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Fair Work Act 2009                                                    




s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Abandonment of Employment – Common Issue




11.04 AM, THURSDAY, 27 APRIL 2017


THE VICE PRESIDENT:  I will take the appearances first in Sydney.  Mr Arjonilla, you appear for the AMWU?


MR H ARJONILLA:  That's correct, your Honour.


THE VICE PRESIDENT:  Mr Maxwell, you appear for the CFMEU?


MR S MAXWELL:  Yes, your Honour.


THE VICE PRESIDENT:  Mr Duncalf, you appear for the AWU?


MR Z DUNCALF:  Yes, your Honour.


THE VICE PRESIDENT:  Ms Bhatt, you appear for the Ai Group?


MS R BHATT:  Yes, Vice President.


THE VICE PRESIDENT:  Ms Whish, you appear for the New South Wales Business Chamber and Australian Business Industrial?


MS S WHISH:  Yes, Vice President.


THE VICE PRESIDENT:  In Brisbane, Mr Hall-Bowman, you appear for the Printing Industries Association of Australia.


MR R HALL-BOWMAN:  Mr Hall-Bowman.  Sorry, your Honour, it's Mr Hall-Bowman here, initial R, from the Printing Industries Association, yes.


THE VICE PRESIDENT:  Yes, thank you.


MR HALL-BOWMAN:  I was talking over the top of you.


THE VICE PRESIDENT:  Yes, all right.


MR HALL-BOWMAN:  Thank you.


THE VICE PRESIDENT:  Thank you.  As the parties would be aware, this issue has arisen for review arising from a Full Bench decision in the matter of Bienias v Iplex Pipelines which was issued on 13 January 2017.  So the question or at least the initial question is whether the abandonment of employment provisions in the six awards identified are provisions which it is permissible to include in a modern award under the Fair Work Act.  I will hear the parties about that, but my initial impression is that's a purely legal question and perhaps one about which the parties could make submissions about purely on written submissions.  But if any parties holds the view that there may be an evidentiary question associated with it or it requires an opportunity to make oral submissions, I'm happy to hear from them.  So, who would like to go first?  Ms Bhatt?


MS BHATT:  I will endeavour to, Vice President, thank you.  As the Commission has identified, these provisions are now the subject of review.  It appears to us that at this stage neither the Commission nor any interested party has proposed a variation to the relevant awards.  One might proceed on the assumption that in light of the Commission's decision in the relevant appeal, my friends from the unions will proceed to seek their deletion.  If that is so, then this matter should be dealt with in the ordinary course.  That is that they being the moving parties, if I can use that term, file submissions and if they seek to call evidence then they may call any evidence.


My preliminary view is similar to the Commission's and that is that the legal question could probably be dealt with simply on the basis of written submissions.  I should say that for our part, we have some concerns about the deletion of the relevant provisions, but we are still thinking through the issues that have been brought to light in the Full Bench's decision.  We would seek an opportunity to file short written submissions in response to anything that is filed by the unions.  It does seem to me, however, that if this matter proceeds by way of written submissions only then it is one that could be dealt with on the papers.


What I have in mind was that if the moving parties were to file their submissions first, if we were to subsequently file a response along with any other respondent party, and then in a period of, say, 10 days later, we advise the Commission - all interested parties advise the Commission as to whether they seek a hearing.  The matter could be dealt with relatively efficiently in that way.


THE VICE PRESIDENT:  I am not sure it is reasonable to describe the unions as moving parties.  This matter has been initiated by the Commission of its own motion having been alerted to the issue by a party in another proceeding.  But I'm not sure that will make a whole lot of difference.  It is simply a case of parties who think that the provision is not permissible in a modern award can make submissions and then the parties who think it is permissible can make submissions in reply or vice versa.  It is really just giving the parties opportunity to make submissions about either position if they wish to do so.




THE VICE PRESIDENT:  One other possibility is to simply give a date by which any party can make a submission about the issue at all and then simply give any other party who wishes to reply to that submission an opportunity to reply.


MS BHATT:  Yes, I accept that that's an alternate way of dealing with it and we wouldn't have any opposition to that course of action.


THE VICE PRESIDENT:  All right, thank you.


MS BHATT:  Thank you.


THE VICE PRESIDENT:  Ms Whish, do you want to go next?


MS WHISH:  Yes, Vice President.  We simply seek the opportunity to provide written submissions to the legal question so that we can look further into the operation of the various provisions.  So the course that your Honour just suggested would be fine.


THE VICE PRESIDENT:  What sort of time scale do you have in mind?


MS WHISH:  I think two weeks would be sufficient for us.


THE VICE PRESIDENT:  All right.  Mr Hall-Bowman, do you take any different view about the matter?


MR HALL-BOWMAN:  No, your Honour.  I agree with the previous two people today and I would be seeking that the timeline to be around mid-May for written submissions due.


THE VICE PRESIDENT:  All right, thank you.


MR HALL-BOWMAN:  Which is about two weeks.  Thank you.


THE VICE PRESIDENT:  The unions, does anyone have a different view of the matter?


MR MAXWELL:  Your Honour, just in regard to the proposal by the Commission that a timeframe be set where all parties make submissions as to the permissibility and then reply submissions, we have no objection to that course of action and we also would support that this matter can perhaps be dealt with on the papers.


THE VICE PRESIDENT:  Do any other union take a different view?


MR ARJONILLA:  The AMWU doesn't, your Honour, no.


MR DUNCALF:  The AWU agree with the CFMEU.


THE VICE PRESIDENT:  All right.  What I propose to do and I will formalise this in writing later in the day is to direct any interested party who wishes to do so to file a written submission concerning the permissibility of the abandonment of employment clauses in the six awards within the next three weeks.  I will then allow a further two weeks for any party who wishes to reply to a submission to make reply submissions.  At that same time at that point if any party having seen the submissions wishes the opportunity to make oral submissions, they can make that application and that will be considered by the Full Bench.  If no such application is made, the matter will be determined on the papers.  Is there any other matter I need to deal with?


MS BHATT:  I'm sorry, if I could just raise one issue.  We would seek that we be granted an opportunity to advise as to whether a hearing is required some time after the reply submissions are filed in case any additional issues are raised.  A short period will suffice.


THE VICE PRESIDENT:  All right.  We will make it a week after reply submissions.


MS BHATT:  If the Commission pleases.


THE VICE PRESIDENT:  Are there any other issues?  All right, well, as I indicated, those direction will be issued formally later in the day.  I thank for the parties for their attendance and I will now adjourn.

ADJOURNED INDEFINITELY                                                        [11.11 AM]