PN1

JUSTICE ROSS: Can I have the appearances, please. Firstly, in Sydney.

PN2

MR A CROWLEY: Andrew Crowley for MEAA.

PN3

MR M CHESHER: Chesher, initial M, for the MEAA, your Honour.

PN4

JUSTICE ROSS: Thank you.

PN5

MR D HAMILTON: Your Honour, Hamilton, initial D, for the Australian Entertainment Industry Association t/as Live Performance Australia.

PN6

JUSTICE ROSS: Thanks, Mr Hamilton. Anyone interstate?

PN7

THE ASSOCIATE: No, not until 2.30.

PN8

JUSTICE ROSS: All right. We published a background paper in respect of the outstanding issues yesterday and that identifies the range of issues between the parties. There was also a question about whether the Bench dealing with the substantive issues - that somehow concluded the review in respect of the award.

PN9

It hasn't insofar as a number of common issue matters that affect this award and the award has been varied for - or the exposure draft has, but not yet been translated - and the structure of the award in the consistent format of all modern awards now where you logically go through the award, deal with title, coverage, wages, allowances, hours and then deal with redundancy and termination towards the end, so those changes are still to be made.

PN10

What I wanted to raise with you was how to deal with the overtime for casuals issue and any of the other matters that are still outstanding. What is the process that you see for resolving any of these issues? Have you had an opportunity to have a discussion about them?

PN11

MR CHESHER: Yes, we have, your Honour.

PN12

JUSTICE ROSS: Good, okay.

PN13

MR CHESHER: We're grateful for the background paper that was issued yesterday. There are four issues, I think, that are discussed in that paper. In no particular order the issue of overtime and casuals; the question of TOIL which was dealt with through the award flexibility round; the issues posed by the Queensland Ballet; lastly, the inclusions and non‑inclusions in the parties' draft submitted to the Commission for consideration on 27 June this year.

PN14

Taking that last issue first, your Honour, we do of course accept that there are gaps with respect to common and other issues. As your Honour just pointed out, the question of format and the finalisation of particular clauses is yet to be determined. We're obviously in the Commission's hands. We are aware of where we are in terms of future exposure drafts leading into 2020, so we believe that there is ample time.

PN15

I should say that the draft submitted by the parties in June this year was an undertaking that was agreed to in a conference before Sams DP. We were conscious that we might have missed a few things out and that appears to be the case.

PN16

JUSTICE ROSS: That's fine. Look, I think that in some way is the easiest of the matters to deal with. We can, either in accordance with the tranches that we've set down or at an earlier stage, give consideration to the parties' 27 June draft and the template structure; seek to meld those together as best we can and then you'll have an opportunity to comment on that. I think that's probably the way through with that point. You will have adequate time to have a look at it and we'll have further conferences in the event there are any issues arising, and just try to sort them out between the parties.

PN17

MR CHESHER: Thanks, your Honour. That is precisely the approach that we would support.

PN18

JUSTICE ROSS: Okay.

PN19

MR CHESHER: That is a collaboration, if you like, with appropriate exposure drafts being circulated over the next few months. The issue of TOIL - if I can take that next.

PN20

JUSTICE ROSS: Yes.

PN21

MR CHESHER: I think the parties are in happy agreement, but have yet to come to a form of words, about how to manage or alter the model term. As your Honour would understand, the preponderance of employed positions covered by the Live Performance Award are very short term in nature.

PN22

JUSTICE ROSS: Yes.

PN23

MR CHESHER: They don't lend themselves to conventional TOIL arrangements - certainly within six months or whatever period in which it's to be taken, otherwise the overtime is paid. We are seeking to constructively consider how we might confine the TOIL arrangements to persons covered by the award who are in ongoing employment. There are a few permanent or part‑time employees covered by the award, but that is our current thinking.

PN24

JUSTICE ROSS: Yes. Look, we've adapted the TOIL provision in other awards to meet the specific circumstances of those awards. I would certainly encourage you to reach a consent landing on that question. Look, two mechanisms suggest themselves to me on the basis of what you put, Mr Chesher. One is it may be - and I say this from a position of almost complete ignorance - there are some classifications that more lend themselves to ongoing than others. If that's the case, you may confine the operation of a TOIL provision to those classifications.

PN25

Alternatively, you may confine it by another form of definition either as to the type of work or the number of engagements over a period. You could use the language that's used in relation to what are colloquially called long‑term casuals. Persons employed for more than a particular period on regular and systematic employment would have access to a TOIL provision. That might be something that commends itself.

PN26

Particularly if you can use language that already had an accepted meaning elsewhere in the minimum wage regulatory system, that's probably going to be easier for all of you in the longer term, but I'd certainly encourage you to give some thought to that. From the Commission's perspective, we're content to give you some time to do that and would be receptive to any agreed position that reflects the particular circumstances of the sector. I readily accept that it has some unusual features and they should be accommodated in any variation to the model term.

PN27

I'll give some thought to when we might get the exposure draft issue going, but when that's published - at that point I'll remind you to put in a joint report about where you're up to with the TOIL matter. If you reach an agreement in the next few weeks or something of that nature, then by all means forward it and we can give you a view about - yes, and, for example, you might put in, "Look, we think this", we then look at that and we publish a short statement saying, "Look, this has come in. Our provisional view is that the award should be varied in this way", and provide any other interested party with an opportunity to comment.

PN28

If nobody opposes, then that's what we do. I'm in your hands a bit. It would probably be desirable if you could do it sooner rather than later so we can sort of bring this thing to some sort of finality, but once you've reached the landing, send in a proposition and we'll take it from there and try and wrap it up. Does that suit your convenience for the TOIL matter?

PN29

MR CHESHER: I believe it does. I think we would be confident of providing some agreed advice before Christmas, your Honour.

PN30

JUSTICE ROSS: Perfect. That would be great. That then leaves the overtime for casuals and the Queensland Ballet matter - - -

PN31

MR HAMILTON: Sorry, your Honour, could I just - - -

PN32

JUSTICE ROSS: Certainly.

PN33

MR HAMILTON: - - - seek a bit of clarification?

PN34

JUSTICE ROSS: Sure.

PN35

MR HAMILTON: I think you said confine two classifications. Could we exclude - - -

PN36

JUSTICE ROSS: Yes, I was making a suggestion about, well, how do you deal with the point where some people have irregular and non‑ongoing work so TOIL doesn't really operate for them. On reflection, there are a probably three ways you can deal with that. Firstly, the six‑month time period might be longer - and these are necessarily mutually exclusive. Secondly, it may be there are certain classifications in the award where you think the employees are more likely to be ongoing and TOIL is more likely to be useful, so you could confine the operation of a TOIL provision to people employed in those classifications.

PN37

MR HAMILTON: For example, venue technicians.

PN38

JUSTICE ROSS: Indeed, yes, whereas the performer doing an odd thing, maybe not.

PN39

MR HAMILTON: Yes.

PN40

JUSTICE ROSS: The third way would be to say, look, the TOIL provision is available for someone who has been employed on a regular and systematic basis for a period of 12 months, for argument's sake. In advancing those I don't want you to think that I've somehow got some rigid view about each one. Those seem to be three mechanisms by which you could address the issue that has been raised. How you do it is up to you and what you think will work.

PN41

MR HAMILTON: Yes. We've had discussions on that type of issue.

PN42

JUSTICE ROSS: Yes.

PN43

MR HAMILTON: So thanks for the clarification.

PN44

JUSTICE ROSS: No problem.

PN45

MR CHESHER: Thanks, your Honour. With respect to the Queensland Ballet, there has been consideration of that issue between the parties since it was first raised. In consequence of those discussions, in the parties' draft submitted to the Commission in June this year at clause 37.6 - - -

PN46

JUSTICE ROSS: Yes.

PN47

MR CHESHER: - - - that is the parties' proposed way forward. It's called the repetiteur rate. There are two components. It's not especially marked up in our version, but we can - - -

PN48

JUSTICE ROSS: No, no, that's fine. What was it called?

PN49

MR CHESHER: Repetiteur. It's basically an accompanist, isn't it?

PN50

MR HAMILTON: Yes.

PN51

MR CHESHER: Yes.

PN52

JUSTICE ROSS: When we meld the draft with the structure, then we would include that provision as a proposition, then invite the parties to comment. If the Queensland Ballet wants to pursue the matter, then they can respond to that version.

PN53

MR HAMILTON: Your Honour, the Queensland Ballet are a member of ours.

PN54

JUSTICE ROSS: Okay. All right.

PN55

MR HAMILTON: They are fully aware of the - - -

PN56

JUSTICE ROSS: Okay. Hopefully that will resolve that matter.

PN57

MR CHESHER: Finally, your Honour, is the question of casuals and overtime. I confess that MEAA is a bit late to the table on that common issue, but as of the last few weeks we've been engaged with the matter. I did attend the conference before Hatcher VP this morning. I didn't, however, seek to list the Live Performance Award as an issue on which there were disputes. On reflection, I might have done that given the position that has been adopted by the ABI and other peaks about the award of overtime for casual employees.

PN58

In the short discussions that have occurred between MEAA and Mr Hamilton of the AEIA, we are again I think of one mind to say that we believe that overtime is payable to casuals in the modern award. However, what the modern award has done is simply - and this is common across many modern awards - re‑state the position that was adopted in the pre‑reform awards without modification.

PN59

In the context of the issues - the three questions - that were raised by the Fair Work Ombudsman several years ago, across the four groups of employees covered under the Live Performance Award there are two groups, principally performers and company dancers, where it is at best implied that casual employees are entitled to overtime. There are provisions for full‑time and part‑time employees, but the award as it is in large part is structured around employees who have fixed minimum terms of engagement by the call, but as Mr Hamilton, myself and Mr Crowley discussed before, if you do exceed the hourly cap per day then overtime is payable.

PN60

There is a bit of revision to occur with how we might better make that point. As I said, it's not made at the moment. I'm not entirely certain how that feeds into the process being managed by Hatcher VP. I'm aware that the Vice President is issuing directions with a pre‑Christmas deadline about parties advancing further views and putting our shame to one side about not engaging with this issue in a more timely way, I guess it's open for the union and the employer body to advise that we are examining the matter in good faith.

PN61

JUSTICE ROSS: Yes. Well, all I would do as part of our process - leave aside Hatcher VP's Full Bench - is essentially to translate the current award into the new format and to the extent there is an ambiguity about casuals and getting overtime, we wouldn't be seeking to resolve that issue because the part‑time casuals bench has been the one body that has dealt with all those contests.

PN62

The question for you is really if you are able to resolve it by consent and you want to change the award to reflect that position, then that's a matter that should go to Hatcher VP's Bench. They will deal with it consistently. If you want to vary the award to clarify the position and you are not in agreement about the "how", then again that's a matter for Hatcher VP's Bench.

PN63

If you decide that you don't really want to change anything and you're happy to take your chances, then you can come back to me and say, "Look, we've thought about it, but we don't want to run anything before the other Bench. We're happy to just roll in whatever we've got in the current award", and to leave it with perhaps a degree of some ambiguity, but if you're comfortable with what you can argue, then that's okay. We will deal with that.

PN64

When and if a matter arises, there's nothing to preclude you at sometime down the track from making an application to vary the award to deal with it then. The short version, primary vehicle for dealing with any contest or consent, is Hatcher VP's Full Bench. If you don't get there or you're content to sort of leave the current award pretty much as it is and see if it becomes a problem, and, if it does, apply to vary it later, then that's an option for you, as well.

PN65

I mean, I'd like to say that we want to resolve every ambiguity, but I'm focused more on ambiguities that parties are raising as giving rise to questions rather than me going through each award and trying to resolve everything that I don't understand, otherwise I would be here for a very long time.

PN66

MR HAMILTON: Your Honour, just a point of clarification.

PN67

JUSTICE ROSS: Yes.

PN68

MR HAMILTON: The provision that's in the modern award was in the 1982 Actors Award and it has never been raised as an issue.

PN69

JUSTICE ROSS: No.

PN70

MR HAMILTON: I'm pretty sure we can say that, you know, we've reached a tentative agreement to vary the clause as it is.

PN71

JUSTICE ROSS: Yes.

PN72

MR HAMILTON: And make sure there is no ambiguity.

PN73

JUSTICE ROSS: Well, look, I think especially if you've reached a level of agreement it's probably best to get the variation done and resolve it, because, like all these things, that agreement might only last while the same people are around the table. To avoid a dispute down the track, it's probably better to clarify what the intent is, yes. All right. Well, I'm content to leave that with you.

PN74

MR HAMILTON: Thank you, your Honour.

PN75

JUSTICE ROSS: And pursue that through Hatcher VP's Bench in due course. I would let him know sooner rather than later what you're intending to do, otherwise the guillotine is likely to come down. I'm pretty sure he is keen to finalise all those matters before him as soon as possible.

PN76

MR CHESHER: He did convey that - - -

PN77

JUSTICE ROSS: Yes. He has conveyed it to me, as well. All right. Thank you very much. We will proceed in that way. I'll put out a short report of the conference with a link to the transcript, so everyone will be clear about where they're going. If you have any questions or any other issues, just let my chambers know. Thanks very much.

PN78

MR CHESHER: Thank you.

PN79

JUSTICE ROSS: I'll adjourn.

ADJOURNED INDEFINITELY [2.24 PM]