PN1

THE VICE PRESIDENT: All right, I'm going to take the appearances as quickly as I can. So Ms Ambihaipahar, you appear for the CEPU, is that right?

PN2

MS A AMBIHAIPAHAR: Yes, that's correct.

PN3

THE VICE PRESIDENT: Perhaps as we go, you might also indicate which award you're interested in.

PN4

MS AMBIHAIPAHAR: In respect of the Electrical Power Award and Electrical Contracting Award.

PN5

THE VICE PRESIDENT: Thank you. Mr Maxwell, you appear for the CFMMEU?

PN6

MR S MAXWELL: That's correct; the Construction General division is in the Manufacturing Award, the Building and Construction Award, the Joinery Award, and the Mobile Crane Hiring Award.

PN7

THE VICE PRESIDENT: All right. Mr Miller, you appear for the AMWU?

PN8

MR G MILLER: Yes, that's correct, your Honour, in relation to the Manufacturing Award, the Graphic Arts Award, Food Manufacturing Award and the Vehicle RS&R Award.

PN9

THE VICE PRESIDENT: All right. Ms Bhatt, do you have a general interest in all the awards?

PN10

MS R BHATT: Yes, Vice President.

PN11

THE VICE PRESIDENT: Well, I won't make you list them all. Mr McGregor for the MBA?

PN12

MR S MCGREGOR: For the MBA, with respect to the On‑Site Award and the Joinery Award.

PN13

THE VICE PRESIDENT: All right. Ms Whish, for ABI and the NSW Business Chamber?

PN14

MS S WHISH: That's correct, and general interest as well.

PN15

THE VICE PRESIDENT: Mr Pill, for the G8 group?

PN16

MR S PILL: Yes, the Group of Eight universities, just in relation to the Higher Education Industry General Staff Award.

PN17

THE VICE PRESIDENT: All right. Who's next? Ms Donayre, is it?

PN18

MS C DONAYRE: Yes.

PN19

THE VICE PRESIDENT: For the FAAA?

PN20

MS DONAYRE: Yes, if it please the Commission. Ms Donayre, initial C, member of the Flight Attendants Association of Australia in relation to the Aircraft Cabin Crew Award.

PN21

THE VICE PRESIDENT: Thank you. Mr Barlow, for the CPSU?

PN22

MR K BARLOW: Yes, your Honour, if it please the Commission, and we have an interest amongst other things in the Airport Employees Award, the Contract Call Centres Award, the Telecommunications Award, the Broadcasting, Recorded Entertainment and Cinemas Award, and the Labour Market Assistance Award.

PN23

THE VICE PRESIDENT: Thank you. Mr Crawford, for the AWU?

PN24

MR S CRAWFORD: Yes, your Honour. There's quite a number of awards. Do you want me to list them?

PN25

THE VICE PRESIDENT: I think the AWU's big enough to give you a pass on that.

PN26

MR CRAWFORD: Thank you, your Honour.

PN27

THE VICE PRESIDENT: Mr Bull?

PN28

MR S BULL: We also have a number of awards. Do you want me to list them?

PN29

THE VICE PRESIDENT: Perhaps not, all right.

PN30

MR BULL: Okay.

PN31

THE VICE PRESIDENT: Mr Ryan, for the AHA?

PN32

MR P RYAN: Yes, your Honour. Our interest is the Hospitality Industry (General) Award and the Restaurant Industry Award.

PN33

THE VICE PRESIDENT: Mr Delaynel, for ASIL?

PN34

MR C DELAYNEL: Yes, the Security Industry Award.

PN35

THE VICE PRESIDENT: Thank you. Mr Baumgartner, from the MTA?

PN36

MR BAUMGARTNER: Yes, indeed, for the Vehicle Manufacturing Repair Services and Retail Award.

PN37

THE VICE PRESIDENT: Thank you. Mr Odgers, for the IEU?

PN38

MR ODGERS: Yes, your Honour, the three Vocational Services Awards.

PN39

THE VICE PRESIDENT: Yes, all right. Thank you. Mr Harmer?

PN40

MR M HARMER: For the Alpine Resorts Awards, your Honour.

PN41

THE VICE PRESIDENT: Thank you. Mr MacDonald, you're for the Public Transport Award - Public Buses Award? What's it actually called these days?

PN42

MR I MACDONALD: Exactly, your Honour.

PN43

THE VICE PRESIDENT: Who else is in Sydney?

PN44

MS N SHAW: Ms Shaw, initial N, for the AFEI and we've got a general interest.

PN45

THE VICE PRESIDENT: Thank you. So is that all the Sydney appearances?

PN46

MR C WARD: Ward, initial C, for the Restaurant & Catering Association.

PN47

THE VICE PRESIDENT: Thank you.

PN48

MR WARD: It's the Restaurant Award and the Fast Food Award.

PN49

THE VICE PRESIDENT: Thank you. So we'll take the appearances in Melbourne. Perhaps you can tell me who's appearing in Melbourne, from left to right?

PN50

MR J MUNROE: Munroe, initial J for Gymnastics Australia. We're interested in the Fitness Industry Award and the Sporting Organisations Award.

PN51

THE VICE PRESIDENT: Thank you.

PN52

MS M MALONEY: Maloney, initial M, appearing on behalf of Tennis Australia with interest in the Fitness Industry Award and the Sporting Organisations Award.

PN53

THE VICE PRESIDENT: All right. Yes?

PN54

MS V WYLES: Your Honour, Wyles, initial V, for the CFMMEU manufacturing division, and we have an interest in the Dry Cleaning and Laundry Award, the Textile, Clothing and Footwear Award, the Joinery Award, and the Manufacturing Award.

PN55

THE VICE PRESIDENT: All right. Yes?

PN56

MS R LIEBHABER: Your Honour, Liebhaber, initial R, for the Health Services Union. We have an interest in the Aboriginal Community Controlled Health Services Award, the Aged Care Award, the Ambulance and Patient Transport Industry Award, the Health Professional and Support Services Award, the Medical Practitioners Award, the Nurses Award, the Pharmacy Industry Award and the Supported Employment and Services Award, and I also appear today on behalf of the ANMF in relation to the Nurses Award.

PN57

THE VICE PRESIDENT: Thank you. Mr Rizzo, are you next?

PN58

MR M RIZZO: Yes, thank you, your Honour. Rizzo, M, on behalf of the ASU. The awards we're interested in, the Airline Operations, Business Equipment, Clerks ‑ Private Sector Award, and Labour Market Assistance.

PN59

THE VICE PRESIDENT: Thank you. Who's next?

PN60

MS T POPOLOWICH: Yes, your Honour, Popolowich, initial T, appearing for Maritime Industry Australia. Our interest is in the Marine Towage Award, the Dredging Industry Award, the Ports, Harbours and Enclosed Water Vessels Award, and the Professional Diving Industrial Award.

PN61

THE VICE PRESIDENT: Thank you.

PN62

MR D HAMILTON: Hamilton, initial D, for the Australian Entertainment Industry Association - the Live Performance Award, the Broadcasting, Recorded Entertainment and Cinemas Award, and the Amusement, Events and Recreation Award.

PN63

THE VICE PRESIDENT: Thank you.

PN64

MR M SARONG: Sarong, initial M, and I am representing Village, Hoyts, Greater Union, Birch Carroll & Coyle, and some other cinemas in respect of the Broadcasting, Recorded Entertainment and Cinemas Award.

PN65

THE VICE PRESIDENT: Thank you.

PN66

MS K KNOPP: Knopp, initial K. I appear for six associations of independent schools, and I have an interest in the Educational Services (Teachers) Award and the Educational Services (Schools) General Staff Award.

PN67

THE VICE PRESIDENT: Thank you.

PN68

MS C PUGSLEY: Your Honour, Pugsley, initial C, for the Australian Higher Education Industrial Association, in respect of the Higher Education ‑ General Staff ‑ Award and the Educational Services (Post Secondary Education) Award.

PN69

THE VICE PRESIDENT: Is that all the appearances in Melbourne? All right. So in Canberra - who do we have in Canberra? Mr Harris, it is, from the Pharmacy Guild?

PN70

MR S HARRIS: Yes, your Honour.

PN71

THE VICE PRESIDENT: And is it Mr Rogers for the NFF?

PN72

MR B ROGERS: It is, your Honour. Our interest is in the Horticultural Award, and the (indistinct) Award, the Pastoral Award and the Sugar Industry Award.

PN73

THE VICE PRESIDENT: Thank you. Brisbane?

PN74

MS REGAN: Regan, initial L, for the Housing Industry Association. Our interest is in the On‑Site Award and the Joinery Award.

PN75

THE VICE PRESIDENT: And finally, Adelaide?

PN76

MS K ROGERS: May it please the Commission, Rogers, initial K, for the Australasian Meat Industry Employees Union. Our interest is in the Meat Industry Award and the Poultry Processing Award.

PN77

THE VICE PRESIDENT: Thank you. The purpose of today is procedurally to work out the way forward in resolving the outstanding issues that were identified in the issues paper that was issued on 5 February 2019, and can indicate obviously there's a number of possibilities. One may be that parties to a particular award may say that there is no issue and the matter is resolved. They may say that the matter can be resolved on the basis of the submissions that have already been filed. There may be a request for a further opportunity to file written submissions, or there may be a request for a hearing. But firstly, perhaps starting with you, Ms Bhatt, I might hear from those organisations, and other organisation which have a broader interest, whether you see the necessity for a general hearing dealing with issues of principle, or whether you're content to deal with these issues on an award‑by‑award basis.

PN78

MS BHATT: I can address that question by saying that we think that the more appropriate course would be for the matter to be dealt with on an award‑by‑award basis, because any arguments that might arise about any perceived ambiguity should, in our view, necessarily be dealt with by reference to the specific terms that are set out in that award. If I can be heard more generally for a potential way forward?

PN79

THE VICE PRESIDENT: Yes.

PN80

MS BHATT: For the purposes of today's proceedings, Ai Group has not undertaken a comprehensive review of the issues paper, but a cursory review has made clear to us that the issues paper does not take into consideration developments that might have eventuated through the exposure draft process. We say that's relevant for two main reasons: firstly, because this very issue of a casual employee's entitlement to overtime, in our experience has been ventilated through the context of the exposure draft process in various specific awards, and has in some instances resulted in a redrafting of the relevant provisions of the exposure draft.

PN81

There are also certain more general principles that have been adopted through the exposure draft process that we say would address some of the issues that are identified in the issues paper, and without labouring the point, if I can just point to one example. In the case of many awards, the issues paper identifies that current provisions prescribing the overtime rate prescribe the rate as time‑and‑a‑half or double‑time, and there's an accompanying observation that says that it is unclear whether the overtime rate is applied to the casual loading. I take that to mean whether or not it compounds on the casual loading.

PN82

As the Vice President would of course know, throughout the exposure draft process the Commission has adopted a practice of removing that terminology of "time‑and‑a‑half" and "double‑time" such that overtime provisions now by and large in the exposure drafts are expressed as a percentage of a particular amount or a rate. That rate then being defined in the definitions, the terminology that has typically been adopted across the exposure drafts is either the "minimum hourly rate" or the "ordinary hourly rate." The ordinary hourly rate is typically defined as the minimum rate inclusive of any all‑purpose allowances, and we say that when read alongside those definitions, it becomes clear that the overtime rate is not intended to compound on the casual loading. So to that extent, this ambiguity is resolved, or at least potentially resolved - there might be some consequential issue that should then be dealt with on an award‑by‑award basis.

PN83

THE VICE PRESIDENT: I think at least some exposure drafts actually express the overtime rate as a dollar amount, which would even have been a bit more unambiguous.

PN84

MS BHATT: I think that's right, Vice President, in the form of the schedules that are now found at the back of the exposure drafts. It seems to us that any analysis that is undertaken by the Commission for the purposes of informing how this process should proceed should, respectfully, take into account what has transpired in the redrafting process before the Commission, and to the extent that any parties advance the position or seek a variation on the basis that current awards are ambiguous, those parties too should be directed to take into consideration the redrafting in the exposure drafts.

PN85

THE VICE PRESIDENT: I suppose in respect of the issues paper, if the interested parties in a relevant award simply say they're all happy with the new provision proposed in the exposure draft, that presumably would be an appropriate resolution of any issue, unless the Commission itself had some outstanding concern.

PN86

MS BHATT: That would appear to be the case. Having said all of this, we appreciate of course that the exposure draft process is to some extent still a moving feast, but there was a timetable that was very recently published by his Honour Ross J on 13 February. It appears from that that the exposure drafts are being republished - some have already been republished; some will shortly be republished. Parties have been given an opportunity to comment in a more limited way than what has previously been the case and that revised exposure drafts will be published in May reflecting "a plain language light touch." It appeared to us that perhaps one way forward for the purposes of this matter is that we await the publication of those exposure drafts, which might be closer to reflecting the instruments that will ultimately replace the current awards, and at that time parties are given another opportunity to provide precisely the sort of indication that the Vice President has alluded to. Unless there are any questions, there was nothing further I intended putting at this stage.

PN87

THE VICE PRESIDENT: What was the - I've forgotten - what was the indicated date for that process?

PN88

MS BHATT: There's no specific date, but the statement refers to May 2019 - "All exposure drafts will be updated and republished with a plain language light touch." I'm reading from the statement published on 13 February.

PN89

THE VICE PRESIDENT: So is one appropriate course to make a general direction that in respect of each award, once the new exposure draft is published there would be a period of time, let's say for the purpose of argument 21 days, for interested parties to say either there is no issue on an inspection of the exposure draft, or alternatively, there is an outstanding issue.

PN90

MS BHATT: We would say that that would be an appropriate course of action.

PN91

THE VICE PRESIDENT: Ms Bhatt, that's the general approach. Is there any specific award you can identify where there is some bigger issue of principle outstanding?

PN92

MS BHATT: The only award that I'm aware of, but I think one of my colleagues from the unions will be better placed to speak to this, is in relation to the Vehicle Manufacturing, Repair, Services and Retail Award. My understanding is that there has been some discussion between the parties and one or more of the parties may be seeking a substantive variation in relation to the entitlement of casuals to overtime. It may be appropriate to set some separate timetable in place for that, but I have to confess that I'm not across the detail of those discussions.

PN93

THE VICE PRESIDENT: All right. What I'm going to do, I indicate as a matter of principle that the proposal discussed with Ms Bhatt sounds generally appropriate unless parties can identify that there is a more substantive underlying issue. So I'll just ask the parties generally, starting in the order in which they entered their appearances, to either indicate that they're content with the approach I've just discussed with Ms Bhatt, or alternatively, whether in respect of a specific award, there is some more live issue which needs to be dealt with separately.

PN94

MS AMBIHAIPAHAR: Your Honour, in respect of the Electrical Contracting Award, my understanding is the Masters Electrical Association have provided some submissions in response to some ambiguity with some of the clauses. The CEPU's position is that there isn't any ambiguity. I feel like maybe based on the submissions that they have filed, this could be dealt with via papers.

PN95

THE VICE PRESIDENT: Sorry, who made the contrary submission?

PN96

MS AMBIHAIPAHAR: I think it's MEA in respect of the Electrical Contracting Award.

PN97

THE VICE PRESIDENT: So they're not here, are they?

PN98

MS AMBIHAIPAHAR: No, your Honour. In respect of the Electrical Power Industry Award, no submissions were made except from the CEPU that we submit that there's no ambiguity in respect of those clauses. I probably have to liaise with MEA to see whether they still want to go ahead with either redrafting any of those clauses. As for looking at May as a period of time, the CEPU doesn't dispute that, but we would be also on the position if other unions want to make - because we've got other interests in Manufacturing and a few other awards - so we're happy to liaise with the other unions to see if there's an alternative date.

PN99

THE VICE PRESIDENT: I'm just looking at the issues paper with respect to the Electrical Contracting Award. Do you have that there?

PN100

MS AMBIHAIPAHAR: Page 15, yes.

PN101

THE VICE PRESIDENT: Yes. So what's the CEPU's position with respect to the issue identified?

PN102

MS AMBIHAIPAHAR: The CEPU filed submissions in December 2017 that we don't believe that there's ambiguity in respect of any of the clauses, in respect of overtime for casuals. MEA are of the position, I think, where they feel that it's not clear enough and that they probably wanted to maybe redraft certain clauses, I think being clause 26.1(a), and the commencement date, so that's 26.1(b) as well - sorry, the commencement is on a daily basis for clause 26.1(b). I have not been in contact with any representatives from the MEA in respect of this issue.

PN103

THE VICE PRESIDENT: What about the position of ABI and the NSW Business Chamber? And I'm looking at the first paragraph.

PN104

MS AMBIHAIPAHAR: Yes, your Honour.

PN105

THE VICE PRESIDENT: Ms Whish, are you in a position to clarify that?

PN106

MS WHISH: Only to say that we stand by that submission. So if the other parties agree that the overtime would be calculated on the default method, which I can explain further if that assists - - -?

PN107

THE VICE PRESIDENT: Yes.

PN108

MS WHISH: What might be useful is when preparing these particular submissions we tried to be as helpful as possible to put our position in relation to all three of the questions that were being asked by the Commission, and in doing so, we looked to a very brief summary on the Ombudsman's website, which I understand is no longer available, but in any event, it described three methods of calculating overtime for casuals, and that was the default method, the all‑purpose approach, and the no casual loading method. So if I could hand that around, that might be of assistance to the parties.

PN109

THE VICE PRESIDENT: I assume the default method is the casual loading is added to the overtime rate but on a non‑compounding basis?

PN110

MS WHISH: That's correct.

PN111

THE VICE PRESIDENT: The all‑purpose method will be that it's added on a compounding basis, and the other method is that casual loading is not payable on overtime at all, is that the - - -?

PN112

MS WHISH: That's right, and generally those awards are quite clear that there is no casual loading that would apply.

PN113

THE VICE PRESIDENT: So the ABI's position is it's the first of those three with respect to this award?

PN114

MS WHISH: Yes. We say it's the default method in relation to this award.

PN115

THE VICE PRESIDENT: So does the CEPU take any different position to that?

PN116

MS AMBIHAIPAHAR: I'd need to seek further instructions on that.

PN117

THE VICE PRESIDENT: All right. Well, that's the issue, that is, whether there is actually a dispute about the way in which it's to be paid or whether it's simply an issue of drafting clarity. Ms Whish, does the exposure draft published to date in this award make this any clearer?

PN118

MS WHISH: To be honest, at this point I'm not sure. I do understand when we prepared these submissions, which was quite some time ago now, we did look to each of the exposure drafts to see if there was any either assistance or possibly a hindrance by what was said in each of the exposure drafts. So we did actually already undergo that process of determining whether or not the exposure drafts were helpful. If they weren't, we have identified that in our submissions and that's why we provided our position even in relation to things that we said were clear, such as the default method. We just wrote it in our submissions to assist all the parties.

PN119

THE VICE PRESIDENT: What do you say is the best way forward to resolve this issue? That is, do we simply wait for the next exposure draft, or should we see if there's a more substantive issue lying here first?

PN120

MS WHISH: It seems in relation to things like calculating the method, the default method, or whether it compounds that that is an award‑specific issue, and I do think the process outlined earlier whereby we wait for the exposure draft to be released, if it hasn't been already, cross‑check these submissions and this issues paper alongside the latest version of the exposure draft, and those parties come together on an award‑by‑award basis. That does seem most appropriate.

PN121

THE VICE PRESIDENT: I'll allow that to occur, but I'm inclined to direct the CEPU to file a note within 14 days identifying what it says is the method for calculation of overtime for casuals under the current award, and then we can work out whether there's any more substantive issue.

PN122

MS WHISH: Thank you.

PN123

THE VICE PRESIDENT: All right. So Mr Maxwell?

PN124

MR MAXWELL: Thank you, your Honour. Your Honour, I know it adverts in the submissions made by the various parties back in December 2017. The ABI, the HIA, and the CFMMEU Construction General division identified that there's no ambiguities in the Mobile Crane Hiring Award and Joinery Award. In regard to the Construction Award, the - - -

PN125

THE VICE PRESIDENT: So if I stop there, if we adopt the default position, then you'll wait for the exposure draft and confirm that that's suitable?

PN126

MR MAXWELL: That's correct, yes. In regard to the Construction Award, because it's a bit curious in that the HIA made a submission back in December 2017 saying there is no ambiguity, and they seem to accept that the ordinary hours were eight for a casual under the Construction Award, which is I think at odds with their recent submission in response to the Full Bench decision on the Construction Awards. But I do know that the Full Bench in the decision on the Construction Awards dealt with this issue at paragraph 411, and perhaps that's best left to those proceedings, and then we can deal with it in the exposure draft.

PN127

THE VICE PRESIDENT: Is that provision resolved? We've issued the draft determinations for that award, which will shortly be issued. Is that resolved in the new hours clause in that award?

PN128

MR MAXWELL: Your Honour, in the decision you made a provisional view in regard to the hours of work clause, and you invited those submissions. Further submissions have been made, and that's awaiting a further decision from the Full Bench.

PN129

THE VICE PRESIDENT: All right.

PN130

MR MAXWELL: But that should then put that issue to rest and then it will be just a matter of just making sure the exposure drafts reflect the decision. And in regard to the Manufacturing Award I understand there's no issue there between the parties.

PN131

THE VICE PRESIDENT: So, Ms Reegan, do you want to comment upon that?

PN132

MS REEGAN: Your Honour, we would agree that there is no ambiguity particular in relation to the Joinery Award. In relation to the Building Award, yes, there is a provisional view expressed by the Bench in relation to the calculation of overtime, so we would agree, yes, it would be probably most appropriate to deal with it through the exposure draft process.

PN133

THE VICE PRESIDENT: So just to be clear, when - I'll make this remark generally. Sometimes parties have made submissions there's no ambiguity but they still have a completely different view about the outcome, so when you say there's no ambiguity can you also add, "We agree with the other parties as to what it means". So, Ms Reegan, when you say there's no ambiguity are you and the CFMMEU at one about the meaning of the provision in the Joinery Award?

PN134

MS REEGAN: Yes, your Honour.

PN135

THE VICE PRESIDENT: Thank you. So that's all for you, Mr Maxwell?

PN136

MR MAXWELL: Yes.

PN137

THE VICE PRESIDENT: So, Mr Miller?

PN138

MR MILLER: Thank you, your Honour. We are generally supportive of the process identified by my friends insofar as commenting on the overtime provisions for casuals throughout the exposure draft process. So that would generally be our position but as my friend sort of flagged earlier there may well be an issue in the Vehicle Manufacturing Repair Services and Retail Award insofar as I am instructed by the vehicle division of our organisation that they intend to pursue a change to that award. I don't have specific instructions on precisely what is being sought by the vehicle division. I understand it would be a variation to clarify precisely when overtime penalty rates commenced for casual employees that are part of the casual, I believe it's the, repair and service stream of that award.

PN139

I understand there's ‑ ‑ ‑

PN140

THE VICE PRESIDENT: So has that application been lodged or foreshadowed somewhere?

PN141

MR MILLER: No, and apologies, your Honour, I did mean to speak to that point. In January 2019 we filed our general submissions in these proceedings, and we flagged that we supported the view of the MTA which was not to look at this issue until the review is complete. However, as I mentioned now after considerable discussions between the parties my instructions are from the vehicle division that they do intend on pursuing a variation to the RS&R award to resolve any ambiguity.

PN142

THE VICE PRESIDENT: When will the AMWU be in a position to lodge that application by way of a draft determination?

PN143

MR MILLER: Your Honour, my instructions are that the vehicle division had anticipated on filing submissions and a draft determination on 30 April.

PN144

THE VICE PRESIDENT: Why 30 April?

PN145

MR MILLER: That is the timetable that is sought by the vehicle division.

PN146

THE VICE PRESIDENT: Why do they need till 30 April?

PN147

MR MILLER: I can't speak to your Honour on that point, apologies.

PN148

MR BAUMGARTNER: Your Honour, I can possibly help a little.

PN149

THE VICE PRESIDENT: Yes. Thank you.

PN150

MR BAUMGARTNER: We discussed the matter last week, and without knowing the outcome of today's proceedings it was agreed that we would look at the process of consultation, possibly submissions and it may be assistance from Bissett C could be sought, to resolve this matter as a part of the exposure draft process that we're going through. So that was the position. We were, in a sense, from our perspective we were trying to persuade the AMWU vehicle division not to pursue this application because we felt we had an agreement already around a maximum of 10 hours for casuals as a part of the process that I think your Honour would be aware and was your decision last year. We flagged a default position as being 10 hours maximum which went into the ordinary hours clause of the exposure draft as part of the settlement of that matter, but we've indicated we're prepared to consult further on that matter and the idea was that there would be a submission from the vehicle division if we didn't resolve it and that would be dealt with under the exposure draft process if that's acceptable.

PN151

THE VICE PRESIDENT: From your perspective, is there any reason why I shouldn't direct the AMWU to at least file a draft determination within 21 days as to the variation it seeks?

PN152

MR BAUMGARTNER: We have no problem with that.

PN153

THE VICE PRESIDENT: I'll make that direction. Then, as I understand it, Mr Baumgartner, you want to have some sort of conciliation or conference process once that's done to see if that can be resolved?

PN154

MR BAUMGARTNER: Yes, that would be our preferable position. Yes.

PN155

THE VICE PRESIDENT: I'll simply direct that the draft determination be filed, then I'll leave the parties to deal with that. One thing I'm going to do when I come to the end of this is indicate that I'll arrange for a further directions hearing once the full process I've described has been completed. Any other awards where we can't adopt the default approach?

PN156

MR MILLER: No, your Honour. But just to clarify in respect of the RS&R Award can I confirm, so we'll be directed to file a draft determination within 21 days.

PN157

THE VICE PRESIDENT: Yes.

PN158

MR MILLER: But no submissions at that stage.

PN159

THE VICE PRESIDENT: No, just a draft determination and then unless there's some dispute about it, the parties want to engage in a conference process, they can communicate with the Commission about this and then when we have a further directions hearing, we can be updated as to where that's up to.

PN160

MR MILLER: Thank you, your Honour.

PN161

THE VICE PRESIDENT: Ms Bhatt, did you want to identify any specific awards for the different approach?

PN162

MR BHATT: No, nothing beyond the Vehicle Award. Thank you.

PN163

THE VICE PRESIDENT: Thank you. Mr McGregor?

PN164

MR MCGREGOR: Thank you, your Honour. I'd just say that we're in support of what the CFMMEU and the AHIA have said in respect to the Joinery Award and the Construction Award.

PN165

THE VICE PRESIDENT: So with the Construction Award you're content with the progress as to the hours clause to take its course and resolve the issue there?

PN166

MR MCGREGOR: That's exactly right, yes.

PN167

THE VICE PRESIDENT: Yes.

PN168

MR MCGREGOR: Thank you.

PN169

THE VICE PRESIDENT: Thank you. So, Ms Whish, did you want to raise any specific issues in relation to particular awards?

PN170

MS WHISH: Just one issue which might be a common issue is that the HSU has filed a number of draft determinations and they do appear to be somewhat in response to the decision last year in relation to 38 hours, 10 hour spans, things to that effect, and I wondered if that might be more appropriately dealt with as a common issue rather than award specific issues.

PN171

THE VICE PRESIDENT: So which awards are they?

PN172

MS WHISH: It looks to be the Aboriginal Community Controlled Health Services Award.

PN173

THE VICE PRESIDENT: Just hold on a second. Yes?

PN174

MS WHISH: Aged Care.

PN175

THE VICE PRESIDENT: Yes.

PN176

MS WHISH: The Medical Practitioners Award.

PN177

THE VICE PRESIDENT: Yes.

PN178

MS WHISH: The Nurses Award.

PN179

THE VICE PRESIDENT: Yes.

PN180

MS WHISH: And also the Pharmacy Award. Having said they could be dealt with as a common issue, they could just as easily be dealt with in an award specific basis, it's just that they will all share a common thread, which is referring to previous decisions.

PN181

THE VICE PRESIDENT: Let me just ask Ms Liebhaber about that. Ms Liebhaber, do you accept there's an application - there's some commonality applicable to the awards that Ms Whish has just identified?

PN182

MS LIEBHABER: I think there probably is some commonality but I think our preference would be to deal with these on an award by award basis.

PN183

THE VICE PRESIDENT: So do you have any proposal as to how procedurally those applications might be dealt with?

PN184

MS LIEBHABER: We ‑ ‑ ‑

PN185

THE VICE PRESIDENT: That is do they require a hearing? Do they require the hearing of evidence? Can they be dealt with on submissions?

PN186

MS LIEBHABER: No, I would think this could be dealt with on submissions in the manner that your Honour suggested in terms of procedure ‑ ‑ ‑

PN187

THE VICE PRESIDENT: Sorry, I can't hear you, Ms Liebhaber.

PN188

MS LIEBHABER: The procedure that your Honour suggested in terms of the response to exposure drafts and an opportunity to put submissions I think would be sufficient. I don't think a hearing would be necessarily required.

PN189

THE VICE PRESIDENT: So these are substantive variations. If you wanted to file submissions in writing how long might you need to do that?

PN190

MS LIEBHABER: I mean, we put in submissions on these variations. We ‑ ‑ ‑

PN191

THE VICE PRESIDENT: So you may be content to rely upon the submissions you've already put on?

PN192

MS LIEBHABER: Yes, your Honour. Yes.

PN193

THE VICE PRESIDENT: And you're happy for those applications to be considered on the basis of those submissions?

PN194

MS LIEBHABER: Yes, I think we would be happy for those submissions to be considered as is.

PN195

THE VICE PRESIDENT: All right.

PN196

MS LIEBHABER: Can I just note that I believe an issues paper seems to have left out the Ambulance and Patient Transport Industry Award.

PN197

THE VICE PRESIDENT: Yes. Was there an application of the same nature with respect to that award?

PN198

MS LIEBHABER: We did have a suggestion. We did have something in our submissions about that award. I believe we didn't put in a draft determination, but just suggested it could be clarified with amending a table in the award.

PN199

THE VICE PRESIDENT: Ms Whish, do you want to respond to that? That is, it's suggested that leaving aside the Ambulance Award that the HSU would be content to rely upon their submissions. In light of that what do you say is the appropriate path forward?

PN200

MS WHISH: We would just like the opportunity to respond to those submissions. I think it just depends whether there's more utility in responding to those now or whether we align that response with having seen the latest version of the exposure draft.

PN201

THE VICE PRESIDENT: As I understand it there are claims for substantive variations.

PN202

MS WHISH: Yes. So in that case ‑ ‑ ‑

PN203

THE VICE PRESIDENT: So there's no reason to think the exposure draft is going to deal with them, is there?

PN204

MS WHISH: In that case, I think we'd just like the opportunity to respond to those submissions on the papers, and then if a decision can be reached on those then I guess will affect that decision into the exposure draft after you've heard from us and any other party.

PN205

THE VICE PRESIDENT: How long will you need to file submissions in reply?

PN206

MS WHISH: If we could have at least a month to do that that would be much appreciated.

PN207

THE VICE PRESIDENT: What I'll do is allow you six weeks, and then I'll allow two weeks for the HSU to respond. Is there any other party with an interest in these awards? Ms Bhatt, you look concerned.

PN208

MR HARRIS: Yes, your Honour, Harris here for Pharmacy Guild.

PN209

THE VICE PRESIDENT: Yes.

PN210

MR HARRIS: This is a Full Bench decision that HSU is going against and then asking for a significant variation to the award for the Pharmacy Industry Award here and I would suggest that HSU would have to put on evidence to say why these changes are required.

PN211

THE VICE PRESIDENT: That might well be so, but they say they're content to rely upon their existing submissions, and the matter will be ‑ ‑ ‑

PN212

MR HARRIS: They're re-arguing it again, your Honour. They were involved in the initial process here too.

PN213

THE VICE PRESIDENT: Mr Harris, I can't force them to run a stronger case than the one they want to run. Are you content to have six weeks to reply to what's been put on today?

PN214

MR HARRIS: No problems, your Honour, on that side. I'm just putting that to your attention that they've already been involved in this case previously.

PN215

THE VICE PRESIDENT: All right. Thank you. Ms Bhatt?

PN216

MR BHATT: I think this discussion might be highlighting one of the difficulties with dealing with these awards together. My very quick read of this submission filed on 23 January by the HSU suggests that some of the variations sought might indeed be substantive in nature but others are at least characterised as only seeking a variation to the exposure draft so as to clarify what the HSU says is the current entitlement. Now, on my feet I'm not able to confirm whether or not we would agree with that interpretation. It might be that the course of action your Honour has just proposed can nonetheless be worked through for the purposes of those awards, but equally ‑ ‑ ‑

PN217

THE VICE PRESIDENT: It may be that a party in response can say they agree with the draft in which case we can ensure that's repeated in the exposure draft.

PN218

MR BHATT: The only other point I would make is in relation to the Health Professionals and Support Services Award there was an issue between the parties during the exposure draft process as to the drafting of the overtime clause. That issue had been referred to a Full Bench that was dealing with substantive variations in relation to that award but I think certainly the matter slipped through the cracks and wasn't dealt with by that Full Bench, and I think it might now have another home but it hasn't been dealt with as yet. I don't know what that home is. It might be this, it might be something else.

PN219

THE VICE PRESIDENT: But that's a different issue is it or ‑ ‑ ‑

PN220

MR BHATT: I think it would be tied up with the submissions that the HSU is making about overtime for casuals.

PN221

THE VICE PRESIDENT: Is there any harm if we just receive the submissions, then we can work out what to do with it?

PN222

MR BHATT: No, there isn't.

PN223

THE VICE PRESIDENT: So to the extent that you want to get involved are you happy with the six weeks?

PN224

MR BHATT: Yes, Vice President. Thank you.

PN225

THE VICE PRESIDENT: Any other party with an interest in those awards? No, okay. So, Ms Whish, are they all the awards you wish to specifically raise?

PN226

MS WHISH: It is. Can I just be clear, the six weeks, that's not in relation to every award that's been mentioned in the HSU's submissions. It's just the draft determinations that I raised earlier.

PN227

THE VICE PRESIDENT: I'm responding to the ones that you identified.

PN228

MS WHISH: Excellent. Thank you.

PN229

THE VICE PRESIDENT: So just to be clear, we'll go through that again, there's the Aboriginal Community Controlled Health Services Award, the Aged Care Award. Was the Health Professional Support Services, that wasn't nominated by you, was it?

PN230

MS WHISH: No, it's not.

PN231

THE VICE PRESIDENT: No.

PN232

MS WHISH: There are submissions from the HSU on that point but to resolve some of Ms Bhatt's concerns it might be that that award's home is as part of the exposure draft process. It remains there.

PN233

THE VICE PRESIDENT: So it was the Medical Practitioner's Award, the Nurses Award and the Farm Industry Award.

PN234

MS WHISH: That's right.

PN235

THE VICE PRESIDENT: So in respect of those awards the direction will be that interested parties will have a period of six weeks to file submissions in response to the HSU's submissions and then the HSU will have a further two weeks to put on any submissions in reply.

PN236

MS WHISH: Thank you.

PN237

THE VICE PRESIDENT: Mr Pill?

PN238

MR PILL: Thank you, your Honour. Your Honour, my client's interest is just in the one award, the Higher Education Industry General Staff Award. It appears in the report on page 19, 43 at the bottom. We have no objection to what your Honour is calling the default process in relation to forming the extent of any residential ambiguity after the final exposure drafts. It would also enable some discussions about a couple of matters that I will just mention to the Commission.

PN239

It would have to be acknowledged that that process may not dispose of the issue in its entirety. The situation we have with the Higher Education Award is that is essentially silent on some of these issues, but that silence is largely because of an inadvertent omission at the time of making the Modern Award. There was a settled position in the pre-reform awards that went to these issues and the parties put that collectively to the Bench at the time of making of the award.

PN240

Both we on behalf of our clients and the relevant union, the NTEU, although they're not here today, filed draft determinations. There are some issues in those determinations that we're apart on. Some of those are just drafting style issues. The main issue that we appear to be apart on is that the NTEU's draft determination we say actually goes beyond the whole casual issue and seeks to change entitlements to overtime. So, for example, a cohort of employees are entitled to time-and-half for the first three hours and then double time thereafter, and their draft says time-and-a-half for the first two hours and double time thereafter.

PN241

I had anticipated discussing that with them this morning. They're not here, so that period of time and the exposure draft process may lead to a consent position, if that's the right language in this context. To the extent that it didn't I would envisage the process of directions for filing submissions and it be determined without the need for a hearing. If your Honour pleases.

PN242

THE VICE PRESIDENT: Thank you. Ms Pugsley, did you want to say anything about that matter?

PN243

MS PUGSLEY: Thank you, your Honour. We support Mr Pill's position.

PN244

THE VICE PRESIDENT: All right.

PN245

MS PUGSLEY: If the Commission pleases.

PN246

THE VICE PRESIDENT: Thank you. The Flight Attendants Association, Mr Donayre?

PN247

MS DONAYRE: Thank you, your Honour. The relevant modern award for the association's members impacted by the review is the Aircraft Cabin Crew Award. With respect to the first question asked by the Commission about the issues paper we disagree with the conclusion that the entitlements for casuals working overtime is unclear or ambiguous.

PN248

We submit that it's clear that the base salary rate for a casual employee does include the casual loading and that the loading is therefore included in the base salary rate when calculating overtime payments for casuals for clauses B61 and D61. Having said that the association is happy to wait for the next exposure draft to make further submissions.

PN249

THE VICE PRESIDENT: Sorry, can you just repeat for me how you say it's calculated?

PN250

MS DONAYRE: We say it's calculated in the sense that it's clause B61, schedule B prescribes the overtime rate for domestic cabin crews as a penalty of 100 per cent additional to the employees' base hourly rate. Clause D61 also prescribes the overtime rate as a penalty of 100 per cent additional to the employees' base hourly rate. We believe that clause 14.2 - we do not believe it provides any ambiguity or is unclear as it sets out that a casual employee will be paid per hour at the rate of 138th of the weekly rate plus casual loading of 25 per cent. We submit that the base hourly for casual employees is therefore derived by taking the relevant weekly rate for the classification in question and dividing by 38 and adding a casual loading of 25 per cent.

PN251

THE VICE PRESIDENT: So that's what I think Ms Whish called the default process, that is it's added on a non-compounding basis. Are you aware that any employer party take issue with that?

PN252

MS DONAYRE: Not that I'm aware of, no.

PN253

THE VICE PRESIDENT: So the default approach of waiting to see if the exposure draft leaves that beyond doubt is satisfactory in this case?

PN254

MS DONAYRE: In our submission, yes.

PN255

THE VICE PRESIDENT: Thank you. Mr Barlow?

PN256

MR BARLOW: Thank you, your Honour. A few awards to mention. The first one is the Airport Employees Award where we say that the payment of overtime is not ambiguous. There have only been two submissions in this matter according to the summary issues paper provided by the Commission from United Voice and the CPSU, so it may very well be that that can be resolved or not resolved as part of the exposure draft process, your Honour.

PN257

Turning to the ‑ ‑ ‑

PN258

THE VICE PRESIDENT: So when you say it's not ambiguous, well, what do you say is the approach?

PN259

MR BARLOW: Sorry, your Honour. We say the approach is that casual employees are entitled to overtime on the default model that has just been outlined by my colleague from the FAAA, your Honour.

PN260

THE VICE PRESIDENT: Thank you.

PN261

MR BARLOW: The Broadcasting Reporters and Entertainment Award and Cinemas Award, your Honour, our interest here is in television broadcasting and technical staff of radio broadcasting. That appear to have been varied submissions but I believe based upon what the ABI have put, your Honour, is that the CPSU and ABI agree that the entitlements there are not ambiguous and - sorry, for those two categories, I should say, and overtime is payable to casuals on the default approach, your Honour. But there are other areas in that award that we do not represent, and maybe ABI can talk to that if they so choose.

PN262

THE VICE PRESIDENT: So Cinemas, is that the media Entertainment and Arts Alliance is it, that represent the cinemas part?

PN263

MR BARLOW: I can't talk to the cinemas part I'm afraid, your Honour. We have no interest in the cinemas part of that award.

PN264

THE VICE PRESIDENT: Right. Go on.

PN265

MR BARLOW: Your Honour, turning to the Contract Call Centres Award we say again it is unambiguous that casuals are entitled to overtime on the default basis, and I believe this is also on board that ABI has put submissions on as well, although I don't believe that is reflected in the summary document, the issues paper. Again, I suggest that that may be left to the process outlined for the exposure drafting. If there are any issues we will raise them at that stage.

PN266

Your Honour, dealing with the Labour Market Assistance Award, this is one where the parties have a different view, your Honour, based upon the summary, the issues paper provided by the Commission, your Honour. ABI has a different view from the CPSU and Jobs Australia has also filed a draft determination, and the ASU have also put on submissions regarding that, your Honour. So it may very well be that that needs to be subject to a different process than the exposure draft that you've previously provided.

PN267

THE VICE PRESIDENT: Just hold on, Mr Barlow. Mr Barlow, just let mew read this again. So the CPSU's position is that the casual loading is payable on overtime on a non-compounding basis?

PN268

MR BARLOW: That's my understanding, your Honour.

PN269

THE VICE PRESIDENT: We'll stop there. So, Ms Whish, are you able to say this? Does the ABI take a contrary view to that?

PN270

MS WHISH: Forgive me, I've actually lost which award we're up to.

PN271

THE VICE PRESIDENT: We're in the ‑ ‑ ‑

PN272

MR BARLOW: Sorry, Labour Market Assistance Award.

PN273

THE VICE PRESIDENT: ‑ ‑ ‑Labour Market Assistance Award.

PN274

MS WHISH: I'll just be one moment.

PN275

THE VICE PRESIDENT: Yes.

PN276

MS WHISH: Your Honour, we were referring to it as the default method, but we say that that's the method used to calculate the rate payable when overtime is performed during ordinary hours, and that the all-purpose method is used to calculate the rate for overtime performed outside of those hours. It's slightly unusual, but ‑ ‑ ‑

PN277

THE VICE PRESIDENT: Are you happy to take that as an answer, Mr Barlow?

PN278

MR BARLOW: Yes, your Honour. We'll accept that, and if there are any issues maybe that can be clarified through the process.

PN279

THE VICE PRESIDENT: So we can just adopt the default approach for that one?

PN280

MR BARLOW: Thank you, your Honour.

PN281

THE VICE PRESIDENT: Does any other party have an interest in that award? Yes, so, Mr Barlow, any other awards?

PN282

MR BARLOW: Yes, your Honour, turning to the Telecommunications Industry Award.

PN283

THE VICE PRESIDENT: Yes.

PN284

MR BARLOW: We say I think the only submissions in that award, your Honour, were again from the CPSU and ABI. We say it is clear in that award that casuals are entitled to overtime and on a default basis, your Honour.

PN285

THE VICE PRESIDENT: So, Ms Whish, there seems to be no dispute about that?

PN286

MS WHISH: Apologies, which award?

PN287

MR BARLOW: Telecommunications ‑ ‑ ‑

PN288

THE VICE PRESIDENT: Yes, Telecommunications Services Award on page 39.

PN289

MS WHISH: And what was my colleague's position on that?

PN290

THE VICE PRESIDENT: He says that the default method that is loading payable on overtime on a non-compounding basis.

PN291

MS WHISH: We have the same method.

PN292

THE VICE PRESIDENT: So we can adopt the default procedure for that one.

PN293

MR BARLOW: Thank you, your Honour. I just wish to take us back to page 27, your Honour, to the Miscellaneous Award which I omitted to mention earlier.

PN294

THE VICE PRESIDENT: Yes.

PN295

MR BARLOW: This is an award where there are various submissions, your Honour, where ABI and the CPSU had the same view that casuals are not entitled clearly under that award to overtime.

PN296

THE VICE PRESIDENT: At all?

PN297

MR BARLOW: Yes, your Honour. However, United Voice has a slightly different view from that, your Honour. And both the union parties at least have put in their submissions that it may be appropriate in that award to seek a variation such to entitle casuals to overtime, but that's just being mooted, your Honour.

PN298

THE VICE PRESIDENT: I'll start with you, Mr Bull, is that right that - well, what do you say is the current position under that award?

PN299

MR BULL: We say there is an entitlement - see, the problem I think with hourly weekly overtime is we've lodged a determination. We say it's ambiguous. Our determination effectively is putting in an entitlement to overtime and clarifies the intraday and intraweek overtime, so we say with the Miscellaneous Award it's ambiguous.

PN300

If I might, I actually need to go in about 10 minutes, can I just address our awards quickly?

PN301

THE VICE PRESIDENT: No, I just want to deal with the Miscellaneous Awards.

PN302

MR BULL: It's ambiguous. So we've got a substantive claim and I don't know whether the exposure draft is going to solve anything.

PN303

THE VICE PRESIDENT: So the exposure drafts published to date haven't made - provided any clarity with that issue?

PN304

MR BULL: I couldn't say, off the top of my head, but it appears not. If we're making a substantive claim we would suggest that the issue is not being dealt with in the exposure draft process. That is, they've put something in that isn't there.

PN305

THE VICE PRESIDENT: All right. Ms Whish, do you want to say anything about this?

PN306

MS WHISH: Just very briefly, to say that the way the award is currently drafted it's pretty clear that casuals aren't entitled to overtime so any claim for casuals to be entitled to overtime we might need to run a more substantive claim process for that specific claim.

PN307

THE VICE PRESIDENT: All right. Well, Mr Bull, your side has put in a draft determination so you might be seen as the applicant, so how do you suggest this matter should be dealt with procedurally?

PN308

MR BULL: This is addressing the general issue. If you go by award process you're essentially going to have to run arguments whether a right for overtime is appropriate in relation to a particular award. If the Commission were to make a general finding as to principle, that overtime - casuals, rather, should get overtime, then I would imagine it would becomes a simpler process of adjusting provisions within the body of the Modern Awards to reflect that.

PN309

We've got a number of substantive claims where we say its - well, it's not ambiguous, casuals do not have an entitlement to overtime. These matters are not going to be resolved by waiving the exposure draft, with an emphasis on plain language, being released in May.

PN310

THE VICE PRESIDENT: All right, so which awards are they?

PN311

MR BULL: Just quickly, there's some issues with the issues paper, it seems to have left out the Ambulance Award, as my friend indicated. It's also not mentioned that we have claims, in relation to corrections, and attention to the Private Sector Award. We also had a draft determination for the Aboriginal Community Controlled Health Services Award.

PN312

THE VICE PRESIDENT: For the what?

PN313

MR BULL: The Aboriginal Community Controlled Health Services Award. So just to go quickly through our claims, we've got, essentially, a substantive claim for the Aboriginal Community Controlled Health Services Award. We don't have a - we have a very minimal - no real claim - - -

PN314

THE VICE PRESIDENT: We discussed that before. You didn't want to take a different approach from what was suggested for that award?

PN315

MR BULL: No.

PN316

THE VICE PRESIDENT: Okay.

PN317

MR BULL: We've got a substantive claim for the Corrections and Detention (Private Sector) Award.

PN318

THE VICE PRESIDENT: Is that the same issue?

PN319

MR BULL: Yes. We say they just don't have an entitlement to overtime.

PN320

THE VICE PRESIDENT: Yes?

PN321

MR BULL: And I'm really just looking at our draft determinations. I'm assuming when we put in something which creates an entitlement to overtime we're doing that because currently, in the award, that entitlement doesn't appear to exist. Dry Cleaning is a similar one where we say that there's a requirement to insert express provisions expressing overtime for casuals.

PN322

THE VICE PRESIDENT: Just hold on.

PN323

MR BULL: Educational - - -

PN324

THE VICE PRESIDENT: Just hold on.

PN325

MR BULL: Sorry.

PN326

THE VICE PRESIDENT: Yes?

PN327

MR BULL: We've got a payment in relation to the Educational Service (Schools) General Staff, which appears to relate to intra-week overtime.

PN328

THE VICE PRESIDENT: Sorry, relates to what?

PN329

MR BULL: Intra-week overtime for casuals.

PN330

THE VICE PRESIDENT: What does that mean?

PN331

MR BULL: Well, it seems to be clarifying that if they work more than 38 hours a week that they are entitled to overtime.

PN332

THE VICE PRESIDENT: Are they entitled to overtime now?

PN333

MR BULL: I would suggest - - -

PN334

THE VICE PRESIDENT: That is, is this one in the same category?

PN335

MR BULL: I would suggest that because they've made a draft determination that it's not clear that they are, your Honour. Similarly, in the Educational Services (Teachers) Award, they've got a draft determination which appears directed towards intra-week overtime.

PN336

We've discussed - sorry.

PN337

THE VICE PRESIDENT: Yes?

PN338

MR BULL: We've discussed the Miscellaneous Award. We say it's ambiguous, there needs to be an entitlement. That's a substantive claim. The Security Services Industry Award, we've also got a substantive claim to overtime an there appears to be an active dispute in the sense that the industry association is, at least, engaged in what we've proposed.

PN339

Now, there's then claims in relation to what I've termed the Hospitality Award, which is the Clubs, Restaurants and Hospitality Award, and that's, essentially, a claim to disaggregate or have the default position apply in relation to those three awards. In those awards there's absorption, in relation to penalties. So 25 per cent gets absorbed into the overtime. We say that that should be disaggregated. My friend will say that we're just sore losers and seeking to re-agitate something which we've already agitated. Once again, these things won't be resolved by waiting for exposure drafts in the main.

PN340

THE VICE PRESIDENT: Didn't that come up in the part-time casual claim?

PN341

MR BULL: It did and the Bench said that we lost, but you emphasised that it didn't represent a decision of principle.

PN342

THE VICE PRESIDENT: You just filed it too late.

PN343

MR BULL: Correct.

PN344

THE VICE PRESIDENT: So that's the hospitality - - -

PN345

MR BULL: The three hospitality awards.

PN346

THE VICE PRESIDENT: Yes, and what's the one, clubs, is it?

PN347

MR BULL: Clubs.

PN348

THE VICE PRESIDENT: All right. Well, we might deal with these in two categories. Firstly, the United Voice claims where it doesn't appear there's currently any entitlement to overtime at all, but what parties are interested in those awards, Ms Whish?

PN349

MS WHISH: Yes, ABI and NSWBC would be interested.

PN350

THE VICE PRESIDENT: Right. So you'd accept that that's, in effect, a substantive claim which would require a different procedural result?

PN351

MS WHISH: I would.

PN352

THE VICE PRESIDENT: Okay. Mr Delaynel?

PN353

MR DELAYNEL: Yes, the Australian Security Industry Association, we have an opposing view. We don't believe that overtime collects the 25 per cent casual loading in any way. We've put submissions to the Commission on that. There is a draft determination that's been provided by United Voice, which we would oppose. I think we would agree with ABI on the process for that.

PN354

THE VICE PRESIDENT: Sorry, Mr Bull, I thought you were saying that in that award there's no overtime at all?

PN355

MR BULL: Well, we say there isn't. It needs to be clarified at least. Forgive me, this was done some time ago and I'm working off what we've filed, so I assume if we filed something that looks like a new entitlement we've done it because we don't think there's anything in the current award that does the job, so to speak.

PN356

So our draft determination in the Securities Services Industry deals with disaggregating the casual loading and also appears to be inserting an entitlement for intra-week and intra-day.

PN357

THE VICE PRESIDENT: But is that in a different category? That is, Mr Delaynel is saying they get overtime but they don't get the casual loading.

PN358

MR BULL: Well, we don't believe they do.

PN359

THE VICE PRESIDENT: Don't believe they do what?

PN360

MR BULL: They get overtime.

PN361

THE VICE PRESIDENT: At all?

PN362

MR BULL: That would appear to be the deduction, from the fact that we've filed a draft determination inserting an entitlement.

PN363

THE VICE PRESIDENT: All right. Any other employer party interested in these matters? Mr Odgers, or any other party?

PN364

MR ODGERS: Yes, your Honour. In relation to the Educational Services (Schools) General Staff Award, the issues paper has stated that it's unclear as to whether or not there's an entitlement to overtime for casuals. I think that was the position that Mr Bull agreed with. In December of 2017 we filed a draft determination with the employers, as it was, at that stage, suggesting that an entitlement to overtime should be clarified. The employers thought better of that and then filed a draft determination in January of last year suggesting that the award should be subject to a clarification and that there was no entitlement to overtime. So there's a primary issue there to be determined.

PN365

Secondly, the Educational Services (Teachers) Award, Mr Bull referred to the fact that there was an issue there. That issue goes just to the second dot point of the issues paper, which is schedule B.4.1, where it's unclear as to whether there's an entitlement and, again, there's a substantive issue to be determined.

PN366

The body of the award, in respect of teachers working in schools, as I understand it there is no issue that there is no entitlement to overtime for casuals.

PN367

THE VICE PRESIDENT: Coming back to you, Mr Bull, how do you propose - you want all these issues dealt with together, is that the gravamen of your submission?

PN368

MR BULL: No, not necessarily, but maybe in relation to the substantive claims parties - for some of these matters we've simply lodged a claim and there's been no opportunity for those who might oppose it to agree or not agree and so forth. So, in relation to the substantive claims, maybe there should be directions to the effect that any party opposing the claim has an opportunity to file submissions and matters should be mentioned on a further date.

PN369

THE VICE PRESIDENT: So what purpose does that serve?

PN370

MR BULL: Well, to clarify if there's any agreement in relation to what's proposed.

PN371

THE VICE PRESIDENT: Is it likely that anyone would change their mind about this?

PN372

MR BULL: Probably not.

PN373

THE VICE PRESIDENT: Mr Ryan, are you going to change your mind about this?

PN374

MR RYAN: I'm quite happy to clarify that immediately there is disagreement.

PN375

MR BULL: Well, the security people, they're the ones that have actually put on something, in relation to our substantive claim, so we know where we stand with them.

PN376

MR RYAN: We've put our submissions, your Honour.

PN377

THE VICE PRESIDENT: Is it envisaged that any evidence might be required, with respect to those awards?

PN378

MR BULL: I don't think - this is the point, if there's a general decision of principle saying that a Modern Award should generally contain provisions that deal with overtime, probably not. But if that's not going to be the case, I'd imagine you'd need evidence.

PN379

THE VICE PRESIDENT: But we'd have to hear the case first before we make a statement like that. So is there any reason why these matters shouldn't be programmed for hearing and just make a general directions that parties can file evidence and submissions as they see fit and set some hearing dates?

PN380

MR BULL: That would be appropriate.

PN381

THE VICE PRESIDENT: I would have in mind some hearing dates in late July? Would anyone object to a timetable which led to hearing dates in late July? All right, I'll work that out. But what I propose to do, with respect to those awards, and I'll come to the second category in a second, that is the Hospitality Awards, that there will be hearing dates in the week beginning 29 July set down and that directions will be made for the filing of evidence and submissions.

PN382

Now, in respect to the Hospitality Awards, Mr Ryan, firstly, do you want to say anything about that?

PN383

MR RYAN: Thank you, your Honour. Firstly, we filed correspondence on 18 December 2017. In that correspondence we indicated that the applicability of overtime for casual employees and the rate which overtime is payable was clarified at determinations issued on 12 December '17. Those draft determinations took effect from the first pay period commencing on or after 1 December 2018.

PN384

In terms of what Mr Bull said, we wouldn't describe them as sore losers, what actually happened in that case, and this was the casual and part-time common issue case, United Voice sought the introduction of overtime for casual employees and it was successful. It wasn't successful in relation to the daily and weekly thresholds which triggered overtime, but it was 100 per cent successful in relation to the rate. United Voice ran a case that was, on all fours, the no casual loading case, and that was what the Full Bench, in those proceedings, determined and that's what's been in to date. So, in our submission, there's no ambiguity in relation to the applicability or the rate for casual employees, in both the Hospitality Award and the Restaurant Award.

PN385

THE VICE PRESIDENT: All right. So you regard the issues as being resolved to finality, in other words?

PN386

MR RYAN: Yes, your Honour. Unless - look, to be fair, and in the final statement on decision which was issued, the Full Bench did say, and this is in United Voice's correspondence, that:

PN387

We emphasise that this does not represent any decision of principle about the issue, which may be revisited at a future time, upon application. If an application is made -

PN388

And none has been made:

PN389

it would be a more substantive application, rather than resolving in ambiguity.

PN390

THE VICE PRESIDENT: All right. Mr Shaw?

PN391

MR SHAW: Yes, your Honour.

PN392

THE VICE PRESIDENT: Do you want to say anything about this issue?

PN393

MR SHAW: I imagine our submissions would obviously reflect our friend from the Australian Hotels Association. I would like the opportunity to submit further (indistinct) further proceedings.

PN394

THE VICE PRESIDENT: All right. Mr Bull, how do you wish to proceed with three awards?

PN395

MR BULL: It's not a matter where we'd be proposing to call a great deal of evidence, we'd be, essentially, asking the Commission to accept, as a matter of principle, that the casual loading and overtime should be disaggregated, because they're directed towards different types of disutility.

PN396

THE VICE PRESIDENT: Should these be dealt with as part of the same hearing or - - -

PN397

MR BULL: I think so. Essentially, we'd be putting on a more sophisticated submission, we wouldn't be having lots of evidence from casual bartenders and so forth. It's a matter of principle. The Commission either agrees or it doesn't agree. It's come halfway there, we say it should go the whole hog, so to speak.

PN398

THE VICE PRESIDENT: All right. Mr Ryan, are you content to deal with it in that fashion, just - I mean there might be more detailed programming needed as to how, but to deal with it in a hearing, beginning the week beginning 29 July.

PN399

MR RYAN: Yes, your Honour.

PN400

MR BULL: I'm going to have to excuse myself because I'm already - I apologise.

PN401

THE VICE PRESIDENT: Where do you have to go to?

PN402

MR BULL: It's a private medical appointment, which you don't want to know about. Anyway, I'm going to leave you with my colleague, thank you.

PN403

THE VICE PRESIDENT: All right. Mr Ryan, are you content with that course?

PN404

MR RYAN: Yes, your Honour.

PN405

THE VICE PRESIDENT: All right. Does anyone else want to say anything about those awards? All right. Are you finished?

PN406

MR RYAN: I have finished, thank you, your Honour. The CPSU has a minor interest in some other awards and we're content for those processes to be dealt with as part of the exposure drafting process, your Honour.

PN407

THE VICE PRESIDENT: All right, Mr Crawford?

PN408

MR CRAWFORD: Your Honour, we're comfortable with the general sort of approach that's been discussed this morning. We do agree with the AiG that in a number of awards the issue has already been resolved. In a number of exposure drafts there already exists a rates table for casual overtime rates, which has been agreed between the parties. So, despite that, a number of those awards are reflected in the issues paper, so we say those can just be taken out.

PN409

However, there are some awards where the issue has really been parked, pending these proceedings. So, one way or another, there is dispute, there is conflict about what the current award means. It will have to be determined at some point, but we're comfortable to await the new round of exposure drafts, but we have some doubt about whether they will clarify the issue.

PN410

THE VICE PRESIDENT: What awards are those?

PN411

MR CRAWFORD: For example, aluminium, hydrocarbons.

PN412

THE VICE PRESIDENT: Let's just look at aluminium, so what's going on there?

PN413

MR CRAWFORD: So I think it's the second paragraph, whereby there's a sort of cap prescribed on penalty rates, under the award. I think there would be a dispute between the parties about whether a casual employee, for example, would get 225 per cent for double time, or not. We would say they should. But I suspect that it's unlikely that agreement will be reached on that issue.

PN414

THE VICE PRESIDENT: All right. Can you identify what employer interest might be involved in that award?

PN415

MR CRAWFORD: I think AiG, at least.

PN416

THE VICE PRESIDENT: Ms Bhatt, do you want to say anything about that?

PN417

MS BHATT: I don't think that I can on my feet.

PN418

THE VICE PRESIDENT: In any event, you're still happy with the default approach to apply to that award?

PN419

MR CRAWFORD: Yes, we are your Honour. But, like I said, it would have to be determined, I think, at some point. The Horticulture Award, I don't really know what I would say about that at this point. We are still awaiting an outcome to the overtime case, in the causal employment common issue proceedings.

PN420

THE VICE PRESIDENT: That will be forthcoming very shortly, I can indicate.

PN421

MR CRAWFORD: Thank you, your Honour. Do you require anything else from me?

PN422

THE VICE PRESIDENT: Not unless there's some other award you want to specifically identify should be different from the default approach.

PN423

MR CRAWFORD: No.

PN424

THE VICE PRESIDENT: All right, thank you. I note Mr Harmer's here, is the Alpine Resorts Award - I think there's still an issue floating around there, isn't there?

PN425

MR HARMER: Yes, from our perspective your Honour. You might recall there was a consent position of the AWU which clarified the papers on - - -

PN426

THE VICE PRESIDENT: That was the package.

PN427

MR HARMER: That was a package. Evidence and submissions went forward to a specially constituted Full Bench on that issue and subsequent to the conclusion of all that process the AWU sought to resolve with respect on that position and, accordingly, there is an outstanding issue between the parties, in relation to that award.

PN428

THE VICE PRESIDENT: Is that right, Mr Crawford?

PN429

MR CRAWFORD: Generally, yes. I think the issue was a couple of Full Bench decisions got handed down, the penalty rates decision and also the casual employment Full Bench decision, I think after the package was struck, so that sort of made it quite difficult for us, industrially, to maintain the previous position. So I would accept, I mean Mr Harmer's association has a different view to the AWU about what should be in the award.

PN430

THE VICE PRESIDENT: So how are casuals currently paid under that award?

PN431

MR CRAWFORD: Well, we would say - well, the Full Bench that dealt with the Alpine Award did actually vary the award. We say the effect of those variations is that the casual loading would be paid on overtime, on a cumulative not compounding basis. But I suspect there will be disagreement from Mr Harmer.

PN432

THE VICE PRESIDENT: A disagreement about what the variation meant?

PN433

MR CRAWFORD: I think there is, yes.

PN434

THE VICE PRESIDENT: I thought you were seeking a substantive variation, rather than clarifying what - anyway. Is that right, Mr Harmer?

PN435

MR HARMER: Yes, your Honour. We did file a draft determination to clarify the meaning. It was a situation where the entire case was receiving evidence and submissions on one basis, being the consent basis. Then only after that was over, and just on the eve of the decision being handed down by the Full Bench, did the AWU shift its position and now want to maintain that the award has a different meaning, being the consent position put forward by both parties to the Full Bench.

PN436

THE VICE PRESIDENT: So what do you say is the current positions?

PN437

MR HARMER: We say the current position is that casual overtime has been introduced as part of the consent package, but it is deemed inclusive of the casual loading.

PN438

THE VICE PRESIDENT: The loading.

PN439

MR HARMER: As was the express terms of the consent positioned on.

PN440

THE VICE PRESIDENT: All right. So, Mr Crawford, do you seek a hearing about this matter with any evidence or how do you want to proceed with it? You just want to run it at a level of principle, or what?

PN441

MR CRAWFORD: Well, the award - certainly, previously, casuals were excluded from overtime entirely. We ran the case, there was a consent package reached, now there are overtime entitlements for casuals, the issue is the rate. We don't think there's a lot of doubt, in terms of what the award currently says, in its varied form, in terms of what the rate should be, and it's as per my previous submission. It's casual loading is included on a cumulative basis. We say that is, as we stand here today, the current position. So it would, effectively, we say, have to be a case, albeit taking into account the history to deserve that current position.

PN442

THE VICE PRESIDENT: So do you agree with Mr Harmer as be able to consent variation set, or not?

PN443

MR CRAWFORD: I can't - I'd have to say that part of the consent package was that the overtime rate for casuals would have the loading absorbed.

PN444

THE VICE PRESIDENT: Absorbed, okay. So this is a substantive variation?

PN445

MR CRAWFORD: That was a substantive variation.

PN446

THE VICE PRESIDENT: But you're now seeking a further substantive variation so that the casual loading is payable on top, on a non compounding basis, on overtime.

PN447

MR CRAWFORD: Except, arguably, the award has already been varied to the effect that we are seeking.

PN448

THE VICE PRESIDENT: So you disagree with Mr Harmer? I'm trying to find out what the current position is. Mr Harmer has said that the consent package provided for overtime for casuals on the basis that there's no additional casual loading payable on overtime, it's absorbed. Do you agree that's what it provides for or do you say it provides for something else?

PN449

MR CRAWFORD: I agree that's what the consent package included.

PN450

THE VICE PRESIDENT: Yes?

PN451

MR CRAWFORD: I don't agree that's what the current award actually proscribes.

PN452

THE VICE PRESIDENT: Anyway, how do you want to proceed with your claim?

PN453

MR CRAWFORD: Well, it's a difficult situation but we're happy with, I guess, standard hard directions, similar to what you're likely to issue for the United Voice claims.

PN454

THE VICE PRESIDENT: Okay. Mr Harmer, what do you envisage, by way of a hearing on this matter?

PN455

MR HARMER: If the Commission pleases, given that there was evidence and submission on this issue, before a specially constituted Full Bench, it's our preference to return before that Full Bench and there are other issues outstanding for that Full Bench from the industry. Having said that, your Honour, we're in the Commission's hands as to the most convenient course.

PN456

THE VICE PRESIDENT: Well, for a whole range of reasons that won't be possible. The outstanding coverage issue will be dealt with very shortly.

PN457

MR HARMER: May it please.

PN458

THE VICE PRESIDENT: So, in terms of a timetable, do you foresee you need to call evidence in this matter?

PN459

MR HARMER: Brief additional evidence and submissions will be required, provided we can rely on the previous evidence before that Full Bench, your Honour.

PN460

THE VICE PRESIDENT: All right. Is there any difficulty with seasonal factors about when the hearing might be set down?

PN461

MR HARMER: Yes, your Honour. The contracts for the pending season are issuing at present, so clarification before the season would assist. Having said that, and recognising the volume of work faced by the Commission, we'd otherwise seek some determination outside of the pending season, which runs from June through to October.

PN462

THE VICE PRESIDENT: Well, there's an issue about the pending operative date, if a variation happens at all, but in terms of actually conducting the hearing, is there any problems with that?

PN463

MR HARMER: No, your Honour.

PN464

THE VICE PRESIDENT: All right. Will a one day hearing be sufficient?

PN465

MR HARMER: I would have thought so, thank you, your Honour.

PN466

THE VICE PRESIDENT: All right. Well, the parties can expect to receive a listing and directions for one day hearing in that matter.

PN467

MR HARMER: May it please the Commission. Might I be excused?

PN468

THE VICE PRESIDENT: Yes, you're excused.

PN469

MR HARMER: Thank you.

PN470

THE VICE PRESIDENT: Mr Crawford, is that all the AWUs interests dealt with?

PN471

MR CRAWFORD: Yes, your Honour.

PN472

THE VICE PRESIDENT: All right. Mr Macdonald?

PN473

MR MACDONALD: Thank you, your Honour. In relation to the Passenger Vehicle (Transportation) Award, I could mention, for clarification, that the Fair Work Commission has issued a statement, on 13 February 2019, in relation to the exposure drafts and has sought feedback from the various proponents in the various stages. The PVTA is in group 2 and we're required to give a response back by 15 March, to the Commission, in relation to how we perceive the exposure draft.

PN474

The exposure draft has been a negotiated document between APIA and the TWU and various other parties, and in that exposure draft, your Honour, there are issues specifically relating to this issue of overtime for casuals, which have been included in the exposure draft.

PN475

The exposure draft is also very clear in relation to the payment for casuals for overtime, which does include the casual loading. The payment for the casual loading is specifically limited to ordinary hours. There has been amendments to the actual exposure draft to make that more clear than it is in the current award.

PN476

So, your Honour, our position would simply be that this matter has been resolved and that it can be dealt with by both the TWU and ourselves making submissions to the Commission, relating to the exposure draft, and perhaps to yourself also to confirm that's the position.

PN477

THE VICE PRESIDENT: All right. You're not aware of the TWU pursuing any issue, with respect to what you said is the current clear position?

PN478

MR MACDONALD: I'm not, no.

PN479

THE VICE PRESIDENT: All right. Well, it's sufficient if the parties can just advise, within 14 days, whether the position in the exposure draft resolves all issues about overtime for casuals?

PN480

MR MACDONALD: Yes, I'm happy with that. I'll undertake to contact the union.

PN481

THE VICE PRESIDENT: All right, thank you.

PN482

MR MACDONALD: Might I be excused?

PN483

THE VICE PRESIDENT: Yes, you're excused?

PN484

MR MACDONALD: Thank you, your Honour.

PN485

THE VICE PRESIDENT: AFEI, Ms Shaw?

PN486

MS SHAW: Yes. We agree - - -

PN487

THE VICE PRESIDENT: Wait, just come up to the microphone before you start speaking.

PN488

MS SHAW: We're happy with the general approach adopted but we just wanted to draw attention to the Maritime Union Australia has filed draft determinations, I believe, regarding five awards but we have an interest in the Marine Tourism and Chartered Vessels Award and the Ports Harbour and Enclosed Water Vessels Award.

PN489

We've outlined, in correspondence filed to the Commission on 18 July 2018 and 29 March 2018, that we suggest that these draft determinations are substantive changes. So we would like an opportunity to put in submissions in response to those.

PN490

THE VICE PRESIDENT: So there's the Marine, Tourism and Charter Vessels Award.

PN491

MS SHAW: And the Ports, Harbour and Enclosed Water Vessel Award. I believe the AWU may have put in some submissions regarding this as well.

PN492

THE VICE PRESIDENT: I don't suppose any of the present representatives of the CFMMEU can say anything about this?

PN493

MR MAXWELL: Unfortunately not, your Honour.

PN494

THE VICE PRESIDENT: All right. Ms Shaw, did the CFMMEU file any submissions explaining these claims?

PN495

MS SHAW: I don't believe so, I think they've just put in a draft determination, which we would say are substantive changes, but I'd need to seek further - - -

PN496

THE VICE PRESIDENT: Is it appropriate that I direct, firstly, them to file submissions and then give you an opportunity to respond?

PN497

MS SHAW: Yes, I think that would be appropriate.

PN498

THE VICE PRESIDENT: How long do you think you'd need to do your submissions?

PN499

MS SHAW: Six weeks.

PN500

THE VICE PRESIDENT: Six weeks, all right. Okay, Ms Bhatt?

PN501

MS BHATT: Vice President, I just note that Ms Shaw's referred to two or three awards. The MUA's draft determinations also identify various other awards that there's been some variations go, at least one of which Ai Group has an interest in. I just wanted to clarify whether the Vice President's directions apply also to those awards?

PN502

THE VICE PRESIDENT: Ms Shaw, you've nominated the Ports, Harbours and Enclosed Water Vessels Award and the - - -

PN503

MS SHAW: Marine, Tourism and Charter - - -

PN504

THE VICE PRESIDENT: Marine, Tourism and Charter Vessels Award, are there other awards?

PN505

MS SHAW: We, at this stage, wouldn't be filing anything.

PN506

THE VICE PRESIDENT: But you understand the same application has been filed in other - - -

PN507

MS SHAW: Yes. Yes.

PN508

THE VICE PRESIDENT: So what are those, Ms Bhatt?

PN509

MS BHATT: The Dredging Industry Award - - -

PN510

THE VICE PRESIDENT: Sorry, the what?

PN511

MS BHATT: Dredging Industry Award.

PN512

THE VICE PRESIDENT: Yes?

PN513

MS BHATT: The Port Authority's Award.

PN514

THE VICE PRESIDENT: Yes.

PN515

MS BHATT: The Port, Harbours and Enclosed Water Vessels Award.

PN516

THE VICE PRESIDENT: Yes.

PN517

MS BHATT: The Professional Diving Industry (Industrial) Award.

PN518

THE VICE PRESIDENT: Yes.

PN519

MS BHATT: The Professional Diving Industry (Recreational) Award.

PN520

THE VICE PRESIDENT: Yes.

PN521

MS BHATT: And the Stevedoring Industry Award.

PN522

THE VICE PRESIDENT: All right. You'd be content with the same timetable to apply to all those awards?

PN523

MS BHATT: Yes. Well, we only have an interest in the Stevedoring Award, that's what I understand, yes.

PN524

THE VICE PRESIDENT: All right.

PN525

SPEAKER: Your Honour, it might also be appropriate that I add for Maritime Industry Australia, some of those awards noted also are of interest to us.

PN526

THE VICE PRESIDENT: All right. Would you be content, with respect of those MUA or CFMMEU claims to be subject to a submissions timetable, which required the union to go first and then relevant employer interests to respond?

PN527

SPEAKER: Yes, that would be suitable.

PN528

THE VICE PRESIDENT: All right. Well, the parties can expect directions to that effect and then we'll assess what the position is.

PN529

SPEAKER: Thank you, your Honour.

PN530

THE VICE PRESIDENT: All right, so that's - I think that's all the Sydney interests. Now, going to - - -

PN531

MR MAXWELL: Your Honour, before you do - - -

PN532

THE VICE PRESIDENT: Yes, you're excused and anybody whose awards are completed may be excused. So Gymnastics Australia, Mr Munroe?

PN533

SPEAKER: Sorry, your Honour, if I could just briefly return to the Nurses' Award, I just wanted to add that the AMA has just asked me say that they rely on their submissions, filed on 11 December 2017, and that they support the HSUs draft determination, in relation to the Nurses' Award.

PN534

THE VICE PRESIDENT: Thank you. All right, Gymnastics Award? Gymnastics Australia, Fitness Award.

PN535

MS MUNROE: Thank you, your Honour. I can address your Honour regarding the Sporting Organisations Award and the Fitness Industry Award together. The issues paper correctly identifies that there is a live issue as to whether or not causals are, in fact, entitled to overtime under both of these awards. It's GA's current position is that the award currently does not entitle casuals to overtime and that the exposure drafts, published in 2016, varied the legal effect of the awards.

PN536

GA has made submissions on this point and has filed evidence, in relation to these matters, which is not contested. Those submissions were made to the Full Bench dealing with these awards prior to this issue's referral, in January and February of 2017.

PN537

The AWU may require submissions to those submissions. GA's content to have the matter determined on the papers, on the basis of the submissions and evidence filed to date.

PN538

THE VICE PRESIDENT: All right, thank you. Mr Crawford, do you want to say anything about these awards?

PN539

MR CRAWFORD: In relation to the Fitness Award I do understand the AWU did pursue a variation to clarify overtime entitlements for casual employees. I do believe that it has already filed material and that hence it would be likely to be okay for us to have the matters dealt with on the papers, but I would, if possible, request maybe 24 hours just to confirm that is the case, that we wouldn't want to file anything additional.

PN540

THE VICE PRESIDENT: All right. I don't think directions will be issued by then anyway. So, subject to any further response by the AWU is it sufficient that I give parties, say, six weeks to reply to the material that's already been put on? Allow Gymnastics Australia another two weeks to reply and then have the matter determined on the papers? Again, unless you advise otherwise?

PN541

MR CRAWFORD: Yes.

PN542

THE VICE PRESIDENT: All right.

PN543

MS MALONEY: Your Honour, Tennis Australia is content with that approach, in relation to both those awards as well.

PN544

THE VICE PRESIDENT: Okay, thank you, Ms Maloney. All right, well that will be the approach taken with those two awards. All right, Ms Wyles?

PN545

MS WYLES: Thank you, your Honour. We're also content with the general approach that's been discussed earlier, in relation to the Dry Cleaning Award and also the Textile, Clothing and Footwear Award.

PN546

Just in relation to the Dry Cleaning Award, we believe there is an error in the actual issues paper itself. This is at page 13 of the issues paper. The dot point 3 states, in the second sentence:

PN547

Clause 10.5(c) provides that a casual employee's ordinary hours work are the lesser of an average of 38 hours per week or the hours required to be worked by the employer.

PN548

We think that's probably a referencing error and doesn't really reflect the current 10.5(c), so I just thought we should bring that to the Bench's attention.

PN549

THE VICE PRESIDENT: Does it refer to any other clause? Is the clause - - -

PN550

MS WYLES: Yes. Look, I've had a quick look this morning and I couldn't see where that appears elsewhere in the award, but it was a quick review, I only really picked that up this morning. But I can have another look.

PN551

Look, as I indicated earlier, in relation to both the Dry Cleaning and TSF Awards, well, the TSF Award was in group 1 and there has been a long exposure draft process and it may be that that issue is resolved by an earlier decision handed down last year. But other than that, that's all we really want to say, at this point.

PN552

THE VICE PRESIDENT: All right. Thank you. Mr Rizzo?

PN553

MR RIZZO: Yes, thank you, your Honour. Look, the ASU is content with the position put by AiG this morning, being characterised as a general approach in regards to the awards we have an interest in, your Honour.

PN554

THE VICE PRESIDENT: All right, thank you. So for MIA, have resolved all - any issues, with respect to the awards you're interested in? No answer, all right. All right, so the cinema industry, what's the position there?

PN555

SPEAKER: Your Honour, we believe that the matter of overtime for casuals probably would be tied up in the Full Bench matter before with, with the (indistinct) and penalty averaging. It probably would be ventilated in those arguments, we would suggest, your Honour.

PN556

THE VICE PRESIDENT: Well, is it the subject of those proceedings or not?

PN557

MR SARONG: If I may - Michael Sarong, your Honour, if I may comment?

PN558

THE VICE PRESIDENT: Yes.

PN559

MR SARONG: It will relate to those proceedings. The whole issue of the calculation of casual loadings, minimum rates, ordinary hourly rates and so on is going to be fundamental to that whole proceeding and I think any decision on the first identified ambiguity in the issues paper would be complicated by it being dealt with separately. So that's our view, on that, that it is more appropriately dealt with by the Full Bench.

PN560

THE VICE PRESIDENT: All right. So you want that whole matter referred to the other Full Bench, which I think we've set dates in August, is that right?

PN561

MR SARONG: I think that would be more appropriate, your Honour, yes.

PN562

THE VICE PRESIDENT: All right.

PN563

MR SARONG: On the second issue of the casual ordinary hours, we don't accept that there's an ambiguity there. It's been expressed thus for many years and all the employers and employees in the industry understand it.

PN564

THE VICE PRESIDENT: Are you happy to take the default position, with respect to that issue? That is, wait till the next exposure draft and then see?

PN565

MR SARONG: Yes, I think that's appropriate, your Honour.

PN566

THE VICE PRESIDENT: All right, thank you. Ms Knopp, do you have any further issues?

PN567

MS KNOPP: Your Honour, no, we don't have any issues. I listened to the conversation in Sydney about the Education Services (Schools) General Staff Award and the Education Services (Teachers) Award and understand that they'll be listed for hearing in the week commencing 29 July. So given the level of ambiguity in one of those awards particularly that's probably a reasonable approach to take, your Honour.

PN568

THE VICE PRESIDENT: All right, thank you. And, Ms Pugsley, we've dealt with the awards you're interested in?

PN569

MS PUGSLEY: We have dealt with the Higher Education (General Staff) Award, but not with the Educational Services (Post Secondary) Award, your Honour.

PN570

THE VICE PRESIDENT: Yes?

PN571

MS PUGSLEY: In relation to the post secondary award, the MTEU, who are not here today, did file a draft determination, back in 2017. We're not in a position to consent to that proposed variation. We would be content with the default position being the process for this award. The exposure draft is due to be issued on 1 March, which would mean submissions on 29 March, I think.

PN572

However, similar to the submissions that Mr Pill make earlier, it may be that with some discussions with the MTEU we may be able to resolve our differences, in respect of the post secondary award. If your Honour pleases.

PN573

THE VICE PRESIDENT: All right, thank you. All right, so Mr Reegan, for the HIA in Brisbane, are there any other issues we need to deal with for you? She's gone, all right. Ms Rodgers?

PN574

MS RODGERS: Thank you, your Honour. The AMIEU has an interest in the Meat Industry Award and the Poultry Processing Award. I don't understand there to be any ambiguity whatsoever in terms of payment in both of those awards, it's simply the case that the casual loading comes off and overtime loadings are multiplied by the base rate, that's it.

PN575

In terms of other ambiguities, the Meat Industry Award has a number and we had provided a draft determination for some problematic wording. I can now see that the exposure draft does away with all of that problematic wording so this draft determination no longer has any relevance.

PN576

So we would see that as the exposure draft resolving some of those more ambiguous or problematic elements of the Meat Industry Award.

PN577

THE VICE PRESIDENT: Okay, so - sorry, go on.

PN578

MS RODGERS: Sorry, your Honour. I wondered whether the AMIEU could have 14 days to advise whether the exposure draft resolves all ambiguities and, if not, then have some dates for, perhaps, advancing further ambiguities or if there is a substantive matter that we would like progressed, to advise you then.

PN579

THE VICE PRESIDENT: All right. Again, we'll take the default approach and, as I'll come to in a second, there will be a further directions hearing at which those awards, subject to the default approach, parties can indicate whether there are any outstanding issues. All right, so Mr Harris, we've dealt with you? They're gone - and Mr Rogers?

PN580

MR ROGERS: Yes, your Honour. We're comfortable with the default position in relation to the awards we have an interest, I'm not sure if you've dealt with them already. I think Mr Crawford may have mentioned the Horticultural Award. In any event, we're comfortable with the default position.

PN581

THE VICE PRESIDENT: All right, thank you. Well, Ms Bhatt, returning to you, is it appropriate for those awards where we're taking the default position to have a further directions hearing in, say, the week beginning 10 or 17 June?

PN582

MS BHATT: So long as that provides interested parties with enough time to review the most - the round of exposure drafts that's due to be published in May. I see no difficulty with that.

PN583

THE VICE PRESIDENT: All right. Well, the parties can expect a further listing of a directions hearing, at least in June, and they'll be advised as to the date. Is there anything further anyone wishes to raise? All right, I thank the parties for their attendance and patience and I now adjourn.

ADJOURNED INDEFINITELY [1.00 PM]