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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                                    

 

COMMISSIONER ROE

 

AM2014/217 AM2014/218 AM2014/221 AM2014/222 AM2014/242 AM2014/248

s.156 - 4 yearly review of modern awards

 

Four yearly review of modern awards

(AM2014/248)

Telecommunications Services Award 2010

 

(ODN AM2008/18)

[MA000041 Print PR986383]]

 

Melbourne

 

9.35 AM, THURSDAY, 26 MAY 2016

 

Continued from 29/04/2016

 


PN374      

THE COMMISSIONER:  All right.  Good morning everyone, and I apologise that we had to reschedule today's conference from last week to this week.  And thanks to everyone for the responses and reply submissions that were received.  Can we just update the appearances for today.  So in Melbourne, we've got the ASU, so who have we got?

PN375      

MR J COONEY:  Justin Cooney.

PN376      

THE COMMISSIONER:  Thanks, Justin.

PN377      

MS J KNIGHT:  And Joanne Knight.

PN378      

THE COMMISSIONER:  And Joanne Knight.  Yes, great.  And in Brisbane there's some different people from ABI, I think.

PN379      

MS L HOGG:  Correct, Hogg, H-o-g-g, initial L.

PN380      

THE COMMISSIONER:  Yes.

PN381      

MR E McIBOR:  And McIbor, M-c-I-b-o-r, initial E.

PN382      

THE COMMISSIONER:  Thank you.  And we've got Mr Ferguson and Ms Bhatt from Australian Industry Group in Sydney.

PN383      

MR B FERGUSON:  Yes.

PN384      

THE COMMISSIONER:  And who else have we got in Sydney?

PN385      

MR K BARLOW:  If it please the Commission, Barlow, initial K appearing for the CPSU, Commissioner.

PN386      

THE COMMISSIONER:  Sorry, Mr Barlow.  I knew that you'd been here before.  Thank you.  And?

PN387      

MS F LENHARDT:  Lenhardt, initial F from the FSU.

PN388      

THE COMMISSIONER:  Thank you.  Now ‑ ‑ ‑

PN389      

MS THOMPSON:  Sorry, Commissioner.

PN390      

THE COMMISSIONER:  Yes?

PN391      

MS P THOMPSON:  Commissioner, sorry, also in Sydney Ms Thompson, initial P, from the Australian Federation of Employers and Industries.

PN392      

THE COMMISSIONER:  Excellent.  Thank you.  Now, the way I propose to handle it is we provided a revised summary of submissions documents and I've provided a draft report to the Full Bench.  The way I'm going to handle it, I'm going to use the draft report to the Full Bench just to go through the issues.  There were some issues which I think, you know, are clearly going to have to be referred to the Full Bench for further consideration.  There's some matters which I believe have been resolved.  I don't propose to discuss them unless somebody wants to raise them, and there are some matters which clearly need to be discussed today.  So the way I'm going to go through it is just to focus on the matters that I think need to be discussed today but if there are other items that people want to raise well obviously please speak up.  So I intend to deal with the Business Equipment Award first because that's the first one that I've got in the list.

PN393      

MS THOMPSON:  Commissioner?

PN394      

THE COMMISSIONER:  And, sorry, and we do have the additional matter that's been raised by the FSU in their submission, which we'll deal with the Banking Award.  All right.  So, with the business equipment, I think the first matter that we need to deal with is number 3 in my draft report and that's item ‑ ‑ ‑

PN395      

MR FERGUSON:  Commissioner?

PN396      

THE COMMISSIONER:  Yes.  Yes?

PN397      

MR FERGUSON:  Sorry, I think there's a request from another party that we do banking and finance first.

PN398      

MS LENHARDT:  If that's convenient, Commissioner, the FSU would like to deal with it first, if possible.

PN399      

MR FERGUSON:  I don't think anyone disagrees with that in Sydney.

PN400      

THE COMMISSIONER:  Yes, no-one disagrees with it in Sydney, but, you know, I've just come out of hospital and it's just a bit hard for me to change all the order of my papers, but I'll accommodate it.

PN401      

MR FERGUSON:  Yes.

PN402      

THE COMMISSIONER:  All right.

PN403      

MS LENHARDT:  Thank you.

PN404      

THE COMMISSIONER:  All right.  So we'll go to banking and finance.  All right.  So the first matter in respect of banking and finance is item number 2 on my list, and that relates to item 16 in the summary of submissions, and it's about the definition of shift work and the Australian Industry Group indicated in their submission that they needed a bit more time to consider the definition, and if there were any unintended consequences stemming from the amendment.  And I wonder if the Ai Group have had an opportunity to consider that?

PN405      

MS BHATT:  We have, Commissioner.  It's Ms Bhatt here.

PN406      

THE COMMISSIONER:  Yes.

PN407      

MS BHATT:  It appears to us that the definition of shift worker in the award, as it currently stands, would allow for the performance of ordinary hours of work on any day of the week, but the award doesn't prescribe penalty rates for the performance of ordinary hours on a weekend, and it might be argued that that is anomalous or out of step with the general structure of the award.  We understand that the proposal is, at least in part, designed to address that, and so, on that basis, we don't oppose ABI's proposal.

PN408      

THE COMMISSIONER:  Thank you.  All right.  Then the next one that I think we need to discuss, and again if I skip over anything that somebody really wants to raise then please let me know, is if we just go to item 23 which is number 5 in the report.  So the AFEI are seeking clause 11.2 be amended to specify that allowances are pro rata for casual and part-time employees.  And as I've noted here that's not consistent with the approach we've been taking in awards generally.  It could lead to unintended consequences if we don't specify pro rata in every relevant clause in the award which would be, I think, very cumbersome and so that's the reason we haven't done it.  So it's an opportunity, if AFEI want to raise this, then they're welcome.

PN409      

MS THOMPSON:  Thank you, Commissioner.  Just a moment, I'm just turning to that point.

PN410      

THE COMMISSIONER:  Yes.

PN411      

MS THOMPSON:  We won't press that.  I'd say the exposure draft could already address that already in clause 6.3 where it says a part-time employee receives pay and conditions on a pro rata basis.

PN412      

THE COMMISSIONER:  Thank you.  I appreciate that.  Thank you.  All right.  Then I think the only other matter that we usually discuss I mean, there are some things that have been identified but are still outstanding, but the only other thing I think we could discuss is the submission of the FSU which was received yesterday afternoon.  Now, not everybody may have had adequate opportunity to consider the point, but if you go to clause 13.6(b)(ii) in the first dot point in the exposure draft refers to 200 per cent of the minimum hourly rate for overtime, and the FSU say that the current award says double rates rather than 200 per cent of the minimum hourly rate and they have suggested the expression "base rate of pay" rather than "minimum hourly rate".  So is that a fair summary of the proposal, Ms Lenhardt?

PN413      

MS LENHARDT:  Yes, it is, Commissioner.  Although one of my friends from Ai Group has said that the Full Bench may have already dealt with this question in July last year, so we'd like time to consider that case.

PN414      

THE COMMISSIONER:  Yes.  I was hoping ‑ ‑ ‑

PN415      

MS LENHARDT:  So we don't wish to ‑ ‑ ‑

PN416      

THE COMMISSIONER:  Yes, I was going to make that point, is that I believe that this matter has been dealt with by Full Bench and that's why we've used this expression, and that Full Bench decision in a sense has produced some swings and roundabouts.  There's some aspects of that which the employer organisations aren't completely comfortable with, and so there are some situations in which they have some concerns about the consequences but I think this is the roundabout of it really, so I think there's not much scope for the FSU's proposal to proceed, so unless the FSU respond further we're going to assume that the exposure draft would be unchanged, but obviously what I'm going to do at the end with this report is obviously we will produce revised exposure drafts shortly after this report comes out, and the Australian Industry Group's already noted at a couple of points they want to see how the revised exposure draft actually delivers on what we'd said is going to happen, and they may have some further comments at that point, so I think generally we'll allow, you know, parties a certain amount of time, probably seven days, if there are any residual or additional matters that the parties want to raise, and once we put out our next revised draft, and that will give the FSU an opportunity, if they do want to say they want to pursue this, to raise it.  Sorry, that was a bit long-winded, but is that clear about what approach I'm suggesting?

PN417      

MS LENHARDT:  Yes.

PN418      

THE COMMISSIONER:  Yes.  Okay.  All right.  Is there anything else about banking and finance we need to deal with?  All right.  So let's go to business equipment.  Now, I think the first item is under point 3 which is about this minimum hourly rate column, so item 14 and item 62.  Having considered what the Australian Industry Group has raised I would like to suggest the following solution.  Now, I know it's not necessarily the optimum solution from the point of view of the Australian Industry Group, but I think it's the best way to accommodate all of the concerns and a level of consistency in the way we're doing the exposure draft.  So that's the sort of spirit in which I'm putting this forward.

PN419      

I'm suggesting that we should in 10.1, which is the minimum rates clause, where it sorry, not 10.1.  It's nine.

PN420      

MR FERGUSON:  Nine.

PN421      

THE COMMISSIONER:  Clause 9.  Sorry, yes, clause 9.  So in that clause, 9.2 where it's got the tables suggesting two things:  one is we put in a note that there are exemptions which apply to exempt employees in clause 10.1 and 10.2.  All right.

PN422      

MR FERGUSON:  Yes.

PN423      

THE COMMISSIONER:  So to draw attention to those exemptions and secondly, we delete the minimum hourly rates column for the commercial travellers stream.  So they're the two changes I'm suggesting to try to address at least the substantive part of Australian Industry Group's concern.

PN424      

MR FERGUSON:  I think that achieves that, Commissioner.

PN425      

THE COMMISSIONER:  Thank you.  All right.  Now, obviously you'll want to sort of see it in its final form but that's the approach.

PN426      

MR FERGUSON:  Yes.  Yes.  But thinking through it seems to address it.

PN427      

THE COMMISSIONER:  All right.  Thank you.  The next item, number 4, item 25.  Now, we proposed a list of clauses for the exemption.  I think we had two general submissions.  One was the submission from the Australian Industry Group which suggested, I think, a different list.  A sort of shorter list than the one we proposed and the other was from the I think from the ASU who suggest the approach be one of listing the clauses which don't apply rather than the clauses which do apply.  So I think they're the two submissions we had.  So we're interested in any comment that people want to make at this point.

PN428      

MR COONEY:  Commissioner, we'd just say that, by listing the clauses that don't apply it's more obvious to an employee about what they're not entitled to, so that's our positon on that.  Yes, it's really about a matter of clarity for the employee.

PN429      

MR FERGUSON:  I confess, I didn't hear all of that.

PN430      

MR COONEY:  Sorry.

PN431      

MR FERGUSON:  I understood it ‑ ‑ ‑

PN432      

MR COONEY:  Actually, sorry ‑ ‑ ‑

PN433      

THE COMMISSIONER:  Yes.

PN434      

MR COONEY:  ‑ ‑ ‑from the ASU's point of view, we see it as a matter of clarity for employees and so when they can see what doesn't apply to them, they can then make an assessment about what they are entitled to.

PN435      

MR FERGUSON:  Look, from Ai Group's perspective we've approached it on the basis of trying to make sure that the award was compliant with whatever the requirements were in the Act, so we recognised that at least arguably there might be some amendment required.  So I'm talking for example about the need to reflect the consultation provisions and so forth.  And without getting too carried away we've tried to be just practical about that.

PN436      

THE COMMISSIONER:  Yes.

PN437      

MR FERGUSON:  And we've suggested to the members that we'd reflect those clauses applying, and equally, you know, issues around the coverage clauses and things like that.  Even if not required of the Act but probably sensibly those provisions should apply.  But what we've tried to do is go through and make sure that, well, in essence, by extending the application of any clauses we didn't do so in a way that would create any new obligations on the employer.  And that was the approach that we were trying to take.  Not really enamoured by the view that we have to mention specifically all the clauses that don't apply because there's only a discrete number of clauses that do and quite simply everything else doesn't.  And because that list is short we don't think you need to really go specifying individually all the clauses that actually have no relevance to these people.  But I am interested whether anyone disagrees with the proposal we've put forward at paragraph 26 in substance.

PN438      

THE COMMISSIONER:  All right.  So perhaps if we could just test that point.  Are any of the first could I just ask do any of the employer representatives disagree with the Australian Industry Group's proposed list of the matters that would apply?

PN439      

MS THOMPSON:  Well, Ms Thompson here from the Australian Federation of Employers and Industries.  We generally agree with the proposal from AiG.  We're not entirely comfortable with some of the provisions they've suggested could be included in there, for example, the dispute resolution term.  We're conscious of what the legislation says about the award needing to have such a term, but also that the Federal Award that this award was based on, it also appeared to have a dispute resolution provision that those employees were exempt from, so it's just we'd just have a concern about that at this point.

PN440      

THE COMMISSIONER:  Is there any other issue?

PN441      

MS THOMPSON:  From AFEI's perspective we're certainly comfortable with clause 1, 3, 17, 18, 20 all being listed there.

PN442      

THE COMMISSIONER:  And is the ASU's position that the list is okay but it should be reversed, or is there an issue about the content?

PN443      

MR COONEY:  Commissioner, look, we don't want to get into an argument about the content today.  I mean, the only thing I'd say about that is that maybe it might list every form of leave that's available and we would probably then be more comfortable with what applied be shown than rather what doesn't apply.  I think that generally it says forms of leave and other NES conditions as matters that apply.  I think probably we'd need to leave the NES term in there just due to legislation changing but we would be more comfortable I guess if the ‑ ‑ ‑

PN444      

THE COMMISSIONER:  So the NES term is which clause is the NES term?

PN445      

MR COONEY:  Sorry, I'll just dig up the ‑ ‑ ‑

PN446      

THE COMMISSIONER:  It's clause 2, isn't it?  Yes.  What's the Australian Industry Group's view about the inclusion of clause 2?

PN447      

MR FERGUSON:  Bear with me one second.  I just don't know that clause 2 takes us very far.  I mean, if we look at it in substance 2.1 and 2.2 don't do very much.  And 2.3 has a provision which we thought about that talks about copies of the award and the NES being available to all employees' terms applies.

PN448      

THE COMMISSIONER:  Yes.

PN449      

MR FERGUSON:  Now the query is, and it's a small point, and I acknowledge that firstly, but on one view by extending that you now need to make copies of the award and the NES applicable to employees who traditionally you haven't had to make it available to by inserting it in so it is a new obligation.  Now, there's probably arguments that could be put either way about that.  But, in any event, I would've thought it's not the biggest or the most important clause in an award.  I'm not saying that all of, you know, the clauses don't serve a purpose, but we just saw it as a change, so err on the side of not including it.

PN450      

THE COMMISSIONER:  Yes.  Well, I think the ASU's point is well, leave and the NES were included and if you don't put in that clause then you might be sending the wrong message to employees and employers because obviously the NES does apply to these employees.

PN451      

MR FERGUSON:  Yes.  I ‑ ‑ ‑

PN452      

THE COMMISSIONER:  I'd suggest that we adopt this approach in the exposure draft, that is, that we adopt the Ai Group list with the addition of clause 2.

PN453      

MR FERGUSON:  Yes.

PN454      

THE COMMISSIONER:  And then if there's any further submission that people want to make, that is, you know, then obviously they can do so, but I think that's the position we should adopt in the exposure draft.

PN455      

MR FERGUSON:  I think that's a sensible approach, Commissioner.

PN456      

MR COONEY:  Commissioner, in that approach then it's just the ASU would like to see all the forms of leave issued.  All the forms of leave listed rather than just a general term of leave.

PN457      

THE COMMISSIONER:  Well, I think that in the Ai Group's approach they've listed them.

PN458      

MR COONEY:  Okay.

PN459      

THE COMMISSIONER:  They've listed annual leave, personal leave, community so they've listed them.

PN460      

MR COONEY:  All right.  We're happy with that.

PN461      

THE COMMISSIONER:  All right.

PN462      

MR COONEY:  Yes.

PN463      

MR FERGUSON:  Yes, we listed those that were included before.  I mean, to be frank, we thought about what utility some of that serves given that some of those clauses just say, "See the NES" in essence.

PN464      

THE COMMISSIONER:  But I think that's the way to do it.

PN465      

MR FERGUSON:  But we kept them.

PN466      

THE COMMISSIONER:  Yes.

PN467      

MR FERGUSON:  Yes.

PN468      

MR COONEY:  Yes.  No, we're happy with that.

PN469      

THE COMMISSIONER:  All right.  And the AFEI have got a chance to obviously further consider it, but that's what we'll put in the draft.

PN470      

MS THOMPSON:  Thank you.

PN471      

THE COMMISSIONER:  All right.  Then the next item is item 29 which is the definition of country/territory, and I think the I'm just trying to find the we had a variety of responses so far to this and I think there's sort of quite some support for having a definition but the ASU doesn't like the Business SA proposal and AFEI weren't supportive of the proposal, and the Australian Industry Group weren't supportive of the proposal.  So has anyone got any bright ideas about how we can deal with this issue of definition of country/territory?

PN472      

MR COONEY:  Commissioner, the ASU's view would be that the definition should include some distance from a GPO or a clause along those lines which we would see as being definitive as to when the allowance would apply.  So that's what we're looking for rather than, I guess, terms of rural or regional or country which as it stands is just left open to interpretation.

PN473      

THE COMMISSIONER:  Good.  Thank you.  What does ABI say about this now?

PN474      

MS HOGG:  We're certainly not married to the proposed definition and we're happy to have some further discussions about something that's going to be more workable, but we don't have an alternative proposed definition at this stage.

PN475      

THE COMMISSIONER:  Yes.  What's the Australian Industry Group's view?

PN476      

MR FERGUSON:  Commissioner, we think that any consideration about whether there should be a definition inserted needs to be connected to an analysis of what the rationale for the provision is.  We've tried to trace the history of it and we've gone a fair way back but we haven't yet got to a point where we've identified exactly the rationale for the distinction in the provision.  We haven't necessarily exhausted those efforts.

PN477      

We've also spoken to some members but we've hit a bit of a wall in that most of those that we've spoken to at the moment either don't apply it as it's drafted or they don't have employees using their own vehicles and so forth, so we haven't really got a clear view of what is occurring in practice by those parties that actually use the provision.  I think there's a danger in just sort of coming up with a definition that sort of makes sense as we think, rather than working out what the actual rationale of the provision is.

PN478      

Our view would be that absent any evidence that it's actually a problem in practice that we shouldn't tinker with it just by drafting our own sort of provisions, and the best course of action at this point in time might be to leave the clause as is.  Of course in the event that in practice, you know, any difficulty actually crystallises then it's a matter the Commission could always deal with on application or arguably even on its own initiative through section 160 of the Act.  We think as the best course of action now might be just to leave the terms as they are in essence.  We're happy to have discussions if other people could advance it a bit further but I'm not sure just saying a certain distance from a GPO is appropriate.  We don't have an answer, Commissioner, in terms of a definition.

PN479      

THE COMMISSIONER:  All right.

PN480      

MR COONEY:  Commissioner, was this a matter that was raised by the FWO, I think?

PN481      

THE COMMISSIONER:  It was, yes.

PN482      

MR COONEY:  Yes.

PN483      

MR BARLOW:  They raised a lot of matters, Commissioner.

PN484      

MR COONEY:  Yes.

PN485      

THE COMMISSIONER:  Yes.  And a lot of them ‑ ‑ ‑

PN486      

MR BARLOW:  Most of them got ignored.

PN487      

THE COMMISSIONER:  A lot them were ignored, exactly.  But this is one which is a legitimate one to raise because, you know, it isn't clear exactly what it does mean.  So I think it's ‑ ‑ ‑

PN488      

MR FERGUSON:  No, no, and, look, we're not saying that.

PN489      

THE COMMISSIONER:  Yes.

PN490      

MR FERGUSON:  But I think we don't want to rush to solve, you know, a lack of clarity, you know, by changing it in Parliament if we're not clear about what impact it would have.  And I don't know that anyone has it's actually arisen as a problem in practice, and I'm not saying that it couldn't be fixed at a later point but I'm just wondering whether now there's a necessity to do it on balance.

PN491      

THE COMMISSIONER:  Yes.  I understand the point.

PN492      

MR COONEY:  Commissioner, at the risk of saying that we'll leave it for the next four year review, we're certainly I take on board what's said.  It hasn't certainly come to the ASU as being a major problem, but I can see benefits in having it more clearly defined.  But we would, for the time being, be happy to leave it where it is rather than change it unnecessarily to something that's just, in our opinion, is not going to work.

PN493      

THE COMMISSIONER:  Is there anyone who's opposed to the comments of the Australian Industry Group and the ASU?

PN494      

MS THOMPSON:  I'm not opposed to those.

PN495      

THE COMMISSIONER:  All right.  So I think that's the approach we'll adopt.  We'll report that we haven't been able to come up with a solution at this stage, and I think that's sort of like where we'll leave it.  And we'll only pursue this further if somebody insists on it.

PN496      

MR FERGUSON:  Yes.

PN497      

THE COMMISSIONER:  All right.  Then I think the next item is number 10 which is about the Sunday 200 per cent rate.  It's item 60.  One moment.  And this is about clause, the table, clause B.3.2.  Now, I think it's weird and a level of complexity which probably really doesn't make much difference in the real world, but I think in the end I've come to the conclusion that the Australian Industry Group, supported by AFEI, but I think that the Australia Industry Group are technically correct, that is, their view is what the current award does, and so I think that the exposure draft should reflect the Australia Industry Group's view.  As I say, in the end I don't think it's likely to make any practical or substantive difference, but I think we should make that alteration.  So is there anyone who wants to comment further on that?

PN498      

MR COONEY:  Commissioner, we'd make no further comment on that.

PN499      

THE COMMISSIONER:  The next one is item 46 which is no, that's all fine.  That's going to be referred.  Right.  So is there anything else on this award, that is, the business equipment award?

PN500      

MR FERGUSON:  No, Commissioner.

PN501      

THE COMMISSIONER:  All right.  So next one is commercial sales.  Okay.  So the first one is item 4 which is the definition of home or headquarters.  I suppose home is pretty obviously usual place of residence, but whether you need to make that change I'm not a hundred per cent sure, but I don't think that's terribly contentious, is home being usual place of residence, but headquarters there's been more contention about.  Is ‑ ‑ ‑

PN502      

MR FERGUSON:  That's right, Commissioner, from the AI Group's perspective.

PN503      

THE COMMISSIONER:  Is that a fair summary of where we're up to?

PN504      

MR FERGUSON:  Yes.  I mean, home we just made the point that people probably understand what home means without a definition, but obviously the one that's been advanced is not dissimilar to what's in other awards and probably not problematic.  It's the headquarters that seems to be well, it's a bit of a stab at a definition and it may be appropriate a lot of the times, but it's something that's a little bit more difficult to probably contemplate all of the circumstances that might be caught by headquarters.  So it's not to criticise those that advance the definition.  It's just we couldn't be sure that that would be appropriate in all context.

PN505      

THE COMMISSIONER:  Yes.

PN506      

MR FERGUSON:  That's the only thing we have a difficulty with.  And I suppose that then leads us back to the same sort of situation we got to with business equipment in that we do wonder whether it's necessary to define it at this stage.

PN507      

THE COMMISSIONER:  I agree, Mr Ferguson.  I think it's less of a risk than country/territory.

PN508      

MR FERGUSON:  Yes.

PN509      

THE COMMISSIONER:  I mean, I think with headquarters, if there was ever a dispute about it, and it came to the Commission, for example, it's the sort of thing that could easily be sorted out in a practical way, I think, by the Commission.  You know, like ‑ ‑ ‑

PN510      

MR FERGUSON:  I think that's right.

PN511      

THE COMMISSIONER:  And so I think headquarters probably gives enough of a steer as to what is meant to enable things to be resolved in a sensible manner.  So I tend to agree with what Mr Ferguson says.  Let's define home as usual place of residence.  Leave headquarters as it presently is.  Now, AFEI also made comments about this.  Do you want to say anything about it further?

PN512      

MS THOMPSON:  Thank you.  AFEI would agree with that proposal.  Thank you.

PN513      

THE COMMISSIONER:  And what about ABI?

PN514      

MS HOGG:  We have no objection to that approach.

PN515      

THE COMMISSIONER:  Terrific, thank you.  Let's move to the next item which is item 11 with number 3 in my report.  Item 11 in the summary of submissions, and this is about in soliciting orders.  Now, we did a little bit of research on this matter as well during the period since the last conference.  Now, the Federal Award, which some people might call the Victorian Pre-reform Award, didn't refer to soliciting orders.  It was a general requirement, you know, about all work done on public holidays.

PN516      

The other State awards that we can identify that dealt with this matter did refer to soliciting orders.  So that's sort of in a nutshell what we saw from the history of the matter.  But I just question, from a practical point of view, soliciting orders seems to be the sort of shorthand for the main work that these people do.  Now, I know they do work that's incidental to soliciting orders like, you know, doing paperwork and, you know, doing paperwork and reporting and things of that sort, but soliciting orders is the centre of what these people do.

PN517      

MR FERGUSON:  Yes.

PN518      

THE COMMISSIONER:  And so I'm not sure whether the way in which it's framed it's intended that somebody who comes to work on a public holiday should be denied payment because the employer is requiring them to do some incidental work as well as soliciting orders.  So I suppose my point is I'm not really sure that we need to keep the expression but if there's some convincing reason as to why we need to, well then we'll have to consider that.  But I suppose I just think from a practical point of view, do you we really need the complexity?

PN519      

MR FERGUSON:  I think, Commissioner, we'd thought about it from the same perspective as you, in terms of the soliciting orders being probably the principal work, but that there may be some incidental work and it may even be incidental work that's not required, you know, that's not done at work, with the person actually attending work but they may be just filling out some paperwork and whatnot.

PN520      

THE COMMISSIONER:  Yes.

PN521      

MR FERGUSON:  It might occur on a public holiday, but that in the context of awards that traditionally, you know, might have had for different wages and whatnot perhaps there was never any penalty rates intended to apply to that incidental work, and we were thinking of that as probably a small amount of work that might occur on the public holiday.  But where they're not undertaking that principal activity of soliciting duties, it seemed that the distinction was intentional in that if you're not doing that main work, if you will, that you don't pick something up.

PN522      

THE COMMISSIONER:  Yes.

PN523      

MR FERGUSON:  But we had thought of it more as the scenario of someone doing a small amount yes, particularly work on a public holiday, particularly in the context where they may have some control over when they do that work.

PN524      

THE COMMISSIONER:  Yes.

PN525      

MR FERGUSON:  As these types of employees might, given they're not always at the work site.

PN526      

THE COMMISSIONER:  I do understand the point, but I think it's also plausible that it was simply an expression for describing the person being at work, given that soliciting orders is sort of like the main function, but, look, I understand the point.  So I take it the Australian Industry Group and the AFEI want to press the retention of the words "in soliciting orders"; is that correct?

PN527      

MR FERGUSON:  It is right, Commissioner.  It's one we actually didn't think about in quite a bit of detail, and ultimately that's the position that we will take.

PN528      

THE COMMISSIONER:  So is there anyone who's opposed to restoring the words?  All right.  So we'll reflect that in the next draft.  Okay.  So now we'll move to the Contract Call Centres Award.  So the first matter is item 3 where the Australian Industry Group maintain their view that they don't like the words "who do the same work in 6.3(a)(iii)".

PN529      

This is one where the award modernisation team have been trying to achieve a degree of consistency of approach.  So I've suggested an alternative which is:

PN530      

Receives on a pro rata basis award pay and conditions equivalent to those of full-time employees.

PN531      

And instead of "who do the same kind of work", use the expression "in the same classification".  So perhaps we'll ask the Australian Industry Group first their view of the suggestions?

PN532      

MR FERGUSON:  Yes, Commissioner.  As when we looked at it initially I thought the compromise that you had come up with had some appeal but looking at it a little further certainly the proposal that, Commissioner, you've advanced fixes some of our concerns by confining it to award conditions and, by referencing the classification you've put it in the context of the award's contemplation of work if you will rather than just work generally, but if you looked at it further we think really it's probably by bringing in a reference to classification it's bringing in an irrelevant consideration because all you need to do is really distinguish between the different types of employment rather than the classifications for the purpose of pro-rataing.  And also those words just as they put in the draft they don't actually give the mathematical mechanism by which you would pro rata.  But that might just be an oversight.

PN533      

I think the point is though, if you look at 12.3 of the current award ‑ ‑ ‑

PN534      

THE COMMISSIONER:  Yes.

PN535      

MR FERGUSON:  ‑ ‑ ‑ and I appreciate there's some consistency trying to be achieved but it might be a problem.  If we could just look at the wording that's there now is preferable.

PN536      

THE COMMISSIONER:  Yes.

PN537      

MR FERGUSON:  So it makes it clear the terms of the award will apply to pro rata basis.  So that's solves the first issue, that it's only about award conditions.  And it's on the basis that the ordinary weekly hours for full-time employees are 38 hours.  So that really gives you the mathematical means of doing it, i.e., the reference point is 38.  I just don't know that you need to start referencing classifications and things like that.  It seems to just complicate it.

PN538      

THE COMMISSIONER:  Yes.

PN539      

MR FERGUSON:  And under the drafting it doesn't have the 38, and I think that might just be an oversight, but ‑ ‑ ‑

PN540      

THE COMMISSIONER:  No, no, I think ‑ ‑ ‑

PN541      

MR BARLOW:  Commissioner, it's ‑ ‑ ‑

PN542      

THE COMMISSIONER:  ‑ ‑ ‑ it's not an oversight because it's in A1.

PN543      

MR FERGUSON:  Right.

PN544      

MR BARLOW:  Yes.  Thank you, Commissioner.  The CPSU's point was if you look at 12.1 the last sentence deals with a:

PN545      

full-time employee performing work of the same kind or similar nature.

PN546      

So in some senses that concept needs to be picked up somewhere which is how we've ended up with obviously 6.3(a)(iii).  And it may very well be ‑ ‑ ‑

PN547      

MR FERGUSON:  Sorry.  Sorry, I've lost ‑ ‑ ‑

PN548      

MR BARLOW:  So this is the current award.  That's the proposed award.  So they've put that over here.  So it may very well be the suggestion I'd make, Commissioner, because I'm not really that concerned with what you've proposed, Commissioner, but if the AiG are concerned that the divisor needs to refer to 38, then the hybrid would seem to be some reference to, as you put in your suggestion, relevant classification which would thereby pick up, you know, you're doing work of that nature.

PN549      

MR FERGUSON:  But 12.1 is there for the purposes of defining what is a part-time employee.  Not for the purpose of calculating how the pro rata applies.

PN550      

MR BARLOW:  Anyway, in essence it's a similar concept.

PN551      

MR FERGUSON:  But it actually raises, which I wasn't going to press, but a bigger problem in that why are we including in the pro rata basis within the definition of who is part-time employee?  And I didn't want to raise that because it's a problem that they've put throughout the whole system, but why you would do that I don't know, but it would seem easier to break the pro rata rule out of the definition of who a part-time employee is to be frank.  And that you would just use the exact mechanism that is in the current award.  So, in the exposure draft, take 6.3(a)(iii) out and just make it its own clause, and in the same terms as the current award.

PN552      

MR BARLOW:  Yes, I know what you're saying.  How do you pick up this part then?

PN553      

THE COMMISSIONER:  So ‑ ‑ ‑

PN554      

MR BARLOW:  I think it's meant to pick up you're meant to be sorry, Commissioner, I apologise.

PN555      

THE COMMISSIONER:  Yes.

PN556      

MR BARLOW:  My colleague here and I are having a debate about the relevance of that last part of 12.1.

PN557      

THE COMMISSIONER:  All right.  Yes.

PN558      

MR BARLOW:  And whether it has any work to do, which I think is a valid point, and the extent to which, if it doesn't have any work to do, does need to be picked up.  I think it's trying to pick up the equivalence issue.

PN559      

THE COMMISSIONER:  Yes.

PN560      

MR BARLOW:  So just because you're a part-time employee doesn't mean you get classified differently or paid differently.  You were meant to be part time of whatever the relevant rate of pay and conditions are for that type of work as defined in the classification structure.  So I'd say I agree it's a little bit vague but I'd suggest it may have some work to do.

PN561      

THE COMMISSIONER:  Yes.

PN562      

MR BARLOW:  And if Mr Ferguson's suggestion is taken, which is to move 6.3(a)(iii) to its own sub-clause, being (b), you may very well want to replace 6.3(iii) with a reference to relevant classification for work performed.

PN563      

THE COMMISSIONER:  Well, look, I understand the point that's being raised, but this is sort of standard drafting in all of the modern awards as far as well, not all of them, but a lot of modern awards, and there has been an attempt to make it simpler.  I understand the point about maybe it could be a separate sub-clause but let's I'll have to consider that further.

PN564      

MR BARLOW:  I just ‑ ‑ ‑

PN565      

THE COMMISSIONER:  But the point about the current words that on the basis of that the full-time hours are 38, I mean, it does seem to me that that's sort of pretty much implied by 6.3(a)(1) but if that needs to be made explicit I can see some merit in that.  And I think there's no disagreement with the Australian Industry Group proposal about having award pay and conditions.  So I think we'll have to give some further consideration to what Australian Industry Group's said and we'll reflect what we can in the next exposure draft and if there are still issues well we'll just have to deal with them further.

PN566      

MR BARLOW:  But I just ‑ ‑ ‑

PN567      

THE COMMISSIONER:  I'm just conscious of the issue of, you know, this is a sort of fairly consistent approach in the modern awards.

PN568      

MR FERGUSON:  I think, and just because it might come along later on ‑ ‑ ‑

PN569      

THE COMMISSIONER:  Yes.

PN570      

MR FERGUSON:  ‑ ‑ ‑ I think once you start building references to classifications in part of the difficulty is some of the entitlements and things aren't unique to classifications if you will.

PN571      

THE COMMISSIONER:  Yes, sure.  I'm happy about leaving out the classifications.

PN572      

MR FERGUSON:  Yes.

PN573      

THE COMMISSIONER:  Sure.  That was just my attempt and I'm ‑ ‑ ‑

PN574      

MR FERGUSON:  No, no, I understand that.  Yes.

PN575      

THE COMMISSIONER:  ‑ ‑ ‑ persuaded that that doesn't solve the problem, right.  So I agree with that.

PN576      

MR FERGUSON:  We hesitate to raise the bigger issue because we're conscious as well that that might mean changing it in other places, but ‑ ‑ ‑

PN577      

THE COMMISSIONER:  Exactly.  So I'm going to try, in the exposure draft, to pick up what you've said.  So we'll keep the word "award" in there.

PN578      

MR FERGUSON:  Yes.

PN579      

THE COMMISSIONER:  And we'll consider adding the point about it being on the basis of full-time hours being 38 so as to make it clear what it's pro rata of.  So we'll certainly try and pick up those two concepts.

PN580      

MR FERGUSON:  Yes.

PN581      

THE COMMISSIONER:  And then we'll see whether we've still got a problem.  All right.  Is there anything else people want to say about that at this point?  So I don't think we've necessarily solved that problem but we'll see.  All right.  Now, the next one is item 5, which is this section 147 issue.  I think that although it may not be a major, you know, practical issue, I think the Australian Industry Group's raised a legitimate point here.  I think it would be better not to change it to the words "up to 38 hours", but rather to put in brackets "or up to 38 hours per week for casual employees".  Because I think it's important to retain clarity of the fact that, you know, it is 38 hours for a full-time employee.  So it says there:

PN582      

Ordinary hours of work are to be an average of 38 hours per week.

PN583      

And I'd be suggesting, you know, we then put in brackets:

PN584      

or up to 38 hours per week for a casual employee.

PN585      

And if that raised some question marks about part-time employees, you know, you could have a cross-reference to clause 6.3 for part-time employees, but I'm not sure that that's necessary given that clause 6.3 makes the general point about pro rata is pro rata.

PN586      

MR FERGUSON:  We were thinking, in case there's some other issue, but I think that might actually be a better approach, Commissioner, than what we put.

PN587      

THE COMMISSIONER:  Is there anyone who is opposed to the general concept that's been raised by the Australian Industry Group?

PN588      

MR BARLOW:  Commissioner, it's the CPSU here in Sydney.

PN589      

THE COMMISSIONER:  Yes.

PN590      

MR BARLOW:  We take the point regarding casuals, but I'm not too sure whether putting it in the front part of hours of work is more useful than putting it in the casual employment part of the award, but as I took your suggestion to be to put it in essentially 8.1 rather than say 6.4.

PN591      

THE COMMISSIONER:  Look, you could put it in 6.4, but I just think that the employers might be concerned that there are other implications from doing that.  That's why I think it's simpler just to make the reference in clause 8.1, but if the employer organisations are relaxed about doing it in 6.4, then I'm happy to do it there.

PN592      

MR FERGUSON:  Without getting into the detail, we have been involved in arguments with the ATO in the context of other awards where you start to define ordinary hours in a clause dealing with the different types of employment rather than the Hours clause, they don't always accept that that then defines ordinary hours of work.  Rather, they say it's part of the definition of that type of employment, which is why we have tried to fix it in the Ordinary Hours of Work clause.  I'm probably being a little cryptic, but - - -

PN593      

THE COMMISSIONER:  No, unless the CPSU has got a very strong view about it, I think we should deal with, you know - - -

PN594      

MR BARLOW:  We have certainly not got a strong view about that, Commissioner, although I would note regarding part‑time employees, I don't think any change is necessarily required for them, although obviously if you would want to clarify it that for casuals, that's certainly something we would support.

PN595      

THE COMMISSIONER:  All right.  Let's take that approach.

PN596      

MS THOMPSON:  Commissioner, sorry, just from AFEI, if this could be another matter that the parties will still have an opportunity to provide comment on in the exposure draft once it has been put in.

PN597      

THE COMMISSIONER:  Yes.

PN598      

MS THOMPSON:  Thank you.

PN599      

THE COMMISSIONER:  No problem.  I'll note that.  All right then, the next matter I think is point 9 in my report.  That is the CPSU trainer proposal.

PN600      

MR BARLOW:  Thank you - - -

PN601      

THE COMMISSIONER:  Has there any opportunity for discussion about this?

PN602      

MR BARLOW:  Yes, Commissioner.  We have had some discussions with AIG about this, but if you would indulge me a few minutes, I was hoping to take you to, in some senses, the issue that the CPSU was trying to resolve here.

PN603      

THE COMMISSIONER:  Yes.

PN604      

MR BARLOW:  If you get a copy of the exposure draft of the Contract Call Centres Award and turn to schedule A.2, which is page 34 - - -

PN605      

THE COMMISSIONER:  Yes.

PN606      

MR BARLOW:  - - - it contains various classifications for the type of work performed:  customer contact; officer level 1, level 2; customer contact specialist; customer contact team leader and so forth.

PN607      

THE COMMISSIONER:  Yes.

PN608      

MR BARLOW:  Commissioner, it's uncontroversial that the type of work performed by customer contact officers is your usual - receive calls, make calls, use telecommunications systems, sales work, customer service work, et cetera.  Currently that is covered by the award.  The CPSU's application is in some senses for a discrete part of contract call centre or in‑house call centre work and the TSI Award, where there are a classification of employees essentially called trainers.

PN609      

They are in‑house trainers and they train new starters in the contract call centre in how to use the systems.  They also train existing employees on when client systems have changed.  For example, when they have got a new contract in, the trainer will essentially - with the assistance of the team leader or the manager - develop a course and implement it for that call centre.  In some senses they don't have client contact.  Their job is entirely to develop and deliver the training.

PN610      

It is the CPSU's concern that that type of work is not clearly covered by a classification currently in the Contract Call Centre or TSI Awards.  Obviously they share a common - - -

PN611      

THE COMMISSIONER:  Yes.

PN612      

MR BARLOW:  Our application is to change both, because they share a common classification structure.

PN613      

THE COMMISSIONER:  Correct.

PN614      

MR BARLOW:  If we just turn to customer contact specialist, if you look down there, which is (d), page 37 - - -

PN615      

THE COMMISSIONER:  Sorry, can we just have a look at customer contact specialist - - -

PN616      

MR BARLOW:  Customer contact specialist probably comes the closest, Commissioner, on page 37 of the exposure draft.

PN617      

THE COMMISSIONER:  Yes, correct.

PN618      

MR BARLOW:  (iii) there.

PN619      

THE COMMISSIONER:  Yes.

PN620      

MR BARLOW:  Or (ii):

PN621      

provides leadership as a coach, mentor or senior staff member.

PN622      

In some senses, some of the work that they would perform falls within that.  If then we turn to the customer contact team leader, which is (e)(i), they are:

PN623      

developing new criteria and procedures for performing current practices and providing leadership and guidance to others.

PN624      

What we're saying, Commissioner, is developing internal courses and delivering them is work contemplated by this award at probably customer contact team leader or more senior principal customer contact leader levels given their leadership function and their management functions, but in parts of the industry it is currently being delivered by a much more discrete and more junior type of employee, Commissioner, whose specialist role is essentially to do that work.   They don't contain management functions.  They don't have HR roles.  You know, they're in‑house trainers.

PN625      

It's our view, Commissioner, that they're not clearly captured in the Contract Call Centres Award currently and the work probably falls between customer contact specialist and customer contact team leader.  It's our submission that it is likely a lot of training is done by the customer contact team leader, but there are specialists who only do training and it's for that reason that we advanced the proposal that we have, which was to create a new classification called essentially customer contact trainer and put them in at team leader - I think it's a C6 level.  Let me just check that, Commissioner.

PN626      

Sorry, it's C7 level because of the cert IV that many of them hold to deliver this sort of training.  It's unclear to me at this stage - obviously our evidence might disclose this - whether it's a requirement to hold that cert IV, but it's certainly common in the members we've discussed this with, for them to hold that level of qualification.  That's what we're trying to achieve, Commissioner, and we have had some initial discussions with the AIG.

PN627      

I may very well turn over to my colleague, Mr Ferguson, to report on those, but I just wanted to give you a flavour of what we're trying to do here which is, in our view, we're not trying to rope in employees who are not traditionally award‑covered or work that is not traditionally award‑covered, Commissioner.  I think the sort of work is contemplated by the current classification structure.  Obviously the pre‑reform award was made in 2000.  This discrete type of work has emerged and increasingly has emerged.

PN628      

THE COMMISSIONER:  Yes.

PN629      

MR BARLOW:  Many of the trainers would be former or more senior customer contact officers before they become trainers.  Maybe I will turn over to my colleague.

PN630      

MR FERGUSON:  As the union has indicated, we have had some discussions which actually have been helpful in explaining at least what the union's concern is and the way they perceive this work to be undertaken, and who they perceive is undertaking the work.  I have had some initial discussions with a colleague who looks after this - or works with the members in this sector more often than I do.

PN631      

There probably is some utility in that person having some more discussions with our members about this proposal to see whether it's something that could be agreed or at least we could have a level of agreement about things such as where in the structure these people should sit.

PN632      

THE COMMISSIONER:  Yes.

PN633      

MR FERGUSON:  Initially I must say my colleague had some reservations about the proposition that the people performing these duties are always people that should probably be award‑covered.  There was a view that some of these tasks were undertaken by people that might sit more readily in the sort of HR section of some of these organisations, but that was very much a preliminary view.

PN634      

I think where we're at in terms of advancing the matter is that there probably is some merit in us being given a bit of a meaningful period of time to see if we can get any further clarity around what's happening amongst the membership.  I'm not sure how widespread this change in practice is, but a period of time to continue those discussions and then there may well be utility in either further discussions with the union, you know, under the auspices of the Commission or independently, but we probably should make that decision once we've just done some more of our own inquiries in light of the helpful discussions we have had with the union.

PN635      

I note this is sort of a substantive claim quite squarely, so it might, in one view, sit outside the exposure draft process.

PN636      

THE COMMISSIONER:  Yes, sure.

PN637      

MR FERGUSON:  So I don't know that we need to keep it on the exact same time frames as that process.

PN638      

THE COMMISSIONER:  That's correct, yes.

PN639      

MR FERGUSON:  So if we could break that out and allow us some time.  I don't know precisely how long we need, but I don't want to suggest a week or, you know, a couple of weeks.  If we could have, you know, say at least four weeks - - -

PN640      

THE COMMISSIONER:  Yes.

PN641      

MR FERGUSON:  - - - we would at least know where we're going.  I don't think this is a large number of organisations we're talking about.

PN642      

MR BARLOW:  No, this is a fairly discrete industry and a subset, Commissioner, of work in call centres.

PN643      

THE COMMISSIONER:  All right.

PN644      

MR FERGUSON:  Not all would have this sort of role.

PN645      

MR BARLOW:  Yes, that is true.  Certainly it appears to be from the larger call centres, Commissioner.

PN646      

THE COMMISSIONER:  Yes.

PN647      

MR BARLOW:  Where this work has emerged as a specialist function rather than it just being, you know, half a day a week of the team leader or principal team leader's role.

PN648      

THE COMMISSIONER:  All right.  So we'll expect some form of further response from the Australian Industry Group within about a month.  If, arising from that, the response is a need for a further conference, then we will convene the conference.

PN649      

MR FERGUSON:  Yes, Commissioner.

PN650      

THE COMMISSIONER:  All right.

PN651      

MR BARLOW:  Thank you, Commissioner.

PN652      

THE COMMISSIONER:  Thank you.  Now, I think that concludes the contract call centre issues.  In respect to the Telecommunication Services Award, I would say we should deal with the section 147 issue and the CPSU trainer proposal in the same manner as with the Contract Call Centre Award.  Is there any objection to that?

PN653      

MS BHATT:  No, Commissioner.

PN654      

THE COMMISSIONER:  I think the only other item under this award that we need to discuss is number 7 in my draft report, which is item 26.  This is where the Australian Industry Group is concerned at the implications of using 130 per cent rather than using 30 per cent.  Essentially Australian Industry Group found the removal of the word "penalty" useful, so they're not asking for us to put the word "penalty" back, but they didn't believe that that resolved all their concerns about this matter.  I might ask Australian Industry Group if they want to say anything about this.

PN655      

MS BHATT:  Yes.  Thank you, Commissioner.  I think the concern remains that clause 14 doesn't express the relevant premium that is payable as a separately identifiable amount.  In our reply submissions, we pointed to clause 14.2(c), the very last sentence - - -

PN656      

THE COMMISSIONER:  Yes.

PN657      

MS BHATT:  - - - where a practical difficulty arises from the fact that that penalty is no longer expressed as 15 per cent or 30 per cent.  It has occurred to us earlier today - if I can take you, Commissioner, to clause 16.3(c) of the exposure draft, which deals with payment for annual leave.

PN658      

THE COMMISSIONER:  Yes.

PN659      

MS BHATT:  The provision says:

PN660      

Where an employee would have received loadings, in accordance with clause 14, had the employee not been on leave and such loadings would have entitled the employee to a greater amount than the loading of 17.5 per cent, then the employee will be paid the greater amount instead of the 17.5 per cent.

PN661      

Now, if the loading is going to be expressed as 115 per cent as it now is, then it would appear that the loading as expressed in 14.2 will always be greater than the 17.5 per cent.  That clearly deviates from how the award currently operates.

PN662      

THE COMMISSIONER:  Yes.  I don't think anyone would read it that way in a practical sense, but, I mean, in a technical sense I can see your point.  It refers to the loadings that they would have been entitled to and, if you go to 14.2, the loading is obviously 15 per cent and 30 per cent.

PN663      

MS BHATT:  I think our concern is that on the face of the provisions in the exposure draft as it has now been provided, the loading is no longer expressed as 15 per cent or 30 per cent; rather, the provision provides for the rates that are payable in total for that period of work.  I think in our submissions we have raised this as an issue that we've identified virtually across the board and the possible implications that that might also have for interaction with other legislation or entitlements that arise in respect of, for instance, long service leave, workers compensation, what have you.  There are concerns that also arise from interactions with other award provisions.

PN664      

THE COMMISSIONER:  So is there an issue with 15.2?

PN665      

MS BHATT:  I don't think there is, Commissioner.

PN666      

THE COMMISSIONER:  Right.

PN667      

MS BHATT:  Or at least I can't immediately identify an issue arising from the interaction with other provisions.

PN668      

THE COMMISSIONER:  So the issue is really about 14.2.  Yes?

PN669      

MS BHATT:  I think so.

PN670      

MR BARLOW:  Wouldn't it apply to 14.3, as well, which deals with 150 per cent, or even the overtime at 15.2?  Maybe I'm misunderstanding what you're saying, but aren't you saying because it's expressed as 115 rather than 15 - - -

PN671      

MS BHATT:  I would have to go back and look at the current award, but I think the issue is that the rate that is payable - sorry, Commissioner.

PN672      

THE COMMISSIONER:  No, you're correct, what you were about to say.  That is that in the current award it's clearly expressed in the way we have in the exposure draft for overtime and weekends, but it is expressed as, you know, 15 per cent or 13 per cent for the shift work.  The Australian Industry Group is correct that there is a change between the current award and the exposure draft when it comes to the matters that are in 14.2.

PN673      

I think the reason we have done it is for consistency and it's an approach that has been taken, I think, generally in the award exposure drafts.  I think the Australian Industry Group's concern is that making the change might end up having some implications.  I think that's really where it's at.

PN674      

MS BHATT:  I think that's right, Commissioner.

PN675      

THE COMMISSIONER:  Yes.  Does anyone else want to comment about it?  All right.  I am going to have some discussion about this with others in the Fair Work Commission, because, you know, it does have some implications, as Australian Industry Group said, in other awards.  I understand the issue that is being raised, so I will have some discussion with others about it.

PN676      

If we don't make an alteration to the exposure draft, then this is a matter that will have to be further considered at the next stage.  What I'm saying there is I understand the Australian Industry Group are pursuing this matter.  They think it's an important matter, so if we don't change the exposure draft, that doesn't mean that it's the end of the matter.

PN677      

As I say, I will undertake to discuss this further within the Commission and see what the view is.  All right.  Is there anything else about the Telecommunications Services Award that anyone wants to raise?

PN678      

MS BHATT:  Commissioner, it's Ms Bhatt again.  I just wonder if we need to deal with item number 1 in the draft report.

PN679      

THE COMMISSIONER:  Yes.

PN680      

MS BHATT:  The proposal there in respect of clause 6.3, which is similar to the matter that was discussed in respect to the Contract Call Centres Award.

PN681      

THE COMMISSIONER:  Yes.

PN682      

MS BHATT:  Can I just identify that the proposal you've put in this draft report - our concerns in respect of it would be limited to the use of the words "in the same classification" for the reasons that Mr Ferguson has articulated earlier.

PN683      

THE COMMISSIONER:  Yes.

PN684      

MS BHATT:  Subject to the matter Mr Ferguson raised about that provision appearing as part of the definition of "part‑time employment", if the reference to the employee's classification were removed, we wouldn't have any other difficulty with what has been proposed here.

PN685      

THE COMMISSIONER:  Okay.  All right.  Thank you.  I should have raised that issue as we came to that and I appreciate your comment about that, yes.  I think that is a good way forward, yes, because point 1 is dealing with two separate issues.  One I think is clearly resolved, but the first one, you are correct, the words in the same classification are still contentious.

PN686      

MS BHATT:  Yes.  Thank you, Commissioner.

PN687      

THE COMMISSIONER:  All right.  Thank you for that.  Is there anything else anyone wants to raise about the Telecommunications Award?  Are there any other issues that anyone wants to raise at this point?  All right.  What I propose to do then is I'll tidy up the report to reflect what has happened today.

PN688      

We will identify what we believe is clearly outstanding.  That is, either needs to be dealt with by a full bench or hasn't been resolved.  We will provide a new version of the exposure draft and if there are then any points of disagreement, we will give the parties a short period of time to provide advice.  That is the general approach we're going to take to reflecting where we've got to from these conferences.

PN689      

The way that I see it is that there is a relatively small number of matters only in respect of these awards that are going to be outstanding.  That's not to detract from their importance, but just to suggest that I think with the cooperation and assistance of all of you, we have been able to sort out most of the issues that the parties have raised.

PN690      

MR FERGUSON:  Commissioner, it's Mr Ferguson.

PN691      

THE COMMISSIONER:  Yes.

PN692      

MR FERGUSON:  As I understand it, these awards are part of the group that are going to be before the full bench on 6 or 7 June.

PN693      

THE COMMISSIONER:  That's correct.  Yes, that's exactly right.

PN694      

MR FERGUSON:  Yes, well, what I was getting at is these awards seem to have advanced much further than all the other awards, probably because of the work in this conferencing process.  Are you anticipating that the exposure drafts will be released and we'll try and work through all of that before that hearing - or that is at least the goal and we just see where we get to.

PN695      

THE COMMISSIONER:  Exactly.  That is the goal.  If we don't meet that goal, we understand, you know, but that is essentially the goal.  You see, because I'll be on sick leave next week, I won't be in attendance on the 6th.  I will be reading the transcript.  I won't be in attendance on the 6th, but obviously I will be participating in the next hearings that relate to these awards.

PN696      

That is one of the reasons why I want to try to get the status of these particular awards as clear as possible for the 6th, because I won't actually be present on the 6th.

PN697      

MR FERGUSON:  Yes, I understand.  It's just it seems that we have made quite a lot of progress.

PN698      

THE COMMISSIONER:  Yes.

PN699      

MR FERGUSON:  It might be just continuing that through.

PN700      

THE COMMISSIONER:  If we need a bit more time, the President is not going to have a big issue with that.

PN701      

MR FERGUSON:  Thank you, Commissioner.

PN702      

THE COMMISSIONER:  All right.  We will just try and work to that timetable.  If it doesn't work, well, we'll get a different time.  Thanks, everyone, for their assistance today.

PN703      

MR FERGUSON:  Thank you, Commissioner.

PN704      

MS BHATT:  Thank you.

ADJOURNED INDEFINITELY                                                        [11.03 AM]