMISSIONER: I think it is semantics and I think that 23.1, to get to the second step, discussions have been unable to resolve the disputes, there is certainly an endeavour, so you would have to show, if it is suggested that the employee is rushing through, that they haven't simply just mentioned it in passing to a more senior manager, they have actually endeavoured to resolve the dispute. If you look at D.3, which is that step, it says, "The parties to the dispute must try to resolve it as soon as practicable." Is that the same as "The parties will endeavour to resolve"? It says that they must try to resolve. But then, when you get to 4 - I don't think you get to the Fair Work Commission unless you can demonstrate that you have done D.2 and D.3.

PN2079

MS McKINNON: Commissioner, can I make a suggestion about how D.4 might be slightly rejigged to appeal to the various concerns?

PN2080

THE COMMISSIONER: Yes.

PN2081

MS McKINNON: We could turn it around and it could say, "A party may only refer the dispute to the Fair Work Commission if the dispute is not able to be resolved at the workplace through discussions, as mentioned in D.2 and D.3."

PN2082

THE COMMISSIONER: There is that option. That is very good. There is also the option of saying, "If the dispute is unable to be resolved at the workplace through the parties' endeavours to resolve" - I am not sure how that goes. You are saying to move it around to say that you can only go to the Fair Work Commission if you have followed D.2 and 3?

PN2083

MS McKINNON: Yes. It just puts the emphasis on how important it is to try and resolve it at D.2 and D.3.

PN2084

THE COMMISSIONER: Does that change 23.2 then?

PN2085

MS McKINNON: I don't think so, not in my view.

PN2086

THE COMMISSIONER: Any thoughts out of Melbourne?

PN2087

MS McKINNON: Trevor, am I right that I think the ACTU suggested adding the word "only" to D.4?

PN2088

MR CLARK: Not that I am aware of. Sorry, at the start of D.4, yes, I think the issue is - and I hear what has been said - you don't want to try and let people jump straight to the Commission, but the other part of that word "appropriate steps" had to do was to create situations where perhaps you would go to the Commission a little quicker. For example, if you had a manager who said, "I'll sort out your allowance off the books in six months but if you tell head office about it, I'll sack you", it is probably not appropriate to make that person then go through the steps that would lead to them being sacked and instead refer it straight to the Commission because it wouldn't be appropriate to refer it up the chain in that instance.

PN2089

I think that "appropriate steps" still - it kind of cuts both ways and it does make that point, you know, that you have got to try and follow the process but there are times when the process can't be taken any further or it is not appropriate to take it any further.

PN2090

THE COMMISSIONER: Yes, I can see the submissions in the summary. It is the ACTU's submission that perhaps if "only" is put at the beginning of D.4 such that it reads now, with some additional words in, "Only if the dispute is unable to be resolved at the workplace through discussions as mentioned in clauses D.2 to 3, a party to the dispute may refer the dispute to the Fair Work Commission." Does that assist with Ai Group's concerns?

PN2091

MS BHATT: I think the various proposals, Commissioner, as I read through this, D.2 and D.3, we think, serve a different purpose to D.4. D.2 and D.3 create an obligation for the parties. I understand D.4 to effectively act as a limitation on the Commission's jurisdiction to deal with disputes, which the Act expressly contemplates. It confines the Commission's ability to deal with a dispute to circumstances in which if all the steps are taken and if the dispute is unable to be resolved, and I think that the point that Mr Clark has raised about the work that those words can do - "all appropriate steps" - is a very relevant one. Certainly we are not aware of any difficulty or ambiguity or confusion that has arisen from the words that are used in clause 23.2 at present.

PN2092

THE COMMISSIONER: We are moving on from 23.2, we just need to get there, and we are not very far from there. I think, Mr Moran, you might recall I had "as required" in clauses D.2 and D.3 - this was internal dialogue - and we moved it back to as mentioned. If "required" is put back in in clauses D.2 and D.3, does that put a greater onus on the parties to get there and do what is needed in D.2 and D.3?

PN2093

MR NGUYEN: I think that doesn't pick up the point that Mr Clark made about "as appropriate".

PN2094

MR CLARK: You would certainly need "unable" back in there to soften it.

PN2095

THE COMMISSIONER: What do we need, sorry, Mr Clark?

PN2096

MR CLARK: "Unable".

PN2097

THE COMMISSIONER: We have got "unable to be resolved". That is not the issue.

PN2098

MR CLARK: Have we? All right, sorry.

PN2099

THE COMMISSIONER: I think the issue is probably "through discussions as mentioned in clauses D.2 and D.3." That is our problem area. If it said "through discussions as required in clauses D.2 and D.3", does that get the parties to where they think they want to be?

PN2100

MS BHATT: I think that still doesn't pick up this concept of what is appropriate in what has been raised.

PN2101

THE COMMISSIONER: Isn't what is appropriate then a matter for huge argument?

PN2102

MS BHATT: I think it is an assessment that has to be made on a case by case basis, yes, and it may be contentious, it may not be, but that is an assessment that has to be made in the relevant circumstances.

PN2103

THE COMMISSIONER: Do the parties want this ambiguity so they can argue it in the Commission, do they? It sounds to me - - -

PN2104

MR CLARK: It is just a question of how the facts presented themselves. You might have a second level manager who says, "It is the final position of the company that you will not get what you want." That person has another supervisor, but, in the face of that, on a company letterhead that says, "It is the final position of this company that you will not get what you want", the employee is going to want to go to the Commission and say, "I was unable to resolve it and it wasn't appropriate to take it any further." I don't see that there is anything new about that.

PN2105

THE COMMISSIONER: So it is the circumstances that give rise to whether something is appropriate to have been raised at a higher level or not?

PN2106

MR CLARK: That is right. It needs to recognise that you don't need to go all the way to the CEO over every single dispute.

PN2107

MS BHATT: I think a determination as to whether all appropriate steps have been taken or not taken must be made in light of the relevant circumstances.

PN2108

THE COMMISSIONER: It is not sufficient that D.3 had mentioned the "senior levels of management, as appropriate" and that it is absolutely necessary, is it, in D.4?

PN2109

MS BHATT: Obviously I am trying to deal with this on my feet, but based on the various proposals that have been put so far, I don't think they have the same effect that the current clause 23.2 does, notwithstanding the reinsertion of the words "as appropriate".

PN2110

THE COMMISSIONER: Mr Moran, is there anything that you can assist with on the run here or is it something that we can do later?

PN2111

MR MORAN: Commissioner, I guess if we were going to reinsert a reference to "all appropriate steps having been taken", I would suggest we don't then talk about discussions, we would just say that if the dispute is unable to be resolved at the workplace and all appropriate steps have been taken, which is very much what 23.2 is, I have the difficulty of talking about discussions and then talking about appropriate steps. That would seem to be saying it is something other than having a discussion, that there is a requirement that you must try to resolve it through discussion, if that doesn't work, then you refer it up. So if we took out the reference to "discussion" in D.4 and just said, "If the dispute is unable to be resolved at the workplace and all appropriate steps under D.2 and D.3 have been taken, then a party to the dispute may refer it to the Fair Work Commission", that would seem to be okay.

PN2112

MS BHATT: That would appear to resolve the issues that have been raised.

PN2113

THE COMMISSIONER: Any objection to that? All right, very good. D.5? Is it identical to 23.3?

PN2114

MR MORAN: I think it substitutes "followed" for "utilised" and that is about the only substantial difference, I think.

PN2115

THE COMMISSIONER: "Followed by the Fair Work Commission in dealing with the dispute"?

PN2116

MR MORAN: Yes.

PN2117

THE COMMISSIONER: Any concern with the words proposed? No? D.6?

PN2118

MS BHATT: I think there is at least one concern arising from D.6. The current clause 23.3 is permissive, to ask the parties to reach agreement about the process to be utilised by the Commission in dealing with the dispute, but the clause doesn't require the parties to reach that agreement, the clause doesn't expressly require the Commission to adopt any agreed process.

PN2119

The difficulty that we say arises from D.6 is this: it appears to proceed on the basis that agreement will be reached, as contemplated in D.5, about the appropriate process and that the Commission will, in fact, adopt that process. It seems to limit the Commission's discretion to use any method of dispute resolution that is permitted by the Act and that it considers appropriate to circumstances in which there is an agreed process, the agreed process is adopted and that process does not resolve the dispute.

PN2120

THE COMMISSIONER: Do you need the words "through the agreed process" so that it reads: "If the dispute is not resolved, the Fair Work Commission may use any other method"?

PN2121

MS BHATT: I think that would address the concern, Commissioner.

PN2122

THE COMMISSIONER: Any objection to the removal of "through the agreed process mentioned in clause D.5"? Mr Moran, how does that sound?

PN2123

MR MORAN: I think that's fine, except I think then we should take out the word "other" before "method" and just say that the Fair Work Commission may use any method of dispute resolution, which is what the existing one says, so as not to lock the Commission into an agreed process.

PN2124

THE COMMISSIONER: Very good. Any objection to that?

PN2125

MS WILES: Sorry, I am just having a quick look at this. Isn't the current effect of 23.3 that basically there is no consent arbitration unless the parties agree and that is what gives jurisdiction to the Commission? If there is an agreed process for consent arbitration, then that is what the Commission will utilise, presumably, on the request of the parties.

PN2126

THE COMMISSIONER: What if the parties say at D.5, "We want to go straight into consent arbitration" and it gets on for a hearing before a member and the member says, "Parties, would you like some conciliation here?" Doesn't D.6 allow for that? I know that is a far-fetched scenario where parties go straight to consent arbitration.

PN2127

MR CLARK: Yes.

PN2128

THE COMMISSIONER: Turn it around the other way then: if the parties said, "We only agree that the Commission can mediate and conciliate and we don't agree to consent arbitration", at D.6 the Commission can't deal with the matter by consent arbitration, it is not empowered to.

PN2129

MR CLARK: No, but the Commission may say, perhaps after the conciliation is completed, "Look, I think this hasn't successfully resolved anything so I am going to exercise my function or my powers under whatever section of the Act or express an opinion", you know, "You are 30 per cent wrong and you are 70 per cent wrong." Is the intention that - - -

PN2130

THE COMMISSIONER: To issue a recommendation or a statement, Mr Clark?

PN2131

MR CLARK: Yes.

PN2132

THE COMMISSIONER: That would cause the parties concern, would it, if there was no power?

PN2133

MR CLARK: No. I think that what can happen now under the existing clause is that you have a conciliation and it might be agreed that you have a conciliation, but there doesn't really need to be because the Commission can do it anyway, and then, at the end of that, if that conciliation hasn't brought people together, the Commission might then go on to do any of the things that you have referred to in proper language. I think that is captured, but this reference to "through the agreed process", I am not sure whether we need it.

PN2134

THE COMMISSIONER: I think we have reached a position here in Sydney at least that these six would read, "If the dispute is not resolved, the Fair Work Commission may use any method of dispute resolution that is permitted by the Fair Work Act to use and that it considers appropriate for resolving the dispute."

PN2135

MR CLARK: Yes. The only sort of difference between that and what you have got, I think, is that the former clause implies that the Commission will - the use of the word "remains unresolved", it implies that it follows in time from whatever it is the parties have agreed to, so you have a go at what the parties have agreed to and you then get to the end of that point and decide whether you are going to exercise some of the power that you have, whereas the wording here seems to provide an alternative that would allow the Commission to completely ignore what the parties' agreement is and say, "No, no, no, I am not going to sit here and mediate this, this is what I am going to do." I think that might arguably be different. I think that emanates from the use of "not resolved" rather than "remains unresolved". But I pick up Ms Wiles' point: if a thing is consent arbitrated, it is finished by necessity.

PN2136

THE COMMISSIONER: Do the parties say that 23.4 empowers the Commission to arbitrate without consent?

PN2137

MR NGUYEN: If the Act subsequently allows, but currently it doesn't allow.

PN2138

THE COMMISSIONER: Sorry, what was that?

PN2139

MR NGUYEN: If the Act allows, but currently the Act doesn't allow that.

PN2140

THE COMMISSIONER: No. There is still limitation in D.6 that unless consent arbitration, the power is given, there is still limitation there.

PN2141

MS BHATT: We would say that concern doesn't arise because by virtue of 7394, the Commission is not permitted by the Act to arbitrate absent consent from the parties.

PN2142

THE COMMISSIONER: I don't know that much then turns, Mr Clark, on 23.4, whether it says, "Matter in dispute remains" unresolved versus D.6, "If the dispute is not resolved."

PN2143

MR CLARK: Yes, I am just saying the word "remains" implies that you have had a go at what 23.3 - what was agreed under 23.3 first, whereas D.5 and D.6 seems to imply that you can rock up and say, "We want a mediation" and the Commission can say, "Well, you might want that but I don't have to give you that, I have decided I am going to do some other thing instead."

PN2144

THE COMMISSIONER: I see. Mr Moran?

PN2145

MR CLARK: That is why I think "remains" follows one on from the other. I am not sure what people's collective preference is. If I was the Commission, I would probably want to have the alternative rather than - but anyway.

PN2146

MR MORAN: I think it was the use of "remains unresolved" that led to the original D.6 saying, "If the dispute is not resolved through the agreed process mentioned in D.5", so that you have tried D.5 and it has not resolved and then the Commission can go and do something else.

PN2147

THE COMMISSIONER: But with the deletion of "through the agreed process" should D.6 read, "If the dispute remains unresolved"?

PN2148

MR MORAN: "Unresolved", because that would certainly give you the impression that you have tried what is in D.5 now.

PN2149

THE COMMISSIONER: Yes. Everyone is comfortable with that?

PN2150

MS BHATT: Yes, thank you.

PN2151

THE COMMISSIONER: D.7: "A party may appoint any person, organisation or association to support or represent them."

PN2152

MS BHATT: I think the first two issues to arise from that clause have been addressed by Mr Moran when we first started going through this, that is, a party to the dispute and the use of the word "body" as opposed to "organisation or association".

PN2153

THE COMMISSIONER: So do we need to say "a party to the dispute" the whole way through the clause, do we? Was that the last time? That is the last time, isn't it?

PN2154

MR MORAN: Yes.

PN2155

MS BHATT: Yes.

PN2156

THE COMMISSIONER: All right. "A party to the dispute may appoint any person, organisation or association to support or represent them in any discussion or process under clause D." Everyone is then comfortable with that?

PN2157

MS McKINNON: Commissioner, we have an issue with the word "any". There are some limits on which organisations can represent which individuals and "any" seems to go broader than the current Act. We would prefer the use of the word "another".

PN2158

THE COMMISSIONER: Where does it currently sit? I recall a case where, I think, an organiser or one union sought to represent somebody who wasn't eligible to be a member.

PN2159

MS McKINNON: Yes, it was Tracey v Technip and the resulting change to the Act was, I think, section 176(3) and that is dealing with bargaining.

PN2160

MR CLARK: But the real issue here is its intersection with the requirement to seek permission to appear.

PN2161

THE COMMISSIONER: But do we have problems with somebody who clearly has no eligibility and you have got a union organiser who wants to take up the cause, there is no eligibility. Wasn't there a recent case in the last 12 months where representation wasn't given because of that person being an office holder of one union and seeking to represent people where there was no eligibility?

PN2162

MR NGUYEN: In the Commission, I think the rule will still apply that you have to seek leave or you have to apply to the Commission to grant you permission to represent a biparty other than like an employee of your organisation or, you know, your union, and if it is your union then you have to be eligible to be a member of that union, but the part that this applies to where the Commission is not involved is the actual discussions in the workplace. Sometimes in the workplace, an employer might say, "You can't bring anyone with you to this discussion."

PN2163

THE COMMISSIONER: No, we are talking here about D.7.

PN2164

MR NGUYEN: Yes, and it applies to all the processes, but the right to have - - -

PN2165

THE COMMISSIONER: Under the whole of D; right.

PN2166

MR NGUYEN: Yes, but when it comes to the Commission, it applies with, as Mr Clark said, the legislative section, which I think is - - -

PN2167

THE COMMISSIONER: Yes, 596.

PN2168

MS McKINNON: Commissioner, the point of D.7 is to allow the people who are involved in the dispute to be represented or supported and using the word "another" instead of "any" I think still delivers that effect without starting to suggest that you can be represented by people who the Act does not allow you to be represented by.

PN2169

THE COMMISSIONER: Is there any objection to it remaining as "another person"?

PN2170

MR MORAN: Commissioner, it does seem odd to say "may appoint another person". I was wondering what the difference would be if it said "may appoint a person", if you used "a" instead of "any" because "another" is just saying someone other than the person that is doing the appointing.

PN2171

MS McKINNON: We would be comfortable with "a".

PN2172

MR CLARK: And retain the references to "organisation" and "association", et cetera?

PN2173

THE COMMISSIONER: Yes, that's already a given.

PN2174

MR CLARK: All right.

PN2175

THE COMMISSIONER: So it reads: "A party to the dispute may appoint a person, organisation or association to support or represent them in any discussion or process under clause D." Yes?

PN2176

MS BHATT: Yes.

PN2177

MS McKINNON: Yes.

PN2178

MS ADLER: Commissioner, before we move on from this point, I just wanted to raise a question with regard to the interchange of "a party" and I understand now with the words "to the dispute" as opposed to "an employer or employee may appoint". In our view, that does change the effect of that provision. Parties to the dispute are now broadened to include, obviously, individuals or organisations other than the employer and the employee. I know that the language that is proposed is consistent with the other clauses, but if you look at 23.5, it is different to D.7 now.

PN2179

THE COMMISSIONER: How do you say that "a party to the dispute" is broader than "the employer and employee"?

PN2180

MS ADLER: I guess one could argue if there is an enterprise agreement in place that it could potentially be - if it is, for example, a union agreement, it could be considered that that association could be deemed a party to the dispute.

PN2181

THE COMMISSIONER: I must say I get disputes notified by unions not by employees.

PN2182

MS ADLER: Yes. I know that would then, in some ways, if that language was retained, render it inconsistent with the other clauses - I understand that - but the way that it is currently drafted in the exposure draft, it has been drafted separately to identify the employer and employee, so I was just wondering what the rationale was behind the change there.

PN2183

MR MORAN: I think it really was just to make it consistent with the other subclauses, which all talk about "a party to the dispute". Indeed, 23, in the exposure draft, except for 23.5, just talks about "parties to the dispute". So really it was just a matter of looking at it and saying, "Why are we now suddenly talking about an employer and employee when all along we are talking about parties"?

PN2184

MR CLARK: Perhaps it is because there may be situations where in order for some of the discussions in the earlier parts of the clause to be conducive to actually getting something, you might need to have folks come along to that who might not be directly at the heart of it but whose interests might be affected by what transpires in those discussions, and so you might want to allow those people to be represented given that the other people in the room will be as well. I don't know, that might be one circumstance where it arises.

PN2185

MR MORAN: Yes.

PN2186

THE COMMISSIONER: A classic example of that would be situations where the employer is insolvent and the insolvency practitioner is effectively the party to the dispute, and we have had disputes where the insolvency practitioner has basically been summoned to the Commission, so I think the use of the word "a party" is actually more effective in terms of facilitating the dispute resolution procedure. Is there anyone who has any objection to it reading "a party to the dispute"?

PN2187

MS ADLER: Does it have the effect, though, of allowing - if we accept that we are having "a party to the dispute", say you have a union party to the dispute, are they then entitled to appoint somebody else to represent them, which is not currently the effect of - I am not saying that would necessarily happen, but say they wanted to use another union, potentially, to advance the interests of all the members - I don't know - but that seems to be potentially a ramification that the existing clause doesn't have when really, I think, the intention is to allow for the employer or the employee to have their union or their industry association or their lawyer, or whoever it is, without giving that extra level of, "Oh, well, I can't make it, so can you do it for me", whether that is an employer or an employee issue.

PN2188

THE COMMISSIONER: Does it advance the position of the union putting concerns to the employer without any employees nominating that they are affected or does that not get through the gatekeeper in D.3 and D.4? 23.5 nominates employer and employee where it hasn't earlier, other than discussions between the employer and employee between - 23.1 might not have been reproduced properly. That might mean the employer and employees concerned - no - and the relevant supervisor. We might just give some thought to that. I don't want to spend too much time. We have most people saying that they would be comfortable to it saying "a party to the dispute" at D.7, but some of concerns.

PN2189

MS ADLER: Yes. It is not a hard and fast position, it is just something that occurred to me then when I was looking at it.

PN2190

THE COMMISSIONER: We will give some further thought to that. D.8?

PN2191

MS BHATT: I think there is an issue that arises at D.8(b) to which Mr Moran has already spoken, that is, replacing "any employee who is a party to the dispute" with "an employee", that it is confined to an employee that is a party to the dispute.

PN2192

THE COMMISSIONER: All right. Are there any other concerns with D.8?

PN2193

MS McKINNON: Commissioner, I am sorry, I didn't quite catch that concern, but our concern about D.8 is that the requirement to continue working applies to all employees not just those who are party to the dispute.

PN2194

THE COMMISSIONER: How do you say that has changed? What we were saying earlier is D.8(b) would read, "An employee who is a party to the dispute must not unreasonably fail." Where do you say 23.6 broadens the obligation to continue working to all employees?

PN2195

MS McKINNON: 23.6 talks about the fact that work must continue under the award and an employee must not unreasonably to comply. That is not only limited to an employee involved in the dispute, involved in or party to, and I think it is just the words in D.8(b) "who is a party to the dispute" that don't appear in 23.6 and it limits the continuance of work quite significantly in some contexts.

PN2196

THE COMMISSIONER: Do you say it should read, "An employee must not unreasonably fail to comply with"?

PN2197

MS McKINNON: Yes, that's right.

PN2198

THE COMMISSIONER: Any concern with those other words being removed? No? All right. Does that satisfy all of your concerns there?

PN2199

MS McKINNON: Yes, thank you, Commissioner.

PN2200

THE COMMISSIONER: Nothing further on D.8? D.9?

PN2201

MS McKINNON: Commissioner, we just suggest the use of the word "work" instead of "occupational" just given the work health and safety legislation has been rebadged.

PN2202

THE COMMISSIONER: All right, "Subject to any applicable work health and safety legislation." Is everyone comfortable with dispute resolution? There is still a little bit of work to do but not as much as the other clauses, I would think. Are you invigorated to work on consultation or should we call it a day and deal with it on another day?

PN2203

MS BHATT: We are in the Commission's hands. We are happy to proceed if everyone is comfortable.

PN2204

THE COMMISSIONER: Shall we forge on for the next 45 minutes?

PN2205

MS McKINNON: Yes, Commissioner.

PN2206

MR CLARK: The difficulty is we are unlikely to finish it before four, I suspect.

PN2207

THE COMMISSIONER: I am certain we won't.

PN2208

MR CLARK: It is going to be harder to come back to something we are halfway through, I suspect, but as I have already disclosed, I can't be here beyond four myself anyway, so I am speaking out of self interest in part, but, in all honesty, I think if we are not going to finish it, we might be creating problems by attempting to start it.

PN2209

THE COMMISSIONER: Could we perhaps do consultation about changes to rosters or hours of work or is that a bigger animal?

PN2210

MS BHATT: I think it is a smaller one, Commissioner.

PN2211

THE COMMISSIONER: All right, we shall do that. There's only four. Let's get through it. Consultation about changes to rosters or hours of work. Mr Moran?

PN2212

MR MORAN: The intention was not to - it has not substantially changed. There is an issue about paragraph (d) in the original and I think just about everyone agrees that paragraph (d) needs to appear somewhere in what is now (c). One of the changes, for example, was again by starting off with an application clause, it applies if an employer proposes to change a regular roster or ordinary hours of work other than an employee whose working hours are irregular, sporadic or unpredictable. That was appearing originally down at paragraph (c) and the feeling was, "Let's move it up so as you know from the start whether or not this clause applies to you."

PN2213

The other clauses, we are really just intending to replicate what was there, that you must consult with any employees affected and that for the purpose of the consultation, you provide information and invite them to give their views. I should say that I noticed one of the submissions, or perhaps more than one, in C.3(b) was objecting to the word "its impact" and suggesting "any", which I think is a good suggestion because it may not have any impact on your family or caring responsibilities, so just including any impact.

PN2214

THE COMMISSIONER: You say C.3(b) where it says "including its impact" should read "including any impact"?

PN2215

MR MORAN: "Any impact."

PN2216

THE COMMISSIONER: It currently says "the impact"?

PN2217

MR MORAN: No, it says "any impact" currently.

PN2218

THE COMMISSIONER: Where does it say that?

PN2219

MR MORAN: In 22.2(b)(ii).

PN2220

THE COMMISSIONER: Doesn't it say about "the impact"? In brackets it says - - -

PN2221

MR MORAN: "Any impact", yes.

PN2222

THE COMMISSIONER: So you are happy for it to say "any"?

PN2223

MR MORAN: "Any." I was interested in some discussions about it. Because 22.2(b)(ii) has got the words about impact on family and caring responsibilities within brackets, that those brackets should have been reproduced and I have struggled to see what difference the brackets are making.

PN2224

MS THOMSON: I think, if I could, we made a submission along those lines. I think the primary concern was that it is reflective of section 145A of the Act, so removing the brackets makes it inconsistent with what is in the Act.

PN2225

THE COMMISSIONER: Which section, sorry?

PN2226

MS THOMSON: 145A. That was considered by a decision of the Full Bench as well, and also by removing the brackets, you may inadvertently elevate those matters above others to the detriment, I think, of both employers and employees.

PN2227

THE COMMISSIONER: I think what 145A to B does is - it is not an exclusive consideration. It might be, "It impacts my sporting commitments", so it is just an example.

PN2228

MS THOMSON: So if you remove the brackets in the award, are you - - -

PN2229

THE COMMISSIONER: Yes, I think the brackets need to go there now that you have made that point. You have probably made it earlier and I haven't read it, but I see where the employee could give - there might be a representative sportsman and say, "Well, that really affects my opportunities", but if you don't include the brackets, then it might limit it to just the family and caring arguments. All right.

PN2230

Mr Moran said there that he has brought up, I guess, 22.2(c) up to the front and I think that is a good idea. Any concerns with C.1? Is everybody comfortable with C.1?

PN2231

MS THOMSON: Yes.

PN2232

THE COMMISSIONER: Great. C.2? Everyone is comfortable with that? All right. C.3?

PN2233

MS WILES: Commissioner, can I just raise one issue with C.3(a)?

PN2234

THE COMMISSIONER: C.3(b)?

PN2235

MS WILES: No, I said 3(a).

PN2236

THE COMMISSIONER: Yes?

PN2237

MS WILES: The terminology there in the last two lines is about when the change is proposed to be made. That is an alteration from the current wording in 22.2(b)(i), which states that change is proposed to commence and it is just an issue of whether, in fact, that could have a different effect or a different meaning. For example, an employer might give notice of the change and that may be different from when the change is proposed to commence.

PN2238

THE COMMISSIONER: How is C.3(a) any different from 22.2(b)(i)?

PN2239

MS WILES: It is more about the - - -

PN2240

THE COMMISSIONER: Is it the last bit about - - -

PN2241

MS WILES: When the change is proposed to be made. For example, an employer might decide on X date that it is going to make the change.

PN2242

THE COMMISSIONER: I see. Is that "may be made" versus "commence", is it?

PN2243

MS WILES: Yes, that is the concern. I understand that is not the intention, but it was just - I don't want to overstate it but it is a potential uncertainty, I think. If you are thinking about employees in particular reading this and saying, "When is the change proposed to be made?", some might think that is when the change is announced to them as distinct from when the change is proposed to commence.

PN2244

THE COMMISSIONER: Does anyone have any concern if "made" becomes "commence"? No? All right, Mr Moran, what do you think of that?

PN2245

MR MORAN: That is fine, yes. It really was just an attempt to capture what was covered by it, but I can see the argument that "to be made" may be different from "to commence", so we could make it "commence".

PN2246

THE COMMISSIONER: "When the change is proposed to commence"?

PN2247

MR MORAN: "To commence." We take out "be made" and substitute "commence".

PN2248

THE COMMISSIONER: All right. Any other concerns with (a)? It is very similar to the existing provision.

PN2249

MR MORAN: Yes.

PN2250

THE COMMISSIONER: And (b), "The employer must invite them." Is it just the employees?

PN2251

MS WILES: No, it needs to be "the employees and the representatives."

PN2252

MS THOMSON: We have already mentioned the employees and representatives in (a), though.

PN2253

MR MORAN: In (a), yes.

PN2254

THE COMMISSIONER: I see, yes.

PN2255

MS THOMSON: It follows that it would be the same group of people.

PN2256

THE COMMISSIONER: I see, yes. Yes, I think that the work is done in (a).

PN2257

MS WILES: Although, sorry, can I just - it is a bit unwieldy, though, isn't it, because if you look at (b) "invite them", which means employees and their representatives, "to give their view about the impact of the proposed change on them"?

PN2258

THE COMMISSIONER: Yes.

PN2259

MS WILES: I am not sure that quite works.

PN2260

MR MORAN: Perhaps we take out "on them".

PN2261

THE COMMISSIONER: The second "on them".

PN2262

MR MORAN: Yes.

PN2263

MR CLARK: It might affect the organiser's family responsibilities because, you know, they can't visit on Wednesday nights any more because no one will be there. That is a 3.30 joke, sorry.

PN2264

THE COMMISSIONER: I note that the existing provisions say "including any impact in relation to their family" and these words say "including any impact on their family" and the Act says "to their family", so shall we have it consistent?

PN2265

MR MORAN: I just wonder if it could be simplified. If we do take out "on them", couldn't we just say then "including any impact on family or caring responsibilities"? Doesn't that still get you the concept?

PN2266

THE COMMISSIONER: "Including any impact"?

PN2267

MR MORAN: "Impact on family or caring responsibilities."

PN2268

THE COMMISSIONER: Get rid of "on their" or "to their"?

PN2269

MR MORAN: Yes, get rid of "on", yes.

PN2270

THE COMMISSIONER: Are the words "to their" necessary?

PN2271

MS THOMSON: Sorry, Commissioner, I am just thinking that through and the change that you dealt with just previously and that is the words "on them". I am hesitating because I am concerned that the deletion of both of those sets of words has the effect of inviting the employees to give their views about the impacts of the proposed change generally, so any impact of the proposed change, not just the impact on the employee, and impact on family and caring responsibilities generally, not confined to the employee. The difficulty arises further when you look at C.4. It expands the employer's obligation to give consideration to the views. It is now views about the change generally and the impact that that would have.

PN2272

THE COMMISSIONER: The words "on them" are not there currently, but do you say that there should remain the words "to their family or caring responsibilities"?

PN2273

MS THOMSON: The answer to the second question is certainly "yes".

PN2274

MS VAN GORP: It's Karen from Business SA here. Perhaps when you remove "on them", because (b) no longer has reference to "employees and representatives" or "employees", perhaps we could put "on the employees" or "the employee" instead of "on them", which is keeping the focus on the employees.

PN2275

MS BIDDLESTONE: But that is not the original clause.

PN2276

MS VAN GORP: No, but the original clause also has "invite the employee or employees affected to give their views."

PN2277

MS BIDDLESTONE: And their representatives.

PN2278

MS VAN GORP: Yes.

PN2279

THE COMMISSIONER: Yes, but it about the employees affected.

PN2280

MS VAN GORP: Yes.

PN2281

THE COMMISSIONER: So I take that point. Perhaps "Invite them" - that means them, the representatives as well - "to give their views about the impact of the proposed change on any employees."

PN2282

MR MORAN: The current clause does not restrict the impact to be on the employees.

PN2283

THE COMMISSIONER: Well, it does, it says "affected", "or employees affected".

PN2284

MS McKINNON: Should we include "affected employees" then instead of "on them"?

PN2285

THE COMMISSIONER: Yes, that is what I suggested about the "impact of the proposed change on employees".

PN2286

MS McKINNON: "The affected employees."

PN2287

THE COMMISSIONER: Sorry, yes, "on employees affected".

PN2288

MS BIDDLESTONE: But isn't the original clause inviting employees affected to give their views about the proposed change? It is not saying that their views - that it has to be about the impact on them.

PN2289

THE COMMISSIONER: That is C.2.

PN2290

MR MORAN: Yes.

PN2291

THE COMMISSIONER: Yes, I guess, though, that you really want an individual employee to be advocating for themselves and not having somebody else go on and say, "Well, this might affect a certain demographic because of indirect" - we really need direct arguments, I would think, not indirect. You want factual circumstances, not theoretics, don't you?

PN2292

MR NGUYEN: That is why I am saying I don't think it is limited.

PN2293

MR CLARK: It could actually be that by permitting the employees to comment on the impact of the changes, the consultation, which is what the current provision, the consultation provision actually becomes a pretty useful management tool because they'll say, "Well, if you are going to put us on before, when these people have only done this much and their hours are there, then this stock might be spoiled" or "You're not going to have enough time to do this" or "There's not going to be" - you might actually raise operational issues that are helpful to talk to workers about in the course of trying to figure out how you are going to implement this roster change.

PN2294

THE COMMISSIONER: C.2 says that the employer must consult with employees affected and their representatives.

PN2295

MR CLARK: Yes.

PN2296

THE COMMISSIONER: Then, at C.3, it says that the purpose of that consultation is to provide to those above people information and invite them to give their views about the impact of the proposed change. You would think it would be to "the employees affected" to maintain consistency.

PN2297

MR CLARK: It certainly covers that, but to the extent that the existing provision actually enables a bit of useful workplace discussion about, "Hang on a minute, let me think about this" and "How are you going to make sure there's enough people to do this?" or "How are you going to make sure that you have got power to do this?" Let's not get rid of that for the sake of trying to pare it back a bit. That's all. It might actually be useful.

PN2298

THE COMMISSIONER: I am not trying to pare it back, I am trying to give it the same effect as what it currently has and I think that by stepping it out as it is, yes, it is implied that you go back to C.2 to find out who is involved in these discussions, but if it is not clear, if there is any ambiguity, it is probably best to say, at (b), I would think, "Invite them to give their views about the impact of the proposed change to employees affected (including any impacts to their family or caring responsibilities)."

PN2299

MR CLARK: So impact of the proposed - - -

PN2300

MR NGUYEN: We might have to go back to that decision.

PN2301

THE COMMISSIONER: I will just hear from Mr Nguyen first.

PN2302

MR NGUYEN: We might have to go back to the decision because I don't think it is restricted in terms of what an employee affected might say and the Act doesn't seem to restrict that either, it just says "their views about the impact of the change", it doesn't say "on them" specifically.

PN2303

THE COMMISSIONER: I am not suggesting it say "on them", I say "to employees affected". That is what the current provision says. It is only inviting those employees affected and their representatives to give views.

PN2304

MR NGUYEN: But, once they are invited, they can give a range of views about the impact.

PN2305

THE COMMISSIONER: Then it would be you would go back to "invite employees affected and their representatives' views about the impact of the proposed change"? You would have exactly as you do now.

PN2306

MR NGUYEN: That is right. It would be better to change the first "them" than the second "them".

PN2307

THE COMMISSIONER: I don't think you get the second if you are going to look at the existing words.

PN2308

MR NGUYEN: That's right, we delete the second "them".

PN2309

THE COMMISSIONER: Yes, and you actually say, do you, then "are"? It is just implied because of the step-through but it is probably not as clear because employers want only employees affected to have the voice.

PN2310

MR NGUYEN: I think we are in agreement on that, that only employees affected are invited, but once they are invited, what they may say about the impact is not restricted.

PN2311

MS THOMSON: But can't we keep our first "them" then because we have already defined the group of people that we are talking about?

PN2312

THE COMMISSIONER: I think that becomes the problem.

PN2313

MR MORAN: I think the invitation goes both to the employees and their representatives to give their views. The difficulty is the impact of the proposed change "on them" would seem to be saying "the impact also on the representatives" and that's why I think maybe the suggestion the Commissioner had about saying "on affected employees" would overcome that problem. So the representatives are invited to give their views about the impact of the proposed change on affected employees as well as the employees being invited.

PN2314

THE COMMISSIONER: I just don't know how far you can move from the existing (b) to - we are almost there already.

PN2315

MR MORAN: It was just an attempt to shorten it by using the "them" to refer back to what (a) referred to, which was the employees and representatives.

PN2316

THE COMMISSIONER: I guess the existing (b)(ii) limits to the employees affected and not to any other rubber-neckers, but because it finishes with "the impact of the proposed change", it allows people who may not be directly affected to have a say, which I think the employers will have to live with. I think employers would want that limited and say, "Well, we only want Johnny who wants to be excused from this roster", but if others want to speak on his behalf, they probably, in this current version, get a chance to do so.

PN2317

MS THOMSON: But doesn't it limit the group of employees but not what they have to say? So it has to be John, Bill and Ted who are all affected by the change in roster, but John might want to comment on what he thinks is the impact it will have on the other two?

PN2318

THE COMMISSIONER: Yes, I think that currently is allowed.

PN2319

MS THOMSON: Yes, but we are not extending that group to people who aren't working that roster.

PN2320

THE COMMISSIONER: No.

PN2321

SPEAKER: No, except they might be affected indirectly.

PN2322

MR NGUYEN: It might be something as - yes.

PN2323

THE COMMISSIONER: Let's have a look at what is currently there: "The employee or employees affected and their representatives." I think there is the plural. You have to be affected and your representatives to give views about the impact of the proposed change, but is it that the only people who can speak are those who are affected or can employees in a group who are subject to the change also speak with respect to others?

PN2324

MR NGUYEN: I think the representatives are confined by whoever they are representing, but they are not invited to comment as themselves, they are invited to comment as a representative of the employee, because there was some concern about unions commenting randomly about the effect on unions and I don't think that is contemplated by that role as a representative.

PN2325

THE COMMISSIONER: I don't know how far we can move from the current (b)(ii) without taking away from one group and giving to another. We can give that some thought. C.4? How do we have 22.2(d)?

PN2326

MR NGUYEN: I think Mr Moran proposed to include that back in.

PN2327

THE COMMISSIONER: Right.

PN2328

MR MORAN: I left it out originally because I was thinking that you have got to read the award as a whole and these other provisions about giving notice, or whatever, if you want to change a roster would apply, but I can see the concern that it is good to draw attention to it here directly that when you are talking about consultation about changes, anything else that the award is saying about scheduling of work and notice requirements still apply.

PN2329

THE COMMISSIONER: Yes, that is very important. All right. Does C.4 do what (iii) does?

PN2330

MS THOMSON: That depends on how we get to (b), doesn't it, because I think that is intended to limit who we need to consider the views given by and if we have that satisfaction limited in (b), then it's fine; if we don't, then it's not fine.

PN2331

THE COMMISSIONER: Is "employees concerned" bigger than "employees affected"?

PN2332

MS THOMSON: Goodness!

PN2333

SPEAKER: Not if they are just worried - untroubled by it. Funny if I've not heard that submission from a union.

PN2334

THE COMMISSIONER: You would think that because it sits below (i) and (ii), the employees concerned could only have been people who are born out of (i) and (ii), so only those who voice concern about the impact on them, the employer only needs to hear their concerns and not outside those concerns. We will see if that does what it needs to do once C.3 is settled.

PN2335

MS THOMSON: I think, Commissioner, it might be worthwhile to have a scan of the decision, going back through that to see if there were any hints as to wording and such that might help resolve some of the issues.

PN2336

THE COMMISSIONER: The decision issued?

PN2337

MS THOMSON: In relation to this consultation clause. Is it [2013] FWCFB 10165 when it was inserted into the award? There is a decision about that, and there is some discussion about the terms of the provision, but I haven't had a chance to reread it recently, so I don't know if it goes into as much detail as we are looking at now. As we go forward, it might be worthwhile.

PN2338

THE COMMISSIONER: All right then, that just leaves us with consultation about major workplace change and we will have to schedule another date for that. I think it might be worthwhile - what are the parties' views on getting the AMod team to produce another version for consideration?

PN2339

MR MORAN: Do you mean including (b) or including the consultation about major workplace change?

PN2340

THE COMMISSIONER: Perhaps having heard the parties' views, it can put something, given there are things that are obviously opposed.

PN2341

MR MORAN: Yes.

PN2342

THE COMMISSIONER: Which you have done today orally in one or two minutes at the commencement of each subject. Yes, so if you can produce it and it doesn't go too far from where it is but knocks out the obvious objections.

PN2343

MR MORAN: Yes.

PN2344

THE COMMISSIONER: But certainly in relation to all the clauses that we have dealt with - we have dealt with four and a-half.

PN2345

MR MORAN: Yes.

PN2346

THE COMMISSIONER: Produce an updated view on what it might look like. Would that be helpful?

PN2347

MR FERGUSON: Would the process after that, bearing in mind there will presumably be another conference to deal with the outstanding issues in relation to consultation, would the process be that the award modernisation team, the drafting team, would prepare something of their own sort of motion or would that be following consideration by the Full Bench?

PN2348

THE COMMISSIONER: They provide it for us.

PN2349

MR FERGUSON: They provide it for you.

PN2350

THE COMMISSIONER: And for you.

PN2351

MR FERGUSON: Yes, so what is released, would that be reflective of a provisional view by the Full Bench or would it just be something that that team - you, Commissioner, may not be able to advise.

PN2352

THE COMMISSIONER: It might be just another working document.

PN2353

MS THOMSON: It hasn't been in the past in the Pharmacy Award, it has just been, "Here's what the AMod team and the drafter think", with no consideration whatsoever.

PN2354

THE COMMISSIONER: Yes, certainly, just a working document and I think we are probably likely to have a hearing at some time. Yes?

PN2355

MR CLARK: I think what was helpful, at least to me as a newcomer to this, was that after the last conference, you just did a short note and said, "Well, this is where we got to on these issues that we discussed today." I don't know if that is sufficient for us to come back with those other issues that we both indicated that we wanted to look at a bit further?

PN2356

MR FERGUSON: Yes, I was just thinking of whether we should have another conference or whether we should just then deal with just a final round of submissions and then there be a hearing.

PN2357

THE COMMISSIONER: What I think we should do is get the team to produce a new version of what these four and a-half clauses look like and work on the other half and release it for your views anyway, see what you think it looks like, are some of these settled, what is left, what was misunderstood and I think that will place us in a better position to have the next round of conference on the last clause and then any tidying up on those other clauses. But then, beyond that, I expect we will probably have a hearing at some point. You have seen what we have done in the Pharmacy Award, we have had a hearing, obtained parties' views in much this same manner and then gone away and worked on it and then still issued provisional - - -

PN2358

MR FERGUSON: Yes.

PN2359

THE COMMISSIONER: We are not finalising anything without putting you on notice that this is your last chance.

PN2360

MR FERGUSON: But perhaps another conference to deal with the outstanding issue and any tidying up.

PN2361

THE COMMISSIONER: But I don't want to have another conference just on the remaining consultation clause. I think you would want to get to what looks like a close to final version of what we understand the other clauses might look like.

PN2362

MR FERGUSON: So do we have a conference and see if we can finalise that, if we can, without everyone being put to the trouble of writing lengthy submissions and then we say, "No, this is still disputed, this isn't" and then we have that final process?

PN2363

THE COMMISSIONER: I think so.

PN2364

MR FERGUSON: Yes.

PN2365

MS THOMSON: And it is the case that the Bench might not accept our agreed position in any event, isn't it?

PN2366

THE COMMISSIONER: It is, but you saw what we did last time with the flexibility clause. We all thought it made sense. All it takes is the Members of the Bench having a look at it and we will consult as a team and see whether or not that looks good or if there's anything ridiculous in there. It is just a step by step process, but I think I want to get to what these clauses will look like after we have had these discussions.

PN2367

MR FERGUSON: Yes.

PN2368

THE COMMISSIONER: Otherwise we are still working off folders like this and that is not my preference.

PN2369

We will get the team working and I am sure that we will issue some sort of statement to that effect and, hopefully, where we are down to the last four matters for consideration in dealing with hundreds. Anything from the other States that you wish to raise? No? All right, thank you very much for everyone's attendance today, we are adjourned.

ADJOURNED INDEFINITELY�� [3.45 PM]