TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                                    

DEPUTY PRESIDENT GOSTENCNIK

s.156 - 4 yearly review of modern awards

Four yearly review of modern awards

(AM2014/276)

Live Performance Award 2010

Sydney

9.29 AM, MONDAY, 27 MARCH 2017

PN1          

THE DEPUTY PRESIDENT:  Good morning.  These proceedings are being transcribed in order that an appropriate record may be kept, i.e. my note-taking is not what it once used to be.  For the record, I might just take the appearances.  Mr Chesher?

PN2          

MR M CHESHER:  Chesher, initial M, your Honour, appearing for the MEAA; with me is Ms Angus, initial Z, also from the MEAA.

PN3          

THE DEPUTY PRESIDENT:  Yes, thank you.  Mr Hamilton?

PN4          

MR D HAMILTON:  Your Honour, David Hamilton, Australian Entertainment Industry Association, trading as Live Performance Australia.

PN5          

THE DEPUTY PRESIDENT:  The purpose of the conference primarily is to try and work through some of the technical and drafting issues and also to get a proper update as to the substantive issues that are being pursued.  I am optimistic and hope that we can resolve all of the issues in today's conference, but, if not, we will adjourn and try again at a later date.

PN6          

What I propose to do, and I assume each of the parties have a copy of the summary of the submissions tabled for the technical and drafting issues, and I was going to propose that we simply work through those items in sequential order.

PN7          

MR CHESHER:  Is that the 8 March 2017 document, your Honour?

PN8          

THE DEPUTY PRESIDENT:  That is the latest draft, yes.  All right, beginning with item 1, there appears to be agreement on that issue?

PN9          

MR HAMILTON:  I hope so.

PN10        

MR CHESHER:  That is the definition of "musician".

PN11        

THE DEPUTY PRESIDENT:  Yes.

PN12        

MR CHESHER:  We hope so, your Honour.

PN13        

MR HAMILTON:  The archival recording.

PN14        

MR CHESHER:  I beg your pardon?

PN15        

MR HAMILTON:  Archival recording.

PN16        

THE DEPUTY PRESIDENT:  It is the archival - - -

PN17        

MR HAMILTON:  This is the Commission's document - - -

PN18        

MS ANGUS:  That's the same as - - -

PN19        

MR CHESHER:  I have got a different version of 8 March.

PN20        

MS ANGUS:  Do you have two of those or is that - - -

PN21        

MR CHESHER:  Sorry, I have got the summary of substantive provisions.

PN22        

THE DEPUTY PRESIDENT:  We will come to the substantive one later.  Have you got the technical and drafting one?

PN23        

MR CHESHER:  I don't have those before me, your Honour.

PN24        

THE DEPUTY PRESIDENT:  All right, we might print a couple off for you.

PN25        

MR CHESHER:  I apologise.

PN26        

THE DEPUTY PRESIDENT:  That's all right.  While that is happening, I, fortuitously, have two, so I can give you one, so we are not interrupted.

PN27        

MR CHESHER:  Thank you.

PN28        

THE DEPUTY PRESIDENT:  Item 1 concerns the archival and reference to recordings definitions, or the reference to it in the definitions and, as I indicated, there appears to be agreement on that issue.

PN29        

MR CHESHER:  Yes, your Honour.

PN30        

THE DEPUTY PRESIDENT:  All right.  Item 2, that is a typographical error and that can be corrected, so the reference to "is" in the subparagraph should be deleted.

PN31        

MS ANGUS:  Are you waiting for me?

PN32        

THE DEPUTY PRESIDENT:  I was just - - -

PN33        

MS ANGUS:  No, I am assuming that's right.  I'm just trying to stay one ahead.  I must confess, your Honour, I am ready to tackle your comments about your proposals.  I didn't come here - my apologies - but we can do it as we go.  I might just be a beat behind play.

PN34        

THE DEPUTY PRESIDENT:  That's all right.

PN35        

MS ANGUS:  I wasn't kind of live to the Commission's proposed changes.  I am ready to discuss the LPA's ones.

PN36        

THE DEPUTY PRESIDENT:  This was actually one - - -

PN37        

MS ANGUS:  But we can do both.

PN38        

THE DEPUTY PRESIDENT:  This is one raised by you.

PN39        

MS ANGUS:  Yes, in which case - - -

PN40        

MR CHESHER:  This is a MEAA proposal, so we are agreed with our own proposal, your Honour.

PN41        

THE DEPUTY PRESIDENT:  I don't think there's any opposition to correcting typographical errors and so the word "is" will be deleted from paragraph (b) of the definition of archival and/or reference recording definition.

PN42        

MS ANGUS:  We are marking this document of your, your Honour; is that okay?

PN43        

THE DEPUTY PRESIDENT:  Yes, you go for it.  I will get you another copy so that you both have one in a moment.  The facilitative provision, which is item 3

PN44        

MR CHESHER:  Clause 7.2.

PN45        

THE DEPUTY PRESIDENT:  That appears to be agreed.

PN46        

MR CHESHER:  Yes.

PN47        

MR HAMILTON:  Your Honour, we also raise - - -

PN48        

THE DEPUTY PRESIDENT:  Let's deal with them separately.  There is item 3, which is the change to the reference for the facilitative provision, which concerns 52.1(g).  The reference in the table is to an individual and the clause actually says an agreement with an employer, the "majority of employees".  So that is agreed.

PN49        

The next item, which is item 4, there is a suggestion that some of the matters that are in clause 33.3(c) should also be included.  In looking at that matter, Mr Hamilton, it seems to me that 33.3(c)(iii) - where are we?

PN50        

MS ANGUS:  It used to be 26.

PN51        

MR CHESHER:  Your Honour, could I beg your indulgence for about three minutes while I call up the exposure draft of the Live Performance Award.  I have a standing copy but not the draft circulated in 2016.

PN52        

MS ANGUS:  It used to be 26.3.

PN53        

MR CHESHER:  Here we are.  So this is page 36, 33.3(c), country tour.

PN54        

MR HAMILTON:  Your Honour, I think that should be 33.3(c)(vi) and (viii).

PN55        

THE DEPUTY PRESIDENT:  It should be, yes, (iii), (vi) and (viii).  What I was looking at - - -

PN56        

MR CHESHER:  All right, it's not 33.3.

PN57        

MS ANGUS:  It used to be 26.

PN58        

THE DEPUTY PRESIDENT:  Yes, all right.  Is there any opposition?

PN59        

MS ANGUS:  There is no substantive change.  That is what I am looking at now.

PN60        

MR HAMILTON:  So this is facilitative provisions?

PN61        

MS ANGUS:  Yes, it's just a referencing to - - -

PN62        

THE DEPUTY PRESIDENT:  This is just to include them in the table.

PN63        

MS ANGUS:  Yes.

PN64        

MR HAMILTON:  In the table?

PN65        

MS ANGUS:  And then (vi) and (viii).

PN66        

MR CHESHER:  So times of rehearsal, "on mutual agreement".

PN67        

MS ANGUS:  So that is already a facilitative provision, that's already a facilitative provision, that's already a facilitative provision.  Yes, that's agreed from our perspective.

PN68        

THE DEPUTY PRESIDENT:  All right, thank you.  Agreement so far as item 4 is concerned is that clause 7.2 be amended to include a reference to - well, 33.3(c)(iii) is already there, so it's to include 33.3(c)(vi) and (viii).

PN69        

MR CHESHER:  To include within clause 7.

PN70        

THE DEPUTY PRESIDENT:  To be included in clause 7.  3.3(c)(iii) is already there.  All right?

PN71        

MS ANGUS:  Sorry, we have moved on to the next one, yes.

PN72        

THE DEPUTY PRESIDENT:  Item 5?

PN73        

MS ANGUS:  Yes, which is the types of employment, 8, 9, 10, 11.

PN74        

MR CHESHER:  Well, yes.

PN75        

MS ANGUS:  How do I get rid of them?

PN76        

MR CHESHER:  I think we would appreciate some contemplation of each of the discrete parts of the award by employment, your Honour, part 4, performers and company dancers, musicians.  We don't represent striptease artists.  I don't believe they are represented this time round, and production and support staff.  So we can speak to three of the four discrete employment parts and I think a case needs to be made out for redundancy by class.

PN77        

MS ANGUS:  So the proposal is to simply remove the general types of employment clause.

PN78        

MR HAMILTON:  Clause 10, yes.

PN79        

THE DEPUTY PRESIDENT:  Because it's dealt with elsewhere?

PN80        

MS ANGUS:  I have got real concerns about this and that is that there are likely to be instances, to be frank, that I don't know about immediately, but where an employee will fall within the coverage of the award but not necessarily within the coverage of a particular part and therefore be lost in having any definition of the types of their employment by the abolition of this clause.

PN81        

MR HAMILTON:  It can't happen.

PN82        

MS ANGUS:  How do you know it can't happen?

PN83        

MR HAMILTON:  There is a backstage performing - - -

PN84        

MR CHESHER:  Are you saying part-time employment?

PN85        

MR HAMILTON:  Sorry?

PN86        

MR CHESHER:  You are referring to the exposure draft, the substantive provision?

PN87        

MR HAMILTON:  No, no, what I am saying is clause 10 is very confusing because it has different provisions than, say, the provisions for backstage employees, full time, part time, seasonal, which aren't covered in clause 10.  So, if someone goes to clause 10 and looks at a provision and says, "Oh, I've got a four-hour call", or something like that, but part 11 - sorry, part 6 says, "No, it's a three-hour call", then you're going to get confusion.

PN88        

MS ANGUS:  So there's two issues.  There is whether or not there is confusion or inconsistency between the general provision and the particular provision.

PN89        

MR HAMILTON:  Yes.

PN90        

MS ANGUS:  But my foundational concern is that it is entirely possible that there will be employees that do not fall within a particular part but are covered by the award, and I am thinking - I mean, it's a very broad definition of live performance industry and certainly I don't rely on these provisions for talking about actors, but there might be admin people or there might be - these general provisions are the standard labour market-wide provisions and to remove them without being utterly sure that everyone is captured in the parts of the award is a danger.

PN91        

THE DEPUTY PRESIDENT:  Is the solution then that there be some introductory words to clauses 8 through 11 which makes them operate subject to the other parts?

PN92        

MS ANGUS:  Yes.

PN93        

THE DEPUTY PRESIDENT:  That is, the principal provision in relation to full-time, part-time and casual employments are to be found in respective of relevant employees in the parts for which classification - and this would pick up, if there to be such a person who falls between two stalls, which I think is the concern that is being expressed.  Whether or not that can happen is a different matter, but that's one way of dealing with it.

PN94        

MR CHESHER:  I think that sounds agreeable, your Honour.

PN95        

MS ANGUS:  That's a fix.

PN96        

MR CHESHER:  I take David's point.

PN97        

THE DEPUTY PRESIDENT:  Mr Hamilton doesn't seem to be agreeing.

PN98        

MS ANGUS:  It is agreeable to us.

PN99        

MR HAMILTON:  I don't want clause 10 there at all.  It is just so confusing.  We can have clause 10 that refers to - if you want performers, then you can go to clause 23; musicians, clause 29, et cetera, but to me that has caused more problems for my members than any other clause in the award because they read that - - -

PN100      

MS ANGUS:  And think, "I can engage part time rather than for the run of the show"?

PN101      

MR HAMILTON:  Yes, something like that, and I say, "No, you've got to go to the actual part that's covering that employee."

PN102      

MS ANGUS:  I think that can be dealt with some provision, some lead-in statement saying, you know, that if an employee is engaged under part blah, blah and blah, then go to those parts.

PN103      

MR CHESHER:  I think parts 4, 5 and 6 go to the practical operation of the workforce covered by the Live Performance Award, but clause 10, as with like clauses in all other modern awards, goes to the generality and performs something of a safety net role as well.

PN104      

MR HAMILTON:  Yes, but other awards don't cover different aspects of employment in the one industry that have diverse employment conditions.

PN105      

MR CHESHER:  Well, there is no evidence that that's the case.  What other awards, the Broadcasting and Recorded Entertainment Award?  That's the same thing.

PN106      

MR HAMILTON:  That's another example and that's why - - -

PN107      

MR CHESHER:  No, it has a clause of generality and specific clauses.  It does.

PN108      

MR HAMILTON:  Yes, and in my submissions, in that award, they say, "We should have our own cinema award."

PN109      

MR CHESHER:  Yes, but that's irrelevant to this exercise.

PN110      

MR HAMILTON:  Well, no, it isn't.

PN111      

MR CHESHER:  We are making a general point about the structure of modern awards and you're making a point about excluding clause 10 because clause 10 provides for more secure employment on a case basis than what the individual parts do.

PN112      

MR HAMILTON:  It doesn't cover anyone.  Clause 10 does not cover anyone in this award.

PN113      

MR CHESHER:  The award covers - it's the industry of coverage within clause 3.

PN114      

THE DEPUTY PRESIDENT:  In order for an employee to be covered, there needs to be a classification.

PN115      

MR HAMILTON:  Yes, correct, your Honour.

PN116      

THE DEPUTY PRESIDENT:  So that's the starting point.  The first part of the award or the general part of the award presently has classifications, but those seem to be replications of what follows later, aren't they?  For example, minimum wages does contain classifications.

PN117      

MR HAMILTON:  Which are reflected in schedule B?

PN118      

THE DEPUTY PRESIDENT:  Yes, and they are also referable to employees in different parts.

PN119      

MR HAMILTON:  Exactly.

PN120      

MR CHESHER:  I think that is the point.  Part 10 is type of employment - neutral.

PN121      

MR HAMILTON:  But they are contradicted in each - - -

PN122      

MR CHESHER:  What is?  Give me a plain example of the thing that - - -

PN123      

MR HAMILTON:  Well, a performer - - -

PN124      

MR CHESHER:  Hang on.  Of how a member of yours struggles with the award.

PN125      

MR HAMILTON:  Sorry?

PN126      

MR CHESHER:  Give me an example of how a member of yours struggles in applying the award by virtue of clause 10 versus one of the more discrete parts.

PN127      

MR CHESHER:  Full-time employment, if you're a performer and if I take you to types of employment, in clause 10 you've got types of employment, full-time employment.

PN128      

MR CHESHER:  Yes?

PN129      

MR HAMILTON:  Part 5, clause 30:

PN130      

The employee may be engaged weekly for the run of a play or plays on an ongoing agreed basis, weekly basis, on a weekly part-time basis or as a casual.

PN131      

MR CHESHER:  Yes.

PN132      

MR HAMILTON:  "Weekly for the run of the play or plays" is not full-time employment, as we know.

PN133      

MS ANGUS:  But there might be other ways to structure a live performance that are not a run of a play.  There might be, you know, a magician employed on an ongoing basis on a cruise.  He is not engaged for the run of a play necessarily.  They might be engaged on an ongoing part-time basis.

PN134      

MR HAMILTON:  They are engaged for a specific period, which is the cruise.

PN135      

MS ANGUS:  Or if it's an ongoing corporate gig.  It might not be for a specific period.  There are circumstances - I am sure there are circumstances - necessarily the nature of our industry, it's diverse, it's varied.  Overwhelmingly - no doubt about it - you look to the part, the provisions of the part.

PN136      

MR HAMILTON:  Yes.

PN137      

MS ANGUS:  But there will be situations that - - -

PN138      

MR HAMILTON:  As a solution, I've got no problems if we take types of employment from each part and put it in clause 10, so 10(a) - - -

PN139      

MR CHESHER:  But that then performs a limiting function, doesn't it, because clause 10 provides for more types of employment than the discrete parts 4, 5, 6 and 7.

PN140      

MR HAMILTON:  The real bugbear is clause 10.7, part-time employees, where they get paid overtime after their agreed number of hours.

PN141      

MR CHESHER:  You are talking about the exposure draft.

PN142      

MS ANGUS:  Well, it's the same in the existing provisions.

PN143      

MR HAMILTON:  No, they don't get overtime until they go past 38 hours a week.

PN144      

MS ANGUS:  I see.  Well, that's a standard labour market provision.

PN145      

MR HAMILTON:  I don't care.  We're not standard labour.

PN146      

MS ANGUS:  But the award is structured into parts.  Where they fall within a part, those provisions apply; where they don't, then there's a generic standard that applies.

PN147      

MR HAMILTON:  They amalgamated five different areas of work in our industry which have no correlation to each other.  That's the problem.

PN148      

MS ANGUS:  So is the argument that we should have then about your opposition to overtime for part-timers kicking in after their contracted hours?

PN149      

MR HAMILTON:  That's one part, but as far as I'm concerned - - -

PN150      

MS ANGUS:  That is the very existence of part-time employment in this industry.

PN151      

MR HAMILTON:  No, no.

PN152      

MS ANGUS:  As a fall back.

PN153      

MR HAMILTON:  No.  General employment conditions, types of employment have no relevance whatsoever to employment in our industry.  You go to either the actors and dancers section, you go to the musicians section, or you go to the production support person.

PN154      

THE DEPUTY PRESIDENT:  All right.

PN155      

MR HAMILTON:  We might have an argument, your Honour.

PN156      

MS ANGUS:  Yes.

PN157      

THE DEPUTY PRESIDENT:  You are probably going to have to have an argument.  There is a current provision which is in terms the same as that in the exposure draft and that is set out in part 3 of the award.  If the position of the AEIA is that those provisions should be removed and that is opposed, then I propose to simply shift that matter across to the substantive list and it will be dealt with by a Full Bench at an appropriate time.  So we will move item 5, which is not agreed, to the substantive issues list.  Item 6?

PN158      

MR CHESHER:  Yes, your Honour, we are going through our due diligence in raising this point in fairness to our friend.  We are aware of the Full Bench authority that grapples with this particular issue.  Nonetheless, we felt bound on behalf of our members to put to the Commission in response to the exposure draft that the impact of the way the exposure draft defines the relevant matters - I believe minimum rate or hourly rate - I will come to that shortly - in revised clause 3.

PN159      

MS ANGUS:  Clause 3?

PN160      

MR CHESHER:  Yes, that's in the exposure draft.

PN161      

THE DEPUTY PRESIDENT:  11.3?

PN162      

MR CHESHER:  11.3?

PN163      

THE DEPUTY PRESIDENT:  I am dealing with item 6, sorry.

PN164      

MR CHESHER:  It's about calculating overtime.  Sorry, your Honour, the point I am making is that one of the changes in the - - -

PN165      

MS ANGUS:  Isn't the point here that every single change in the exposure draft, every time it used to say that you get, for example, overtime on your "ordinary rate" it used to say.

PN166      

MR HAMILTON:  Yes.

PN167      

MS ANGUS:  Now it says now you get overtime on your "minimum rate".

PN168      

THE DEPUTY PRESIDENT:  I see.

PN169      

MS ANGUS:  In one sweep of a pen, every single reference to a penalty provision has now been defined as the penalty being imposed on the minimum award rate, whereas on a plain read previously, it used to be that if you were entitled to double time on a Sunday, you were entitled to double time on your ordinary rate and your ordinary rate would be whatever that individual employee's ordinary rate was.

PN170      

MR CHESHER:  And the clause 3 point, your Honour, is the exposure draft includes a definition of "standard rate" which means the minimum weekly rate, in part.

PN171      

THE DEPUTY PRESIDENT:  I understand the point.

PN172      

MR CHESHER:  So we are concerned, like a number of our fellow unions, that this particular change, which I think was advanced across all modern awards, would have the effect of reducing ordinary take-home pay.

PN173      

MS ANGUS:  It will, yes.

PN174      

MR HAMILTON:  I think I said if you can prove, we will support it.

PN175      

MR CHESHER:  Yes, that's right, that's right.

PN176      

THE DEPUTY PRESIDENT:  Where are the rates payable on a weekend, for example?

PN177      

MS ANGUS:  Every time there's a reference to "overtime" and "penalty rates", so, for example, the existing award - let's pick a random one - clause 41, for example, 41.3 in the existing award as distinct from the exposure draft because the exposure draft just changed them all.  So this is a penalty rate that applies to musicians, for example, at 41.3:

PN178      

Overtime rate payable to an employee is time and a-half of their normal rate of pay.

PN179      

This type of provision has, in all instances, been changed to, for example, 150 per cent of the minimum rate, which will be many hundreds of dollars yes.

PN180      

MR HAMILTON:  Especially for a musician.

PN181      

MS ANGUS:  Especially for a musician.

PN182      

MR HAMILTON:  Snouts in the trough.

PN183      

MS ANGUS:  Is that a band name?

PN184      

MR HAMILTON:  Because the minimum rate in the award for the musician is probably about 60 to 80 bucks a week less than the market rates and in your example, at the present time they'd get the rate on a call rate of 165 rather than 110, or whatever it is.

PN185      

MS ANGUS:  This would have a real impact in the industry.

PN186      

MR HAMILTON:  That sounds good for us, doesn't it?

PN187      

MS ANGUS:  To the credit - to your credit, David, the employers - - -

PN188      

MR CHESHER:  And you didn't propose that.

PN189      

MS ANGUS:  Taking a decent position on this, but this is obviously something that we have an issue with.

PN190      

THE DEPUTY PRESIDENT:  All right.  Is the agreed position of the parties that - - -

PN191      

MS ANGUS:  The original words should be retained.

PN192      

THE DEPUTY PRESIDENT:  The reference to the "normal rate" and the "normal rate" means what?

PN193      

MS ANGUS:  In some instances there are references to "normal rate", sometimes it's "ordinary rate", but in all instances where there's either "normal" or "ordinary", it has been replaced with "minimum award rate".

PN194      

THE DEPUTY PRESIDENT:  My question is what is the normal rate?

PN195      

MS ANGUS:  The employee's normal rate.

PN196      

THE DEPUTY PRESIDENT:  Yes, but how does one work that out by reference to the award?

PN197      

MR CHESHER:  It is not referable immediately to the rates set out in the award, your Honour, because the award deals with minimum rates.  This is a matter of practical operation.

PN198      

THE DEPUTY PRESIDENT:  The way in which the award operated or operates currently is that the penalty rate payable, for example, in relation to overtime by reference to an employee's normal rate is the rate that the employee is entitled to receive - - -

PN199      

MS ANGUS:  Under a written contract of employment.

PN200      

THE DEPUTY PRESIDENT:  Under whatever mechanism they actually receive.

PN201      

MS ANGUS:  Yes.

PN202      

THE DEPUTY PRESIDENT:  And the award operates upon that rate by applying a penalty and the minimum protection afforded by the award is diminished because now the obligation is to apply it to the minimum rate as prescribed by the award.

PN203      

MS ANGUS:  Yes, correct.

PN204      

THE DEPUTY PRESIDENT:  Mr Hamilton, is it agreed that the language of the exposure draft should revert back to the corresponding language found in the award currently?

PN205      

MR HAMILTON:  Yes, I totally agree, your Honour.  I just don't like this 150, 250 per cent at the minimum hourly rate, full stop.

PN206      

THE DEPUTY PRESIDENT:  Your point is a secondary one, isn't it, that - - -

PN207      

MR HAMILTON:  Yes.  I see where the union is coming from.  It has been industry practice to pay overtime on the actual rate payable, so we won't object too much.

PN208      

THE DEPUTY PRESIDENT:  Mr Hamilton, I am recording that as an agreement.

PN209      

MS ANGUS:  Rather than a qualified one?

PN210      

THE DEPUTY PRESIDENT:  Speak now if that is not the case.

PN211      

MR HAMILTON:  No, it is fine, your Honour.

PN212      

THE DEPUTY PRESIDENT:  Thank you.  Item 7.  This is responsive to question 12.

PN213      

MR HAMILTON:  Yes, this is an interesting one.

PN214      

MS ANGUS:  This relates to the section that you don't even think should be in here.

PN215      

MR HAMILTON:  Yes, correct, weekly employment.

PN216      

THE DEPUTY PRESIDENT:  This is raised here because elsewhere there's a reference in other parts to weekly employees as being the reference to the full-time employees.  My own view - and this is something that I think can be dealt with as part of the disputed continued existence of this provision - and that is that if this part is to be applied to persons who are not captured by other parts then query whether one needs to adopt the same languages in other parts, otherwise you may as well not have the provision, which is your point.  I think the answer to the question can be deferred.

PN217      

MR CHESHER:  We are comfortable with that, your Honour.

PN218      

THE DEPUTY PRESIDENT:  We will just deal with that as part of the general - - -

PN219      

MR HAMILTON:  Sorry, your Honour, we are moving that to?

PN220      

THE DEPUTY PRESIDENT:  It seems to me there is no point dealing with it now in that we have agreed to shift it across to the disputed claims.

PN221      

MR CHESHER:  Prima facie it looks better than the old one because it spells out the two sets of rates, but what was your concern, David?  It's not user friendly?

PN222      

MS ANGUS:  Did that come from you?  I think it came from the Commission.

PN223      

MR CHESHER:  It's down as - - -

PN224      

MS ANGUS:  I see it, yes.

PN225      

THE DEPUTY PRESIDENT:  The minimum hourly rate was certainly included by the drafters of the exposure draft.

PN226      

MR HAMILTON:  I will have to refresh my memory.

PN227      

MS ANGUS:  So it has gone from a system of - - -

PN228      

MR CHESHER:  This is the current clause.  It sets out a weekly rate.

PN229      

THE DEPUTY PRESIDENT:  All that's been added, apart from the lines and columns, is the minimum hourly rate.

PN230      

MR HAMILTON:  Is the hourly rate.

PN231      

MS ANGUS:  The hourly.

PN232      

MR CHESHER:  Divided by 38.

PN233      

MR HAMILTON:  I wonder where I was when I did this.

PN234      

MS ANGUS:  There are two, perhaps, potential issues.

PN235      

MR CHESHER:  Probably in December.

PN236      

MS ANGUS:  There's the inclusion of an hourly rate and then there's also whether the hourly rate divided by 38 has consequences.  Is that your concern?  Do we want to encourage hourly engagement?

PN237      

MR HAMILTON:  There must be a meaning to the good stuff.  What was my issue with it?  I don't know.

PN238      

MS ANGUS:  Shall we go back to it?  Maybe you can't see it because it's got the watermark "draft" written.  That's why it's not user friendly.

PN239      

MR HAMILTON:  Maybe I was thinking more - I don't know.  Sorry, your Honour, I - - -

PN240      

MR CHESHER:  I don't think we had anything to say about clause 14 in our submission.

PN241      

MS ANGUS:  Can we say that it's okay but if you need to raise it again, we can?

PN242      

MR HAMILTON:  I think the issue I had was that the hourly rates are not all there.  The musician is an interesting one, your Honour, because the hourly rate for a musician is the weekly rate divided by 24, if I remember correctly.

PN243      

MS ANGUS:  I don't know.

PN244      

MR HAMILTON:  Sorry, the call rate.

PN245      

MR CHESHER:  You are saying there's a different methodology?

PN246      

MR HAMILTON:  There's a different methodology for working out musician rates of pay compared to performers or backstage employees.  I think that's where my concern lay because in the existing - - -

PN247      

MR CHESHER:  Presumably the hourly rates are still correct.  Unless you are saying the divisor is different?

PN248      

MR HAMILTON:  Well, it is.  If you have a look at the existing clause 30.2:

PN249      

Musicians are engaged by the call rate.  The call rate is calculated by dividing the appropriate minimum weekly wage by 24.

PN250      

THE DEPUTY PRESIDENT:  Sorry, which clause?

PN251      

MR HAMILTON:  Sorry, 30.2, your Honour.

PN252      

THE DEPUTY PRESIDENT:  Of the existing award?

PN253      

MR HAMILTON:  Yes.

PN254      

MR CHESHER:  So it's by the call.

PN255      

MR HAMILTON:  I told you it was - - -

PN256      

MS ANGUS:  Yes, the call rate, yes.

PN257      

MR HAMILTON:  Yes, I told you it was 24.

PN258      

MS ANGUS:  Good, well done.

PN259      

MR HAMILTON:  I think that's where I'm coming from, your Honour, because the hourly rate for musicians is going to be quite substantially higher and they are engaged on a call basis of three hours.  We like to think our industry is different, your Honour.

PN260      

MS ANGUS:  Well, it is.

PN261      

MR HAMILTON:  In some respects it is a lot different.

PN262      

MS ANGUS:  And how is that reflected in here?  They don't have a - - -

PN263      

MR HAMILTON:  You will see the musician there.

PN264      

MR CHESHER:  The weekly wage is set out in part 5.

PN265      

MS ANGUS:  You could put an hourly rate with a note saying "provided that they will be engaged for a minimum of engagement of call rate", or something to that effect.

PN266      

MR HAMILTON:  Where I'm getting, yes, and where my beef was as well, your Honour, was these little 1s, the footnote type 1 next to the hourly rates of pay:

PN267      

Rates apply to production and support staff only.

PN268      

Then for other rates - - -

PN269      

THE DEPUTY PRESIDENT:  Because the category doesn't say that.

PN270      

MR HAMILTON:  Sorry?

PN271      

THE DEPUTY PRESIDENT:  Yes, because the category doesn't say that.

PN272      

MR HAMILTON:  Yes.

PN273      

THE DEPUTY PRESIDENT:  I am being facetious.

PN274      

MR HAMILTON:  Yes.

PN275      

THE DEPUTY PRESIDENT:  I am not sure what purpose is served by the footnote.  The title is company director, blah, blah, blah, production and support staff and then the note says that the rates are for production and support staff only.

PN276      

MR HAMILTON:  Yes.  And then there's another note for rates for performers and dancers and musicians.

PN277      

THE DEPUTY PRESIDENT:  Yes.

PN278      

MR HAMILTON:  See those parts.

PN279      

THE DEPUTY PRESIDENT:  Yes.

PN280      

MR HAMILTON:  It's a spider web.

PN281      

MS ANGUS:  So it is, isn't it?  The problem is then that some of those classifications are in fact not hourly engagements and cannot be engaged hourly, so there needs to be a call engagement.  Is that the way to address it?

PN282      

THE DEPUTY PRESIDENT:  The purpose of putting in an hourly rate would usually be to make it easier for the reader to understand what the person is entitled to or what the person is required to pay, but if there are different methodologies for calculation and then you have to end up with more footnotes, I'm not sure it makes it easier.

PN283      

MR HAMILTON:  That is exactly right.

PN284      

THE DEPUTY PRESIDENT:  Isn't the end result that the column should be deleted?

PN285      

MS ANGUS:  Yes, maybe.

PN286      

MR HAMILTON:  I have got no problems with the hourly rate, your Honour, because - - -

PN287      

THE DEPUTY PRESIDENT:  I understand the point you make.  If it's not going to make it easier for the reader and it makes it more difficult - - -

PN288      

MS ANGUS:  It's actually going to make it run the risk of people getting the wrong rate.

PN289      

MR HAMILTON:  Yes.

PN290      

THE DEPUTY PRESIDENT:  Getting the wrong rate.  In those circumstances, it is probably better just to delete.

PN291      

MS ANGUS:  Yes, okay.

PN292      

MR HAMILTON:  Yes.

PN293      

MR CHESHER:  The only point I make there, your Honour, and I am not disagreeing with you, but musician is set out in only a couple of levels within that table, but that might be a case of damn the rest.

PN294      

THE DEPUTY PRESIDENT:  But that's - - -

PN295      

MR HAMILTON:  But if you go to - - -

PN296      

MS ANGUS:  Then you would also want to delete company dancer because you don't engage dancers hourly.

PN297      

THE DEPUTY PRESIDENT:  Those levels and the categories are the same as the current award.

PN298      

MR HAMILTON:  And then you have the added confusion if you look at the existing 30.2, there's minimum hourly rates there for musicians, musicians accompanying artists, principal musicians and conductor-leader.

PN299      

MR CHESHER:  Yes, to progress, I think, take the column out.

PN300      

MS ANGUS:  That are higher.

PN301      

MR HAMILTON:  Yes.  I just highlight it because I thought it was more confusing, especially when you wanted to look at musician rates of pay, that's all.

PN302      

MR CHESHER:  Yes.

PN303      

MS ANGUS:  Remove it?

PN304      

MR CHESHER:  Yes.

PN305      

THE DEPUTY PRESIDENT:  So we will remove that column and consequently the notes.  All right.  Item 9, and this is something that was raised by the drafters, school-based apprentices.

PN306      

MR HAMILTON:  We suggested that we leave it in there, your Honour.  Whilst we don't have any apprentice schemes in our industry at the moment, we used to many years ago and I would like to have it in there just in case we get back into the apprenticeship mode.

PN307      

THE DEPUTY PRESIDENT:  The issue, as I saw it when I had a look at this provision, schedule D sets out the school-based apprentices provisions and D3, for example, provides that "the relevant minimum wages for full-time junior and adult apprentices provided in this award" and doesn't - I can't see any provision.

PN308      

MR HAMILTON:  Correct.  I am not sure how I address that, your Honour.

PN309      

THE DEPUTY PRESIDENT:  In the future, if you were going to introduce apprentices, there still wouldn't be a rate in the award.

PN310      

MS ANGUS:  Just give them the full-time weekly adult rate.

PN311      

MR HAMILTON:  I am not going to - - -

PN312      

THE DEPUTY PRESIDENT:  No doubt that's one option.

PN313      

MR CHESHER:  It's pretty clear - it's one of those things that is probably in disuse - but is there a consequence for deleting it?  I think we share your opinion.

PN314      

MR HAMILTON:  I would like to have - because I'm not going to be there for the rest of my life, I've been there 20-odd years, and apprenticeships were there probably 30 years ago in the backstage area and if I go and we all go, there would be no signal there for people coming and replacing us to say, "What about apprentices?"  That is where I was coming from, your Honour.

PN315      

MR CHESHER:  It would be at most application to part 7, production and support staff, because that's more aligned with the traditional trades.

PN316      

MR HAMILTON:  Yes.

PN317      

THE DEPUTY PRESIDENT:  So the agreed position is to retain it?

PN318      

MR CHESHER:  Yes.

PN319      

THE DEPUTY PRESIDENT:  Item 10.

PN320      

MR CHESHER:  You might want to save some time here, your Honour, but this one - - -

PN321      

MR HAMILTON:  Substantial, is it?

PN322      

MR CHESHER:  It is.  I guess our overarching proposal is that the allowances in question should match the days on which work is performed.

PN323      

MS ANGUS:  These are all the tour allowances.  When you go on tour, you get accommodation, per diems for expenses, and what's the third one you get?  A travel allowance, basically.  Currently, you get a daily travel allowances which maxes at five days.  In fact, everyone does six days ordinary shows and, in fact, while you're on tour, of course, you're all travelling for seven days.  Our proposal is that the maximum weekly cap be either the equivalent of the sum of seven days' worth of expenses allowances or, at the very least, matched to the ordinary hours or work, which are a six-day week.

PN324      

MR HAMILTON:  We're going to have a good fight on that one because you haven't read all your decisions.

PN325      

MS ANGUS:  Really?

PN326      

MR HAMILTON:  Yes.

PN327      

MS ANGUS:  Go on then, share with us what your argument is.

PN328      

MR HAMILTON:  Your Honour, travelling allowance has been a vexed issue in our industry and was pretty well fixed up by the Full Bench in 1989 and then by Polites SDP.  From that day onwards, there really hasn't been any bun fight, if I can call it that, about travelling provisions.  Provisions before that were, especially with accommodation problems - meals and incidentals, believe it or not, was the most consistent of the provisions.  It was set by Maher C, as he then was then, in 1986 and the formula for that hasn't changed since that time and has carried on, so you will have to argue against that.

PN329      

MR CHESHER:  That's right, we will have to argue against that based on evidence.  That's all right.

PN330      

MR HAMILTON:  Yes, yes.

PN331      

MS ANGUS:  What about based on merit and decency, though?  If you go away and you do a six-day a week tour but you're only getting five days' worth of expenses, you would accept that is rough?

PN332      

MR HAMILTON:  Can I ask you to check the Opera Award where the divisor was always six.

PN333      

MS ANGUS:  Why is it five then?

PN334      

MR HAMILTON:  I don't know.

PN335      

MS ANGUS:  It's five in the PCA, too, I take it, is it?

PN336      

MR CHESHER:  It has been an issue of concern to the union for several years, your Honour, so we will be pressing the claim at the appropriate time.

PN337      

MR HAMILTON:  Your Honour, that particular part of the provisions, the eligibility provisions, has started becoming quite a thorn in a lot of producers' and I would suggest probably employees/performers' sides as well.  I threw that in that maybe we should get the Commission to actually have a - - -

PN338      

MS ANGUS:  A site inspection.

PN339      

MR HAMILTON:  A relook.  It might not be a bad idea because our travelling provisions are probably different to most industries' travelling allowances where performers and crew can be on travelling allowance for over 12 months but in different centres.  So we are going to have a fight, but it will be a nice fight.

PN340      

THE DEPUTY PRESIDENT:  All right.

PN341      

MR HAMILTON:  I am just wondering whether the Commission might want to actually look at the travelling provisions to get themselves acquainted to how we operate so they can make an informed decision going forward.

PN342      

THE DEPUTY PRESIDENT:  That will be the subject of evidence and argument if the matter is not able to be agreed.  For present purposes, I will move item 10 to the substantive issues list.

PN343      

MR HAMILTON:  Do they still do inspections and stuff, your Honour?

PN344      

THE DEPUTY PRESIDENT:  Some members will do inspections if they are necessary, yes.  I tend to, but not on these sorts of matters, but whenever I have a contested protected action - sorry, majority support determination issue, my practice is to go out and speak to the workforce to ascertain their views through a private ballot which I conduct, rather than - - -

PN345      

MS ANGUS:  Rather than the AEC?

PN346      

THE DEPUTY PRESIDENT:  Well, the AEC, nobody puts up their hand to pay.  The one and only time I've done it, I got a bill for $9,000, so I've stopped doing that, but, yes, because they are not required to - unlike protected action ballots where they are required under the Act or the default conductor of ballots in these other areas, they are not, so they charge.

PN347      

MS ANGUS:  So how do you conduct it?  You said speak to them and then you said conduct - - -

PN348      

THE DEPUTY PRESIDENT:  Basically what I do is I get parties to, first of all, put out a joint communique informing all employees that I am going to attend.  Depending on the size of the workforce, it might be over one or two days.  I take them in sort of small, manageable groups and if there are English language difficulties, I come out with interpreters and we try and group the employees based on their backgrounds so that we minimise the term that interpreters are required to be there.  I give them an explanation as to what it is that I'm asking and why and what the consequences are and then I hand out ballot papers and ask them to either complete them or not, but in each case return them to me.

PN349      

MS ANGUS:  Physically return them then and there?

PN350      

THE DEPUTY PRESIDENT:  Yes.

PN351      

MS ANGUS:  That's good, that's a fair system.

PN352      

THE DEPUTY PRESIDENT:  I give them some space to mark their papers privately, they fold them and return them to me and then I'll count the ballot and announce the result.  In most cases - well, in every case that I have had, either the result, obviously, is in support of a majority or not and where there's support, the employer generally agrees to bargain, so I don't have to make a determination.

PN353      

MS ANGUS:  Right.

PN354      

THE DEPUTY PRESIDENT:  And in cases where there isn't a majority, the union generally withdraws the application because it's bound to fail.

PN355      

MS ANGUS:  Because they've seen that the process is a decent one.

PN356      

THE DEPUTY PRESIDENT:  Yes.

PN357      

MS ANGUS:  Good.

PN358      

THE DEPUTY PRESIDENT:  In any event, item 11, when I had a look at this earlier this morning, whoever asked the question, I think, hasn't understood the purpose of the provision.  I don't think that's an issue.  For my own part, it has got nothing to do with annual leave accrual, it's a limit on when annual leave loading is paid.

PN359      

MR HAMILTON:  Yes.

PN360      

MS ANGUS:  Is that the (c) one?

PN361      

THE DEPUTY PRESIDENT:  This is loading is not payable for a period of service of less than 12 months.  It doesn't really matter how annual leave accrues.  That operates as a limit.  In essence, if you take annual leave in the first 10 months, you're not entitled to leave loading, as I read the provision.

PN362      

MS ANGUS:  The reality is that annual leave is paid out at the end of a running show.

PN363      

THE DEPUTY PRESIDENT:  Yes, and again - - -

PN364      

MS ANGUS:  So if there is the capacity - if this done run foul of the NES, then we want it removed.

PN365      

THE DEPUTY PRESIDENT:  It doesn't because the NES doesn't provide from loading.

PN366      

MR HAMILTON:  Yes.

PN367      

THE DEPUTY PRESIDENT:  It's a limit on loading.

PN368      

MR CHESHER:  The question is redundant.

PN369      

THE DEPUTY PRESIDENT:  The question misunderstands the NEC.

PN370      

MS ANGUS:  We will cop the Commission's view on that, but we would much prefer to pick up a loading.

PN371      

MR HAMILTON:  Technically the performers get the loading when they get paid out one twelfth.  If you work - - -

PN372      

THE DEPUTY PRESIDENT:  The answer to the question is "no".  Item 12.

PN373      

MR HAMILTON:  I was confused by this.

PN374      

MS ANGUS:  What is it currently?

PN375      

MR CHESHER:  Performers in school tours.

PN376      

MR HAMILTON:  Yes, it could be category 1, grade 1, grade 2, or category 2.

PN377      

THE DEPUTY PRESIDENT:  Again, I think this question misunderstands - - -

PN378      

MS ANGUS:  Because they're thinking that they are school kids and therefore should be in grade 1 or something?  Is that what it is?

PN379      

MR HAMILTON:  I don't know.

PN380      

THE DEPUTY PRESIDENT:  No, I think this is because the provision refers to - I would have thought the answer is evident in the clause because it refers to the minimum rates, so it can't be just one rate.

PN381      

MS ANGUS:  Yes.

PN382      

THE DEPUTY PRESIDENT:  I would have thought the answer was clear, but, in any event.

PN383      

MS ANGUS:  So, no, it shouldn't refer to.

PN384      

THE DEPUTY PRESIDENT:  The answer is "no".

PN385      

MS ANGUS:  Yes, we agree.

PN386      

THE DEPUTY PRESIDENT:  The answer to 31.4 seems to be agreed that it's "yes".

PN387      

MR CHESHER:  Yes.

PN388      

THE DEPUTY PRESIDENT:  Item 14.  There is a suggestion that the rating (ii) has been doubled.  Is that right?

PN389      

MR HAMILTON:  I think they have made a mistake, your Honour.

PN390      

MS ANGUS:  Where are we?

PN391      

MR HAMILTON:  That each half hour - they didn't halve the $37.60, that's all.  The present clause is - - -

PN392      

MR CHESHER:  So if you are over 16, a casual working in a rehearsal - - -

PN393      

MR HAMILTON:  Clause 24.6 in the existing.

PN394      

MS ANGUS:  Say that again?  24?

PN395      

MR HAMILTON:  24.6(b)(ii) says rehearsal is 2.4 per cent whereas in (b)(i) it's 4.8 per cent.

PN396      

MS ANGUS:  Yes.

PN397      

MR HAMILTON:  So it should be half.  Yes, and they have converted that to?

PN398      

MR HAMILTON:  37.60 and then - - -

PN399      

THE DEPUTY PRESIDENT:  Does this not overlap with the discussion we were having earlier about minimum rate, standard rate and all of that?

PN400      

MR HAMILTON:  Yes.

PN401      

THE DEPUTY PRESIDENT:  The standard rate is not something prescribed by the award?

PN402      

MS ANGUS:  Yes, it is defined in the award.

PN403      

THE DEPUTY PRESIDENT:  It is?

PN404      

MR HAMILTON:  Yes.

PN405      

MS ANGUS:  As whatever level it is.

PN406      

MR HAMILTON:  Level 4.

PN407      

MS ANGUS:  Level 4.  So why wouldn't we just leave it as a percentage of the standard rate?

PN408      

MR HAMILTON:  I don't know, they converted it to a monetary amount.

PN409      

THE DEPUTY PRESIDENT:  The problem with that is that - a problem would be that whenever the standard rate is increased through a national wage increase, there would need to be a separate application to vary the allowance because the allowance is now fixed.

PN410      

MS ANGUS:  So the Commission is not, every year of the national wage case, going to update these monetary amounts?

PN411      

THE DEPUTY PRESIDENT:  Well, it might, but that's not what the minimum wage decision deals with.  In increases - - -

PN412      

MS ANGUS:  Then we would rather it just stay as a percentage and then we'll do our own number crunching.  Otherwise, it's in danger of just slipping behind - yes?

PN413      

THE DEPUTY PRESIDENT:  Of slipping behind, yes.  There would need to be a separate application to vary.

PN414      

MS ANGUS:  We are not going to be doing that.

PN415      

MR HAMILTON:  Is that right?

PN416      

THE DEPUTY PRESIDENT:  Usually, and there's all those debates about - - -

PN417      

MR HAMILTON:  Going back to the old times.

PN418      

THE DEPUTY PRESIDENT:  Yes.  It doesn't automatically increase, particularly - - -

PN419      

MS ANGUS:  Wasn't there, at some stage, talk of sort of rates schedules that then the Commission took responsibility for number punching or is that - - -

PN420      

THE DEPUTY PRESIDENT:  I am just raising the issue.  If there are percentages based on a rate that is moveable, I think it is better to stay with the percentage.

PN421      

MS ANGUS:  Stay with the percentage, yes, agreed from our perspective.

PN422      

MR HAMILTON:  Yes.

PN423      

THE DEPUTY PRESIDENT:  All right.  I can be better expressed but the percentage - all right, so that applies to what was old 24.6(b)(i) and (ii) and (d).

PN424      

MS ANGUS:  And (d), yes.

PN425      

THE DEPUTY PRESIDENT:  What are now 31.6(b)(i) and (ii) and also (d) should be reverted back to the percentage formula.

PN426      

MR HAMILTON:  Your Honour, I have just noticed, before we get onto the last few, if we continue on to clause 31.8, the training level for dancers is there and there's no reference for the training levels in clause 14.  I know it's always been there, but I'm not sure whether - is that going to be an issue?  It supports my argument that each part should be - - -

PN427      

MR CHESHER:  Have its own part 10.

PN428      

MR HAMILTON:  Yes.

PN429      

MR CHESHER:  Or operate on its own.

PN430      

MR HAMILTON:  It's just interesting that there's - - -

PN431      

MS ANGUS:  There's a training rate.

PN432      

MR HAMILTON:  There's a training rate just stuck in the middle of the award.  I would have thought they may have picked that up.  We know it's there because we do schedules for our members, but - - -

PN433      

MS ANGUS:  So what are you saying it should be?

PN434      

MR HAMILTON:  I don't know.  It doesn't worry me sitting there like that in the appropriate part.

PN435      

THE DEPUTY PRESIDENT:  This is again the argument that you will need to have when you are dealing with - - -

PN436      

MR HAMILTON:  I was trying to find the transcript, your Honour, where Justice Ross did say in one of the very initial hearings that maybe performers should have their own award.  I was trying to find it in transcript.  That would save some problems.

PN437      

THE DEPUTY PRESIDENT:  Next.

PN438      

MR HAMILTON:  33.2(f)

PN439      

MS ANGUS:  With 33.2(f) - - -

PN440      

MR CHESHER:  When you have got school drop-offs.

PN441      

MS ANGUS:  Yes, I've just got mine in the empty playground - - -

PN442      

MR HAMILTON:  2(f), substantially whole time performance, definition thereof.

PN443      

MS ANGUS:  We just pick up a PCA one?

PN444      

MR HAMILTON:  We haven't got a definition in PCA either.

PN445      

MS ANGUS:  Are you happy with ours?  Substantially, a whole time performance means any performance longer than one hour in duration, which is what the PCA defines it as really, that distinguishes between an hour or under and anything above an hour.

PN446      

MR HAMILTON:  I think I said that.

PN447      

MR CHESHER:  Did you?

PN448      

MR HAMILTON:  Yes.

PN449      

MS ANGUS:  You agree?

PN450      

MR HAMILTON:  Yes.  Any performance longer than one hour.

PN451      

MS ANGUS:  Where do we put that?  Do we have to put that in the definitions or something?

PN452      

MR CHESHER:  Yes, clause 3.

PN453      

MR HAMILTON:  Yes, that's what I suggested.  Yes, I suggested that.

PN454      

MS ANGUS:  Yes, good.

PN455      

THE DEPUTY PRESIDENT:  All right.  Item 16.

PN456      

MR CHESHER:  That sounds right.

PN457      

MR HAMILTON:  Yes, this is it.  In my submissions in reply - I'm not sure if you read them; you probably didn't.

PN458      

MS ANGUS:  That's an awful thing for you to say.  Of course I read them.  I will just refresh my memory now of them.  So what are you saying here?  That there should be or - you haven't actually put a position on that, have you?

PN459      

MR HAMILTON:  I thought it might be smart if we discussed it because it could open the old Pandora's Box, but at the present time, your Honour, there are a number of - you can work either eight substantially time productions in a week and for school touring, et cetera, up to an hour there's 12/15 shows.  A member of ours was approached by the ombudsman, and they do short performances or street performances in shopping centres and they'll go around for 10 or 15 minutes, have a rest, do another 10/15 minutes in half an hour's time and similar throughout the day.  In accordance with the provisions of the award, that performer, if you class each of those 15-minute segments as a performance, would be paid $187.44 for each of those 15-minute segments, and the ombudsman has questioned whether that is actually right and actually asked our member to get the Commission to address it in this process and that's why I flagged it because it does ‑ ‑ ‑

PN460      

MS ANGUS:  So if it's not a performance, what is it?  So the issue is it's a 15 minute performance and there's a pay rate for an ‑ ‑ ‑

PN461      

MR HAMILTON:  What is a ‑ ‑ ‑

PN462      

MS ANGUS:  ‑ ‑ ‑ under an hour performance.

PN463      

MR HAMILTON:  Yes.  See, we're talking 10   15 minute little skits in front of kids in a shopping centre or something like that, or at a fare and stuff like that, so the award doesn't really cover it.  We try and ‑ ‑ ‑

PN464      

MS ANGUS:  Are you putting a proposal about inserting an hourly casual rate instead?  No?

PN465      

MR HAMILTON:  There is an hourly casual rate but there's no ‑ ‑ ‑

PN466      

MS ANGUS:  All right.

PN467      

MR HAMILTON:  ‑ ‑ ‑ number of performances a casual can do in   well, a performance is three hours in accordance with the award, so those 15 minute segments would attract a three hour payment for each and ‑ ‑ ‑

PN468      

MR CHESHER:  Because that's the minimum call.

PN469      

MR HAMILTON:  Sorry, mate?

PN470      

MR CHESHER:  Because that's the minimum call.

PN471      

MR HAMILTON:  Yes.  But it's also what the definition of performance is in that ‑ ‑ ‑

PN472      

MS ANGUS:  Where's the definition of performance?

PN473      

MR CHESHER:  In clause 3.

PN474      

MR HAMILTON:  So the Ombudsman asked us to raise it which I have done.

PN475      

THE DEPUTY PRESIDENT:  Did the Ombudsman have a solution or do you have a solution?

PN476      

MR HAMILTON:  Yes.  Give a stern warning to the member and Victoria was involved with this matter too.

PN477      

MS ANGUS:  Okay.  I must ‑ ‑ ‑

PN478      

MR HAMILTON:  Yes.  So I think it's one of those that we need to sit down and discuss, your Honour, because it's happening more and more.  You know, shows like stuffed puppets and stuff like that.

PN479      

MR CHESHER:  Stuffed puppets?

PN480      

MS ANGUS:  Worth a fortune, yes.

PN481      

MR CHESHER:  Delightful.

PN482      

MR HAMILTON:  No, but, they get more gigs overseas than they do in Australia believe it or not.

PN483      

MR CHESHER:  I don't fully comprehend the issue but we're happy to discuss it.

PN484      

MS ANGUS:  I'm not sure I do either.

PN485      

MR HAMILTON:  Yes.  I think we need to sit down and ‑ ‑ ‑

PN486      

MS ANGUS:  Sure.  Should we do that offline?  Should we do that separately first or ‑ ‑ ‑

PN487      

THE DEPUTY PRESIDENT:  All right.

PN488      

MR CHESHER:  I think so.

PN489      

MR HAMILTON:  Yes.

PN490      

THE DEPUTY PRESIDENT:  Yes, I think that's a good idea.

PN491      

MR HAMILTON:  Yes.

PN492      

MS ANGUS:  Yes.

PN493      

THE DEPUTY PRESIDENT:  All right.  So the parties defer to discuss.  How long do you want?

PN494      

MS ANGUS:  What is it?  It's 33.2?

PN495      

MR CHESHER:  2(g).

PN496      

MS ANGUS:  Is it (f) or (g)?

PN497      

MR HAMILTON:  Sorry, your Honour?

PN498      

THE DEPUTY PRESIDENT:  How long?

PN499      

MR CHESHER:  It's (f).  Okay.

PN500      

MR HAMILTON:  How busy are you, Zoe?

PN501      

MS ANGUS:  If you're in town today, we can meet later in the day to talk about it.

PN502      

MR HAMILTON:  Yes.

PN503      

THE DEPUTY PRESIDENT:  All right.

PN504      

MR HAMILTON:  Yes, I'm supposed to be going to the ‑ ‑ ‑

PN505      

MS ANGUS:  Have you got other stuff on?

PN506      

MR HAMILTON:  Yes.  But I'll ‑ ‑ ‑

PN507      

MS ANGUS:  But we could probably   I don't know, if we gave you   so, you'll need for a number of matters   well, just this one so far, but there may be more.

PN508      

THE DEPUTY PRESIDENT:  Yes, there may be more.  Yes.

PN509      

MS ANGUS:  What if we   so come back in a fortnight or something?

PN510      

THE DEPUTY PRESIDENT:  So perhaps we'll loop back ‑ ‑ ‑

PN511      

MS ANGUS:  Yes.

PN512      

THE DEPUTY PRESIDENT:  ‑ ‑ ‑at the end and see what else needs to be reported on and we can set a timeframe.

PN513      

MS ANGUS:  Yes.

PN514      

THE DEPUTY PRESIDENT:  All right.  Item 17.

PN515      

MR HAMILTON:  Okay.

PN516      

MR CHESHER:  School tours, breaks.

PN517      

MS ANGUS:  Is this   my car is about to run out of payment.  Can I just dash   I'm just across the road.  Can I excuse myself and I'll be back in five minutes?

PN518      

MR HAMILTON:  Don't forget your ‑ ‑ ‑

PN519      

MS ANGUS:  Don't resolve anything that I might not agree to in my absence.

PN520      

MR HAMILTON:  Don't forget your wallet.

PN521      

MS ANGUS:  Yes.

PN522      

MR HAMILTON:  So you've said that ‑ ‑ ‑

PN523      

THE DEPUTY PRESIDENT:  That seems to be agreement that there isn't any interaction as suggested by the question.

PN524      

MR HAMILTON:  Yes.  We agree with that but we disagree whether the breaks are paid or not.

PN525      

MR CHESHER:  That's the question that we've asked the   it's ‑ ‑ ‑

PN526      

MR HAMILTON:  Yes.  So there's no interaction ‑ ‑ ‑

PN527      

MR CHESHER:  Yes, because they're different types of ‑ ‑ ‑

PN528      

MR HAMILTON:  One relates to musicians, the other is performers.  Then ‑ ‑ ‑

PN529      

MR CHESHER:  And the breaks are unpaid.

PN530      

MR HAMILTON:  Unpaid, which was the second part, and ‑ ‑ ‑

PN531      

MR CHESHER:  We've obviously submitted it's in paid time and you believe it's not?  Is that your   do you ‑ ‑ ‑

PN532      

MR HAMILTON:  Yes.  It doesn't really ‑ ‑ ‑

PN533      

MR CHESHER:  It's unclear really.

PN534      

MR HAMILTON:  It is unclear.

PN535      

MR CHESHER:  I don't ‑ ‑ ‑

PN536      

MR HAMILTON:  It's probably   can we throw that in the mix to get back because I'll ask Bill how they treat it, because usually it's probably not an issue if you know what I mean?

PN537      

MR CHESHER:  Yes.

PN538      

MR HAMILTON:  But ‑ ‑ ‑

PN539      

MR CHESHER:  "There will be a break of at least 40 minutes clear of any dressing and undressing".

PN540      

MR HAMILTON:  Yes.

PN541      

MR CHESHER:  So it's what that time is used for.

PN542      

MR HAMILTON:  Is used   yes.

PN543      

MR CHESHER:  Whether it's to free it up for preparatory tasks or whether it's a break which isn't elsewhere regulated.

PN544      

MR HAMILTON:  Yes.

PN545      

MR CHESHER:  I confess I don't know the answer to that one either, your Honour.

PN546      

MR HAMILTON:  Yes, it's one of those ‑ ‑ ‑

PN547      

THE DEPUTY PRESIDENT:  All right.  So ‑ ‑ ‑

PN548      

MR CHESHER:  So the purpose of the break I think is the ‑ ‑ ‑

PN549      

THE DEPUTY PRESIDENT:  Yes.  All right.  I'll allow the parties some time to consult and get instructions and we can revisit that.

PN550      

MR CHESHER:  Yes.

PN551      

MR HAMILTON:  The first part there's no disagreement.

PN552      

THE DEPUTY PRESIDENT:  Yes.  Eighteen?  Item 18, Mr Hamilton?

PN553      

MR HAMILTON:  Sorry, your Honour?

PN554      

THE DEPUTY PRESIDENT:  Item 18?

PN555      

MR HAMILTON:  Yes.  This is, if I remember correctly, to do with musicians; 38.2.

PN556      

MR CHESHER:  Allowances.

PN557      

MR HAMILTON:  That's right.  Yes.

PN558      

MR CHESHER:  Part 6.

PN559      

MR HAMILTON:  I think   did you read my submissions?

PN560      

MR CHESHER:  I'm just checking it on the award now.

PN561      

MR HAMILTON:  So that there.

PN562      

MR CHESHER:  Clause 38.  We're talking about the exposure draft here for allowances?  Or were you talking about the 38 as it stands now?

PN563      

MR HAMILTON:  For a start the second sentence started:

PN564      

Subject to an agreement the Commission put in by agreement between an employer and employee.

PN565      

MR CHESHER:  38.2(f).  Sorry just bear with me.  I'm sorry, your Honour.

PN566      

THE DEPUTY PRESIDENT:  That's changed the meaning of the clause.

PN567      

MR HAMILTON:  Sorry?

PN568      

THE DEPUTY PRESIDENT:  The change has changed the meaning of the ‑ ‑ ‑

PN569      

MR HAMILTON:  Yes.  Yes, and, your Honour ‑ ‑ ‑

PN570      

THE DEPUTY PRESIDENT:  The way I read the current provision is that the employer and employee affected essentially might agree to something else.  Yes, "subject to agreement", blah, blah, blah, "have participated", blah, blah, blah, "the employer will pay the applicable rate".  So the employer and employee can agree to pay something else which might be higher.

PN571      

MR HAMILTON:  Yes.

PN572      

THE DEPUTY PRESIDENT:  It can't be lower otherwise they'll get that.

PN573      

MR CHESHER:  By agreement.

PN574      

THE DEPUTY PRESIDENT:  Yes.  Whereas this clause, the amended clause makes that minimum rate only payable by agreement.

PN575      

MR HAMILTON:  Yes.

PN576      

THE DEPUTY PRESIDENT:  Which raises the issue of what if there's no agreement, what do they pay?  So ‑ ‑ ‑

PN577      

MR HAMILTON:  Yes.

PN578      

MR CHESHER:  So we're on board.

PN579      

THE DEPUTY PRESIDENT:  Yes.  Yes.  Yes, so ‑ ‑ ‑

PN580      

MR HAMILTON:  Yes, and if I could give some background ‑ ‑ ‑

PN581      

THE DEPUTY PRESIDENT:  Yes, I'm happy for you to but it just seems to me, reading the clause, it's changed the meaning of it.

PN582      

MR HAMILTON:  Yes.  I think we should just get rid of it because ‑ ‑ ‑

PN583      

THE DEPUTY PRESIDENT:  Altogether?

PN584      

MR HAMILTON:  But there's no payment for archival recordings full stop.  Because ‑ ‑ ‑

PN585      

MR CHESHER:  Why is it   why?

PN586      

MR HAMILTON:  There is no payments for archival recordings.  Okay.  This clause   if you have a read of my little praecipe of what happened, we had a blue with the muso's union.  Now no musician gets paid for an archival recording like performers and also crew, so there's no payments for archival recordings for anyone.  Basically that clause was put in as kind of a like a stop gap measure for the union to give them something if you know what I mean?  Basically ‑ ‑ ‑

PN587      

THE DEPUTY PRESIDENT:  So is it your position that the clause is intended to operate so that the default position is that employees don't get paid but there is provision for the employee and an affected employee to agree that they will be paid?

PN588      

MR HAMILTON:  Yes.  Yes.  To my knowledge, your Honour, there's been ‑ ‑ ‑

PN589      

THE DEPUTY PRESIDENT:  Which is what the drafting proposed achieves.

PN590      

MR CHESHER:  So there's zero.

PN591      

THE DEPUTY PRESIDENT:  That is by agreement the employee will be paid.

PN592      

MR CHESHER:  I don't know whether I'm misunderstanding you but the only facility then is for a voluntary arrangement for a payment for archival recordings.

PN593      

THE DEPUTY PRESIDENT:  Yes.

PN594      

MR CHESHER:  Because there's no standing right for that payment to be made.

PN595      

THE DEPUTY PRESIDENT:  Yes.

PN596      

MR HAMILTON:  But it's a bit useless where, you know ‑ ‑ ‑

PN597      

THE DEPUTY PRESIDENT:  If that's the intended operation well that's the way it was supposed to operate, then the words that are proposed seem to me to, in the exposure draft, seem to me to give effect to that because the words in the current award can be read as meaning that the default position is that the employees be paid the rate set out in paragraphs (a) and (e) subject to agreement between the employer and the employee to be paid something else.

PN598      

MR HAMILTON:  Which is totally anathema to the first sentence, your Honour.

PN599      

THE DEPUTY PRESIDENT:  Yes.  Yes.  So that the words that are proposed in the exposure draft are more true to your position than the current draft.

PN600      

MR HAMILTON:  And then I took it further, your Honour, and said ‑ ‑ ‑

PN601      

THE DEPUTY PRESIDENT:  Yes.  You're saying that as a matter of practice no employee is going to agree.

PN602      

MR HAMILTON:  No employer has agreed.

PN603      

THE DEPUTY PRESIDENT:  Yes.

PN604      

MR HAMILTON:  Yes.

PN605      

MR CHESHER:  If you don't mind, your Honour, I'm just ‑ ‑ ‑

PN606      

THE DEPUTY PRESIDENT:  The existing   yes.

PN607      

MR HAMILTON:  So what's the existing provision?

PN608      

THE DEPUTY PRESIDENT:  The existing provision is 31.6(f).

PN609      

MR CHESHER:  (f)?  Okay.

PN610      

MS ANGUS:  So the existing provision is subject to agreement.

PN611      

MR CHESHER:  Okay.

PN612      

MS ANGUS:  You've got have an agreement.  Then there's "no less than" whereas this is by agreement we'll pay no less than.

PN613      

MR CHESHER:  You only have to pay it if there is agreement.

PN614      

MR HAMILTON:  I saw that there was a change in the words, so I therefore I attacked it to get rid of it, but ‑ ‑ ‑

PN615      

MS ANGUS:  Because you don't like having to pay anything for a recording?

PN616      

MR HAMILTON:  No one gets paid for an archival recording so why ‑ ‑ ‑

PN617      

THE DEPUTY PRESIDENT:  I don't read the words in (f) as giving that.  I think there are two constructions possible in (f):  one is the one that you prefer; the other is that an employee in all cases will get no less than the rate set out but the employer and the employee can agree to something else.  Your proposition is more truly reflected in the exposure draft, that is ‑ ‑ ‑

PN618      

MR HAMILTON:  It probably is, your Honour.  Yes.

PN619      

THE DEPUTY PRESIDENT:  Yes.

PN620      

MR HAMILTON:  That's because there was that change in the words, which I think weren't highlighted, there wasn't any notation in the Commission's notes that there was actually a change, and I saw it and I thought ‑ ‑ ‑

PN621      

MS ANGUS:  Yes.

PN622      

MR HAMILTON:  ‑ ‑ ‑ it was a good idea just to attack it.

PN623      

MR CHESHER:  We didn't notice it in our ‑ ‑ ‑

PN624      

MS ANGUS:  No.

PN625      

MR HAMILTON:  No, no, you didn't notice either, no.

PN626      

MR CHESHER:  ‑ ‑ ‑ correspondence either.

PN627      

MS ANGUS:  But do we agree that we need to restore the original words because there's two parts to the agreement.  There's an agreement to the recording, and then there's an agreement to receive a rate which may be subject to negotiation, no less than X.

PN628      

MR HAMILTON:  No, I just want to get rid of the second part, you know, "the provisions will not apply to archival reference".  That's what happens.  No one gets paid.

PN629      

MS ANGUS:  No one gets paid for archival recording.

PN630      

MR HAMILTON:  Yes.

PN631      

MS ANGUS:  That is so.  Yes, I accept that's so.  But that's because no one gets paid because in our industry agreement there has been an agreement to do it for no fee.

PN632      

MR HAMILTON:  I don't know that ‑ ‑ ‑

PN633      

MS ANGUS:  But in the absence of the PCA ‑ ‑ ‑

PN634      

MR HAMILTON:  Under the old ‑ ‑ ‑

PN635      

MS ANGUS:  ‑ ‑ ‑ there is a right to agree and negotiate a fee.

PN636      

MR HAMILTON:  Under the old musicians' award ‑ ‑ ‑

PN637      

MR CHESHER:  Your position sort of ‑ ‑ ‑

PN638      

MS ANGUS:  Okay, yes.

PN639      

MR HAMILTON:  Yes.

PN640      

MR CHESHER:  It's clarifying it in a sense but it means the whole of some clauses ‑ ‑ ‑

PN641      

MR HAMILTON:  Under the   yes, we're always having a blue with the musicians union.  They said, "Look, all musicians should get paid for archival recording".  It wasn't in the musicians' award, so we actually put it in all our standard contracts for musicians that there's no payment for archival recordings.  When we went to the Commission, there was Lewin C and I think it might have been Cloghan as well, basically said, "Well, if there's no payment, there's no payment", and they put this clause in just to satisfy the union to say, well, if an employer was going to pay for the archival recording it won't be anything less than those provisions in the award.

PN642      

MS ANGUS:  But you accept that the current award provision provides a requirement to reach agreement to record, whether you say that goes on in the industry or not, that's what the award provision   so this is a ‑ ‑ ‑

PN643      

THE DEPUTY PRESIDENT:  But that's dealt with elsewhere, isn't it?  The requirement to reach agreement about that issue is dealt with elsewhere, not in that clause?

PN644      

MR HAMILTON:  No.

PN645      

THE DEPUTY PRESIDENT:  This clause is about payment.

PN646      

MS ANGUS:  So are you trying to remove an agreement to archival record or to pay?

PN647      

THE DEPUTY PRESIDENT:  To pay.

PN648      

MS ANGUS:  No, he's ‑ ‑ ‑

PN649      

THE DEPUTY PRESIDENT:  No, to pay.

PN650      

MS ANGUS:  But he's also trying to remove whether or not then you need to elicit agreement.

PN651      

MR HAMILTON:  No, no, no, there has to be an ‑ ‑ ‑

PN652      

MR CHESHER:  No, the capacity for the payment.

PN653      

MR HAMILTON:  ‑ ‑ ‑agreement to actually undertake the recording, and that's done by signing of the contract.

PN654      

MS ANGUS:  No, not if you remove   what you want to do, isn't it, is remove the entire second sentence?

PN655      

MR HAMILTON:  I just want to remove any doubt that you don't have to pay for an archival recording.

PN656      

MS ANGUS:  You do have to pay for an archival recording under this clause.

PN657      

MR HAMILTON:  No, you don't.  See, the provisions of ‑ ‑ ‑

PN658      

MS ANGUS:  Subject to an agreement you'll get no less than ‑ ‑ ‑

PN659      

MR HAMILTON:  No, no, the first sentence.

PN660      

MS ANGUS:  That's right.  That's because all of that doesn't apply.

PN661      

MR HAMILTON:  Yes.

PN662      

MS ANGUS:  Instead you've got to reach agreement.

PN663      

MR HAMILTON:  Yes, which happens in the contracting parts ‑ ‑ ‑

PN664      

MS ANGUS:  So the first half of the clause in relation to all these other types of recordings doesn't require agreement.  It just says if you do these recordings here's the fee.

PN665      

MR HAMILTON:  Yes.

PN666      

MS ANGUS:  Then there's this final clause that says, okay, all of that doesn't apply because in this instance you need to reach agreement and the agreement enables you to negotiate a fee which is no less than blah.  If you just ‑ ‑ ‑

PN667      

MR HAMILTON:  Which is never paid.

PN668      

MS ANGUS:  But we're not going to remove a right to an agreement and a right to a minimum pay rate from an award.

PN669      

MR CHESHER:  So an archival or reference recording is a recording which is not used for commercial sale or use or public broadcast and where the employer and employee   I'm reading clause 3.1:

PN670      

the employer and employee agree in writing to make the recording.  The employer keeps a record of all employees who participated.  An archival recording is for a historical record for a rights holder, employer.

PN671      

MS ANGUS:  Does it say anything about pay?  No.

PN672      

MR CHESHER:  It seems to me that if you don't fall within the definition of an archival   sort of it's a self-limiting provision because, that is, on a practical level what separates an archival recording from another recording.

PN673      

MS ANGUS:  You just can't use it though.

PN674      

MR CHESHER:  It's just set in stone and put in the vault for safekeeping.

PN675      

MR HAMILTON:  Yes, archived.  Yes, exactly right.

PN676      

MR CHESHER:  So ‑ ‑ ‑

PN677      

MS ANGUS:  There's nothing about the quality or anything?  No, no, it's just the usage that changes.

PN678      

MR HAMILTON:  Yes.

PN679      

MR CHESHER:  Clause 31.6 as it stands addresses televised performances.  This is for musicians.  Radio broadcasts, simulcasts, audio-visual and visual recordings and audio recordings, so I think   I guess we'd like to confirm our position offline but reading clauses 3 and 31 in conjunction as long as the archival recording satisfies the definition in clause 3 then it doesn't make any sense that you'd be paid for it, so ‑ ‑ ‑

PN680      

MR HAMILTON:  Yes.  Yes.

PN681      

MR CHESHER:  I think that's our view, your Honour.  Because prior to clause 31.6(f) the payment requirements are set out in (a), (b), (c), (d) and (e) and archival recording is set out in clause 3.

PN682      

MS ANGUS:  Then at the minimum what needs to be done is to make a reference to the definition, because that's actually a substantive process as well.

PN683      

THE DEPUTY PRESIDENT:  That's what is in the draft.

PN684      

MS ANGUS:  Incorporated.  Where have they ‑ ‑ ‑

PN685      

THE DEPUTY PRESIDENT:  Yes, by reference to, so "reference recording as defined in clause 3 definition".

PN686      

MS ANGUS:  That's better.

PN687      

MR CHESHER:  Yes.

PN688      

MS ANGUS:  Yes, okay.

PN689      

MR CHESHER:  Then there's a voluntary mechanism.

PN690      

MR HAMILTON:  Yes, "as defined in clause 3".

PN691      

MS ANGUS:  Yes, okay.  All right.  I'm ‑ ‑ ‑

PN692      

MR CHESHER:  I'm on the fence about the second sentence but ‑ ‑ ‑

PN693      

MR HAMILTON:  Yes.  So second sentence, get rid of it.  Bang.

PN694      

MS ANGUS:  Provisionally, but we might just add that to the list of things that we report back to you on.

PN695      

THE DEPUTY PRESIDENT:  All right.

PN696      

MR CHESHER:  Yes, because that's a material change of the award.

PN697      

MS ANGUS:  Yes.

PN698      

MR CHESHER:  From current to proposed.

PN699      

THE DEPUTY PRESIDENT:  Item 19.

PN700      

MR CHESHER:  Here we go again.  So it's clause 49.

PN701      

MS ANGUS:  So that's new, is it?

PN702      

MR HAMILTON:  Yes.

PN703      

MS ANGUS:  You just hate part-timers, don't you?

PN704      

MR HAMILTON:  No, it's not I don't like part-timers; it's just that they've changed the provisions of what they were.

PN705      

MS ANGUS:  Just as you're seeking to do in the last one we did.

PN706      

MR HAMILTON:  So these new provisions they have put in that they get overtime after their rostered hours or agreed hours, but under the provisions that we've always had ‑ ‑ ‑

PN707      

MS ANGUS:  Your Honour, can you enlighten us?  The Commission members who would do this, would do it on the basis that that has become a standard part-timers clause?

PN708      

THE DEPUTY PRESIDENT:  I think you're putting it too highly.  Those that drafted these exposure drafts are not members of the Commission.  They are ‑ ‑ ‑

PN709      

MS ANGUS:  They not?

PN710      

THE DEPUTY PRESIDENT:  No, no.

PN711      

MS ANGUS:  They're all outsourced these days, are they?

PN712      

THE DEPUTY PRESIDENT:  No, no, no, no.

PN713      

MS ANGUS:  No.

PN714      

THE DEPUTY PRESIDENT:  It's staff within the Commission who have drafted it as part of the award mod team.

PN715      

MS ANGUS:  I see.  Right.  Right.

PN716      

THE DEPUTY PRESIDENT:  So, yes, they will have drafted these provisions with an eye to, for example, the NES.

PN717      

MR CHESHER:  Yes.

PN718      

MS ANGUS:  So the onus then would be on David to say why any quasi standardised provision should not apply in this award?

PN719      

THE DEPUTY PRESIDENT:  Putting that to one side, I think that the first objection, as I understand it looking at those clauses, is that a full-time employee will be engaged by the week which is missing.  That's a concern I assume.

PN720      

MR HAMILTON:  Not really.  No, no, no, that's not an issue.  Part-time and full-time employees are weekly employees.  It's the actual‑ ‑ ‑

PN721      

THE DEPUTY PRESIDENT:  I'm actually not sure what those words add?

PN722      

MS ANGUS:  Hang on then, so what does it mean to say, "a full-time employee will be engaged by the week".

PN723      

THE DEPUTY PRESIDENT:  Yes.

PN724      

MS ANGUS:  As distinct from "a full-time employee will be engaged to work 38 ordinary hours or an" ‑ ‑ ‑

PN725      

THE DEPUTY PRESIDENT:  The suggestion that ‑ ‑ ‑

PN726      

MS ANGUS:  It's just ‑ ‑ ‑

PN727      

THE DEPUTY PRESIDENT:  ‑ ‑ ‑ someone is engaged by the week is that they're engagement is renewed each week.

PN728      

MS ANGUS:  No, no, they're ongoing.

PN729      

THE DEPUTY PRESIDENT:  Why else have those words?

PN730      

MR CHESHER:  Not necessarily.  Some are ongoing.

PN731      

THE DEPUTY PRESIDENT:  It's like day workers in the construction industry.  They're engaged by the day and not in Victoria and New South Wales but certainly in Queensland, and they have to be re-engaged.  Why else have those words?

PN732      

MR CHESHER:  That's a casual arrangement.

PN733      

MR HAMILTON:  Yes.

PN734      

MS ANGUS:  Okay.

PN735      

MR HAMILTON:  Yes.  See, two in ‑ ‑ ‑

PN736      

THE DEPUTY PRESIDENT:  Yes.  So if someone is engaged by the week ‑ ‑ ‑

PN737      

MS ANGUS:  Knock off that one then.  Let's go for this one.

PN738      

THE DEPUTY PRESIDENT:  ‑ ‑ ‑what purpose do those words serve?

PN739      

MS ANGUS:  I just assumed   okay.  I was thinking that was something about notice provisions, but in fact the notice provision would be the NES or something other.

PN740      

THE DEPUTY PRESIDENT:  Yes.

PN741      

MR CHESHER:  It provides certainty for no longer than a week.  That's my reading of ‑ ‑ ‑

PN742      

THE DEPUTY PRESIDENT:  I can't see what other purpose those words serve?

PN743      

MS ANGUS:  So do you have a problem moving then to the full-time employee will be engaged to work 38 hours which is what   it's an ongoing engagement is what it is?

PN744      

MR HAMILTON:  I think you had a problem with an average of 38, if I remember correctly.

PN745      

MS ANGUS:  No, that's   no, not for production and ‑ ‑ ‑

PN746      

MR CHESHER:  No.

PN747      

MS ANGUS:  Because these are the support staff.  Yes, that's fine.

PN748      

MR HAMILTON:  Yes.

PN749      

MR CHESHER:  We won't push that on this one.

PN750      

MS ANGUS:  No.

PN751      

MR HAMILTON:  Yes.

PN752      

MS ANGUS:  That's for performers, "subject to the provisions of overtime".

PN753      

MR CHESHER:  You're right, but it's not something that we've previously raised about this.

PN754      

MR HAMILTON:  Yes.

PN755      

MS ANGUS:  Okay.  So we're right to adopt that provision?

PN756      

MR HAMILTON:  Yes.

PN757      

MS ANGUS:  Okay.  What do you strongly object to then?

PN758      

MR CHESHER:  Yes.  That ‑ ‑ ‑

PN759      

MR HAMILTON:  49.2.

PN760      

MR CHESHER:  Okay.

PN761      

THE DEPUTY PRESIDENT:  49.2?

PN762      

MS ANGUS:  So we agreed 49.1, yes.

PN763      

MR HAMILTON:  Yes.

PN764      

MS ANGUS:  49.2, and it's only   is it the whole ‑ ‑ ‑

PN765      

MR HAMILTON:  Yes.

PN766      

MR CHESHER:  No, you're opposing it being converted from someone on weekly appointment to   it's just a standard definition of a full-time employee.  That's what ‑ ‑ ‑

PN767      

THE DEPUTY PRESIDENT:  We're talking about part-time employee provision.

PN768      

MS ANGUS:  So, your Honour, why is the proposal here for the part-time employee clause?  A part-time employee is an employee who is engaged by the week.

PN769      

THE DEPUTY PRESIDENT:  Yes.

PN770      

MS ANGUS:  Are you saying that that only provides a week-to-week job security?

PN771      

THE DEPUTY PRESIDENT:  That's picked up   nobody turned their mind to that when they deleted it from the first paragraph but not the second because that picks up what's in 42.2(a).  I mean, I don't think you need those words.  If the intention is not that one is re-engaged each week, then those words have no work to do.

PN772      

MR CHESHER:  Yes, comfortable with that.

PN773      

THE DEPUTY PRESIDENT:  But we can agree on that much.

PN774      

MR HAMILTON:  Yes.

PN775      

THE DEPUTY PRESIDENT:  That (i) be deleted.

PN776      

MR HAMILTON:  Yes.

PN777      

THE DEPUTY PRESIDENT:  All right.  So when we look at the rest; "works less than 38 hours a week".

PN778      

MS ANGUS:  Yes.

PN779      

THE DEPUTY PRESIDENT:  Which is in the existing clause.  It's reasonably predictable hours, well, the current provision is that there is an agreed ‑ ‑ ‑

PN780      

MR CHESHER:  An agreed usual number.

PN781      

THE DEPUTY PRESIDENT:  ‑ ‑ ‑usual number of hours.

PN782      

MS ANGUS:  They've certainly preferred that.  Is that provision picked up?

PN783      

THE DEPUTY PRESIDENT:  No, it's not.

PN784      

MS ANGUS:  Where does this come from; "reasonably predictable hours of work"?  So we've removed "agreed usual number of ordinary hours in a week"?

PN785      

THE DEPUTY PRESIDENT:  That appears to be the case, yes.

PN786      

MR HAMILTON:  Replaced it.

PN787      

MS ANGUS:  Can we replace (iii) with "who works an agreed usual number of ordinary hours in any week"?

PN788      

MR CHESHER:  I had this debate in another forum ad nauseam and there's two things that you would want predictability and that is hours but also days.

PN789      

MS ANGUS:  Yes.

PN790      

MR CHESHER:  And in the cinema context we had to, you know, reach an agreement by committee so ‑ ‑ ‑

PN791      

MS ANGUS:  "Usual number of hours" and ‑ ‑ ‑

PN792      

MR CHESHER:  I think there are two issues; 42.2(a) of the current award deals with agreed number of hours, so it doesn't set out the days.

PN793      

MR HAMILTON:  Yes.

PN794      

MR CHESHER:  That's the distinction.

PN795      

MR HAMILTON:  Yes.

PN796      

MR CHESHER:  So potentially "reasonably predictable" goes to both the number of hours ‑ ‑ ‑

PN797      

MR HAMILTON:  And the days.

PN798      

MR CHESHER:  ‑ ‑ ‑ and the days on which they're worked.

PN799      

MR HAMILTON:  Yes.

PN800      

MR CHESHER:  So I'm less moved on that one.

PN801      

MS ANGUS:  Can we spell it out?  Agree, "usual number of hours and days".

PN802      

MR CHESHER:  You can do that, but we'd have to get agreement.

PN803      

MR HAMILTON:  Which I wouldn't agree to.

PN804      

MS ANGUS:  You wouldn't agree to?  Why not?

PN805      

MR HAMILTON:  No.  Because the days could change week to week, and do.

PN806      

MS ANGUS:  They shouldn't though if you've got ‑ ‑ ‑

PN807      

MR HAMILTON:  No, well, they do.

PN808      

MS ANGUS:  As long as it's in a reasonably predictable pattern.

PN809      

MR HAMILTON:  They're not.

PN810      

MR CHESHER:  I think ‑ ‑ ‑

PN811      

MR HAMILTON:  We can go to Bunbury and I'll show you at the theatre, part time.

PN812      

MS ANGUS:  They're permanent part time; they're not casual?

PN813      

MR HAMILTON:  Yes.

PN814      

MR CHESHER:  I think we'd be happier with "reasonably predictable hours and days of work".

PN815      

MS ANGUS:  Yes.

PN816      

MR CHESHER:  Reasonably predictable doesn't mean that it's set in stone.

PN817      

MS ANGUS:  Can you come at that?

PN818      

MR HAMILTON:  No.  Yes.  No.

PN819      

MS ANGUS:  Can we get, "reasonably predictable hours and days"?

PN820      

MR HAMILTON:  No, not happy, Jan.

PN821      

MR CHESHER:  I mean, that's our comment, I think, on this one, given the highly flexible nature of employment within these industries anyway, and there's the threshold.

PN822      

MR HAMILTON:  You're just forcing them then to go to casual.

PN823      

MR CHESHER:  You know.

PN824      

MR HAMILTON:  Yes, you will.

PN825      

MR CHESHER:  It's always hard to test those claims.

PN826      

MS ANGUS:  So what are you proposing, the retention of the existing clause?

PN827      

MR HAMILTON:  Yes.  Yes, no change.

PN828      

MR CHESHER:  All we've got is ours, so, yes, we're happy with keeping the status quo.

PN829      

MS ANGUS:  The retention of the   yes.

PN830      

MR CHESHER:  Yes.

PN831      

THE DEPUTY PRESIDENT:  For part timers?

PN832      

MS ANGUS:  Yes.

PN833      

MR CHESHER:  Yes.

PN834      

THE DEPUTY PRESIDENT:  Okay.

PN835      

MR CHESHER:  Does that mean retention of (i)?  I thought we were okay with that being removed?

PN836      

THE DEPUTY PRESIDENT:  That would mean that if you're going to retain existing 42.2 then paragraph (a) of that would read:

PN837      

a part-time employee is an employee who works an agreed number of.

PN838      

MS ANGUS:  Yes.

PN839      

THE DEPUTY PRESIDENT:  So we would retain the existing clause but amend paragraph (a) of 42.2 by deleting the words "engaged by the week and".  Yes.

PN840      

MS ANGUS:  Good.

PN841      

MR CHESHER:  Yes.  Is that it for you, David?

PN842      

MS ANGUS:  49.1.  Is that what we're doing?

PN843      

THE DEPUTY PRESIDENT:  Item 20?

PN844      

MR HAMILTON:  Yes.  See, that's where I   that's what I said before about the average of in ‑ ‑ ‑

PN845      

MR CHESHER:  Yes.

PN846      

MR HAMILTON:  That's what it's got now but the average of only applies to those employees under cyclic rostering as it stands now.

PN847      

MR CHESHER:  Yes, and it shouldn't.  Yes.  The average of 38 has to apply.

PN848      

MR HAMILTON:  Yes.

PN849      

MR CHESHER:  Across the board.

PN850      

MR HAMILTON:  Yes.  It doesn't worry me.

PN851      

MS ANGUS:  What's being proposed then?  Where is the word "average"?

PN852      

MR CHESHER:  Saying that clause 49 shouldn't be subjected   I'm not entirely sure what we say here.

PN853      

MS ANGUS:  "Full-time employee will be engaged to work   and subject to the provisions of 52 ordinary hours rostering".

PN854      

THE DEPUTY PRESIDENT:  So we're just getting back to the part-time employees clause.  I know you indicated earlier nobody is representing strip tease artists.

PN855      

MS ANGUS:  They might be engaged by the week.

PN856      

THE DEPUTY PRESIDENT:  I was thinking about the part-time clause which has adopted a similar structure to the one we had just spoken about.  Although that doesn't appear to be a change from the current clause so that's okay.  It's all right.  Yes.

PN857      

MR HAMILTON:  Yes.

PN858      

THE DEPUTY PRESIDENT:  So I do I take from that, Mr Chesher, that you're not pursuing the concern that you had about 49.1?

PN859      

MR CHESHER:  I think I'd need time to reconsider our claim, your Honour.  But provisionally yes.

PN860      

MS ANGUS:  Subject to the provisions of ‑ ‑ ‑

PN861      

THE DEPUTY PRESIDENT:  So ‑ ‑ ‑

PN862      

MS ANGUS:  So the only change as I read it is the insertion of averaging.

PN863      

MR HAMILTON:  The average of, yes.

PN864      

MR CHESHER:  Is that sufficient, your Honour?

PN865      

THE DEPUTY PRESIDENT:  Yes.

PN866      

MR CHESHER:  Yes.

PN867      

MR HAMILTON:  What did you do to that then?

PN868      

THE DEPUTY PRESIDENT:  So provisional withdrawal subject to a report back?

PN869      

MS ANGUS:  Yes.

PN870      

THE DEPUTY PRESIDENT:  All right.  Item 21?  We've dealt with this because ‑ ‑ ‑

PN871      

MR HAMILTON:  Yes, I think we've dealt with that, your Honour.

PN872      

THE DEPUTY PRESIDENT:  Yes.  Revert to existing clause.

PN873      

MR HAMILTON:  And the same with 22.

PN874      

THE DEPUTY PRESIDENT:  As amended earlier.

PN875      

MR CHESHER:  Yes, see 19.

PN876      

THE DEPUTY PRESIDENT:  Same with 22.  Item 23?

PN877      

MR HAMILTON:  Yes, we agree.

PN878      

MS ANGUS:  Four was deleted in error.

PN879      

MR HAMILTON:  Yes.

PN880      

THE DEPUTY PRESIDENT:  All right.  So the parties agree.

PN881      

MR HAMILTON:  Yes.  I don't know why we didn't pick that up, Matthew?  But it should be inserted back.

PN882      

THE DEPUTY PRESIDENT:  Yes.  Item 24?

PN883      

MR HAMILTON:  Yes.

PN884      

MS ANGUS:  If an employee works in excess of eight hours ‑ ‑ ‑

PN885      

MR HAMILTON:  54.2(b).

PN886      

MS ANGUS:  What's the existing provision?

PN887      

MR HAMILTON:  Yes.  That is the existing ‑ ‑ ‑

PN888      

MS ANGUS:  So what do you want to do?  You want to add "ordinary"?  Isn't it   is it ‑ ‑ ‑

PN889      

MR HAMILTON:  Yes, eight   just clarifying that overtime is paid after the ordinary hours.

PN890      

MS ANGUS:  As distinct from - after any eight hours you get overtime?

PN891      

MR HAMILTON:  Yes.  Yes.

PN892      

MS ANGUS:  A casual employee works in excess of eight ordinary days[sic].  Why does it matter if it's eight ordinary hours or just   I'm not sure what turns on it?

PN893      

MR HAMILTON:  It was raised by one of their members.

PN894      

MS ANGUS:  But what about if you're working eight hours on a Sunday?  That's not ordinary hours but it's ‑ ‑ ‑

PN895      

MR HAMILTON:  I think that was   well, it can be.

PN896      

THE DEPUTY PRESIDENT:  Yes, eight hours on a Sunday can be ordinary hours.

PN897      

MR HAMILTON:  Yes.

PN898      

THE DEPUTY PRESIDENT:  They're just subject to a penalty but the hours are ordinary hours.

PN899      

MR HAMILTON:  Yes, double time.  Yes.

PN900      

THE DEPUTY PRESIDENT:  They're not overtime hours.

PN901      

MR HAMILTON:  Yes, correct.

PN902      

THE DEPUTY PRESIDENT:  No, they're not overtime hours.

PN903      

MS ANGUS:  So you pick up   so it wouldn't be excluded; you'd pick up the ‑ ‑ ‑

PN904      

MR HAMILTON:  The Sunday penalty.

PN905      

MS ANGUS:  ‑ ‑ ‑an overtime and the Sunday penalty?  But if you put "work in excess of eight ordinary hours" is that confusing?  That makes you think that you don't get overtime if you're working on a Sunday.  If you work nine hours on a Sunday.

PN906      

MR HAMILTON:  You don't get a penalty on a penalty.

PN907      

MS ANGUS:  No, but you get them both on the ordinary.

PN908      

MR HAMILTON:  No, you only get   any work on a Sunday is double time, whether it's ordinary hours or overtime.

PN909      

MS ANGUS:  So if you work nine hours on a Sunday ‑ ‑ ‑

PN910      

MR HAMILTON:  You're still double time.

PN911      

MS ANGUS:  So something does turn on it?

PN912      

MR CHESHER:  Yes.

PN913      

MS ANGUS:  I'm not sure that I approve that then.

PN914      

MR CHESHER:  Because your view is that the overtime applies after 38 hours, isn't it?

PN915      

MR HAMILTON:  Sorry, mate?

PN916      

MR CHESHER:  Is your view that the overtime applies if they're engaged weekly after 38 hours rather than a daily load?

PN917      

MR HAMILTON:  No, no, no.

PN918      

MR CHESHER:  No.

PN919      

MS ANGUS:  No.

PN920      

MR HAMILTON:  No, no, it ‑ ‑ ‑

PN921      

MS ANGUS:  The next one clarifies that it's also daily.

PN922      

MR CHESHER:  Yes.

PN923      

MR HAMILTON:  Yes, for a weekly employee the minimum is four or maximum of 12 hours and I think after rostered hours, so if they work past their rostered hours they go into overtime.

PN924      

MR CHESHER:  Yes.

PN925      

MR HAMILTON:  Okay.  So if they're rostered for six, work 10, they get ‑ ‑ ‑

PN926      

MR CHESHER:  I think "ordinary" confuses things for me.

PN927      

MS ANGUS:  I think potentially change it.  What he's saying is that you work nine hours on a Sunday ‑ ‑ ‑

PN928      

MR CHESHER:  Yes.

PN929      

MS ANGUS:  ‑ ‑ ‑you don't get loading on your   you only get the Sunday rate whereas this, as I read it, it gives you the nine hours and you get a loading.

PN930      

MR CHESHER:  You get ‑ ‑ ‑

PN931      

THE DEPUTY PRESIDENT:  For what it's worth, paragraph (d) of 54.1, which deals with part-time employees, does say "ordinary hours".

PN932      

MR HAMILTON:  Sorry, your Honour.

PN933      

MR CHESHER:  Okay.

PN934      

THE DEPUTY PRESIDENT:  The paragraph immediately above it, paragraph (d) of 54.1, which deals with part-time employees, does say "ordinary hours".

PN935      

MR HAMILTON:  Yes.

PN936      

THE DEPUTY PRESIDENT:  I know it's referrable to 38 but ‑ ‑ ‑

PN937      

MS ANGUS:  Yes, I don't - but then do casuals have ‑ ‑ ‑

PN938      

MR HAMILTON:  Casual is a maximum of eight hours a day.

PN939      

MS ANGUS:  Right.  Any day?

PN940      

MR HAMILTON:  Yes.

PN941      

MS ANGUS:  Okay.  Then they get overtime?

PN942      

MR HAMILTON:  Yes.  It's a ‑ ‑ ‑

PN943      

MS ANGUS:  But they might also pick up a night loading if they're doing their eight hours at, you know, from 7 to midnight, they might pick up other sorts of penalties as well, whereas the moment you say "ordinary hours" aren't you confining any overtime to hours that fall within the span?

PN944      

MR CHESHER:  See, any time worked between midnight and 7 am is overtime, so that doesn't apply there.

PN945      

MS ANGUS:  So ‑ ‑ ‑

PN946      

THE DEPUTY PRESIDENT:  Wouldn't the insertion of "ordinary hours" if there is a span of hours within which ordinary hours may be worked, would, on this reading, eight hours would suggest that they would only get paid the loading for whether the eight hours are within or outside the span, they work eight irrespective.  Only after eight they get ‑ ‑ ‑

PN947      

MR HAMILTON:  Yes.

PN948      

MS ANGUS:  Which ‑ ‑ ‑

PN949      

THE DEPUTY PRESIDENT:  By inserting "ordinary hours" ‑ ‑ ‑

PN950      

MR HAMILTON:  You are making sure they get paid overtime ‑ ‑ ‑

PN951      

THE DEPUTY PRESIDENT:  If they work outside the span.

PN952      

MR HAMILTON:  The span.

PN953      

THE DEPUTY PRESIDENT:  Which is more beneficial.

PN954      

MR HAMILTON:  Yes.

PN955      

MS ANGUS:  What you're proposing is more beneficial?

PN956      

THE DEPUTY PRESIDENT:  Yes.

PN957      

MS ANGUS:  We're not ‑ ‑ ‑

PN958      

THE DEPUTY PRESIDENT:  He didn't realise that but that's what he said.

PN959      

MR HAMILTON:  We're not all heartless.

PN960      

MS ANGUS:  So any eight hours a day on the ninth hour ‑ ‑ ‑

PN961      

THE DEPUTY PRESIDENT:  Yes.  Yes.

PN962      

MS ANGUS:  ‑ ‑ ‑ whenever it falls, you get overtime if you're a casual; agreed?  And you will also separately ‑ ‑ ‑

PN963      

MR CHESHER:  Except on Sunday.

PN964      

MS ANGUS:  Where does it say that?

PN965      

THE DEPUTY PRESIDENT:  See, let's just work this through.  If a casual employee works nine hours in a particular day, and five of those hours   so the first four hours are within the span ‑ ‑ ‑

PN966      

MS ANGUS:  Yes.

PN967      

THE DEPUTY PRESIDENT:  ‑ ‑ ‑ and the next five are outside the span, on the current draft, on one view, only the ninth hour would be paid as overtime whereas if the reference there was to eight ordinary hours of work, then the whole of the five hours that the casual employee works outside of the span would be at overtime rates because it's not ordinary hours.

PN968      

MR CHESHER:  It's 7 am and 12 midnight.

PN969      

MS ANGUS:  No.  Really?  Clause 41.6 of the existing ‑ ‑ ‑

PN970      

THE DEPUTY PRESIDENT:  Yes.

PN971      

MS ANGUS:  ‑ ‑ ‑is this span provisions that apply to casuals.

PN972      

THE DEPUTY PRESIDENT:  Yes, 41 what?

PN973      

MR CHESHER:  Point 6.

PN974      

MS ANGUS:  41.6.

PN975      

THE DEPUTY PRESIDENT:  Yes.

PN976      

MS ANGUS:  So that is one standalone penalty provision if you're working   so you get an extra 25 per cent for any hours worked after 7 pm.

PN977      

MR HAMILTON:  41.6?

PN978      

MS ANGUS:  Yes.

PN979      

MR HAMILTON:  That's (indistinct).

PN980      

MS ANGUS:  Sorry.  Okay.  Because I was wondering, 7 am?

PN981      

MR HAMILTON:  See how confusing all this award is?  We should go back to the old ones and sort of one for production and one for ‑ ‑ ‑

PN982      

MS ANGUS:  We should abolish awards entirely, David.

PN983      

MR HAMILTON:  No.

PN984      

THE DEPUTY PRESIDENT:  Is it 45 that we're talking about?

PN985      

MR HAMILTON:  Correct, 45, your Honour.

PN986      

THE DEPUTY PRESIDENT:  Yes.  So "ordinary hours worked on any day", et cetera, "between 7 am and midnight".

PN987      

MR CHESHER:  Between four and 12 hours.

PN988      

THE DEPUTY PRESIDENT:  In any event, nobody is suggesting, are they, that casual employees are entitled to be paid overtime rates for working other than overtime hours?

PN989      

MR HAMILTON:  Correct, your Honour.

PN990      

MR CHESHER:  Agreed.

PN991      

MS ANGUS:  Unless there's any other penalty provisions that they would pick up if they're working night work.

PN992      

THE DEPUTY PRESIDENT:  Yes.  But it would still be ordinary hours.

PN993      

MR CHESHER:  Yes.

PN994      

THE DEPUTY PRESIDENT:  They just get penalty for those ordinary hours.  It's not overtime.

PN995      

MR CHESHER:  You have to exhaust a certain number of hours.

PN996      

MS ANGUS:  Yes.  I agree that's not called overtime yet.

PN997      

MR HAMILTON:  There's a special provision in the existing award, 47.4.

PN998      

MS ANGUS:  A casual works on a Sunday and they work nine hours they get double time for all of it.  Do they also get a ‑ ‑ ‑

PN999      

MR HAMILTON:  Correct.

PN1000    

MS ANGUS:  Do they get also   well, that's standalone anyway.

PN1001    

MR CHESHER:  Yes.

PN1002    

MS ANGUS:  Do they get overtime after eight hours?

PN1003    

MR HAMILTON:  No.

PN1004    

MS ANGUS:  Why not?  I think, the existing award provides them on that ninth hour on a Sunday for one hour they get an extra 150 per cent of their base rate.

PN1005    

MR HAMILTON:  If you read the ‑ ‑ ‑

PN1006    

MS ANGUS:  Won't you read them together?

PN1007    

MR HAMILTON:  No.  If you have, "or overtime".  See it says not paid ‑ ‑ ‑

PN1008    

THE DEPUTY PRESIDENT:  Where's the weekend rate?

PN1009    

MS ANGUS:  The existing award, 47.4.

PN1010    

THE DEPUTY PRESIDENT:  47.4.

PN1011    

MS ANGUS:  Whether it's overtime or ordinary you still get   that's right, you get your Sunday rate.

PN1012    

THE DEPUTY PRESIDENT:  Yes.

PN1013    

MS ANGUS:  But currently they both apply, don't they?  A casual employee who works in excess of eight hours per day even on a Sunday would pick up ‑ ‑ ‑

PN1014    

MR HAMILTON:  No, Sunday they just get double time.

PN1015    

MR CHESHER:  Yes.

PN1016    

MR HAMILTON:  Whether it's part of the 38 week or not.  That's why Sunday is always the sixth day because you got a penalty.

PN1017    

THE DEPUTY PRESIDENT:  Yes.  You see 47.4 already picks up what the overtime rate will be.

PN1018    

MR HAMILTON:  Correct.

PN1019    

THE DEPUTY PRESIDENT:  So for overtime on a Sunday it will be double time as will ordinary hours on a Sunday.

PN1020    

MS ANGUS:  As will ordinary hours as opposed ‑ ‑ ‑

PN1021    

THE DEPUTY PRESIDENT:  So a casual employee who works nine hours gets nine hours at double time.

PN1022    

MS ANGUS:  Okay.  Because it is either ordinary or overtime.

PN1023    

MR HAMILTON:  Yes.

PN1024    

MS ANGUS:  Whatever hours worked on a Sunday.

PN1025    

MR HAMILTON:  Correct.

PN1026    

MS ANGUS:  I mean, I just don't know.  Is there such a thing as ordinary hours and non-ordinary hours for a casual?  Aren't they just hours?

PN1027    

MR CHESHER:  Ordinary hours is 45.1.

PN1028    

MR HAMILTON:  Yes.

PN1029    

MR CHESHER:  7 am to midday, Monday through to and including Sunday.  You would read ‑ ‑ ‑

PN1030    

MS ANGUS:  Are you in the existing?

PN1031    

MR CHESHER:  Yes, the existing.

PN1032    

MS ANGUS:  45.1?

PN1033    

MR CHESHER:  47.4 would overcome ‑ ‑ ‑

PN1034    

MS ANGUS:  45.2.

PN1035    

THE DEPUTY PRESIDENT:  Of the draft at 52.2.

PN1036    

MS ANGUS:  There are.  I see.  Hang on, there at 45.2, casual.

PN1037    

THE DEPUTY PRESIDENT:  Yes, which is fifty ‑ ‑ ‑

PN1038    

MS ANGUS:  "Ordinary hours may be worked on any of the days, Monday to Sunday?

PN1039    

THE DEPUTY PRESIDENT:  Yes.

PN1040    

MS ANGUS:  Between 7 and midnight.  Any of those ordinary hours after   casual, in excess of eight paid overtime.

PN1041    

MR CHESHER:  So if you work on Sunday you get double time.

PN1042    

MS ANGUS:  We know that anyway because that's the separate provision, but what's the consequence of inserting the word "ordinary" into excess of eight ordinary hours a day.  I worry that it narrows when you get   what about if you work   this might be something that I need to take on notice and think about then.  What if ‑ ‑ ‑

PN1043    

THE DEPUTY PRESIDENT:  All right.  So MEAA will consider and report back.

PN1044    

MS ANGUS:  Yes.  You want to add the word "ordinary" ‑ ‑ ‑

PN1045    

MR HAMILTON:  Yes.

PN1046    

MS ANGUS:  ‑ ‑ ‑to exposure draft 54.2.  Okay.  I'll come back to you on that one.

PN1047    

THE DEPUTY PRESIDENT:  Right.  Item 25?

PN1048    

MS ANGUS:  Is it reference to theatre that you want to ‑ ‑ ‑

PN1049    

MR HAMILTON:  Yes.

PN1050    

MR CHESHER:  Is that because it's a limiting term, David?

PN1051    

MS ANGUS:  He's just on the phone.  Hang on.

PN1052    

MR CHESHER:  Sorry.

PN1053    

MR HAMILTON:  I'm supposed to be at a meeting.  Just a moment.

PN1054    

THE DEPUTY PRESIDENT:  It reflects the existing provisions.

PN1055    

MR HAMILTON:  What happened in 2009, if you remember, Martin Cubby from your office ‑ ‑ ‑

PN1056    

MS ANGUS:  Yes.

PN1057    

MR HAMILTON:  ‑ ‑ ‑decided to throw in these curly little things in to the classification structure by putting in "theatre" after each of the levels and actually creating a different level, so there was production support staff level 5/production support staff level 4 theatre which basically changed the whole classification structure.  What happened ‑ ‑ ‑

PN1058    

MS ANGUS:  To increase the level?

PN1059    

MR HAMILTON:  Yes, the increase they have to pay.  Yes.  Yes.  Anyway we went to Lewin; Lewin changed all of them except those that I've highlighted there.  So they were in level 2, level 3, level 4, level 6 and ‑ ‑ ‑

PN1060    

MS ANGUS:  What, on the basis that in theatre they were higher skilled set and so there was the ‑ ‑ ‑

PN1061    

MR HAMILTON:  Yes, but he didn't know that it applied to all of them.  So basically all it is, is removing the word "theatre", as Lewin C did   I've got the reference there.

PN1062    

MS ANGUS:  By removing the word "theatre" though are not removing ‑ ‑ ‑

PN1063    

MR HAMILTON:  There's no definition.

PN1064    

MS ANGUS:  ‑ ‑ ‑a classification.

PN1065    

MR HAMILTON:  There's no classification or definition of ‑ ‑ ‑

PN1066    

MS ANGUS:  Or the right to, if you work as support staff in the theatre to be classified at the level above compared to   is that what the ‑ ‑ ‑

PN1067    

MR HAMILTON:  No.  No.  It was ‑ ‑ ‑

PN1068    

MR CHESHER:  So it's just embellishment.

PN1069    

MR HAMILTON:  Yes.  It was ‑ ‑ ‑

PN1070    

MR CHESHER:  Because there's no alternative.

PN1071    

MR HAMILTON:  Yes, exactly.

PN1072    

MR CHESHER:  In non-theatre environments.

PN1073    

MR HAMILTON:  Yes.  And like I said, Lewin C took a number out but didn't take all them out.  I don't know why.

PN1074    

MS ANGUS:  So there's no change in the classification?

PN1075    

MR HAMILTON:  No, no, no, no, It's just ‑ ‑ ‑

PN1076    

MS ANGUS:  It's the title and whether it's got a reference to ‑ ‑ ‑

PN1077    

MR HAMILTON:  Yes.  It's taking them out of that definition.

PN1078    

MR CHESHER:  We're okay with that, your Honour.

PN1079    

THE DEPUTY PRESIDENT:  All right.  So it's not just "theatre" that's taken out; it's the "/production and support staff level 4 (theatre)".

PN1080    

MR HAMILTON:  That's correct.  Yes.

PN1081    

THE DEPUTY PRESIDENT:  The same in relation ‑ ‑ ‑

PN1082    

MS ANGUS:  No, that's ‑ ‑ ‑

PN1083    

MR CHESHER:  No, sorry, I misunderstood, your Honour.

PN1084    

MR HAMILTON:  That's correct.  Believe me.

PN1085    

MR CHESHER:  So why would you take ‑ ‑ ‑

PN1086    

MR HAMILTON:  Because Cubby put in there.  We took it out   if you go to Lewin C's ‑ ‑ ‑

PN1087    

MS ANGUS:  That does have a consequence then.

PN1088    

MR HAMILTON:  No.  No, it doesn't because there's no such classification as "production and support staff level" whatever "theatre".

PN1089    

MS ANGUS:  There is at the moment in the award.

PN1090    

MR HAMILTON:  No, there isn't.  There is no classification that relates to it.

PN1091    

MR CHESHER:  That's right.  But we're ‑ ‑ ‑

PN1092    

MR HAMILTON:  It was taken out of the classification 14.

PN1093    

THE DEPUTY PRESIDENT:  Wouldn't it work this way; that if a person was a production and support staff level 4, met that criteria, but worked in theatre ‑ ‑ ‑

PN1094    

MS ANGUS:  Yes, at a higher rate.

PN1095    

THE DEPUTY PRESIDENT:  ‑ ‑ ‑they would be paid at production support staff level 5, and you find the rate of pay for that and that's what you pay them, isn't that the way it's supposed to work?

PN1096    

MR CHESHER:  Yes.

PN1097    

MR HAMILTON:  Definitely have a fight there, your Honour.

PN1098    

THE DEPUTY PRESIDENT:  But that's as things ‑ ‑ ‑

PN1099    

MS ANGUS:  That's how it ‑ ‑ ‑

PN1100    

MR HAMILTON:  But the problem is ‑ ‑ ‑

PN1101    

THE DEPUTY PRESIDENT:  I understand the point you're making.

PN1102    

MR HAMILTON:  Yes.

PN1103    

THE DEPUTY PRESIDENT:  As things presently stand that's the way one would interpret it, I would think.

PN1104    

MR CHESHER:  Yes.

PN1105    

MR HAMILTON:  Cubby left a time bomb, that's why I don't like him.

PN1106    

THE DEPUTY PRESIDENT:  All right.  So do I take it that that's not agreed?

PN1107    

MR CHESHER:  Yes, that is correct.

PN1108    

MS ANGUS:  You'd have to ‑ ‑ ‑

PN1109    

MR HAMILTON:  It's   yes.  Yes.

PN1110    

MS ANGUS:  I don't know that history.  I just read it as ‑ ‑ ‑

PN1111    

THE DEPUTY PRESIDENT:  Two options:  (1) I can put it on the substantive issues list or I can allow the parties to have some further discussions.

PN1112    

MS ANGUS:  Let's put it on the substantive list unless you persuade us otherwise.

PN1113    

THE DEPUTY PRESIDENT:  All right.  So that relates to 25, 26 and 27 because the same issue arises.

PN1114    

MR HAMILTON:  Yes.

PN1115    

THE DEPUTY PRESIDENT:  Yes.

PN1116    

MR CHESHER:  So it's more than embellishment.

PN1117    

MR HAMILTON:  One thing I did notice that you may want to   which I was going to put in with   I thought I may have at one stage, the travel on a Sunday, we should really have "or rostered day off".

PN1118    

MS ANGUS:  Yes.

PN1119    

MR HAMILTON:  Because they don't ‑ ‑ ‑

PN1120    

MS ANGUS:  I notice that was in your ‑ ‑ ‑

PN1121    

MR HAMILTON:  Didn't I put that in?

PN1122    

MS ANGUS:  You've put that in yours to add to vary to propose for a Sunday and a travel day off.

PN1123    

MR HAMILTON:  Yes.

PN1124    

MS ANGUS:  Yes, that would be agreed.  That's good.

PN1125    

MR HAMILTON:  I'm not sure whether that was picked up.  Was that in the substantial ‑ ‑ ‑

PN1126    

THE DEPUTY PRESIDENT:  Which clause?

PN1127    

MR HAMILTON:  In the existing clause 47.4.

PN1128    

THE DEPUTY PRESIDENT:  That's travel on a Sunday, yes.  It's item S15 in the substantive variations.

PN1129    

MR HAMILTON:  Which his now ‑ ‑ ‑

PN1130    

MR CHESHER:  It's S5, isn't it?

PN1131    

MS ANGUS:  We could probably take that one off the substantive ‑ ‑ ‑

PN1132    

THE DEPUTY PRESIDENT:  Sorry, SI5 it should be.  No, it's S15 which is on the second-last page.  Page 4.

PN1133    

MR CHESHER:  Thank you.

PN1134    

MS ANGUS:  Which is 54.

PN1135    

MR CHESHER:  Yes.

PN1136    

MS ANGUS:  Travel on a Sunday.  Is that what you've read in there.

PN1137    

MR HAMILTON:  Yes.

PN1138    

MS ANGUS:  Travel on a Sunday or ‑ ‑ ‑

PN1139    

MR HAMILTON:  Yes, 54(c).  I thought I   I did put it in, didn't I?  In my submissions?

PN1140    

MS ANGUS:  You put it in yours, yes.

PN1141    

MR HAMILTON:  Yes.

PN1142    

MS ANGUS:  But it doesn't seem to have made its way to the Commission's ‑ ‑ ‑

PN1143    

THE DEPUTY PRESIDENT:  So what's the position?

PN1144    

MR HAMILTON:  So in 54.4(c), your Honour ‑ ‑ ‑

PN1145    

THE DEPUTY PRESIDENT:  Yes.

PN1146    

MR HAMILTON:  ‑ ‑ ‑if a weekly employee is required by the employer to travel on a Sunday, my proposal to put in "or a rostered day off" because the rostered day off, especially in commercial theatre is usually the Monday.

PN1147    

MS ANGUS:  The Monday, yes.

PN1148    

THE DEPUTY PRESIDENT:  All right.

PN1149    

MS ANGUS:  That would be agreed.

PN1150    

THE DEPUTY PRESIDENT:  So that's agreed?

PN1151    

MS ANGUS:  Yes.

PN1152    

THE DEPUTY PRESIDENT:  So we can remove item S15 from the substantive issues and move it to the technical ‑ ‑ ‑

PN1153    

MR HAMILTON:  The other two was, yes.

PN1154    

THE DEPUTY PRESIDENT:  ‑ ‑ ‑ drafting and that appears as clause number   let me just try and find it ‑ ‑ ‑

PN1155    

MR CHESHER:  54.4(c).

PN1156    

THE DEPUTY PRESIDENT:  Sorry?

PN1157    

MR CHESHER:  I think that goes to Sundays.

PN1158    

MS ANGUS:  Have all of these been incorporated into the exposure draft?  No.

PN1159    

MR HAMILTON:  Sorry?

PN1160    

MS ANGUS:  These ones, your matters, have they been incorporated into the exposure draft?  They haven't, have they?

PN1161    

MR HAMILTON:  No, they're on the substantial.

PN1162    

MS ANGUS:  Yes, okay.

PN1163    

THE DEPUTY PRESIDENT:  57.4(c).

PN1164    

MR HAMILTON:  Seven.

PN1165    

THE DEPUTY PRESIDENT:  Which is 54.4(c).  The change would be that it would now read:

PN1166    

If a weekly employee is required by the employer to travel on a Sunday or on a rostered day off,

PN1167    

MS ANGUS:  Yes.  That's good.

PN1168    

MR HAMILTON:  Gee, us employers are good blokes and sheilas.  You didn't think of that.

PN1169    

MS ANGUS:  The sun broke through the clouds.

PN1170    

MR HAMILTON:  Yes.

PN1171    

THE DEPUTY PRESIDENT:  I'm not sure whether you have all had a chance to properly review the proposed variations list.

PN1172    

MS ANGUS:  Yes.

PN1173    

THE DEPUTY PRESIDENT:  But can we deal with it this way; there were about four or five items which either there will be some further discussions or MEAA will consider its position and report.  If I provide for all of that to occur within, say, the next fortnight or so and you can have a proper look at the summary of proposed variations as well, and whether or not that list is accurate ‑ ‑ ‑

PN1174    

MS ANGUS:  The substantive variations?

PN1175    

THE DEPUTY PRESIDENT:  Yes.

PN1176    

MS ANGUS:  There are a couple that I wouldn't mind clarifying though.

PN1177    

THE DEPUTY PRESIDENT:  All right.

PN1178    

MS ANGUS:  That you've proposed.

PN1179    

THE DEPUTY PRESIDENT:  Let's do them.

PN1180    

MS ANGUS:  Just because I don't understand what you're actually proposing so   sorry, just bear with us a moment, your Honour.  Can I just quiz you now?

PN1181    

MR HAMILTON:  Yes.  Yes.

PN1182    

MS ANGUS:  We just hurtle through them.

PN1183    

MR HAMILTON:  Yes.  I haven't got it.  Why haven't I got it?

PN1184    

MS ANGUS:  But can I work from the existing award rather than the ‑ ‑ ‑

PN1185    

MR HAMILTON:  Yes.

PN1186    

MS ANGUS:  We can share this one then if you   so can you propose 11.4(c)?  No.

PN1187    

MR HAMILTON:  Yes.

PN1188    

MS ANGUS:  Yes, it is.  You propose deleting entirely.  So the current arrangement, your Honour, is that after ‑ ‑ ‑

PN1189    

THE DEPUTY PRESIDENT:  I have a note here that it's no longer being pursued.

PN1190    

MS ANGUS:  Okay.  So am I running   you're no longer proceeding that way?

PN1191    

MR CHESHER:  It says "appears this is no longer being pursued".

PN1192    

THE DEPUTY PRESIDENT:  Appears.

PN1193    

MR CHESHER:  But I'm not sure.  When you revised your claims at the end of last year ‑ ‑ ‑

PN1194    

MR HAMILTON:  Yes.  No.  Yes, I'm not ‑ ‑ ‑

PN1195    

MS ANGUS:  Gone?

PN1196    

MR HAMILTON:  Yes.

PN1197    

MS ANGUS:  Fine.  Good.  Yes, okay.

PN1198    

THE DEPUTY PRESIDENT:  So no longer appears it actually is no longer.

PN1199    

MS ANGUS:  Okay, 14.5(f)(ii).

PN1200    

THE DEPUTY PRESIDENT:  I have the same note.

PN1201    

MS ANGUS:  Okay.  Are you dropping that one?  You were proposing to amend   that is that provision that says that even if the parties lie to each other about their home point that if it's found out later that it's treated as ‑ ‑ ‑

PN1202    

MR HAMILTON:  Yes, I think that ‑ ‑ ‑

PN1203    

MS ANGUS:  So you don't want to delete that now?

PN1204    

MR HAMILTON:  No, that was picked up in the travelling provisions that we're going to discuss.

PN1205    

MS ANGUS:  Aren't we discussing them now?  I thought we were quickly hurtling through the substantive stuff just to see if there's any clarification so that we can then do the rest in writing.

PN1206    

MR CHESHER:  Yes.

PN1207    

THE DEPUTY PRESIDENT:  Yes.  So do I take it from that that presently it is being pursued?

PN1208    

MR HAMILTON:  Yes.  Yes, your Honour.

PN1209    

THE DEPUTY PRESIDENT:  All right.  So I'll just ‑ ‑ ‑

PN1210    

MR HAMILTON:  Yes.

PN1211    

MS ANGUS:  Really?  You want to drop that?  Is that just ‑ ‑ ‑

PN1212    

MR HAMILTON:  No, I'm not ‑ ‑ ‑

PN1213    

MS ANGUS:  Is that just game playing because of the ‑ ‑ ‑

PN1214    

THE DEPUTY PRESIDENT:  No, he wants to have a discussion so he's keeping his gun on the table.

PN1215    

MS ANGUS:  So what's your position about that?  Are you going to argue to abolish that?

PN1216    

MR CHESHER:  We don't know if there are bullets in it.

PN1217    

MR HAMILTON:  Yes.

PN1218    

MS ANGUS:  You're not.  David, you're not.  Is that just because we want more money for the weekly allowance?

PN1219    

MR HAMILTON:  Could be.

PN1220    

MS ANGUS:  Is that what that's about?

PN1221    

MR HAMILTON:  Could be.

PN1222    

MR CHESHER:  All right.  So you're ‑ ‑ ‑

PN1223    

MS ANGUS:  Okay.  So that's still going.

PN1224    

MR CHESHER:  ‑ ‑ ‑ keeping the dream alive.

PN1225    

THE DEPUTY PRESIDENT:  Okay.  So is being pursued.  So, thus far.  Yes?

PN1226    

MS ANGUS:  There are a couple of duplications that you've identified which we accept are duplications but perhaps we have the discussion about where best to put them.  So currently 25.5(a) ‑ ‑ ‑

PN1227    

MR HAMILTON:  Yes, yes, yes.

PN1228    

MS ANGUS:  ‑ ‑ ‑ is, in fact, we accept the same as 26.1.

PN1229    

MR HAMILTON:  Yes.

PN1230    

MS ANGUS:  Where's it gone in the exposure draft?  Is it in two, I think.  They've kept it in two locations in the exposure draft; 26.1 and 25.5(a).

PN1231    

MR HAMILTON:  26.

PN1232    

MS ANGUS:  This is that you get paid if you're called before you've got   you've got the job but before you start work, if you're called in for a wardrobe fitting you get an allowance and it's in two positions.

PN1233    

MR HAMILTON:  Yes.

PN1234    

MS ANGUS:  One, it's in the allowance and one it's in the ordinary.

PN1235    

MR HAMILTON:  Yes.

PN1236    

THE DEPUTY PRESIDENT:  26.1, and where's the other one?

PN1237    

MR HAMILTON:  So where was it again?

PN1238    

MS ANGUS:  I think they've kept it in both.

PN1239    

THE DEPUTY PRESIDENT:  25.5(a).

PN1240    

MR HAMILTON:  So one of them is 32.2(d)(i).

PN1241    

MS ANGUS:  I kind of like it being in both though, you know.

PN1242    

MR HAMILTON:  And (e)(i).

PN1243    

MS ANGUS:  I see.  That's silly, just next to each other.  That's weird.

PN1244    

MR HAMILTON:  Yes.

PN1245    

MS ANGUS:  That's just silly of them because the value of having it ‑ ‑ ‑

PN1246    

MR CHESHER:  Which is that one, 33.2?

PN1247    

MS ANGUS:  In the new?

PN1248    

MR CHESHER:  Yes.

PN1249    

MS ANGUS:  It's 32.2(d) and (3).  So it was duplicated in the hours clause and in the allowance clause in the existing.

PN1250    

MR HAMILTON:  Yes.

PN1251    

MS ANGUS:  Now they've merged it in to allowances clauses next to each other which is silly.

PN1252    

MR HAMILTON:  And also (f).  No, it isn't, sorry.  No.

PN1253    

MS ANGUS:  Then we could just delete one of them.  If they've transferred it to an allowance clause then I'm happy to just   I don't mind removing one of them if they're duplicated.

PN1254    

MR CHESHER:  I'm sorry, where's the duplication?

PN1255    

MS ANGUS:  At 32.2(d).

PN1256    

MR CHESHER:  (d).

PN1257    

MS ANGUS:  And (e).

PN1258    

THE DEPUTY PRESIDENT:  Well, (d) deals with special attendance before commencement.

PN1259    

MS ANGUS:  Yes, okay.

PN1260    

MR CHESHER:  During period of employment.

PN1261    

THE DEPUTY PRESIDENT:  And (e) deals with special attendance during period of employment.

PN1262    

MS ANGUS:  All right.  So that's not the duplication.  All right.  Maybe they've taken the liberty   is it in the hours clause, because ‑ ‑ ‑

PN1263    

THE DEPUTY PRESIDENT:  The other provision, which was, what, 26.1 ‑ ‑ ‑

PN1264    

MS ANGUS:  Yes, it is, it's 33.1.

PN1265    

THE DEPUTY PRESIDENT:  ‑ ‑ ‑is in 33.1.

PN1266    

MR HAMILTON:  Yes.

PN1267    

MS ANGUS:  Yes.  You're proposing to abolish one, but I don't   do we need to?  It's all right if it's duplicated because it does kind of make sense to have something in your hours clause letting you know that if you're called into work before you start work you're entitled to be paid.

PN1268    

MR HAMILTON:  Yes.

PN1269    

MS ANGUS:  Can we leave them both?

PN1270    

MR HAMILTON:  I agree with that.

PN1271    

MS ANGUS:  Yes.  So that one we're going to talk about.  Okay.

PN1272    

MR HAMILTON:  No, can we discuss that because there are implications?

PN1273    

MS ANGUS:  All right.

PN1274    

MR HAMILTON:  True.

PN1275    

MS ANGUS:  Okay.  Then we can talk about that one.

PN1276    

MR HAMILTON:  Yes.

PN1277    

MS ANGUS:  Let's have a look at 27.2, existing 27.2.  I understood your proposal, can I just confirm, is that genuinely your proposal is to shorten the break?  If you have a break you finish up your ‑ ‑ ‑

PN1278    

MR HAMILTON:  Shortening it to one hour with the agreement of the cast.

PN1279    

MS ANGUS:  With a clear break, and that's the same again for ‑ ‑ ‑

PN1280    

MR HAMILTON:  Yes, just 27.2.

PN1281    

MS ANGUS:  Then 27.6, I think we're at ‑ ‑ ‑

PN1282    

MR CHESHER:  Sorry, what's the ‑ ‑ ‑

PN1283    

MS ANGUS:  I just want to clarify what it is that's being ‑ ‑ ‑

PN1284    

MR CHESHER:  No, no, no, what's the mechanism for the two?

PN1285    

MR HAMILTON:  No, no, no, 27.6 is different to ‑ ‑ ‑

PN1286    

THE DEPUTY PRESIDENT:  27.2, again, in my table, suggested that it's no longer being pursued, but is that not right?

PN1287    

MR HAMILTON:  Correct, your Honour.

PN1288    

MS ANGUS:  It's not pursuing?

PN1289    

MR HAMILTON:  No, we are pursuing it.

PN1290    

MR CHESHER:  You are pursuing it.

PN1291    

THE DEPUTY PRESIDENT:  It is being pursued?

PN1292    

MR HAMILTON:  Yes.

PN1293    

MS ANGUS:  It's being pursued.  What might a clause look like that you're proposing?

PN1294    

MR HAMILTON:  Basically that the employer and the cast can agree to a one hour break after 4 pm.

PN1295    

MS ANGUS:  So that would be a new facilitative provision?

PN1296    

MR HAMILTON:  Yes.

PN1297    

MS ANGUS:  Which would   let's just see what the majority facilitative provisions say.  It would be a majority in this.

PN1298    

MR HAMILTON:  Yes, it is.

PN1299    

MS ANGUS:  Is it 7?

PN1300    

MR HAMILTON:  There would be a majority of ‑ ‑ ‑

PN1301    

MS ANGUS:  No.

PN1302    

MR CHESHER:  So it's an unpaid break?

PN1303    

MS ANGUS:  Yes.

PN1304    

MR HAMILTON:  Yes, it's ‑ ‑ ‑

PN1305    

MS ANGUS:  Before a show.

PN1306    

MR HAMILTON:  Yes.  At the moment if you have a break   you'd have a one hour break before 4 pm.

PN1307    

MR CHESHER:  Yes.

PN1308    

MR HAMILTON:  If it's after 4 pm it's then one and-a-half hours.

PN1309    

MR CHESHER:  Yes.

PN1310    

MR HAMILTON:  Including the cast.

PN1311    

MR CHESHER:  No, my question is how do you, not wanting to be pedantic about it, but how do you determine if the cast is good to go with one hour instead of one-and-a-half?

PN1312    

MR HAMILTON:  It has to be agreement with the whole cast.

PN1313    

MR CHESHER:  Right.  One member of cast saying, "No way, Jose" then it's thwarted.

PN1314    

MR HAMILTON:  Yes.

PN1315    

MR CHESHER:  Okay.

PN1316    

MR HAMILTON:  Yes.  It has to be majority of the cast absolutely.

PN1317    

MR CHESHER:  No, but that's ‑ ‑ ‑

PN1318    

MS ANGUS:  There's no sort of process spelt out here about how that would be sought.  "Agreement between employer and an individual".  That individual ‑ ‑ ‑

PN1319    

MR HAMILTON:  We can discuss some of the words.

PN1320    

MS ANGUS:  So the individual facilitative arrangements set out the process of soliciting agreement, and then there's no process at all.  The facilitative provisions can stand ‑ ‑ ‑

PN1321    

MR HAMILTON:  No, that's just highlighting which clauses in the whole award are facilitative provisions.  It's got nothing to do with the award flexibility provisions.  That's award flexibility.  So that's when, you know, the IFA, which we don't have.

PN1322    

MS ANGUS:  Yes, okay.