PN1

JUSTICE ROSS: This conference has been convened to address some of the issues raised in relation to the plain language of the General Retail Award. It's being recorded and will be transcribed. Can I have the appearances please, firstly in Sydney.

PN2

MS K THOMSON: Thomson, initial K for ABI and the New South Wales Business Chamber, your Honour.

PN3

JUSTICE ROSS: Thanks Ms Thomson. In Melbourne.

PN4

MS R PATENA: Patena, R, for the SDA, if it pleases the Commission, thanks your Honour.

PN5

JUSTICE ROSS: Thanks Ms Patena. Can you see me Ms Patena, or can you hear me as well?

PN6

MS PATENA: I can hear you and I can see the back of you, your Honour.

PN7

JUSTICE ROSS: I'm sorry about that. The main thing is that you can hear me. In South Australia?

PN8

MR C KLEPPER: Klepper, initial C, for Business SA.

PN9

JUSTICE ROSS: Thank you Mr Klepper. Now I asked that a proposed agenda of the items be circulated with some other documents, namely a document on reasonable overtime, a document on the meaning of township, and a comparative table in relation to ordinary hours of work and part time employment. Has everybody got that? Are you content to work through the agenda as circulated?

PN10

MS THOMSON: Yes, your Honour.

PN11

JUSTICE ROSS: No issues? All right. Let's deal with the first matter - well let's deal generally with where there any corrections or additions to the updated Summary of Submissions?

PN12

MS THOMSON: None from us, your Honour.

PN13

JUSTICE ROSS: Any from the SDA?

PN14

MS PATENA: Your Honour, I think in terms of any corrections, there are a couple of matters, but as they're listed on the agenda, we might pick them up. It probably is more appropriate that we pick them up at that point.

PN15

JUSTICE ROSS: Yes, no problem. Mr Klepper?

PN16

MR KLEPPER: Nothing to add from Business SA at this point, thank you.

PN17

JUSTICE ROSS: Thank you. Let's then go to item 8, and this is an SDA issue. What do you wish to say about that and what do the other parties - well, you'll note the drafting comment.

PN18

MS PATENA: Your Honour, yes, note the drafting comment. I have sought some advice in relation to the background of the particular wording of that provision and understand that it was drafted by a Full Bench some time ago, but the SDA weren't party to those particular proceedings, so we don't have any further context than that. Have no particular issue with the draft provision that is in the summary document, if parties considered a qualification was required. The SDA would say that the qualification is required and rather than use the term workplace, which the drafter has used, our preference is to retain a word that's in the award, which is location.

PN19

JUSTICE ROSS: It would be the same as what the drafter is proposing, but after the bit in brackets, where it says:

PN20

With the classification defined in Schedule A classification definitions at a workplace

PN21

You would prefer location?

PN22

MS PATENA: That's correct, your Honour.

PN23

JUSTICE ROSS: Okay. What do the other parties say about firstly the drafter's proposal and whether you have any issue with replacing the word 'workplace' with 'location', ABI?

PN24

MS THOMSON: I think it's a matter which we've agitated with respect to a number of different awards, so to the extent that an amendment such as sought by the SDA is necessary, I don't have a particular view. However, to the extent that we don't have a particular view, if there's an amendment which can meet the needs of the SDA.

PN25

MR KLEPPER: My apologies, is there a microphone that maybe can be moved a little bit closer.

PN26

MS PATENA: Sorry, Chris.

PN27

MR KLEPPER: Thank you.

PN28

MS PATENA: I was just saying - sorry, that's very loud now. To the extent that we don't have a particular view on the need for an amendment, because we have discussed the particular clause with respect to a number of the other plain language awards, we don't see that an amendment is necessary, but having said that, also don't have a particular view against the amendment sought.

PN29

JUSTICE ROSS: I think the issue is in more contention when I think in the Pharmacy Award, there is a more complex provision and that was sorted through. To some extent, it's a case by case proposition. In pharmacy, one of the issues was that we weren't really sure how the current term operated. The current term in the General Retail Award appears to be fairly straightforward, so on that basis, there doesn't seem to be any particular issue with adopting the drafter's proposal.

PN30

All right, well Mr Klepper, what do you think about it?

PN31

MR KLEPPER: Nothing to really add on what ABI has already provided. I mean, we were - our position was that the amendment sought by SDA wasn't strictly necessary, but we're not opposed to the wording put forward by the drafter or to the change in language from 'workplace' to 'location'.

PN32

JUSTICE ROSS: On that basis, we'll put in the next plain language exposure draft in relation to this award, the drafter's proposal with the change identified by the SDA, so the word 'workplace' will be replaced with 'location'.

PN33

Then we've got items, 11, 15 and 16. I think, Mr Klepper, these relate to Business SA. In relation to item 11, it's agreed that the reference to 15.10(b) should be to 15.10(a). Does any other party have a different view?

PN34

No, well, we'll make that change.

PN35

The other matters that you're seeking to deal with is this question that we've dealt with in the recent Restaurant decision and that is your proposition that the index should refer to the specific provision within annual leave and advance in this instance, and cashing out that refers to an agreement. The Full Bench indicated in the Restaurant decision, that the whole clause is intended to be facilitative and the preferred way of dealing with it, was to refer to the clause as a whole.

PN36

In light of that decision, do you press 15 and 16?

PN37

MR KLEPPER: In light of the Full Bench's decision, I won't - Business SA will not press those items.

PN38

JUSTICE ROSS: Thank you. Part time employment, well here's where the fun starts. If we go to the table and the heading is incorrect, it should be - you should have on the right hand side, General Retail Industry Award 2017. 2017 might be a touch optimistic in the circumstances, but we had to give it a year, and I didn't want to be too pessimistic. That should be to clause 10, part time employment. It's comparing it with clause 12, part time employees in the current award, and I thought it would be useful to have that in front of us as we go through each of these items.

PN39

The items start at item 19, this is an ABI, I think, general observation. The drafter's comment is that - and this is a regulatory burden issue, really. It's been drafted so that you don't have to reach an agreement in respect of aspects of part time work in relation to matters which the award already regulates and determines. That's the general comment, so that's why the agreement doesn't deal with, for example, the minimum roster period of three hours, because you can't make an agreement that's inconsistent with the other provisions of the award.

PN40

That's by way of general explanation. Perhaps if we go through the specifics - are you content to do that? Then the first item is item 20 and the SDA indicates that clause 10.1 provides that it's the concept of an average of 38 ordinary hours a week and it's pointed out that that's different from 12.1 of the current award where it's less than 38 hours a week and there's no concept of averaging. The drafter agrees and suggests that the words 'an average of' be deleted from 10.1. Look, on the face of it, that seems right. Does anyone have a different view? ABI, no? Business SA, no? Mr Klepper?

PN41

MR KLEPPER: No, thank you, your Honour.

PN42

JUSTICE ROSS: Thank you. Then let's move to item 21. You'll see the SDA's point is that the concept of a regular pattern of work which appears in 12.2, as you'll see in the table of the current award, hasn't been captured. They submit - well, that's a characteristic of part time work and I think we would agree with that. The drafter agrees and that is sought to be caught at 10.5 and 10.9. The drafter is suggesting that at 10.5 it would say:

PN43

At the time of engaging a part time employee, the employer must agree in writing with the employee on a regular pattern of work that must include

PN44

and then, it would be "all of the following". Does that meet the SDA's concern?

PN45

MS PATENA: For clause 10.5, yes it does thank you, your Honour.

PN46

JUSTICE ROSS: Does anyone else have any issue with that?

PN47

MS THOMSON: No, your Honour.

PN48

JUSTICE ROSS: Mr Klepper?

PN49

MR KLEPPER: No thank you, your Honour.

PN50

JUSTICE ROSS: Let's go to item 22. The proposition here is that the words "minimum daily engagement" in 12.2 has been deleted and the drafter comment is that 10.9 covers minimum daily engagement. What the SDA say about that?

PN51

MS PATENA: Your Honour, I note the drafter has suggested that 10.9 be reworded as the minimum daily engagement for part time employees is three consecutive hours.

PN52

JUSTICE ROSS: Yes.

PN53

MS PATENA: Yes, we would press that change in line with the drafter's comments.

PN54

JUSTICE ROSS: No, no, that's fine. If 10.9 was changed in the way the drafter suggests, that is, it would say:

PN55

The minimum daily engagement for a part time employee is three consecutive hours

PN56

then, that meets your concerns?

PN57

MS PATENA: Yes.

PN58

JUSTICE ROSS: Does anyone have any problem with that?

PN59

No?

PN60

MR KLEPPER: No, thank you.

PN61

JUSTICE ROSS: Let's go to item 23. The drafter has referred to that comment above and do those comments and the change we've just made to minimum daily engagement - that satisfies Business SA's point as well, is that right?

PN62

MR KLEPPER: Yes it does, thank you.

PN63

JUSTICE ROSS: Thank you. Let's go to 24, let me just - well, isn't the point covered by 10.6, that you're raising?

PN64

MS PATENA: Your Honour, is that directed to me, the SDA?

PN65

JUSTICE ROSS: Yes, I'm sorry.

PN66

MS PATENA: Sorry, yes I did get a bit lost with this myself. I think - - -

PN67

JUSTICE ROSS: Because 10.6 sort of makes if pretty clear.

PN68

MS PATENA: Item 24 - so we're at item 24, that's correct?

PN69

JUSTICE ROSS: Yes, we are, I'm sorry.

PN70

MS PATENA: Yes, I think we have got concerns with 10.6 which references 10.5, and I think that the drafter at some point, I think that that's covered at 26, so I might wait till we get to that item.

PN71

JUSTICE ROSS: Well that might deal with your 10.6 point. Yes, all right. We'll come back to 24 when we deal with 26. What about 25? That's also the SDA's.

PN72

MS PATENA: Yes.

PN73

JUSTICE ROSS: Well, I think we've dealt with the minimum three hours, haven't we?

PN74

MS PATENA: Yes, so that's been addressed.

PN75

JUSTICE ROSS: Then let's go to 26. We've dealt with the regular pattern of work point and what about the suggestion in relation to the reworked 10.6 in the drafter's comment? So, you delete the current 10.6 and insert:

PN76

The employer and employee may agree in writing to vary the regular pattern of work agreed under 10.5 with effect from a future date or time.

PN77

MS PATENA: The SDA's preference for that for 10.5 is that any agreement to vary the regular pattern of work must be made in writing before the variation occurs. That is our preference.

PN78

JUSTICE ROSS: But that is what that says.

PN79

MS PATENA: Well, I suppose the wording which is consistent with the GRIA is the use of the word "must" to impose an obligation which is preferenced over "may".

PN80

JUSTICE ROSS: Well, I don't think - "may" only relates to that they may agree. They can only agree though, in writing and any variation must be prospective. But do you want to - perhaps if we deal with it this way, can I ask the employer parties for a moment, are they content with the substituted words for 10.6?

PN81

MS PATENA: Yes, your Honour.

PN82

JUSTICE ROSS: Yes, well can I suggest Ms Patena that if you give some further consideration to the drafter's words there, and if you could advise me by 4.00 pm next Thursday as to whether you agree with it, and if not, what variation you propose and why. Then we'll deal with that on the papers, okay?

PN83

MS PATENA: Your Honour, I do apologise, I did make a note, that I have made on 10.6 which I might raise now, for consideration, is that the phrase agreement - I'll have to get the agreed clause, that - apologies, your Honour. I will do as you have directed and review those words.

PN84

JUSTICE ROSS: I think the problem is this, that when you look at 12.3 of the current award - can I take you to that? It says:

PN85

Any agreement to vary the regular pattern of work will be made in writing before the variation occurs.

PN86

The problem with that formulation is that it's just a bit ambiguous. It doesn't tell you that you can actually vary the regular pattern of work. It's sort of implicit, but it doesn't say that you can do it. What the drafter is trying to do is to capture both - look, the parties can agree to vary it. Any agreement has to be in writing, and it operates prospectively. That's how I interpret what the drafter is putting and I don't think the employer parties take issue with that proposition.

PN87

I don't think there's an intent, at least, to change what is the intent of the current part time provision. In any event, reflect on that, and let me know by next Thursday. If the Bench is going to depart from - we'll either find there's merit or not in the SDA's submission. If we think there is merit and we're going to depart from what the drafter has suggested, we'll provide the employers with an opportunity to comment. Otherwise, you won't hear from us.

PN88

Let's go to 27. You say 12.6 doesn't - that's your concern, 12.6 of the current award, which is:

PN89

An employee who doesn't meet the definition of part time employee and is not a full time employee, is paid as a casual.

PN90

The drafter's comment is that 11.1 is to the same effect. Bear with me for a moment.

PN91

MS PATENA: Your Honour, we would agree with the drafter's comments and we withdraw - yes.

PN92

JUSTICE ROSS: Thank you. Yes, I note 11.1 says:

PN93

An employee not covered by clause 9 full time, or clause 10 part time, must be engaged and paid as a casual.

PN94

So, 28? This is a concern in relation to the translation of 12.7 to 10.8. You've seen the drafter's comment and the drafter agrees that in 10.8 the words "any time" should be substituted for 'each hour'. It would read:

PN95

For any time worked in excess of the number of ordinary hours agreed under 10.5, the part time employee must be paid et cetera

PN96

When you look at 12.7, well, that's consistent with what it says. With that variation, does the SDA - does that meet your concern and those comments by the drafter?

PN97

MS PATENA: Yes, it does meet our concern, your Honour.

PN98

JUSTICE ROSS: Yes, thank you. Item - yes, the drafter also suggests that the word "ordinary" could be deleted from 10.8 and a reference to a variation under clause 10.6 inserted. What do you say about that?

PN99

MS PATENA: I think that would be useful, because with I suppose shift workers, some of these provisions are applicable and they're regularly rostered outside the ordinary hours. Unless there was going to be a replication of a clause specifically for shift workers under the shift work provision that would address any concerns around confusion.

PN100

JUSTICE ROSS: Look, for my part, I think there's some sense in that as well. There's also some sense in referring to the hours agreed under clauses 10.5 or 10.6, otherwise, it may no capture agreed variations. Is there any concern about either of those propositions?

PN101

MS THOMSON: No, that addresses point 29 as well, your Honour.

PN102

JUSTICE ROSS: Mr Klepper, you okay with that?

PN103

MR KLEPPER: I think so, thank you, your Honour.

PN104

JUSTICE ROSS: Let's go to item 30. 12.8 under rosters has been removed and moved to 10.10 to 10.12. The drafter suggests converting paragraphs, or subparagraphs 10.10 to 10.12 into a new paragraph 10, with a heading Changes to Roster. You see what he's proposing in that regard. I think the logic behind this, is that then the roster provisions would be, or the change in roster provisions would be collected in the one subparagraph. Is there any - what does the SDA say about those changes?

PN105

MS PATENA: I think that we'd agree that there would be a benefit in grouping those provisions together under a Changes to Roster heading. Our concern is in relation specifically to 10.11 and that the roster of a part time employee may be changed at any time by the - sorry, it currently states the roster of a part time employee including the number of hours agreed under clause 10.5, may be changed at any time by the employer and the employee by mutual agreement.

PN106

JUSTICE ROSS: I see, and that's an extension beyond (b), 12.8(b), is that right? Is it the words 'including the number of hours agreed under 10.5' that's the problem?

PN107

MS PATENA: Yes.

PN108

JUSTICE ROSS: If it said - - -

PN109

MS PATENA: Yes, I don't know that that's necessarily different.

PN110

JUSTICE ROSS: I'm not sure what rostered hours - what do you think that means, Ms Patena?

PN111

MS PATENA: I think that we view that as the agreed hours that you're rostered to work. While your roster may change in terms of when you work those hours, and you may agree to that change by mutual agreement. If you are then changing the number of hours worked, then that needs to be - that's a variation to agreed hours and should be recorded in writing. It kind of negates 10.5, so we would say that yes you can agree to change the roster and that does happen, but for those words to be retained, it's - - -

PN112

JUSTICE ROSS: No, I follow the argument. I think isn't the difficulty with the argument, when you look at the current terms of 12.8. Can I take you to those? You see paragraph (a) talks about a part time employee's roster, but not the agreed number of hours, may be altered, et cetera. Then the next paragraph talks about the rostered hours, so they're dealing with different subject matters and it would seem that (b) is talking about the hours as well as when you might work them.

PN113

I think that's why the drafter has come up with what they've proposed. I wonder - I think this is also something that further consideration should be given to and to the argument that you want to advance. Perhaps what we'll do is vary the plain language exposure draft in terms of that re-organisation issue et cetera, and note the SDA's reserving its position in respect of the translation of 12.8 paragraph (b) and noting its concern about 10.11 of the plain language draft. Then you can put a further submission in, or refer to your current one when we've published it. You can see what it looks like, because I think it's a bit difficult to - I think all the parties need to see what that conversion looks like and then you can - so we won't determine the question, we'll just put it in the thing and we'll come back to it. Are you content with that, Ms Patena?

PN114

MS PATENA: Look, I will make clear for the record that we would view the wording as put in the draft as a standard change in the departure.

PN115

JUSTICE ROSS: Yes, I understand that.

PN116

MS PATENA: No, I'll accept that, and our position is reserved and the matter is not determined. Yes, but we will flag that we will probably make further submissions in relation to that, but agree that it's appropriate to review a revision of the structure of the clause, thank you.

PN117

JUSTICE ROSS: I think, I just want to have a look at 12.8 in the current award and see where that came from. See if can glean anything from the award history about what it meant and that sort of information might assist us in working out whether it has or hasn't been accurately transposed, okay? But your position is reserved and I understand what you're saying about it.

PN118

MS PATENA: Yes, I suppose because what we would see if you are able to mutually agree to change the number of hours worked, and that's not recorded, that can create difficulties down the track. But again, it would be good to get some context in terms of any history around that, but we'll obviously come back to that. Thank you, your Honour.

PN119

JUSTICE ROSS: Look, it also - it's not clear how it sits with 10.6, because an agreement to vary, must in writing and may be of a temporary or permanent nature. I'm not clear how the provision that we're looking at interacts with that. But I think it just needs a bit more time to think about it, once we see the new structure of the clause, but there seems to be an internal tension between those provisions and I want to know a little bit more about the award history.

PN120

31, the draft has suggested in 10.11 - well this won't completely deal with your point, but substituting the words 'by mutual agreement between the employer and the employee' by the words 'by the employer and employee by mutual agreement'. I mean sorry, the other way around. Deleting the 'by the employer and employee by mutual agreement' and inserting 'by mutual agreement between the employer and employee'. Are you content with - I know that doesn't deal with all of the issues, but is it - - -

PN121

MS PATENA: We're content with that for SDA. The more substantive issue is the one - that addresses that, yes, that is fine.

PN122

JUSTICE ROSS: No, no, I fully understand that, but if we make - we may as well make that change. Anyone else have any view about that? No?

PN123

Let's go to 32. Frequency of roster changes. What bit of the current award are you looking at?

PN124

MS PATENA: The current award provision is 12.8(b), I believe, your Honour.

PN125

JUSTICE ROSS: That provides that - - -

PN126

MS PATENA: The rostered hours of - sorry, it's not 12.8(b), it's 12.8(c).

PN127

JUSTICE ROSS: Yes, (c). "Will not be changed, except as provided for in 12.1(a)" and that's by the giving of 48 hours' notice. Sorry, by giving seven days' notice in writing:

PN128

Rosters will not be changed from week to week or fortnight to fortnight, nor will they be changed to avoid any award entitlements.

PN129

Yes, you see the drafter's comment?

PN130

MS PATENA: Yes, the drafter's comment would address our concern that 10.l2 A, I think it is, of the plain language draft.

PN131

JUSTICE ROSS: It would simply read from week to week or fortnight to fortnight. Anyone else have a problem with that? It's reflective of the current award.

PN132

MS THOMSON: I think as well, the exception which is referred to in the current 12.8(c) to 12.8(a), will be better captured when the reordering occurs, that we're proposing, because I think we've missed that potentially. Yes, but once the clause is reordered, that would probably be more apparent.

PN133

JUSTICE ROSS: Yes, and the reordering of the clause in relation to these rostering things, is without prejudice to - if once you look at it, and I make this general observation to the three of you, if once you look at it, something else occurs to you, this isn't a sort of - the purpose of this conference is to be an iterative process to try and improve the draft progressively. If you look at the next one and you come up with something different, well that's fine. It's not a drop-dead process.

PN134

We'll make the change that the drafter has suggested that clause 10.12(a) would refer to "from week to week or fortnight to fortnight". That will be incorporated in the restructured clause, then we'll all have another look at that.

PN135

Can I go, I think, part time employment, item 65. I'm not sure whether 65 is part time employment, is it? I'm not quite sure why that has been included there. Do you have any idea, Ms Patena?

PN136

MS PATENA: Look, I think that's related to overtime, and I'd probably just make the point at this juncture, that we, I suppose again, agreement to change numbers of hours that aren't in writing, may create some difficulty in terms of how overtime is - when it would be clear that overtime would be applied to part timers who work in excess of their agreed hours.

PN137

JUSTICE ROSS: I see, so it's - -

PN138

MS PATENA: I suppose it's just a note to review the overtime provision in light of the revised or reordered part time provision.

PN139

JUSTICE ROSS: Yes, okay, well, we'll park that provision as well, or that item as well until we come to deal with the part time clause again.

PN140

Let's go to item 4 on the agenda. These are items 33 to 34 dealing with casual employment. What do you want to say about item 33? There was a provisional note included, I think.

PN141

MS PATENA: That we agree with the provision note I think, your Honour. Is that addressed to the SDA?

PN142

JUSTICE ROSS: It is, yes. The SDA's issue, I think.

PN143

MS PATENA: I think the drafter has included a provisional note, clause 11.2 and the SDA agrees with the insertion of that provisional note.

PN144

JUSTICE ROSS: With the insertion of that provisional note, does that resolved item 33? Yes? All right. Let's go to item 34. You see the drafter's note. I think the SDA's point was that - or one of the points was, that 11.3 and 11.4 what's included is if they could be read together. The drafter makes the comment that 11.3 clearly refers to the circumstances set out in 11.4.

PN145

MS PATENA: Look, at this point, your Honour, we'll accept those comments and will review. Yes, that's fine.

PN146

JUSTICE ROSS: Yes, so you provisionally accept and if you've got a different view, you'll let me know by 4.00 pm next Thursday. Yes?

PN147

MS PATENA: Yes, thank you, your Honour.

PN148

JUSTICE ROSS: Is there anything else in item 34? No.

PN149

MS THOMSON: No, your Honour.

PN150

JUSTICE ROSS: Then nothing else on casuals? Let's go to item 40, which is ordinary hours of work and there's a comparative table in the material that was sent out dealing with these items to assist in the discussion. Let's to go the first of the items raised by the SDA, item 40, raising concerns about the use of the words 'span of hours, spread of hours' et cetera.

PN151

MS PATENA: Thank you, your Honour. We have reviewed the draft and the drafter's comments in particular. The concern that we did want to flag is in terms of the change that's proposed of the wording, when compared with the award, is 15.3, which is that the ordinary hours of work are continuous, except for rest breaks and meal breaks, as specified in clause 16. This again may create an issue when looking at that provision for shift workers because again, they're rostered outside - regularly rostered outside of ordinary hours. Their hours also should be continuous; it's not envisaged that they would work more than one shift a day, or split shifts over a night shift.

PN152

On that basis, our preference is that hours of work are continuous, or again, seek the views of other parties in relation to this particular provision, or that there is a clause that's replicated under shift work that is along similar lines, that hours of work are continuous. I leave that comment for consideration.

PN153

JUSTICE ROSS: Let's just deal with the span proposition first. I accept this doesn't wholly or doesn't go to all of the issues that you've raised, but the expression 'spread of hours' et cetera, and span are variously used in the current award. Yet 15.1 of the PLD only talks about ordinary hours may be worked. Would it assist, if it inserts the span of ordinary hours may be worked, or doesn't that really go to the issue that you're raising?

PN154

MS PATENA: The other possible insertion could be 'ordinary hours may be worked across the following span'. I'm not sure of the utility of that, but that's just to pick up where that phrase is used elsewhere in the award.

PN155

JUSTICE ROSS: Yes. It's the interaction point that I think requires some more thought as well. I propose to go back to the drafter and let me just go - or to deal with that, into the section point that you've raised, see what he comes up with. Can I go to ABI's point though, about item 40? How would reordering assist and what reordering might be made, do you think?

PN156

MS THOMSON: I think there's a couple of considerations there, your Honour. One being, that our preference was to revert to a table which was easier to understand, as in 27.2, but appreciate that that might not be something that the drafter is interested in contemplating. I note that he hasn't actually made a comment about that. We take on board the drafter's comment with respect to item 40, which is that it seems reasonable to interpret that provision as relating only to ordinary hours, as the case in clause 15.3, which we've just discussed briefly as well.

PN157

It's probably something that's not a die in the ditch issue, but we would appreciate if there's going to be any reordering or relooking at the clause as you just foreshadowed, we would appreciate the opportunity to look at that.

PN158

JUSTICE ROSS: Yes, there's no question you'll have a look at it. We'll also park that issue and see what the drafter can come up with. Let's just go to the question of the table at 27.2(a) of the current award. Of course, that's been re-expressed in 15.1 of the plain language draft. ABI submits that - well you prefer the table and Business SA agrees. What does the SDA say about that?

PN159

MS PATENA: We would agree that a table is preferred in terms of the way that's structured, and the ability to read the document, scan the document easily. I think it would be good to have an opportunity to review an alternative draft with a table inserted to cover that particular provision.

PN160

JUSTICE ROSS: I'll have a table inserted in the revised PLD. I think the only thing that leads me to think that a table might not work, would be if any of the provisions in 15.1(a), (b) or (c) are the subject of any cross-referencing elsewhere in the award. We might just check that because obviously cross-referencing is easier using the format of 15.1 than it is to a table. But if there's no cross-referencing, then we'll go with the table.

PN161

Can I go to item 42, which is an SDA item? You see how the drafter is proposing to deal with that? Does that address the concern?

PN162

MS PATENA: Yes, your Honour, it does, thank you.

PN163

JUSTICE ROSS: Any concern with that from any of the other parties? No, all right then we'll include that in the next version.

PN164

Item 43? I mean the drafter makes the comment that we've removed those words, but it appears under the heading of Ordinary Hours of Work. Is the SDA content with the comment, or do you with to - - -

PN165

MS PATENA: At this stage, we're content with the comment. I think your Honour, we might reserve any additional comments on that clause, once we see a potential revision of the structure of that particular section, but at this stage, yes, and then if we can consider the headings in that context. But we accept the drafter's comment.

PN166

JUSTICE ROSS: Let's go to item 44. Now, this is a reference to clause 28. The drafter comments that:

PN167

If clause 28.5 of the general retail award only applied to full-timers - - -

PN168

Well, let's just ask for that. Is that proposition right?

PN169

MS PATENA: The SDA's view - that is correct, it should only apply to full-timers.

PN170

JUSTICE ROSS: Well, it's talking about 38-hour week rosters and the introduction in 28.1 talks about, "A full-time employee will be rostered on an average of 38 hours per week," so it seems to be the case that the clause is intended to apply to full-timers. So the drafter says if that's right, then he suggests that clause 15.7(e) and (f) of the plead be moved into 15.6 because of course 15.7 deals with the rosters for full-time and part-time employees. Does that address the issue you've raised or do you want to see what that looks like and then make a comment on it?

PN171

MS PATENA: Sorry, your Honour - were you proposing that the suggestion of the drafters to move that 15.7(e) and (f) - - -

PN172

JUSTICE ROSS: Be moved into 15.6.

PN173

MS PATENA: Be moved into 15.6, yes.

PN174

JUSTICE ROSS: Because 15.6 is limited to full-time employees.

PN175

MS PATENA: Yes, that's so - yes, we would like to review a draft with that change.

PN176

JUSTICE ROSS: No, that's fine.

PN177

MS PATENA: Yes.

PN178

JUSTICE ROSS: The drafter notes that he doesn't see that the expression in each four-week cycle is any clearer than per four-week cycle.

PN179

MS PATENA: I don't think we'll argue with the drafter over that, your Honour.

PN180

JUSTICE ROSS: Then let's go to 45. This is about 15.7.

PN181

MS PATENA: Your Honour, can I just start by making a point in relation to the heading of 15.7, which is a new heading.

PN182

JUSTICE ROSS: Yes.

PN183

MS PATENA: In terms of what is in the current award and that's rosters for full-time and part-time employees. So we have a separate section for full-time employees, it's proposed in 15.6.

PN184

JUSTICE ROSS: Yes.

PN185

MS PATENA: I would note that the drafting of this provision in the current award - it's good it's being revised because it is quite messy in parts but there is parts of that rostering provision that have application to all employees under the award - so both full-time, part-time and casual. So particularly in terms of limitations or restrictions around - in relation to consecutive days, Sunday work and we wanted to consider whether that heading should be either amended to just - to be, "rosters," so delete full-time and part-time employees or to be extended to include full-time, part-time and casual employees.

PN186

JUSTICE ROSS: What if it just said, "rosters," generally?

PN187

MS PATENA: I think that would - - -

PN188

JUSTICE ROSS: Because there would be some casuals - - -

PN189

MS PATENA: That would address our concerns, I think, because the award is silent in terms of how it specifically deals with casuals in those provisions but, yes, or not silent - it doesn't directly address them.

PN190

JUSTICE ROSS: Yes.

PN191

MS PATENA: I think that would satisfy our concerns.

PN192

JUSTICE ROSS: All right. Well, if we start by deleting what's in the bracket, "full-time and part-time employees," and just say, "rosters," because there will be some casuals, of course, who might not be employed on a roster at all.

PN193

MS PATENA: That's right.

PN194

JUSTICE ROSS: Yes, so I think if you include casuals in the heading then the implication might be that every casual has to be employed on a roster and that's not the intention. It's really that this deals with rosters generally.

PN195

MS PATENA: Yes, I would agree with those comments, your Honour.

PN196

JUSTICE ROSS: All right, well, let's see what that looks like. Is there anything else arising from 45?

PN197

MS PATENA: Your Honour, we wanted to - in relation to - now, I need to make sure I've got the correct provision. Apologies, I'm going to go back to 15. This was a point I missed at 44 at 15.6 so I'm sorry to jump back to that.

PN198

JUSTICE ROSS: No, that's all right.

PN199

MS PATENA: It is picked up in 45. The under 15.6(g)(v) - - -

PN200

JUSTICE ROSS: Yes.

PN201

MS PATENA: We are I suppose unclear what is meant by, "working an average of 38 hours per week over a longer period agreed between the employer and the employee," because the SDA understands and custom and practice in terms of how the award has been interpreted and applied is that a roster period cannot exceed four weeks, which - so just seeking - - -

PN202

JUSTICE ROSS: Where does that come from?

PN203

MS PATENA: Yes.

PN204

JUSTICE ROSS: All right, well, I'll ask that question and we'll find out. For the moment we'll note that you've raised the issue and we'll get an answer and then we'll return to it. Okay? That's the issue that you - or one of the issues you're raising under 45?

PN205

MS PATENA: That's right, sir.

PN206

JUSTICE ROSS: Yes, the interaction between the provision we've just spoken about and 15.7(a). Okay, well, we'll get some clarity around where did that come from and what's the comparative provision in the general retail award.

PN207

MS PATENA: Yes, thank you.

PN208

JUSTICE ROSS: In 46, you don't support the move of 28.6 in the current award to 15.7(b) in the PLD. Is that - that's the - yes, this is the point we were discussing before, that I think we've agreed that 28.6 only applies to full-time employees and therefore it should be moved into 15.6, which is the drafter's comment, so we'll adopt the same solution in relation to that matter and that then addresses the point that has been raised by the SDA. Can we go to item 47? Now, the drafter maintains that - 15.7(c) and (d), let's just have a look at those. 28.10:

PN209

Ordinary hours of work will be worked on not more than five days in each week.

PN210

JUSTICE ROSS: Right, so the current provisions essentially - that ordinary hours of work are to be worked on not more than five days. It's a bit odd that it then goes on to say that if they're worked on six days, having set the decision rule, in one week then the ordinary hours in the following week will be worked on no more than four days. Why do you say - look, in some ways (c) and (d) - what do you say is the difference to it, to the current provision in 28.10?

PN211

MS PATENA: I think in terms of the meaning of the clause, that I don't think that is changed but our preference is that just for the purposes of reading and understanding the provision our preference is for the wording at 28.10 - - -

PN212

JUSTICE ROSS: Yes, except 28.10 sort of doesn't make any sense.

PN213

MS PATENA: Sorry, I mean - - -

PN214

JUSTICE ROSS: Because - well, because it says you can't roster or you say that ordinary hours will be worked on no more than five days a week. That's the position but then you say - provided if they're worked on six days a week then this follows. Isn't it better to say as (c) does that, "Except as provided for in paragraph (d), which is the six-day exception, the employer must not roster an employee to work ordinary hours on more than five days a week?" It's a sort of clearer provision of what the obligation is and then (d) says, "The employer may roster an employee to work ordinary hours on six days in one week if the employer is rostered to work no more than four days in the following week."

PN215

MS THOMSON: I'd pick that up, though, because I think that's a change from the current meaning as well because in the current provision we've got ordinary hours - - -

PN216

MR KLEPPER: Sorry, I'm having trouble hearing what's being said.

PN217

MS THOMSON: Sorry. In the current provision we've got ordinary hours in the following week to be worked on no more than four days, so - - -

PN218

JUSTICE ROSS: Yes, on no more than four days, yes.

PN219

MS THOMSON: Then we have a look at (d) and it says, "Employees rostered to work no more than four days in the following week," so you kind of lose that understanding that you could be working overtime because of the change in terminology from - to, "rostered to work."

PN220

JUSTICE ROSS: I see. But we're talking about ordinary hours.

PN221

MS THOMSON: Sir, I think you could be working rostered overtime.

PN222

JUSTICE ROSS: That's all right, that wouldn't be captured by this, would it? It's - "May roster an employee to work ordinary hours," but if you're rostered to work overtime that's a different proposition, isn't it?

PN223

MS THOMSON: The wording there to me suggests that you can't be rostered to work any more than four days at all. It's probably just a technical - - -

PN224

JUSTICE ROSS: I see. "If the employee is rostered to work ordinary hours on no more than four days the following week" - - -

PN225

MS THOMSON: That would address the concern.

PN226

JUSTICE ROSS: So that would in the third line, in (d), after the word, "work," you would insert, "ordinary hours on," to make it clear we're only talking about ordinary hours there. I'm still not clear about what the SDA's concern is.

PN227

MS PATENA: Your Honour - - -

PN228

JUSTICE ROSS: Do you accept that there's no change in legal meaning between the two?

PN229

MS PATENA: Look, we accept that. I think what I suppose we're seeking is to get the provision that improves how you read and understand the award and I, in looking at (c), rather than start the reading that subclause and having to jump straight down to (d), that's probably where - that may be the way my mind works.

PN230

JUSTICE ROSS: I see. So if you could say - I'm sorry, go on.

PN231

MS PATENA: Sorry, I think you were about to pick up my point that - start the sentence with, "The employee must not roster an employee to work ordinary hours on more than five days per week except as provided by paragraph (d)," and then it flows on to paragraph (d), rather than having to jump down and jump back up.

PN232

JUSTICE ROSS: No, no, I follow. That makes sense. Yes, well, with those two changes does that resolve the issue for (c) and (d)?

PN233

MS PATENA: That addresses the SDA's concerns, thank you.

PN234

JUSTICE ROSS: Are you content with that?

PN235

MS THOMSON: Yes, thank you, your Honour.

PN236

JUSTICE ROSS: Mr Klepper, are you content with that?

PN237

MR KLEPPER: Yes, I am, thank you.

PN238

JUSTICE ROSS: All right, so just for the record - paragraph (c), we would move the words, "except as provided by paragraph (d)," to the end of that sentence so the sentence would start, "The employer must not," et cetera. Then in paragraph (d), in the third line after the word, "work," we would add the words, "ordinary hours on," and that picks up the ABI's point.

PN239

Now, where were we? I think we're at 48, are we? 48? Yes. This is - yes, I'm sorry, this is again the - this provision only applies to full-timers, not part-timers point so that would be dealt with in the same way as we've deal with those matters before so that seems to be resolved on that basis. Then if we go to 49 the concern here is the movement of 28.11(a) to (c) and you say that 15.7(g) to (k) - I think the short point is that you say it's more difficult to read?

PN240

MS PATENA: Yes, look, your Honour, I think what would aid - we'd like the opportunity to review that. Once the provisions that are applicable only to full-time - - -

PN241

JUSTICE ROSS: Yes, I follow.

PN242

MS PATENA: - - - are moved out of that it may provide us with a fresh set of eyes to look at those clause and understand it better.

PN243

JUSTICE ROSS: Can I just then deal with - now, the drafter suggests substituting, "make a request," in 15.7(k). No, yes, I see. So do you see that comment? So in (k), where it says an employee cannot be required as a condition of employment to agree to an arrangement under paragraph (h) - well, I'm not sure I agree with that. Well, I'm not sure that reads - I don't think, "make a request," reads particularly well so we might - well, we'll leave that for the moment. We won't pursue the drafter's suggestion and as Ms Patena said, you'll have an opportunity to revisit the issues once the clause is restructured.

PN244

Can I move to item 50? This is the movement of the current 28.7 to 15.8. this is dealing with substituted rostered days off. Is this the part-time versus full-time issue again?

PN245

MS PATENA: Yes, your Honour.

PN246

JUSTICE ROSS: All right, well, that will be dealt with by the restructuring. Then let's deal with - well, 51 is again the part-time, full-time issue. That can be dealt with in the restructuring. 52, 28.13(a) to (c), this is about employees regularly working on Sundays. It is now in 15.10(a) to (e). Do you see the drafter comment?

PN247

MS PATENA: Yes, and we note the drafter's comment and that the addition of an employee cannot be required as a condition of employment to make a request mentioned in paragraph (b). I think the SDA's concern with the provision is that our preference is for - to retain the wording at 28.13 in terms of the principle that's established, that if you regularly rostered to work Sundays, you're rostered three consecutive days off in four. The consecutive days off will include a Saturday or Sunday.

PN248

There is a facilitative provision which can follow that but on the outset that is the default position and it - I suppose the clause now is set up to flag that other arrangements can be agreed to and our preference is for the waiting to be - for the current structure to be retained in the way the clause is set out.

PN249

JUSTICE ROSS: Yes. So it's not that there is a substantive change, assume we - - -

PN250

MS PATENA: No, look, and it may be that it is that the provision at 15.10(a) reads from after the first comma, "the employer must roster an employee who regularly works Sundays in such a way that they have three consecutive days off including Saturday and Sunday per four-week cycle unless otherwise agreed between the employer and the employee." So we would - that would address our concern in terms of consistency with the way the current provision is written.

PN251

JUSTICE ROSS: All right, so putting the obligation first and then moving the capacity for agreement to the end of the paragraph (a) and then that flows on to paragraph (b), an agreement under paragraph (a), et cetera?

PN252

MS PATENA: Yes.

PN253

JUSTICE ROSS: All right.

PN254

MS PATENA: With the drafter's comment - sorry, your Honour, I'm getting mixed up with my other provision. Yes, it does, thank you.

PN255

JUSTICE ROSS: Well, are the other parties content to make that change and then we'll have a look at it?

PN256

MS THOMSON: Yes, your Honour.

PN257

JUSTICE ROSS: Let's go to item 53. This is about notification. Do you see - - -

PN258

MS PATENA: Your Honour, I have noted the drafter's comments.

PN259

JUSTICE ROSS: Yes.

PN260

MS PATENA: What we might propose in line with the drafter's comments is that 15.11(a), that the wording as written is retained but suggest that it may be improved and consistent with the GRIA if it reads, "The employer must insure that the work roster is," and then delete, "available," and replace with, "exhibited to all employees," and then, "as follows - either on a noticeboard, which is conveniently located at, on or near the workplace or through accessible electronic means." Then we're retaining, "exhibited," rather than, "available."

PN261

JUSTICE ROSS: What's the difference that you see between those words?

PN262

MS PATENA: Well, "exhibited" - I suppose, "available," is something that you can access. Exhibited is something that is shown and on that basis it's - that is the understanding we have in terms of how the award is applied but we also know that, yes, many employees now access their rosters through electronic means whether or their personal devices or at their workplace.

PN263

JUSTICE ROSS: But is it exhibited on their - on your personal device? Isn't it just sent to you? It's available and you open the email?

PN264

MS PATENA: That's true. I suppose the addition there is that - I'm just having a look at the drafter's comment - we're looking for consistent with the GRIA. I see a slight difference with the words and that captures workplaces that are still, I suppose, posting rosters up on noticeboards. If it's changed from, "exhibited," to, "available," then it may not be that those rosters are posted in a more public way, that they're available, they may be in an office, they may be less accessible.

PN265

JUSTICE ROSS: Well, what if it said, "The employer must insure the work roster is available to all employees, either exhibited on a noticeboard which is conveniently located at or near the workplace or through accessible electronic means?"

PN266

MS PATENA: Yes, that would capture that point and address our concerns, your Honour.

PN267

JUSTICE ROSS: Do you - - -

PN268

MS THOMSON: That's fine, I think, your Honour.

PN269

JUSTICE ROSS: Well, we'll see what it looks like. Mr Klepper, are you content for us to make the change and then you can have a look at it?

PN270

MR KLEPPER: I would say that the change isn't strictly necessary but, yes, happy to have a look at it whilst the change is being made.

PN271

JUSTICE ROSS: Yes, I'm not entirely sure it is myself but it's to I suppose assuage any concerns that there is a particular change. I think the most important change is that it's not requiring it to be on a physical noticeboard. I think that is an important thing to capture so if in order to get that we need to put, "exhibited on a noticeboard which is conveniently located at or near the workplace or through accessible electronic means," then so be it. Okay, let's - bear with me for a second. Item 54 - - -

PN272

MS PATENA: Your Honour, we'd accept the drafter's comments on that item and withdraw any comments or suggestions in relation to any changes.

PN273

JUSTICE ROSS: All right. Item 55, this is ABI and the drafter is suggesting that the whole second sentence be reworked, as is set out there. Are you content with that?

PN274

MS THOMSON: Yes, thank you, your Honour.

PN275

JUSTICE ROSS: I think Business SA had agreed with ABI so do you also agree with the drafter's comments?

PN276

MR KLEPPER: We do, thank you, your Honour.

PN277

JUSTICE ROSS: And is the SDA content with that?

PN278

MS PATENA: WE have no objection at this stage but we'll reserve our position and review a revised draft, your Honour.

PN279

JUSTICE ROSS: Yes, 72 really goes to this issue of ordinary hours being used consistently so that is something we might revisit once we've got the next version of the document. Can I go to item 56, "Breaks?" You'll see there is a revised table 2 attached to the summary of submissions document as attachment A. Does that - I think, Business SA, you had made the point that the clarity of the table could be improved. I think you were all making similar comments. What do you think about the new table?

PN280

MR KLEPPER: I would say from Business SA's perspective the note does clearly demonstrate the point that we were wanting to have made.

PN281

JUSTICE ROSS: All right.

PN282

MR KLEPPER: I'm sure that it will be fixed when it goes into the proper doc. I would note that first note is entered with a comma rather than a full stop.

PN283

JUSTICE ROSS: Yes, I see that too. ABI?

PN284

MS THOMSON: I think the important part as well is the addition of the third column which assists generally.

PN285

JUSTICE ROSS: And the SDA? I think you had suggested adding the third column?

PN286

MS PATENA: Yes, so that - we would agree that's improved. I would just make a further suggestion in terms of the note - - -

PN287

JUSTICE ROSS: Yes.

PN288

MS PATENA: - - - that it currently reads, "has no entitlement to break."

PN289

JUSTICE ROSS: Yes, "to a break?"

PN290

MS PATENA: Our preference would be to - or to a paid rest break because break, in reading that would mean, no entitlement to, in worst case scenario, sometimes to break to go to the toilet, to the bathroom, any kind of break. So we prefer that it's read strictly in the context of the provision and there's no entitlement to a paid rest break. I only make that point because - to make it absolutely clear.

PN291

JUSTICE ROSS: I follow. Are you content with that?

PN292

MS THOMSON: That's fine, thank you, Your Honour.

PN293

JUSTICE ROSS: And Mr Klepper?

PN294

MR KLEPPER: That's fine, thank you.

PN295

JUSTICE ROSS: All right, well, with the addition - noting that it's a full stop at the end and with the addition of "a paid rest" before the word "break" in note 1, then we'll adopt the new table. Let's go to item 7 which - sorry, item 57, item 7 on the agenda which is minimum rates.

PN296

MS PATENA: Your Honour, could I just go back to - in our draft on page 20, 16.6 under A, "breaks between work periods".

PN297

JUSTICE ROSS: Sorry, which item are you on?

PN298

MS PATENA: I'm on 16.6, it's not currently in the summary but it's on page 20 of the exposure draft in a green text box.

PN299

JUSTICE ROSS: Yes, yes.

PN300

MS PATENA: And ask to clarify that the rate an employee is entitled to.

PN301

JUSTICE ROSS: Yes.

PN302

MS PATENA: So just in response to that the SDA, yes, would say that it does compound with other applicable penalties in reading the 16.6 (b).

PN303

JUSTICE ROSS: Do the other parties have a view about this or do you want to give some thought to it and let me know

PN304

by 4.00 pm next Thursday?

PN305

MS THOMSON: I'll give some thought to it, thank you, Your Honour.

PN306

JUSTICE ROSS: All right, Mr Klepper?

PN307

MR KLEPPER: We'll give some thought to that one as well, thank you.

PN308

JUSTICE ROSS: Was there anything else you wanted to say about that, Ms Patena?

PN309

MS PATENA: No, Your Honour, thank you.

PN310

JUSTICE ROSS: Let's go to item 57. What do you want to do about this, Ms Patena? I think the view of the drafter is of the notes, or at the earlier conference there was a partial withdrawal of - or this item wasn't pressed. We are not sure what is left.

PN311

MS PATENA: I think what wasn't pressed, and that may have been missed by the drafter, was to add the words "at least", so we withdrew a submission to that but we do press inclusion of those additional notes in relation to over time penalty rates and public holiday clauses. I suppose looking at the current provision it doesn't have any notes or references to other clauses. So either it is retained - our preference is for absolute consistency, as a stand alone table with just the minimum rates. But if the notes are to be retained our preference is the notes are actually moved from under 18.1 to actually under the table and those additional notes that are put there for completeness, so for the purposes of complete reference to all rates, all minimum rates that would be applicable across the span and outside the span under the award.

PN312

JUSTICE ROSS: I think the position of Business SA and the ABI was that the notes weren't necessary is that right?

PN313

MS THOMSON: That's correct.

PN314

MS PATENA: I suppose the SDA's position would be if the notes are not necessary then they are all removed and we retain what is currently the table as per the current award.

PN315

JUSTICE ROSS: I'd understood the position of ABI and Business SA to be that they were content with the current exposure draft.

PN316

MS PATENA: Certainly I think note 1 and note 2 have some work to do in terms of the fact that they deal with other things other than rates, they deal with other definitions and other methods of calculation, so certainly those two notes do have some work to do. By extension I think 3 is also useful in that same respect but perhaps less so, so all three can stay from our perspective.

PN317

JUSTICE ROSS: Yes. All right, I don't think there's much point in discussing the matter further. Is there anything further the SDA wishes to say in relation to this? Or are you content for the Full Bench just to determine the mater on the basis of what the parties have said and put in about it?

PN318

MS PATENA: If it is to be a Full Bench determination then we just make the further comment that it is potentially misleading to readers if they're only guided to a limited list in terms of what should apply in terms of pay rates under the award. So we believe it would improve the accessibility and understanding and application of the award. So we make no further comments.

PN319

JUSTICE ROSS: All right, thank you. Let's go to moving expenses. There is a paper on the definition of township which I think provides as much assistance as we are going to get on this question. 23.6, just bear with me for a moment. So the current term of the exposure draft says that if an employer transfer an employee from one township to another then the employer is responsible for paying, essentially, the removal costs, but there is no definition of township. What do you want to do about this?

PN320

MS PATENA: Your Honour, thank you. In terms of the note provided, that is instructive. The SDA would like to take the opportunity to give those other awards and similar provisions further consideration and if Your Honour agrees - - -

PN321

JUSTICE ROSS: That is fine.

PN322

MS PATENA: And it suits the other parties to make further submissions in relation to any preference as to how that might be interpreted under the GRIA.

PN323

JUSTICE ROSS: Perhaps if you give some thought to it and each party can see where they are at by 4.00 pm next Thursday. If you need more time let my associate know and then a week following the filing of those submissions if anyone wishes to say anything in reply to them then they can say that. It may be that - I mean township is also quite an old word and I am not sure that there is a consistent use of language between each state, bearing in mind it is a national award. So I don't know that local government area is necessarily going to be the right link. It may be that you can agree on a distance, if they are required to move from their current residence to, you know, and you put a distance on it.

PN324

Township, if you are doing the direct translation, probably is more like suburb, but it is a word that has that look that it came into usage when we were all going around on horses. I mean, transferring from one suburb to another doesn't seem to be a sort of reasonable proposition that would attract removal expenses. I just can't conceive of an employer requiring an employee to move suburbs. Many employees live some distance from where they work now.

PN325

So if you give some thought to it and see what you can come up with as a workable proposition. I am not sure - Ms Patena you may be able to assist here - do you have any idea about how frequently this provision is used?

PN326

MS PATENA: Your Honour, it may be occasionally used for managers but, look, I can't readily recall an instance of that provision being used for a number of years that I am aware of. But I would need to talk to - you know, our branches may be able to provide some more information about that.

PN327

JUSTICE ROSS: That is fine. If any of you need more time just let us know and we will manage it. I think it is best if we get as much information as we can. As is clear from the information note there is not a lot of clarity out there in other awards or agreements. Can I go to the next item - did anyone else want to say anything about the definition of township? No. Probably exhausted the entertainment value of that item then.

PN328

Let's move to 63. You can see the comment, this is the SDA's point, and it is the removal of 29.1, just bear with me for a moment. This is really the overlap between 29.1 or (b) in particular I suppose, but also (a). It is the requirement to work reasonable hours and how that intersects with the NES. The drafter makes the comment that the factors that are to be taken into account in the provision in the current General Retail Award are more restrictive than those provided in 62 of the Act. So what does the SDA want to do about this issue?

PN329

MS PATENA: Your Honour, we note at our last conference that - and I'm paraphrasing, but on the face of it I understood your view, provisional view was that it shouldn't be removed and should be reinstated. In terms of the decision in relation to pharmacy that is referenced in the information sheet that was provided to parties, I suppose the SDA's position for that particular award and the plain language process was that that reason why the time provision should have been retained and in terms of what - the end result was that a consent position was arrived at in relation to the over time provision, is my understanding. That decision and that process was not understood to be something that would have wider application.

PN330

JUSTICE ROSS: The note is just drawing your attention to it that is all.

PN331

MS PATENA: Yes, so what - our preference would be that if the note is to be retained it should be added in addition to the current clause for consistency with the Act, so a point to the NES but the current provision is retained.

PN332

JUSTICE ROSS: All right. You are content to rely on your submissions that are identified in the summary for that point?

PN333

MS PATENA: I may reserve a right to make further submissions on that in addition to anything else that we put next Thursday but I'm not clear on whether or not the views of the employer associations have been sought in relation to that clause.

PN334

JUSTICE ROSS: That is fine, I'll find that out in a moment. ABI?

PN335

MS THOMSON: I think that the note is sufficient to the extent that it is necessary and don't support the reinsertion of the words.

PN336

JUSTICE ROSS: All right. Mr Klepper?

PN337

MR KLEPPER: I would agree with ABI. I think we see it as preferable that this clause where it is talking about NES entitlements to refuse to work additional hours, it should just refer to the NES and not try to paraphrase or partially restate elements of the NES.

PN338

JUSTICE ROSS: Yes.

PN339

MS PATENA: Your Honour, in reply to that, I suppose the clause from my understanding was drafted prior to the provision of the Fair Work Act.

PN340

JUSTICE ROSS: That's exactly right.

PN341

MS PATENA: So just to make it clear, it's not attempting to - it was drafted prior to that, yes.

PN342

JUSTICE ROSS: I follow that. So what you are seeking is that the note and the retention of the existing award provision, is that right?

PN343

MS PATENA: That's right, and I suppose in line with your comments last time that if the employers were seeking - were opposed to that clause being retained in the plain language drafts across all awards then the provisional view is that it would be removed from all awards and replaced with a note that, you know, yes, due process and a fair process is afforded to all interested parties to make submissions in relation to that occurring, or prior to that.

PN344

JUSTICE ROSS: Yes, we can do that, yes, bearing in mind there have been a number of Full Bench decisions that have made it clear that awards shouldn't simply replicate what's in the NES. But your point here is that it's different because there's a current provision. We will look at which awards, which modern awards, currently have a term using similar language to 29.1 of the General Retail Award and we'll put them on notice.

PN345

MS PATENA: Your Honour, I think they have been identified in your attachment B, that there may be - - -

PN346

JUSTICE ROSS: Attachment B to?

PN347

MS PATENA: Sorry, to the reasonable overtime documents.

PN348

JUSTICE ROSS: Yes, I'm sorry.

PN349

MS PATENA: Yes.

PN350

JUSTICE ROSS: And so we'll advise the parties to those awards. All right, item 67? I think the clause has been changed to an explanatory note and on that basis we were seeing if this issue was still pressed and if the parties had a view about the note.

PN351

MS PATENA: Your Honour, at our last conference, I think what was discussed and of concern in relation to that particular clause is the addition of words, "that are not in the award that are not required to be paid at the overtime rate mentioned in clause 25.2 overtime rate," and that phrase should be deleted, so the clause was amended to read, "Clause 26 sets out penalty rates for ordinary hours worked to specified times or on specified days." I mean, I understood from conference and from the transcript that that change was to be made and for parties to review that.

PN352

JUSTICE ROSS: Yes, I think it was made in the revised exposure draft published on 18 October. So that's under clause 26.

PN353

MS PATENA: Yes, that's right. But the words, "that are not required to be paid at the overtime rate," are still there and they're the words that we sought to have deleted on the basis that - - -

PN354

JUSTICE ROSS: So the note would simply say, "Clause 26 sets out penalty rates for hours worked at specified times or on specified days"?

PN355

MS PATENA: Yes.

PN356

MS THOMSON: Couldn't that potentially have the effect of disadvantaging the employees, if you were trying to look at that provision and not have regard to the overtime provision then?

PN357

MS PATENA: Look, potentially our other – I mean, it may be worth considering whether or not there's any utility in actually having that note and that it is in line with the existing award, and that it just starts at 26.1.

PN358

JUSTICE ROSS: What do you want to do?

PN359

MS PATENA: I think there is some utility in flagging that there might be another method of payment which might be applicable to those times, depending on the method of ordinary working hours for that employee. Whether the current drafting is the best way of achieving that, I'm not fixed on but I'm happy to give it some further thought and report back next Thursday.

PN360

JUSTICE ROSS: All right. Perhaps if each of you do that and if the SDA confirms what it's seeking is a full stop after the word, "days." This is talking about ordinary hour, the penalty rates applicable to ordinary hours. And that's really the point that I think is trying to be made by the note, that we're not talking here about overtime hours worked on these days, we're talking about ordinary hours worked on these days.

PN361

MS PATENA: Yes, I understand, your Honour, but I think where we're concerned that confusion may arise is that where overtime is worked during ordinary hours, on also specified times or specified days, and it is not clear if it's – you know, that they're required to be paid at potentially a lower penalty rate, rather than the overtime rate. It's just not clear. So if there isn't an alternative drafting that - - -

PN362

JUSTICE ROSS: Yes.

PN363

MS PATENA: I think that was AB – was it ABI, that, yes, wanted to – requested us to consider.

PN364

JUSTICE ROSS: Yes.

PN365

MS PATENA: I am happy to look at that but I've just got concerns with the current construction.

PN366

JUSTICE ROSS: No, no, no, that's fine. Perhaps if ABI can take that on board. I think the point to be made is probably a – that there's some utility in saying, well, what does this clause deal with? Well, it deals with the penalty rates for ordinary hours worked at specified times or on specified days, full stop; and then perhaps a note that overtime hours, or the rates applicable to overtime hours mentioned in clause 25.2 or whatever the clause might be. It's really sort of making the point that here it's ordinary hours of work performed at particular times attract these penalties and we're not here talking about overtime. If you work overtime hours then you should go to another clause. That's the intent of it. Let's see what that looks like. Okay. Then item 69 is a Business SA submission. Anything further you want to say about that, Mr Klepper?

PN367

MR KLEPPER: Nothing further, your Honour.

PN368

JUSTICE ROSS: All right. And I think the Bench will just determine it on the basis of the submissions put. If there is anything anyone else wants to say about it then they can do so by 4 p.m. next Thursday.

PN369

MS PATENA: Your Honour, I do apologise.

PN370

JUSTICE ROSS: That's all right.

PN371

MS PATENA: There is something that I missed because it's an additional matter that wasn't picked up in relation to the overtime clause.

PN372

JUSTICE ROSS: Yes.

PN373

MS PATENA: And so I'm sorry to jump back to that but we are - - -

PN374

JUSTICE ROSS: No, that's all right. Which clause? Where are we, 25?

PN375

MS PATENA: So that's looking at 25.1 of the draft.

PN376

JUSTICE ROSS: Yes.

PN377

MS PATENA: Now I need to reference the award provision but I suppose at 25.1(a) that it states, "An employer must pay a full time employee." We're proposing that there should be no distinction between full time, part time or casual. So it should be proposed to delete, "full time."

PN378

JUSTICE ROSS: I suppose you then really need to – you could combine (a) and (b).

PN379

MS PATENA: I suppose but what is – there is no reference there to the fact that casuals have an entitlement, or a potential entitlement to overtime. And the current award does not make the distinction between full time or part time and casual in (a), and in (b) is it deals with part-timers.

PN380

JUSTICE ROSS: Was that issue agitated before the casual/part-time Bench? Were there casuals under this award who had an entitlement to overtime?

PN381

MS PATENA: Yes, I believe it was, your Honour. I'd need to go and review that decision but I think this is, in terms of the – yes, but so I will have a look at that. I actually did make some inquiries to see if there were draft determinations that we have put or – so I will follow up in relation that.

PN382

JUSTICE ROSS: All right. And perhaps once you've got that, then identify in your submissions next Thursday the specific change you would seek in 25.1.

PN383

MS PATENA: Thank you, your Honour.

PN384

JUSTICE ROSS: Anything further?

PN385

MS THOMSON: No thank you, your Honour.

PN386

MS PATENA: Nothing further, your Honour.

PN387

JUSTICE ROSS: No? All right. We will hear from you next week and we'll do a report from today, and a revised exposure draft having regard to what you say, next week and then identify what matters remain in dispute between the parties. All right, thanks very much for your attendance, I'll adjourn.

PN388

MS PATENA: Thank you, your Honour.

ADJOURNED TO A DATE TO BE FIXED [11.27 AM]