TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1057452
JUSTICE ROSS, PRESIDENT
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards
Salt Industry Award 2010
9.34 AM, TUESDAY, 26 NOVEMBER 2019
JUSTICE ROSS: Could I have the appearances, please?
MR S CRAWFORD: If it please the Commission, Crawford, initial S, for the AWU.
JUSTICE ROSS: Thank you, Mr Crawford.
MS R BHATT: If it pleases, Bhatt, initial R, for the Australian Industry Group.
JUSTICE ROSS: Thanks, Ms Bhatt.
MS H HAMBERGER: If it pleases, Hamberger, initial H, for Australian Business Industrial and the NSW Business Chamber.
JUSTICE ROSS: Thanks, Ms Hamberger. We put out a background paper yesterday identifying the issues in respect of this matter. It is the contested casual overtime issue. I think it depends in part on where the other Full Bench is up to, and the purpose of the conference is really to find out where the matter is at and what's the process for resolving the issues so we can finalise the variations to this award. Who would like to go first? Yes, Ms Bhatt?
MS BHATT: I've had some brief discussions with my colleagues before the proceedings today and we think we have a position that is broadly agreed, subject to the Commission's views of course. The issue of a casual's entitlement during overtime is contested, but your Honour, for similar reasons, the issue of a casual's entitlement during ordinary hours on a weekend and work performed on a public holiday is also in contest. The same provisions of the award and the exposure draft are relevant to both. The entitlement of casuals during overtime is before the Overtime for Casuals Full Bench. It was listed for a directions hearing this morning.
JUSTICE ROSS: Yes.
MS BHATT: The parties have proposed that an opportunity be granted to file submissions in respect of that matter. I proposed a timetable to Hatcher VP, and I understand his Honour is going to give some consideration to that. It seems to us that for the purposes of these proceedings, the matter could be dealt with in this way: the exposure draft not be finalised or published at this time, and the reason for that is because if the Commission were to do so, we say that the parties' arguments will be virtually pre‑determined or that our interests will be reached first; that the issue of a casual's entitlements during weekends and public holidays also be referred to the Hatcher VP Full Bench that's dealing with the overtime matter, because the arguments are so similar; that the directions that his Honour is to issue allow us to file submissions in respect of overtime and weekend and public holidays, and that that Full Bench determine the issue. Once that decision is issued, there will be a question of how the exposure draft is varied, and we're in the Commission's hands as to which Full Bench deals with that.
JUSTICE ROSS: Well, ultimately the other Full Bench will vary the award, and once the award is varied we'll take care of the exposure draft. I think the best way of dealing with that would be a short joint note by the parties indicating the course that you've just outlined as agreed. If that's what is put forward I'll make the reference. Can I go back to the proposition that no further action be taken to convert the exposure draft into a variation determination at this stage? I'm not quite following how that would determine the position of any party. We could simply omit schedules dealing with casual rates on those times, and simply reflect whatever the current award says about those entitlements, and then it's really - I take your point if we were to include a schedule which has, for example, what does a casual get on a public holiday, then yes, that could be taken - despite the fact we could put a note and everything else, that could be taken to pre‑determine the issue, or at least indicate a view, and I don't want to do that. But I wonder whether the rest of the thing needs to be held up while we wait for this one issue, or whether, if you look at the current exposure draft, what redactions would need to be made so that that can go ahead. That may be something you want to consider, discuss with the others and include in the joint report.
Can I indicate, for what it's worth, my preference would be if we are able to process the variation determination in some way, that would be a better outcome, and that would reserve the rights of every party to have a further - well in fact what the other Full Bench will be doing will then be varying the award that will have already been varied for all of the other technical and drafting changes, and it will have the advantage of, one, the plain language and structural changes that have been made on the exposure draft can now come into effect; two, we won't need to yoyo between the two Full Benches. The other Full Bench would then just vary the varied award.
MS BHATT: Your Honour, I was mindful of these issues and, as your Honour knows, there are some awards where I think the parties have agreed or not opposed the proposition that the exposure draft be finalised without rates being published.
JUSTICE ROSS: Yes.
MS BHATT: I think the reason that this exposure draft is a little different is because the award describes the casual loading as being part of the all‑purpose rate. What the exposure draft does is define the term, "all‑purpose."
JUSTICE ROSS: I follow.
MS BHATT: And we couldn't come up with a way to simply propose to - - -
JUSTICE ROSS: No.
MS BHATT: I think your Honour understands the issue.
JUSTICE ROSS: No, I follow now. Yes, I had thought it was simply the schedules. All right. Okay?
MS BHATT: The issue infects if it were that the terms of the exposure draft itself, not just the schedule.
JUSTICE ROSS: Yes. No, I follow. Okay. Well, then the proposition is that Ms Bhatt will coordinate with the other parties, submit a joint report indicating that - assuming this is the position - that it's the view of all the parties that the matters that have been raised - the public holiday, et cetera, matters - be referred to the Full Bench dealing with the casual overtime issue, directions be varied accordingly, and I would then act on that, if that's the consent position, and refer that matter to the other Full Bench. Once the other Full Bench has determined the issue, then I would ask that one of you notify my Chambers and we'll bring the matter back on and make the necessary changes to the exposure draft, and then complete the process. Is there anything anyone else wishes to say? Mr Crawford, anything?
MR CRAWFORD: No, thank you, your Honour.
JUSTICE ROSS: Ms Hamberger, anything from you?
MS HAMBERGER: No, thank you, your Honour.
JUSTICE ROSS: Well, we will leave it on that basis. Thanks very much. I'll adjourn.
ADJOURNED INDEFINITELY [11.40 AM]