PN1

THE VICE PRESIDENT: I'll take appearances, starting in Sydney. Ms Walton, you appear for the TWU?

PN2

MS T WALTON: Yes, that's right.

PN3

THE VICE PRESIDENT: Mr Bull, United Voice?

PN4

MR S BULL: Yes, United Voice, as usual.

PN5

THE VICE PRESIDENT: United Workers and EWU.

PN6

MR BULL: UWA, UWU, we're - - -

PN7

THE VICE PRESIDENT: All right. Mr Crawford? It says the CFMMEU here. Are you - - -

PN8

MR S CRAWFORD: I believe I'm still with the AWU, Vice President.

PN9

THE VICE PRESIDENT: Okay. Mr Barlow, for the CPSU?

PN10

MR K BARLOW: Your Honour.

PN11

THE VICE PRESIDENT: Ms Bhatt for the Ai Group?

PN12

MS R BHATT: Yes, Vice President.

PN13

THE VICE PRESIDENT: And Mr Izzo, you appear with Ms Hamberger in Brisbane for ABI?

PN14

MR L IZZO: Yes, your Honour.

PN15

THE VICE PRESIDENT: And then in the bleachers we have Mr Chesher from MEAA, Ms Ambihaipahar on behalf of the CEPU?

PN16

MS A AMBIHAIPAHAR: Yes, your Honour.

PN17

THE VICE PRESIDENT: Ms Gordon for the FAAA?

PN18

MS J GORDON: Yes, your Honour.

PN19

THE VICE PRESIDENT: Ms Srdanovic for Qantas?

PN20

MS K SRDANOVIC: Yes, your Honour.

PN21

THE VICE PRESIDENT: And Mr Lynne, is it, for AFEI? Is there any other Sydney appearances?

PN22

MR WARNES: Yes, your Honour, Mr Warnes for RTBU.

PN23

THE VICE PRESIDENT: Mr Warnes, yes, for the RTBU, yes, sorry. All right, is that all the Sydney appearances? Yes. In Melbourne, Mr Odgers for the IEU?

PN24

MR A ODGERS: Yes, your Honour.

PN25

THE VICE PRESIDENT: Yes, and MS Wischer for the ANMF?

PN26

MS K WISCHER: Yes, your Honour.

PN27

THE VICE PRESIDENT: And in Canberra, Mr Cullen for the NFF, is that right?

PN28

MR T CULLEN: Yes, your Honour.

PN29

THE VICE PRESIDENT: All right. Is that all the appearances? Yes, all right. So what I want to do is to just go through the categories in the 14 October statement and just deal with each one in turn. Now starting with the awards listed in paragraph 3, first of all as a result of previous correspondence the Fitness Industry Award and the Sporting Organisations Award will be added to the awards in paragraph 3 to be decided on the papers. Now Ms Bhatt, you've said in correspondence that the Nurses' Award should be removed from that list?

PN30

MS BHATT: Yes, Vice President.

PN31

THE VICE PRESIDENT: All right. Have you spoken to Ms Wischer about this?

PN32

MS BHATT: I have. Can I explain the position a little bit further because - - -

PN33

THE VICE PRESIDENT: Yes.

PN34

MS BHATT: I think perhaps the Nurses' Award doesn't need to be removed from the list. As I understand it there are two matters in respect of the Nurses' Award that arise. One is about the circumstances in which overtime rates are payable to casual employees that arose from draft determinations and the submission filed by the HSU on 23 January 2018. And it was the subject of directions issued by the Commission on 15 March 2019. We say that that matter – well, we don't oppose this Full Bench dealing with that matter. Our correspondence relates rather to the issue with the rate that is payable when overtime is performed by casual employees under the Nurses' Award. It's a matter that evolved in evolved in the submissions that were filed in respect of HSU's claim, even though the claim doesn't squarely deal with the matter. The correspondence that was filed explains the circumstances, or the reasons for which we've requested that this Full Bench not deal with this issue. I've spoken to the ANMF yesterday and we understand that they don't oppose the course of action we've proposed. It's also supported by the Private Hospitals' Association.

PN35

THE VICE PRESIDENT: All right. So we should determine on the papers just the question of the circumstances in which overtime is payable for casual employees, is that the position?

PN36

MS BHATT: Yes, Vice President.

PN37

THE VICE PRESIDENT: All right. Ms Wischer, do you agree with that position?

PN38

MS WISCHER: Yes, I do, your Honour.

PN39

THE VICE PRESIDENT: Does anyone wish to be heard against that? All right, well, that will be done. So next we come to the awards listed in paragraph R(7). These are the ones in which there's said to be agreement. Now as I understand it, and I'll have to do this fairly quickly, there is agreement that in respect of the following awards the most recent exposure draft can stand as is. So they are the Airline Operators' Ground Staff Award. The Asphalt Industries Award, I'll just pause at the Building Construction General Onsite Award. They're not here but the HIA says that should be deleted from the list. Does anyone take a different position? That is, that that's being dealt with separately in the – will be resolved by the final determination to be issued in relation to that matter.

PN40

MR CRAWFORD: That would be my understanding, yes, your Honour.

PN41

THE VICE PRESIDENT: Yes, all right. The Concrete Products Award; the Cotton Ginning Award; the Food Beverage & Tobacco Manufacturing Award; the Garden & Landscaping Services Award; the Gas Industry Award; the Hair & Beauty Industry Award – I'll come next to the Joinery & Building Trade, so again, HIA has said that should be deleted for the same reasons; the Manufacturing & Associated Industries & Occupations Award, although there's a caveat there about the new vehicle part; Mobile Crane Hiring Award; the Nursery Award; the Pastoral Award; the Racing Clubs Event Award; the Racing Industry Ground Maintenance Award; the Silver Culture Award; the Storage Services & Wholesale Award; the Sugar Industry Award; the Waste Management Award; and the Wine Industry Award. So does anyone dispute that all those matters can be just simply removed from the list and can proceed in accordance with the exposure draft?

PN42

MR CRAWFORD: Your Honour, the only, I guess, initial issue is rates and tables in the exposure draft. There's a lot of awards whereby the current exposure draft doesn't contain an overtime rates payable for casual employees.

PN43

THE VICE PRESIDENT: Does that include any in those list?

PN44

MR CRAWFORD: Yes.

PN45

THE VICE PRESIDENT: Right.

PN46

MR CRAWFORD: For example, I think, Sugar; Storage Services; they're identified in correspondence from the ABI dated 4 November, your Honour.

PN47

THE VICE PRESIDENT: Yes, all right. Well, I'll note that. Now in respect of the remaining awards on that list, can I confirm that there is an agreed alternative draft for the clause in each award which reflects the agreed position? Is that your understanding, Mr Izzo?

PN48

MR IZZO: Yes, your Honour, in the sense that we have composed alternate drafting; we've circulated to the parties; we've had discussions with some unions that had feedback, and no-one has come back to ABI and SWBC and indicated that they are opposed to the alternate drafting that was attached to the correspondence of 4 November.

PN49

THE VICE PRESIDENT: Right. And I think in respect of the Higher Education Industry General Staff Award, the group of eight industries have proposed an amended draft – there's no-one here from there – in respect of the Local Government Industry Award, there's an alternative LGA draft. Apart from that, does anyone differ from what Mr Izzo had just said about the remaining awards in the list? That is, there's a consent draft upon which the Commission can proceed unless we take some objection to it.

PN50

MR IZZO: And just for the sake of completeness, your Honour, and that's why I hesitated when you said 'consent,' in the sense that we put it together, we circulated it, we dealt with a couple of unions in particular, AWU, AMWU, but others we just haven't heard back from, so our position is we don't understand those positions to be opposed, or at least, no-one has notified us of that.

PN51

THE VICE PRESIDENT: All right, the Full Bench will look at that and arrive at a final position. So in respect of paragraph 9, so Ms Walton, the TWU says there's no longer nay concerns about the Transport Cash In Transit Award?

PN52

MS WALTON: That's right, your Honour, because, because of the agreement that's been reached we were not advocated that a casual loading was paid on overtime.

PN53

THE VICE PRESIDENT: All right.

PN54

MS WALTON: It is paid on weekends and we're happy with that.

PN55

THE VICE PRESIDENT: So does that mean that the exposure draft can stay in its remaining form?

PN56

MS WALTON: Yes, it can.

PN57

THE VICE PRESIDENT: All right. Can you send to the Commission, correspondence which – I note the correspondence which says it's no longer in dispute but can you send correspondence to confirm what is understood to be the agreed position so that the Commission can satisfy itself that the exposure draft reflects the agreed position?

PN58

MS WALTON: Certainly, your Honour.

PN59

THE VICE PRESIDENT: All right. And then we come to the awards in paragraph 11.

PN60

MS BHATT: Vice President, I'm sorry, before we move off paragraph 9, there might be an issue in respect of the Aircraft Cabin Crew Award.

PN61

THE VICE PRESIDENT: Yes.

PN62

MS BHATT: I don't know if this is an appropriate time or not.

PN63

THE VICE PRESIDENT: Yes.

PN64

MS BHATT: My understanding is that Ai Group, the Qantas Group and the Flight Attendants' Association agree that matters associated with the entitlement for casuals doing overtime under this award are inherently connected with other substantive claims that are being advanced by the union in the context of - - -

PN65

THE VICE PRESIDENT: All right.

PN66

MS BHATT: So the award review proper of that award, they're being dealt with through a process before Commissioner Bissett, at the moment and the party's position is that we be allowed to continue that process.

PN67

THE VICE PRESIDENT: Where is that up to?

PN68

MS BHATT: There is a further conference listed before Commission Bissett on 17 December. If the matters remain in dispute after that it appears in all likelihood that directions will need to be issued for the filing of materials. Both the Qantas Group and the union are appearing today. They may be in a better position to assist you further.

PN69

THE VICE PRESIDENT: Yes, all right. So we'll maintain that position and that won't be the subject of the hearing as stated in paragraph 10 in 16/17 December.

PN70

MS BHATT: If it pleases.

PN71

THE VICE PRESIDENT: Right. So it will be the further report back after the 17th. Thank you. All right, in paragraph 11, and Mr Rizzo, this is largely based on – sorry, the first thing I should say is, the Contract Call Centre's Award is wrongly listed in that paragraph so that should be removed. And I'm worried now that the numbers don't add up, but anyway – so based on the correspondence of Mr Rizzo it appears that the following awards, there is substantive dispute that requires resolution and they are the Aluminium Industry Award; the Amusement Events & Recreation Award; the Health Professionals & Support Services Award; the Mining Industry Award; the Pharmaceutical Industry Award; and the Salt Industry Award. Is that the correct position?

PN72

MR IZZO: That's correct, your Honour, although following further discussions last night between relevant parties it appears the Mining Industry Award can be removed and there will be an agreed position between the employers and union parties, and perhaps we can separately write into the Commission after today, just confirming what that is. The position summarily is that a casual loading is payable during overtime on a cumulative basis but we can confirm that in writing, hence the benefit of perhaps doing it after the directions hearing.

PN73

THE VICE PRESIDENT: All right. So leaving the Mining Industry Award aside, does anyone differ that there's a dispute requiring to be resolved in respect of the other awards that I have identified? No? All right, well, I'll come back to how we - - -

PN74

MR K. BARLOW: Sorry, your Honour - - -

PN75

THE VICE PRESIDENT: Yes, Mr Barlow?

PN76

MR BARLOW: It's Barlow, K, for the CPSU. I just might foreshadow the Airport Employees Award is somewhere where we have an interest, your Honour, but ABI doesn't have a position. But it is similarly phrased to other awards in the various lists, your Honour, so it may very well be that that can either be scheduled for hearing or left to one side as it would ultimately be determined by the hearing in the category 2 awards at paragraph 9, your Honour.

PN77

THE VICE PRESIDENT: Right.

PN78

MR BARLOW: Also, your Honour, I also may put a submission here. The CPSU has a very minor interest in the Business Equipment Award, your Honour and we haven't previously mentioned this award. And it was something I raised with the predominant union in the industry, the ASU, late last week, which I don't know if you have spoken to them at this stage, your Honour, but that is one where it would be opposed. The ABI's position would be opposed by us in respect to that award, to the extent to which we have an interest in it, your Honour. And I do emphasise our interest is very small in that award. And other - - -

PN79

THE VICE PRESIDENT: All right, there's something requiring resolution, is there?

PN80

MR BARLOW: Well, the extent to which my colleague, Mr Izzo, says we've put a position here and no-one has yet come back to contradict us, which as I understand from his correspondence would fit into at least maybe half a dozen of these awards here. It is merely because it may be that the relevant unions in that relevant award have not been in contact with him and I just didn't want this one to slip between the cracks, so to speak, your Honour, because I think there is – if ABI persists with their position I wouldn't want that to go unopposed in an area where we do have an interest, Commissioner.

PN81

THE VICE PRESIDENT: All right. I will put that in the disputed category.

PN82

MR BARLOW: And there were others I was assuming there would be in that disputed category, your Honour but obviously the unions aren't here to mention that.

PN83

THE VICE PRESIDENT: They might not get another chance, Mr Barlow.

PN84

MR BARLOW: I'm aware of that, your Honour.

PN85

THE VICE PRESIDENT: All right. Does any party contend that there's a substantive dispute arising with respect to any other awards contained in paragraph 11?

PN86

MR ODGERS: Your Honour, the IEU, not contained in paragraph 11 but seeing that your Honour appears to be compiling a list of awards where there remain outstanding matters, can I refer you to the list in paragraph 5 of the statement issued on 14 October, and therein the Education Services Schools General Staff Award. In its decision of 8 October the Commission correctly identified at paragraph 39 that there is a disagreement between the parties as to which classifications the casual loading is payable on an addition to overtime penalty rates. So that's an outstanding matter which is yet to be resolved, and the Commission referred in its decision to the need for a further hearing.

PN87

THE VICE PRESIDENT: All right, thank you for pointing that out. Is it convenient for that to be added as an outstanding matter in the paragraph 11 list of disputed awards?

PN88

MR ODGERS: Yes, your Honour.

PN89

THE VICE PRESIDENT: All right. Now Mr Izzo, I'm not sure about the position in paragraph 11 with respect to awards where you say the ABI doesn't have an interest or position. Does anybody know what the position is with those awards?

PN90

MR IZZO: We haven't heard from employer organisations or unions as to what their positions are. We haven't done that exercise ourselves due to the lack of membership and so the short answer is I probably can't assist with that, your Honour.

PN91

THE VICE PRESIDENT: All right, thank you. Now in terms of the remaining disputed awards in paragraph 11 plus the other award just raised by Mr Odgers, we need to undertake a process to determine those matters. Do I take it, it's too late for those matters to be dealt with as part of the hearing on the 16th and the 17th?

PN92

MS BHATT: Vice President, respectfully our answer to that question is yes.

PN93

THE VICE PRESIDENT: All right.

PN94

MS BHATT: And I think your Honour will have seen the correspondence we filed of that just late last week. I can propose an alternate timetable which would - - -

PN95

THE VICE PRESIDENT: Before we talk about timetables is it possible that the matters can be resolved on the basis of written submissions or is there a requirement to receive evidence?

PN96

MS BHATT: I don't anticipate that we will seek to call evidence. And if the Commission afforded parties an opportunity to file submissions, submissions in reply and then a third round of submission, it might be that there's no need for a hearing after that, assuming that no evidence is filed. But as is so often the case, it might be difficult to make that assessment this time. What I had thought to propose to the Vice President is that a timetable of that nature be published. If the Commission wishes to hold a date for hearing in the event that a hearing is required then that might be prudent but if a directions hearing is listed, once the material has been filed the parties might be in a position to indicate to the Commission that a hearing is not sought.

PN97

THE VICE PRESIDENT: All right. Let's hear the timetable. Sorry, who was that? Mr Odgers?

PN98

MR ODGERS: Your Honour, can I just say something in relation to the award that I raised, the Educational Services General Staff Award. Your Honour's question as to whether it's too late for that outstanding matter to be addressed on the 16th, and in our submission it is not too late. The parties have already twice been through a process of submission and reply, and in the middle of this year filed separately, draft determinations. The difference between the parties is very small. There's a general acknowledgement that the overtime - that the loading will apply, a casual loading will apply in respect of overtime and the disagreement goes only to two classifications. Now I know that the other side isn't here today in the form of the AIS but there doesn't seem, based on the volume of written material lodged to date and the compass of the dispute to be any reason why the parties couldn't make brief oral submissions on 16 December in Sydney.

PN99

THE VICE PRESIDENT: All right, so does anyone oppose that course? All right, that can be done. So that will be added to the paragraph no. 9 list. All right. Yes, sorry, go on, Ms Bhatt? You should bear in mind that there is some pressure from this Bench to finish this.

PN100

MS BHATT: I understand. I understand. The proposed directions are as follows:- that all parties file submissions and any evidence in support of their contention as to the entitlement of casual employees doing overtime, on 17 January 2020; that submissions in reply be filed on 7 February 2020; and then a further round of reply submissions on 21 February 2020.

PN101

THE VICE PRESIDENT: No, I don't think that's doable, Ms Bhatt. I mean, in terms of primary submissions and evidence, I mean, parties have already at various stages put on submissions about their positions, haven't they?

PN102

MS BHATT: To my knowledge, not in respect of the awards that are contested.

PN103

THE VICE PRESIDENT: All right. Well, why can't that be done before Christmas?

PN104

MS BHATT: Well, the Ai Group will not be in a position to do because of the number of other award review proceedings that we're currently involved in. There was a long list that was outlined in the correspondence that we sent to you. This is not a position that we've put to the Vice President lightly but we genuinely don't believe that we will be able to do so and as the Vice President might away, certain key personnel at Ai Group have unexpectedly needed to take some leave to go overseas, personal leave, which has also had some bearing on our capacity over the next few weeks.

PN105

THE VICE PRESIDENT: Which are the awards AiG is interested in, in that category?

PN106

MS BHATT: The Aluminium Award; the Health Professionals Award; the Pharmaceutical Award; the Salt Award; and the Business Equipment Award.

PN107

THE VICE PRESIDENT: Most of them.

PN108

MS BHATT: So most of them.

PN109

THE VICE PRESIDENT: All right. Yes, all right. Does any other party fancy any other proposal for dates?

PN110

MR CRAWFORD: I'm not sure I want to get involved too much in this, your Honour. We're ready to proceed and we're basically in the Commission's hands. We're happy with the basis of written submissions. We don't anticipate our submissions would be overly lengthy, so we can mostly proceed as quickly as the Commission decides but we may not have the same pressures that AiG has.

PN111

THE VICE PRESIDENT: All right. Does any other party wish to say anything?

PN112

MR CULLEN: Your Honour - - -

PN113

THE VICE PRESIDENT: Who's this?

PN114

MR CULLEN: Sorry, Thomas Cullen for the NFF.

PN115

THE VICE PRESIDENT: Yes.

PN116

MR CULLEN: I apologise for returning your attention to the Horticultural Award but I believe that there was some concern with the language in paragraph 24.3, payment for overtime, casual employees, with the redraft by AiG - - -

PN117

THE VICE PRESIDENT: So what part of the list does this form? Where's that? Paragraph 7.

PN118

MR CULLEN: Yes. This is - - -

PN119

THE VICE PRESIDENT: Sorry, yes. We've got, 'to be confirmed,' there. So what's the position there?

PN120

MR CULLEN: Our position is that the language around the term, 'ordinary hourly rates,' which was previously, I think, set upon and currently is as the minimum hourly wage. Our position is that that language was determined, I think, after several months of consultation and we have not had an opportunity to consult with industry on the use of the language, 'ordinary hourly rate.' Our position on that, your Honour, I think is that we would prefer that the language did not change from 'minimum hourly wage.' Although we understand that this redraft probably reflects the current law just in the sense that it incorporates the base rate of - - -

PN121

THE VICE PRESIDENT: So when you say, redraft, you mean in the exposure draft?

PN122

MR CULLEN: Yes. Yes, apologies, your Honour.

PN123

THE VICE PRESIDENT: Yes.

PN124

MR CULLEN: We understand that this probably makes sense in respect of the fact that it incorporates the base rate of pay plus the (indistinct) all purposes allowances. However our concern is that we just haven't had a chance to consult with the industry on those changes within horticulture.

PN125

THE VICE PRESIDENT: So when was that exposure draft issued?‑‑‑

PN126

MR CULLEN: I don't have the date.

PN127

MS BHATT: Can I assist, Vice President. I think what might in fact is being referred to is some drafting that's been exchanged between the parties. It's not something that has been reflected in the exposure draft. There's been some discussion, without going into all of the detail, as to whether the overtime ratification of employees under the Horticulture Award should apply to the minimum rate, or the rate that includes all purpose allowances. And my understanding is that the NFF had sought some further time to consult with its membership. It sounds like that process might be ongoing.

PN128

THE VICE PRESIDENT: All right. Anyway, so perhaps, Mr Izzo and Mr Crawford, do you want to add to this?

PN129

MR CRAWFORD: I mean, my understanding is it was well settled during the award reviews that the ordinary hourly rates are able to be used if there are all purposes allowances in the minimum hourly rate. If they're not, my recollection is that the exposure draft for the Horticulture Award hasn't been updated since the award was actually varied to insert casual overtime entitlements so I suspect as the – and I don't think that award falls within the first or second tranche of exposure drafts that have recently been published and had submissions on. So I suspect these issues can probably be dealt with when that award arises through the tranche sort of process with the exposure drafts in the future. It doesn't strike me as an issue that this Full Bench would need to resolve.

PN130

THE VICE PRESIDENT: So Ms Bhatt referred to some proposal for change. Who's advancing that?

PN131

MR IZZO: Your Honour, so in our correspondence of 4 November 2019, as you'd be aware, where we were proposing variations to the exposure drafts we had some draft language attached as a schedule. That, on a without prejudice basis, some draft language has been circulated amongst the relevant parties and the NFF had said to us that it required further time to consult its membership. I sense that that is the document that the NFF is saying, or the revised drafting, it's seeking instructions on. So really, the matter is just still outstanding between the parties.

PN132

THE VICE PRESIDENT: Right.

PN133

MR IZZO: I think it will be - - -

PN134

THE VICE PRESIDENT: I'll come back to that. So in respect of the hearing on 16 and 17 December, I'm going to hold a programming directions hearing at 9 am on Friday 6 December. So Mr Cullen, is it convenient that the Horticultural Award also be listed on that day and the parties can give a further report back as to progress?

PN135

MR CULLEN: I believe it would be, yes.

PN136

THE VICE PRESIDENT: Yes, all right.

PN137

MR CULLEN: That would be greatly appreciated.

PN138

THE VICE PRESIDENT: All right, thank you.

PN139

MR CULLEN: Thank you, your Honour.

PN140

THE VICE PRESIDENT: So on 6 December I hope the parties are in a position to provide advice as to some sort of program or running list for the hearing.

PN141

MS BHATT: We hope to be able to do so, Vice President. But can I just confirm my understanding which is that reply submissions in respect of those awards are due on – it's either 6 or 9 December, subject of course to the Commission's availability, but there might be merit in having a directions hearing after material in reply has been filed.

PN142

THE VICE PRESIDENT: Yes, so 9 December, so let's have a look. All right, so we might change that to 9 am on 11 December.

PN143

MS BHATT: If it pleases.

PN144

THE VICE PRESIDENT: So the Horticultural Award can be the same time, that is 9 am, on 11 December, and if the parties can have some sort of running list proposal ready for me to consider on that morning.

PN145

MS BHATT: Can I raise one other issue in respect of the Health Professionals Award which was listed at paragraph 11. Just for completeness there was a draft determination filed by the HSU, again on 23 January 2018, and my understanding is that no directions to date have been issued in respect of that award. So to the extent that the Commission now issues directions in respect of these awards, we would say that claim should be dealt with, within the same set of directions.

PN146

THE VICE PRESIDENT: Yes. Yes, all right. I think that's understood. All right, is there anything else I can deal with today? No? All right, well, the Commission will, in light of today's events, issue a further statement trying to summarise, hopefully correctly, the current position, and we'll issue directions for the determination of the outstanding awards. If there's nothing further I'll now adjourn.

ADJOURNED INDEFINITELY [9.37 AM]