PN1

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

PN2

MS A DEVASIA: Ms Devasia, initial A, for the AMWU.

PN3

MS A AMPIHAIPAHAR: May it please the Commission, Ambihalpahar, initial A, from the CEPU.

PN4

MS R BHATT: If it pleases, Bhatt, initial R, I'm appearing for Ai Group.

PN5

MR L IZZO: If it pleases, Izzo, initial L, appearing for ABI and NSWBC.

PN6

MS R SOSTARKO: If it pleases your Honour, Sostarko, initial R, from Master Builders Australia.

PN7

Mr S CRAWFORD: If it pleases the Commission, Crawford, initial S, for the Australian Workers Union.

PN8

MR S MAXWELL: If the Commission pleases, Maxwell, initial S, for the CFMMEU Construction General Division.

PN9

MR A KENTISH: If it pleases, Kentish, initial A, for the CFMMEU Mining and Energy Division.

PN10

JUSTICE ROSS: Thank you. And in Brisbane?

PN11

MS L REGAN: If it pleases, Regan, initial L for the Housing Industry Association.

PN12

JUSTICE ROSS: Thank you. And in Melbourne?

PN13

MR D MALBASSA: If it pleases the Commission, Malbasa, initial D, I'm from the Manufacturing Division of the CFMEU. Thank you.

PN14

JUSTICE ROSS: Thank you. And in Canberra?

PN15

MR JOHNS: If it pleases the Commission, my name is Johns, initial B, and I appear on behalf of the National Road Transport Association.

PN16

JUSTICE ROSS: All right. Thank you.

PN17

Let me just recap where I think we're up to and then where we may be going in relation to these matters.

PN18

In a decision of 26 July we dealt with some 33 awards that have outstanding issues arising from the finalisation of the payment of wages on termination model turn. We set out a number of provisional views and parties have variously responded to those. We also noted that there had been applications to insert the model term in some 17 modern awards and that's really the issue we're here for.

PN19

We noted in the July decision that the parties had not yet had the opportunity to make submissions or adduce evidence about those applications and accordingly, we invited them to file submissions and material by 4 pm on 21 August.

PN20

So where we are as at today is ABI has filed a submission to vary a number of awards, Aged Care, Business Equipment, Supported Employment Services, Dry Cleaning, Plumbing, Meat, Road Transport and Distribution Road Transport Long Distance, Food Beverage Tobacco Manufacturing, Graphic Arts and the Manufacturing Award.

PN21

Ai Group has also filed a submission seeking to vary Aged Care, Black Coal, Building and Construction Onsite, Business Equipment, Electrical Electronics and Communications, Food Beverage and Tobacco Manufacturing, Graphic Arts, Manufacturing Meat, Mobile Crane Hiring, Plumbing and Fire Sprinkling, Road Transport Long Distance, Road Transport and Distribution and the Seafood Processing Award.

PN22

I think between you, you cover the 17 awards that we had listed in our earlier decision. We've also received a submission from HIA in support of Ai Group's application to insert the model term into the Building and Construction Onsite Award. Master Plumbers have filed a submission saying they don't oppose the variation of the Plumbing and Fire Sprinklers Award to include the model term, but they seek an amendment to note 2. Natroad – excuse me – has filed submissions and a witness statement in support of its application to vary the two Transport Awards.

PN23

So that's the material that's come in, in relation to those applications to vary. Submissions in reply and evidence in reply are due by 4 pm on 25 September. And I will probably have a further mention, once the material comes in on the 25th and we will probably – the likely outcome is we'll publish a background paper which will simply set out, in summary form, the submissions filed by the respective parties.

PN24

I'd encourage you to have discussions between now and then and to the extent you can, narrow the issues that might be in dispute. There may be an option in some of these awards to retain some aspect of an existing term and incorporate that aspect into the model term. I'd encourage you to do that where you can. If you do reach a consent position, let us know. The approach we would adopt to that, usually, will be to publish a short statement, saying the parties have reached this position. Here's the draft variation determination.

PN25

We would probably express, you know, depending on what you've agreed to, probably express a provisional view that we'd make a variation in those terms unless we hear from anyone opposing it, by X date type of thing and we'll try and clear out as much as we can before we get to the finalisation of it. Once that statement is out, I'll have another short mention. If anybody thinks that conciliation might be of assistance, by all means let us know.

PN26

We will probably – I know that we've said in the past that if you want an oral hearing, ask for one. Depending on the nature of the arguments, we'll probably have an oral hearing in this, in any event. It – we'll try and compress all of it into a day, to the extent we can, and I'll talk to all of you at a mention about what the order might be and the sequencing, so we don't keep everybody here for the whole day. We try and group it together. And I'll encourage you to try and sort that out amongst yourselves, as well.

PN27

A bit will depend on how much evidence is in there and whether people want to cross-examine witnesses and that sort of thing. But I think if we're going to have an oral hearing for a couple we may as well given everyone the opportunity and often I've found in these things that the reply submissions don't always deal with everything in the initial one and of course, the applicant wants an opportunity to reply to the reply. An oral hearing is the best of doing all that rather that drowning everyone in paper, although I suspect it's a bit late to be concerned about drowning people in paper.

PN28

The other things that I wanted to mention, before checking whether there's anything else. In relation to the Timber Industry Award, the position seems to be that there are discussions continuing and look, I think I've expressed this view before but the provision in the Timber Award is, well, can best be described as opaque, and it's going to be varied because if for no other reason, I don't understand what it means and various parties have different views about what it means.

PN29

So I think we need to address that term. But I want to give you as much opportunity to reach a consent position between you about that clause. Now, bear in mind it doesn't need to be in the form of a draft variation determination. Even if we can get to the point where the parties agree that this is what the clause should provide and just put it in dot points, then we can have a go at drafting it. Or what do you think the clause currently means?

PN30

Because there is a level of complexity with it and we'll just take a little bit more time to deal with that matter. So I'm content for the discussions to continue. If someone can report back in two months as to where they're up to and just so that we don't lose sight of it, and then we'll circle back and pick it up, at some point.

PN31

I think that was all I had. Is there anything in that that I've missed or is there anything that anyone wants to bring to my attention or raise with other parties?

PN32

Mr Izzo?

PN33

MR IZZO: Well, I have one matter, your Honour, in relation to the Waste Management Award.

PN34

JUSTICE ROSS: Yes.

PN35

MR IZZO: So there wasn't an application, as far as I understood, from ABI, AiG, or any party, to vary it but the Waste Management Award's terms were subject of queries by the Full Bench.

PN36

JUSTICE ROSS: Yes.

PN37

MR IZZO: I understand AiG have now put in a submission saying that the model term should be inserted into the Waste Management Award. That – I think ABI and NSWBC, we had it, to borrow a phrase, kind of had the blinkers on, in respect of looking at our – the awards we'd previously filed applications in relation to.

PN38

JUSTICE ROSS: Yes.

PN39

MR IZZO: We would likely seek leave of the Commission to file a half page document today, just indicating that we would like the model term inserted into the Waste Management Award, for the reasons already outlined in out submissions filed on the 21st.

PN40

JUSTICE ROSS: Yes.

PN41

MR IZZO: I think that aligns with AiG's position, in any event.

PN42

JUSTICE ROSS: Yes.

PN43

MR IZZO: And I suspect the Waste Management Award would then probably fall into line with the other 17 that you mentioned earlier today.

PN44

JUSTICE ROSS: Yes. We've – I've noted that the – that's exactly what Ai Group did do. They filed a submission and submissions in reply to that matter are due by 4 pm on 25 September, so there's plenty of time. And we had directed all interested parties to file submissions by 4 pm on 21 August but we haven't heard anything from the Unions either, because the issue we raised in the July decision was the meaning of the current clause, really.

PN45

Because it says, they should pay the money due, as soon as possible. But there's no timeframe prescribed so it's a meaningless provision, and on its face, maybe unenforceable. And that was the issue we were trying to draw to people's attention. Ai Group's responded to that by saying, well, yes it doesn't specify a time period which is inconsistent with – well, goes to the regulatory gap that we raised in an early decision and on that basis, they seek the model term.

PN46

So I think it'll just now go in with the other group and parties will have an opportunity to file submissions in reply by 25 September. By all means file you half page as soon as you can and we'll post that on the website so people are aware of your position.

PN47

Does any other employer organisations have an interest in the Waste Management Award? Natroads? No?

PN48

MR JOHNS: Yes. We do have some members who fall under it, your Honour, so we'd support the statements already made by – made to you and the comments you've made, your Honour.

PN49

JUSTICE ROSS: Okay. And I think the Unions would have a direct interest, and there may be others, but the AMWU, the AWU and the TWU are probably the three. NO doubt, the CFMEU will be in there somewhere but – in one of your many divisions now but I don't want to constrain it to those three. The more, the merrier.

PN50

Again, it's also the sort of thing that may lend itself to some discussion because there are clear deficiencies in the current provision and you may be able to reach an agreement about how you deal with that matter.

PN51

Was there anything else?

PN52

Yes, Ms Bhatt?

PN53

MS BHATT: Your Honour, if I may.

PN54

In relation to the Ai Group claim, we have no difficulty with the course of action that your Honour's proposed. In relation to the Timber Award, if I may just briefly address these. I'm reflecting on the position of the parties, as they were, in September of last year when I last spoke to you about this.

PN55

JUSTICE ROSS: Yes.

PN56

MS BHATT: I'm perhaps less optimistic than I was then about agreement being reached, in relation to this award, but I think that it may be one where the parties might be assisted by conciliation before the Commission, to discuss some of the issues. And so if liberty were granted to request that, perhaps through your Honour's chambers.

PN57

JUSTICE ROSS: Certainly.

PN58

MS BHATT: Once we've had some further discussions amongst ourselves, that might assist in moving the matter along.

PN59

JUSTICE ROSS: Yes.

PN60

MS BHATT: And lastly, in relation to the Aluminium Award, which I know is not listed today, as such, but I note that the decision that was issued recently by the Commission, dealt with that award. It's an award in which Ai Group has an interest. Our submissions did not deal with it.

PN61

JUSTICE ROSS: No. Let me deal with that now.

PN62

We'll be issuing a decision later this afternoon in relation to all the matters arising in July. We note that you've not said anything but propose to provide the parties to that award – just bear with me for a moment – with a further opportunity till Friday next week, to say what you want to say about it.

PN63

Because you'll recall – and look, Ai Group's not alone in this regard, there was no response to Alpine Resorts, Rail, et cetera. In aluminium, we had indicated that if Ai Group and the AWU wish to press their proposed variation, that they were to file a submission on that by 4 pm on 21 August. We didn't receive it but we're not going to give you the drop-dead proposition. We'll give you – the intent is to give you until 2 pm next Friday to let us know what you're planning to do.

PN64

MS BHATT: And we're grateful for that, your Honour. We hadn't exhausted our consultation process. We're trying to ascertain whether it's necessary for us to press that variation, so ‑ ‑ ‑

PN65

JUSTICE ROSS: No, no. That's fine. And look, if that becomes an issue by that timeframe, just keep us informed about where you're up to, that's all.

PN66

MS BHATT: Thank you, your Honour.

PN67

JUSTICE ROSS: Anybody else? Anyone interstate? All right.

PN68

MR JOHNS: Yes, your Honour.

PN69

JUSTICE ROSS: Yes.

PN70

MR JOHNS: David Johns, Natroad.

PN71

JUSTICE ROSS: Yes. Yes, Mr Johns.

PN72

MR JOHNS: Your Honour, I note your comments about continued discussions with the opposing party. Just for the record, I have noted that from my previous discussions with the TWU, that is actually the reason why we've brought the applications forward, is they've made it pretty clear that they're not open to the variations proposed.

PN73

JUSTICE ROSS: Yes.

PN74

MR JOHNS: So whilst we will continue to do everything we can to progress the matter, rather than actually having to go to a contested hearing, based upon previous responses I don't hold out much hope in that line.

PN75

JUSTICE ROSS: No, that's fine, Mr Johns. I don't expect it will be a sparkling success in every case. And I imagine there'll be some matters that will require a determination. But because we've got a program set in place and sometime before the matter reaches the determination point, it was really to encourage parties to take that opportunity, if they haven't already, to explore their capacity to reach any measure of agreement in it.

PN76

But I appreciate, in some cases, that's going to be challenging.

PN77

All right.

PN78

Yes, Mr Maxwell?

PN79

MR MAXWELL: Sorry, your Honour. I was waiting for the HIA to say something but I'm not ‑ ‑ ‑

PN80

JUSTICE ROSS: So you could attack it or?

PN81

MR MAXWELL: No, no. Just in regard to the submission that was filed, they did refer to an outstanding issue in regard to the Construction Award, which I think is dealt with in section 1.3 of their submission.

PN82

MS REGAN: Sorry, I can't hear you in Brisbane, Stuart, I'm sorry.

PN83

MR MAXWELL: Is that better?

PN84

MS REGAN: Yes, that is a little bit, yes. Thank you.

PN85

MR MAXWELL: Okay. Your Honour it's in regard to, I think, the frequency of payments issue and we understand that that matter has been referred or is sitting with this Full Bench.

PN86

JUSTICE ROSS: It is.

PN87

MR MAXWELL: But there's been no directions issued in regard to that.

PN88

JUSTICE ROSS: No, that's right.

PN89

Look, the frequency of payment issue, we'll address once we're finished tidying up the payment on termination issue. If there's an interaction, then parties should bring that to our attention when we're dealing with this matter but we're planning on doing it in sequence, in large measure, to manage the resource implications for the parties.

PN90

So we'll finish all of the issues in relation to payment on termination and then we'll go through a process about how we're going to deal with the frequency of payment issues. I don't anticipate that would occur until early next year and would probably start with us identifying what the issues are and in what awards and trying to get an information base.

PN91

I imagine if we're in arbitral proceedings about that, it's more likely to be middle of next year than before, if that assists in planning. But we're trying to manage it with the calendar for the substantive issues Full Benches and the finalisation of the review in the exposure drafts. That's not to say that if there's some burning issue about one of these matters, that a party can, of course, bring it forward and it can be dealt with earlier.

PN92

But at the moment, that's the current intention. Okay?

PN93

All right. Nothing further? Thanks for your attendance.

ADJOURNED TO A DATE TO BE FIXED [9.53 AM]