PN1

THE DEPUTY PRESIDENT: Thank you. Good afternoon everyone. Could I confirm I have on the line Mr Murdoch?

PN2

MR J MURDOCH: Yes, thank you, Deputy President.

PN3

THE DEPUTY PRESIDENT: Thank you. Mr Serong?

PN4

MR M SERONG: Yes, Deputy President.

PN5

THE DEPUTY PRESIDENT: Thank you. Ms Westwood?

PN6

MS K WESTWOOD: Yes, thank you.

PN7

THE DEPUTY PRESIDENT: Thank you. From the CPSU, Mr Barlow?

PN8

MR K BARLOW: yes, your Honour. Thank you.

PN9

THE DEPUTY PRESIDENT: Thank you. From Live Performance Australia, Mr Hamilton.

PN10

MR D HAMILTON: Yes, your Honour.

PN11

THE DEPUTY PRESIDENT: Thank you. From the MEAA, Mr Chester?

PN12

MR M CHESTER: Yes, your Honour.

PN13

THE DEPUTY PRESIDENT: Thank you. And from ABI and New South Wales Business Chamber, Mr Kingston?

PN14

MR R KINGSTON: Yes, Deputy President.

PN15

THE DEPUTY PRESIDENT: Thank you. On 27 April the Full Bench published a decision relating to what were described as the tranche 3 awards, this award being amongst that tranche 3. That decision dealt with various issues in relation to this award, from paragraphs 27 through to 61. As a result of that decision there have been a number of amendments made to the exposure draft, the latest version of which was published on 15 May. There were approximately six discreet sets of changes there.

PN16

And there's one further - the decision in relation to casual conversion, of which it was noted that a conference would be convened, and this is the conference to deal with the issues in relation to casual conversion.

PN17

I note that in the case of the Cinema Exhibition employers, they're obviously seeking to be legally represented in this conference. Are there any objections from any of the union parties, or Live Performance Australia, or ABI in relation to that, please?

PN18

MR CHESTER: None from MEAA's perspective, your Honour.

PN19

THE DEPUTY PRESIDENT: Thanks, Mr Chester.

PN20

MR BARLOW: Nor the CPSU, your Honour.

PN21

THE DEPUTY PRESIDENT: Thank you.

PN22

MR HAMILTON: Nor LPA.

PN23

THE DEPUTY PRESIDENT: Thank you. I will take that as both LPA and ABI. Then permission is granted to the cinema employers to be represented by Mr Murdoch and Mr Serong. All right.

PN24

As I apprehend it, the situation is this, that the Part-Time and Casuals Employment Full Bench issued a decision on 21 September 2018. The effect of the decision was to insert into awards a casual conversion clause. It dealt with the cinema industry employer submissions in that decision at paragraphs 11 and 12.

PN25

What is being put forward and what has given rise to this conference is submissions and a proposal put by the cinema employers to essentially give effect to that Full Bench decision, and as such there are changed proposed to clause 8.2 of the exposure draft, and then clause 11.5(k)(ii) of the exposure draft; and some - in that letter clause, some cross-referencing to various other clauses in the exposure draft.

PN26

So that's what I understand the issue. Mr Murdoch, you propose to update the wording that has been proposed by the Part-Time and Casuals Employment Full Bench in its decision of 21 September 2018, with the form of wording that have been put forward in the submissions filed by Mr Serong on 7 April 2020. Is that correct?

PN27

MR MURDOCH: And more specifically, Deputy President, in recent days there has been a marked up copy of the relevant clauses of the award sent to your chambers, and it has also gone to the other parties. Do you have the benefit of that?

PN28

THE DEPUTY PRESIDENT: Right. Was that emailed to my chambers in particular? Let's just see. What was the date of that? I've probably got it here.

PN29

MR MURDOCH: It was sent through Mr Serong's office. My recollection is, Mr Serong, it would have gone Friday or yesterday?

PN30

MR SERONG: Very, very recently, yes. Look, I wonder - just hang on, I've got the floor for a second. Your Honour's summary is not correct. What we - quite correct. What we seek is to ‑ ‑ ‑

PN31

THE DEPUTY PRESIDENT: Thanks, Mr Serong, it's always nice to be given a chop down like that. Not that this issue is clear as mud or anything, but anyway.

PN32

MR SERONG: No. What we actually ‑ ‑ ‑

PN33

MR MURDOCH: I think if we can locate the document with the mark-up, that might clarify matters.

PN34

MR SERONG: Yes, look, it will, except that I think I've still got to clarify that one point. We don't seek to change the Full Bench decision, we seek to have the Full Bench decision applied. The ‑ ‑ ‑

PN35

THE DEPUTY PRESIDENT: The way I put it was that you're seeking to give effect to it. I haven't said you're changing it.

PN36

MR SERONG: I'm sorry. I'm sorry ‑ ‑ ‑

PN37

THE DEPUTY PRESIDENT: And that's right. As I understand it, you want to make sure that the exposure draft gives effect to it.

PN38

MR SERONG: Yes, that is correct, your Honour.

PN39

THE DEPUTY PRESIDENT: Yes, all right. So I've got that before me, and you have produced the various clauses. Which one of those documents do you want to speak to?

PN40

MR MURDOCH: Well, I think, Deputy President, you will see in the mark-up in clause 8.2 the numeral 11 is struck out, the words "casual employees" are struck out, and inserted in lieu is 11.4.

PN41

THE DEPUTY PRESIDENT: I see, yes.

PN42

MR MURDOCH: So the effect of that is that giving effect to the decision of the Full Bench, those matters in the generalist section of the award won't apply to cinema employees, and cinema employees revert to provisions in clause 57. But in leaves in tact the balance of the general provisions in clause 11, namely the part of the clause from 11.5 on. And that, we believe, gives effect to the intent of the Full Bench.

PN43

And as we understand it, the other parties represented here today with an interest in the cinema award, namely Mr Hamilton's client and Mr Chester's client, don't have any concern with the proposed tightening up of the drafting that we've advanced.

PN44

THE DEPUTY PRESIDENT: Yes, all right. So confirming, then, no issues for you, Mr Barlow?

PN45

MR BARLOW: Thank you, your Honour. I might just say the CPSU has no interest in the cinema aspects of this award, so we make no comment upon the proposal. We attended this conference just in case there were implications on the other parts of the award from what was proposed, and I don't believe there to be.

PN46

THE DEPUTY PRESIDENT: Okay. Thank you. And Mr Chester?

PN47

MR CHESTER: No, we don't have concerns about the approach of the cinema employers; notwithstanding, your Honour, that I'm still trying to determine the effect of the change that was supported by the Full Bench back in September 2018. But I think I've probably left my run too late on that question.

PN48

THE DEPUTY PRESIDENT: Yes. I can commend that decision to you. It's not a long one. But I think it was to reflect there would be perhaps two categories of part-time employees, and that's why the wording was put forward the way it was.

PN49

All right, so that deals with the matters that have given rise to this conference that were identified in the decision of 27 April. I will report back to the other members of the Full Bench in relation to what we've discussed this morning, noting the form of amendment that is proposed.

PN50

The other matters that I just want to quickly touch on is that at paragraph 61 of the 27 April decision we indicated that we were going to republish the exposure draft and draft variation determination to incorporate the amendments we've decided to make, and then we would have this conference to discuss the casual conversion; and we also said we would discuss the republished documents.

PN51

I have noted in the previous submissions filed by Mr Serong, the employers he represents have indicated their position in relation to a number of amendments that have been made. The position was in the exposure draft, out of that decision of 27 April there was the proposal to remove clause 45.3, that didn't seem to be opposed at that time by anyone.

PN52

There was an amendment to clause 62.2(a)(ii), and that appeared to be agreed. We made a slight amendment to clause A.1.1(e) where we amended the word "death" by changing it from a capital D to a small D. We made an amendment to or redrafted clause A.1.23(d)(v), which we had expressed a provisional view about in the background paper that preceded the decision of 27 April. We have inserted the word "cinema" instead of "theatre" throughout. And there was a slight typographical error to clause 44.4(b) that was amended.

PN53

Are there any final comments that any party on the line today has in relation to any of the republished documents, or either of the republished documents?

PN54

MR MURDOCH: Deputy President, I will hand over to Mr Serong, because there are a couple of other very minor difficulties with some of the cross-references in clause 13. They seem to have arisen out of the addition of another subparagraph, which hasn't led to consequential amendments. But Mr Serong is on top of that, if I can just get him to explain it to you.

PN55

THE DEPUTY PRESIDENT: All right. Thank you. So I should go, Mr Serong, to the exposure draft. Is that ‑ ‑ ‑

PN56

MR SERONG: To the exposure draft, clause 13.5(b).

PN57

THE DEPUTY PRESIDENT: Just a moment. Yes, I've got that there. 13.5(b), yes.

PN58

MR SERONG: So a new paragraph has been inserted, 13.5(b), but when we go down to (d) it refers - the newly designated (d) says, "Junior employees in clause 13.5(b)." That's not correct because the consequential amendment has not been made consequent upon the insertion of an additional paragraph at (b).

PN59

THE DEPUTY PRESIDENT: I see.

PN60

MR SERONG: And the same thing has happened a couple of down lines in subparagraph (e). Once again that ‑ ‑ ‑

PN61

THE DEPUTY PRESIDENT: All right ‑ ‑ ‑

PN62

MR SERONG: So they should be, I believe, redesignated (c).

PN63

THE DEPUTY PRESIDENT: All right. Just a moment. What I will do is I will just mark this up as we're talking. I'm just printing a copy now. So if we go to the new (d), it reads ‑ ‑ ‑

PN64

MR SERONG: So yes, we just - yes.

PN65

THE DEPUTY PRESIDENT: "Junior employees in clause 13.5(b)", that should be instead "(c)", is it?

PN66

MR SERONG: I believe it should be (c).

PN67

THE DEPUTY PRESIDENT: Okay, yes.

PN68

MR SERONG: And if we go down to (e), there is a reference to (b) which once again should be (c). Though it's not a concern of cinemas, the reference to (d) I assume therefore should be (e).

PN69

THE DEPUTY PRESIDENT: How does that - that didn't make sense in the first place, did it? Because it was (d) in the first place and it was referring to (d). All right. Anyway, okay. Thank you, yes.

PN70

MR SERONG: There is one other matter. Could I just clarify that we did in fact address paragraph (k)(ii) and the amendment required there. I know we talked about 8.2.

PN71

THE DEPUTY PRESIDENT: I took the amendment that you proposed to 11.5(k)(ii), that it should be - the clauses referred to in the second line of that subparagraph should be 57.3, 58.3, 59.4; and then on the next line, clause 10.4?

PN72

MR SERONG: Yes. So in an abundance of caution, your Honour, this is exactly what we believe should happen.

PN73

THE DEPUTY PRESIDENT: Right. Thank you. Yes. Any other further amendments?

PN74

MR SERONG: Not from me.

PN75

MR MURDOCH: No. No, thanks.

PN76

THE DEPUTY PRESIDENT: Any further comments about any of the changes that have flowed through to the exposure draft and the draft determination?

PN77

MR MURDOCH: Not from us, thanks.

PN78

MR CHESTER: Not from MEAA, your Honour.

PN79

THE DEPUTY PRESIDENT: All right.

PN80

MR HAMILTON: Not from the LPA, your Honour.

PN81

THE DEPUTY PRESIDENT: Thank you.

PN82

MS KELLY: Nothing from ABI, Deputy President.

PN83

THE DEPUTY PRESIDENT: All right. Thank you. If that's the case, I will report to the Full Bench as to the nature of the discussion we've had today, and the Full Bench will consider the final position in relation to the casual conversion clause based on that, and we will advise the parties in due course. If there's nothing further, I will thank you very much all for your attendance, and I will bring the conference to a close.

ADJOURNED INDEFINITELY [12.30 PM]