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Fair Work Act 2009                                       1057837






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Food, Beverage and Tobacco Manufacturing Award


By Telephone AEST


12.08 PM, MONDAY, 25 MAY 2020


THE DEPUTY PRESIDENT:  Good afternoon, it's Deputy President Clancy.  Could I confirm on the line I have Mr Miller?


MR G MILLER:  Yes, I'm here, Deputy President.


THE DEPUTY PRESIDENT:  Thank you.  Mr Crawford?


MR S CRAWFORD:  Yes, your Honour.


THE DEPUTY PRESIDENT:  Thank you.  Mr Kingston?


MR R KINGSTON:  Yes, Deputy President.


THE DEPUTY PRESIDENT:  And, Ms Bhatt?  Do I have Ms Bhatt?


MS R BHATT:  Yes, Deputy President.


THE DEPUTY PRESIDENT:  Thank you.  All right, this is a conference that arises out of the Full Bench decision of 27 April 2020 to deal with some disputed matters relating to casual employees, and we will work through those during the course of the conference.  If there are any other matters you can raise them at the end of that discussion.


So I thought we'd start with the discussion that's been had through the submissions of the parties in relation to clause 10 of the exposure draft, and how the definition is to be arrived at there.


Mr Miller, you've got a proposed form of wording.  Do you want to speak to that firstly?


MR MILLER:  Thank you, Deputy President.  Look, the amendment that we proposed to clause 10 really was directed at ensuring firstly that it would be within the substantive body of the award that the casual loading is calculated on an ordinary hourly rate and not the minimum hourly rate, and also that penalties and loadings are calculated on the casually loaded rate.


I think the decision earlier in the award review process to express penalties and loadings in the percentage of an ordinary hourly rate, for example, 150 per cent or 200 per cent rather than references to time-and-a-half and double time has really presented an issue in respect of the definition of the ordinary hourly rate and the casual ordinary hourly rate in that they're separate definitions which implies that the ordinary hourly rate doesn't include the casual loading whereas the casual ordinary hourly rate obviously does.


So our proposed amendment was directed specifically at that anomaly and we made the same submission with respect to the Manufacturing and Associated Industries and Occupations Award earlier.  That award was part of tranche 2 and I understand that that was eventually - our proposal was eventually the subject of consent.


I understand from the submissions filed on behalf of Australian Business Industrial and New South Wales Business Chamber that those organisations' objections to our proposal was based on a contention that the casual loading in this award isn't in fact calculated on the ordinary hourly rate.  Rather that it's calculated on the minimum hourly rate.


I have had a discussion offline this morning with my friends, Mr Kingston, from Australian Business lawyers, and I understand that that position is now withdrawn and that there's a level of in principle agreement there, although Mr Kingston will hopefully jump in and correct me if I've got that wrong.


Having said that I understand as well that there may be some lingering concerns over the precise wording of the AMWU's proposed variations and I say that more broadly than just meaning with respect to clause 10, because really it's a suite or a package, rather, of variations that also relate to one another because they have the various flow-on effect.


So in those circumstances where there may be in principle agreement but perhaps some finessing to the drafting I was intending on respectfully proposing this morning, Deputy President, that the parties might be given some time to privately discuss the drafting and exchange some drafts with a view to reaching a consensus and reporting back at a later date, perhaps in two weeks' time.


THE DEPUTY PRESIDENT:  Right.  I'll hear from everybody else, but what you're saying is that there may be a consensus around the wording of clause 10 of the exposure draft; is that correct?


MR MILLER:  Yes, and similarly ‑ ‑ ‑


THE DEPUTY PRESIDENT:  Yes, and then other clauses which ‑ ‑ ‑


MR MILLER:  That's right.


THE DEPUTY PRESIDENT:  ‑ ‑ ‑may then include some wording in schedule B.2; would that be correct?


MR MILLER:  That's right  And I understand, and again Mr Kingston will correct me later if I've got this wrong, but I understand that their organisation made a corresponding change to the definition of "casual ordinary hourly rate" as it appears in the definitions section in the award.


THE DEPUTY PRESIDENT:  In the award, okay.  And that in the exposure draft would be - just bear with me - clause 2, what, to the definition of casual ordinary hourly rate, would it?


MR MILLER:  Yes, that's what is my understanding.


THE DEPUTY PRESIDENT:  So that's clause 10, schedule B.2 and definition - is that the only definition in the definitions clauses?


MR MILLER:  Deputy President, do you mean in respect of ‑ ‑ ‑


THE DEPUTY PRESIDENT:  Casual, that would need to change or may be the subject of changes, the definition of casual ordinary hourly rate in the definitions?


MR MILLER:  Yes.  Yes, that's my understanding.


THE DEPUTY PRESIDENT:  All right, okay.


MR MILLER:  (Indistinct).


THE DEPUTY PRESIDENT:  And then schedule B.2.  All right, thank you, Mr Miller, I'll ‑ ‑ ‑


MR MILLER:  Deputy President, if I could just add, sorry to interrupt you, the only thing I'd add to that is that the AMWU doesn't necessarily concede that the definition in the definition section does require amendment, but that might be one of the matters that is the subject of further discussion or results in the outcome of a consensus position.


THE DEPUTY PRESIDENT:  Thank you.  Mr Crawford, where do you sit on those matters?


MR CRAWFORD:  I think we're generally supportive of the AMWU's position, your Honour.  An issue we're quite concerned about is that an overtime rates payable for casual employees should be inserted into the award just to make the calculations even clearer.  As far as I can see there doesn't appear to be any opposition to that table being inserted given there's no, as I understand it, no disagreement about how the casual overtime rates are calculated under this award.  So we have a strong view that a rates table should be inserted.  It doesn't appear to be disputed as far as we can see.


The other point we have raised is clause 10.2 of the exposure draft.  We've said that wording of "casual employee working ordinary time must be paid", and then it continues, we're a bit concerned about the "ordinary time" reference because under this award the casual loading is also paid when overtime is worked, so it's not only paid when ordinary time is worked.  So we'd sought basically the deletion of "working ordinary time" from that clause.  But it does appear that amendment is opposed, at least by ABI and the New South Wales Business Chamber.  I mean, I think in terms of that issue if there is opposition we could probably live with the wording as it is if there is a casual overtime rates payable inserted, because I think that would make the situation probably clear enough.




MR MILLER:  I think they're our main two issues, your Honour.


THE DEPUTY PRESIDENT:  Thank you.  Mr Kingston?


MR KINGSTON:  Thank you, Deputy President.  Yes, so, the objections in relation to clause 10.2 that we had in our reply submissions primarily related to the method of calculation the casual ordinary hourly rate, as Mr Miller said.  Our concerns were raised on the basis that the exposure draft, as it had been published then, appeared to have departed from the general principle that the all-purpose allowances were added before the casual loading is calculated.  After further research and discussions with the AMWU we are now of the view that the exposure draft probably did not intend to do that, and the general principle should apply to the award, that is that the all-purpose allowances are to be added before the casual loading is calculated.


On that basis there does appear to be agreement on the method of calculation, and the only outstanding issue is how it should be expressed.  As Mr Miller said, we have given some proposed wording to the AMWU that goes slightly beyond what was put forward in their submissions, and we are also optimistic that a consensus could be reached if the parties have given some extra time over the next week or so to have private discussions on that matter.


In relation - sorry.


THE DEPUTY PRESIDENT:  Sorry.  Does that then cover - those discussions cover the clause 10, schedule B.2 and, if necessary, the definition in clause 2?


MR KINGSTON:  That's right, Deputy President.


THE DEPUTY PRESIDENT:  Sorry, I cut you off.


MR KINGSTON:  That's okay.  In relation to the AWU's - the points raised there, we certainly are not opposed to the insertion of an overtime rates payable for casual employees and we think that should be inserted.  There doesn't appear to be any disputes about the method of calculation so we see no problems with that.


In relation to the matter raised by Mr Crawford about the definition in clause 10.2 we don't have strong views either way to be completely honest.  I think that if though that clause is to contain a definition for casual ordinary hourly rates then perhaps it is appropriate that it be limited to ordinary time.  But if the parties are to have some additional time to discuss the wording of clause 10.2 then that might be something else that we can look at too.


THE DEPUTY PRESIDENT:  Thank you.  Ms Bhatt?


MS BHATT:  Thanks, Deputy President.  As has been identified by the other parties, there's a significant degree of interconnectedness between these issues, but also between these issues and issues that have been ventilated at length in the context of other awards, in particular, the Manufacturing Award.  These are both awards in which Ai Group has a very significant interest, and has devoted a substantial amount of resources to resolving these issues with the union, so it would be our expectation that in any discussions that now occur Ai Group is included.  I'm not aware of the sort of proposal that's been put to the union.  I haven't seen that.  But we have no difficulty with the course of action that's been proposed otherwise.


THE DEPUTY PRESIDENT:  Your position on the rates table for overtime rates being inserted ‑ ‑ ‑


MS BHATT:  Sorry, Deputy President, we don't propose a rates table being included.  There is, as I understand it, agreement between the parties as to the method of calculation.  We'd simply say that before the award is varied the parties should be given an opportunity to review a draft of those rates to ensure that they've been calculated accurately.


THE DEPUTY PRESIDENT:  If the parties agree there should be a table and that the method of calculation is also agreed, then why wouldn't the parties put forward what the rates should be?


MS BHATT:  That might be something that we deal with as part of these discussions and endeavour to reach agreement about what the rates are to be.


THE DEPUTY PRESIDENT:  What I'm alluding to is from the Full Bench's point of view we're seeking to finalise this, and we're not really attracted to having further processes set up where the parties consider things after the Commission puts further drafts out, and then we come back again for further conferences.  So my expectation would be if the parties are going to use a period of time to settle upon wording for schedule B.2, clause 10, and, if necessary, the definitions, that they reach consensus on all matters including, if that overtime rates table is to be inserted, what that looks like.  Certainly if it's going to assist the parties that are going to be using this award to have such a rates table in I don't envisage that the Full Bench will have objections to that going in.


So it's been indicated that within a two week period the parties might be able to work through and achieve a consent position on these matters.  That being the case, we can - I'm just looking at my diary here - we could adjourn this conference until 12 noon on Tuesday, 9 June, and the parties can then report back.  Ideally at that time agreement is reached in relation to any of the clauses that are going to be amended, and that form of wording would be available to the Commission for that shortly before that.  And in particular if it's a consensus position around a rates table for casual overtime rates, that that also be provided.


So is everyone in agreement with that, that we adjourn this conference to Tuesday, 9 June at midday?


MR MILLER:  Yes, Deputy President.


MS BHATT:  That's fine by Ai Group, Deputy President.


THE DEPUTY PRESIDENT:  Yes, sorry ‑ ‑ ‑


MR KINGSTON:  That's fine.  Thanks, Deputy President.


THE DEPUTY PRESIDENT:  ‑ ‑ ‑I'll go around.  Mr Miller?






MR CRAWFORD:  Yes, that's fine, thanks.




MR KINGSTON:  Yes, that's fine.




MS BHATT:  Yes, Deputy President.


THE DEPUTY PRESIDENT:  Thank you.  My Chambers will list that for further conference, and I'll leave the parties to exchange the wording and have those discussions, and I commend a process whereby you finalise these matters during those discussions.


Thank you.  I'll bring the conference to a close.

ADJOURNED UNTIL TUESDAY, 09 JUNE 2020                          [12.27 PM]