PN1

JUSTICE ROSS: Good morning. Could I have the appearances, please?

PN2

MS N DABARERA: If the Commission pleases, Dabarera, initial N, appearing for United Voice.

PN3

JUSTICE ROSS: Thanks, Ms Dabarera. Ms Bhatt.

PN4

MS R BHATT: If the Commission pleases, Bhatt, initial R, appearing for the Australian Industry Group.

PN5

JUSTICE ROSS: Thank you.

PN6

MS S WHISH: If the Commission pleases, Whish, initial S, appearing for ABI and New South Wales Business Chambers.

PN7

JUSTICE ROSS: Thanks, Ms Whish. Have you each got a copy of the agenda and materials?

PN8

MS BHATT: Yes, your Honour.

PN9

MS WHISH: Yes, your Honour.

PN10

JUSTICE ROSS: Shall we work our way through that. If we start with the provisionally resolved items, I think item A2, I'm not sure there was a joint decision, but the proposition is that we simply adopt the outcome in the Clerk's Award, which is consistent, I think, with the Ai Group's position.

PN11

Subject to that observation, are there any other matters in A1 to 5 that anyone wants to take issue with the proposed action?

PN12

MS DABARERA: No, your Honour, we don't oppose those.

PN13

JUSTICE ROSS: All right. Ms Bhatt?

PN14

MS BHATT: No, your Honour.

PN15

JUSTICE ROSS: Ms Whish?

PN16

MS WHISH: No, your Honour.

PN17

JUSTICE ROSS: Thank you. Then let's go to B1.

PN18

MS DABARERA: Your Honour, in respect of B1 we did have a preference for the current wording, but we won't press that further.

PN19

JUSTICE ROSS: Thank you. I think that resolves that. I think it was proposed that B2 and B3 be resolved on the papers. Has any party shifted their position or wishes to say anything further about either of those two items?

PN20

MS BHATT: If I may in relation to B3, we've revisited the issue. I understand that United Voice's proposal is to simply reinsert words that exist in the current award in the form that they are contained in the current award, and on that basis we won't oppose their reinsertion in the exposure draft.

PN21

JUSTICE ROSS: So to be clear about that, that would be the reinsertion of the reference to the relevant union?

PN22

MS BHATT: Yes, your Honour.

PN23

JUSTICE ROSS: All right. Is that agreed by, or not opposed, by all parties?

PN24

MS WHISH: That's not opposed by ABI and the New South Wales Business Chamber.

PN25

JUSTICE ROSS: Then we'll make that change. And we'll resolve B2 on the papers. Can I go to the outstanding issues? C1; is there anything you want to add to what you've already put, Ms Bhatt, before I ask the others? No?

PN26

MS BHATT: No, there isn't, your Honour.

PN27

JUSTICE ROSS: United Voice?

PN28

MS DABARERA: We don't oppose that variation.

PN29

JUSTICE ROSS: Ai?

PN30

MS WHISH: And we agree.

PN31

JUSTICE ROSS: So we'll make that variation. C2? This issue was dealt with in a statement; a statement that was issued on 29 June. You might recall on the last occasion I said I'd try and come up with a proposal. That proposal is set out at paragraph 33 of the statement, and I think Ai Group is proposing an amendment to the proposal, and the amendment would be at 13.3, if I work off the proposal for a moment, where it says, "an arrangement agreed" you would insert the words, "by the employer and employee".

PN32

MS DABARERA: Your Honour, that was our proposal, United Voice.

PN33

JUSTICE ROSS: Yes, I'm sorry. Yes, did I say Ai Group? No, I meant you, Ms Dabarera, sorry. You're seeking the amendment to insert the words "by the employer and employee" between "agree" and the words "under clause 13.2(b)".

PN34

MS DABARERA: Yes, your Honour. And that's to reflect the current award clause, 24.1(e).

PN35

JUSTICE ROSS: Yes, bear with me for a moment.

PN36

MS DABARERA: Yes.

PN37

JUSTICE ROSS: 24.1.

PN38

MS DABARERA: 24.1(e).

PN39

JUSTICE ROSS: Yes:

PN40

The ordinary hours of work having been determined by the employer and employee in accordance with clause 24.1(c).

PN41

Yes, okay, I follow. What do the others say about � well, firstly, does anyone object to the proposal in the statement, and then what do you say about United Voice's proposed variation?

PN42

MS BHATT: Your Honour, I think we had dealt with the proposal in the statement.

PN43

JUSTICE ROSS: Yes.

PN44

MS BHATT: And save for, I think what can be characterised as, cross-referencing issues I don't think we had anything further to say about that. I just want to deal with the United Voice point.

PN45

JUSTICE ROSS: Sure.

PN46

MS BHATT: If the question is, as it's expressed in the agenda that we're working through today, do we oppose United Voice's submission, the answer to that is yes, because the submission expresses a view, as I understand it, that the current award requires agreement between an employer and a full-time employee as to how that employee's ordinary hours will be arranged.

PN47

JUSTICE ROSS: Leave aside for a moment the � I understand your position that you'd previously put on the submission.

PN48

MS BHATT: Yes.

PN49

JUSTICE ROSS: And I think more broadly where we ended up the last time was to live with a degree of ambiguity around the dispute between yourselves and United Voice about interpretation.

PN50

MS BHATT: Yes, your Honour.

PN51

JUSTICE ROSS: Can we just go to the words that they're seeking? Do you ‑ ‑ ‑

PN52

MS BHATT: We don't consider that the proposed words alter the substance of what currently appears in the exposure draft at 13.3, and on that basis we wouldn't oppose the variation that's proposed.

PN53

JUSTICE ROSS: No, but ‑ ‑ ‑

PN54

MS BHATT: But I just wanted to make the organisation's position about the substance of the issue clear for the record.

PN55

JUSTICE ROSS: No, no, I understand. Yes, you're putting on record that you don't agree with the reasons they advance in support of it.

PN56

MS BHATT: Yes, your Honour.

PN57

JUSTICE ROSS: But you won't oppose it on the basis that it's consistent with the rest of the clause, and doesn't make much difference to the meaning.

PN58

MS BHATT: Yes, your Honour.

PN59

JUSTICE ROSS: All right. Ms Whish?

PN60

MS WHISH: And we don't oppose on those same grounds.

PN61

JUSTICE ROSS: On that basis, I will make the change to the proposed clause, and we won't enter into the debate about the various submissions advanced in support of it. All right? Can I go to C3, call back, and bear with me for a moment. And there is the proposal which is set out in the attachment A, and the expert's comments there. What do the parties wish to say about that?

PN62

MS DABARERA: Your Honour, United Voice does oppose the proposed amendment, and we would rely on the submissions that we've made on that issue.

PN63

JUSTICE ROSS: You've made submissions directed at the proposed amendment?

PN64

MS DABARERA: Not directed at the proposed amendment but we've made submissions on that issue itself regarding the interpretation of that clause.

PN65

JUSTICE ROSS: Yes. But which part of the proposed amendment do you say that it's not consistent with the current award provisions?

PN66

MS DABARERA: The proposed amendment � so it's essentially removed that section about the overtime and penalty payment.

PN67

JUSTICE ROSS: Yes.

PN68

MS DABARERA: And our submissions were that in the current award there's no exclusion of overtime and penalty payments depending on when those hours of work are worked.

PN69

JUSTICE ROSS: Yes. But in the rate of pay column it talks about "plus any applicable shift penalty", "the appropriate Saturday and the appropriate Sunday rates".

PN70

MS DABARERA: Sorry, your Honour.

PN71

JUSTICE ROSS: That's all right. Yes, I'm sorry, it's not page numbered, but if you look at attachment A. I mean, I might be looking at the wrong thing, Ms Dabarera. I wouldn't worry too much. Then you'll see when you go to item C3, and then go about another three or four pages on ‑ ‑ ‑

PN72

MS DABARERA: Yes.

PN73

JUSTICE ROSS: ‑ ‑ ‑you'll see a heading about two-thirds of the way down, "Expert's Comments" about 23.6, and there's the red ‑ ‑ ‑

PN74

MS DABARERA: Yes, your Honour. Thank you. Just bear with me for one moment.

PN75

JUSTICE ROSS: That's all right.

PN76

MS DABARERA: Your Honour, given that it does include those shift penalties, we wouldn't oppose that amendment.

PN77

JUSTICE ROSS: Ms Bhatt?

PN78

MS BHATT: Not opposed by Ai Group.

PN79

MS WHISH: And not opposed by ABI and NSW Business.

PN80

JUSTICE ROSS: Thank you. We'll agree we'll adopt those changes. The payment for annual leave, now, there's a joint report in relation to this. Perhaps if I can just clarify my understanding of it, and what you agree about is � well, it's set out in the attachment, but I had taken the agreement to be reflected in Ai Group's submission of 24 August, and that is that you agree on four dot points: that employees do not receive the penalty rates for shift work and weekend work twice when accessing annual leave; that employees do not receive penalties for shift work and weekend work as well as the 17 and-a-half per cent loading on termination; the rate that the 17 and-a-half per cent loading should be applied to when an employee is paid on termination requires clarification; the description or characterisation of various premiums payable under the PLED; and your joint report indicates that United Voice and Ai Group are in agreement on the interpretation of how annual leave is paid when taken in accordance with clause 29.3 and 29.4, but you've been unable to reach agreement on the appropriate form of words to reflect that. Do I take it that means when you take annual leave you don't get both the penalties and the 17 and-a-half per cent?

PN81

MS DABARERA: Yes, your Honour. And our ‑ ‑ ‑

PN82

JUSTICE ROSS: So you agree that you don't double-dip as it were.

PN83

MS DABARERA: We wouldn't refer to as it double-dipping, your Honour.

PN84

JUSTICE ROSS: No. No, sure. That's right.

PN85

MS DABARERA: But in terms of taking annual leave, and not on termination, you would get either the shift or penalty rates where they're higher, or the 17.5 per cent.

PN86

JUSTICE ROSS: Yes. And on termination there's a dispute about what's paid out; is that right?

PN87

MS DABARERA: Yes, your Honour.

PN88

JUSTICE ROSS: All right. Do I take it that ABI is essentially in the same position; that you agree that when annual leave is taken what's supposed to happen, as Mr Dabarera has just outlined, but you join with Ai Group in disputing United Voice's proposition about what you get paid on termination?

PN89

MS BHATT: That's correct. We don't agree that there would be a double-dipping so to speak, if that's the terminology to be used.

PN90

JUSTICE ROSS: Yes.

PN91

MS BHATT: But we do have some concerns about the way the award is currently drafted and the exposure draft is drafted as to how we can avoid that situation from happening.

PN92

JUSTICE ROSS: All right. So I think the short point is on the first thing, when you take annual leave you all agree with what the outcome should be, but you disagree about how to give effect to that outcome. And you dispute the correct interpretation of the current award provision on the payment of annual leave on termination.

PN93

MS BHATT: That's correct.

PN94

JUSTICE ROSS: That's where we're up to, and you've articulated that in your written submissions. Are you content for us to decide those two questions on the basis of what you'd put?

PN95

MS WHISH: It would be useful today to say that ABI and New South Wales Business Chamber agree that the most appropriate course of action for the annual leave payment on termination clause in the exposure draft would be as AiG has suggested which is to delete them.

PN96

MS DABARERA: Your Honour, in respect of AiG's proposed amendment to clause 24.3(a) United Voice opposes that amendment. So AiG seeks to delete (iii), so deleting penalty rates paid for shift work or rostered ordinary hours of work on a Saturday or Sunday.

PN97

JUSTICE ROSS: Yes.

PN98

MS DABARERA: Our opposition to that deletion comes from the fact that that clause essentially defines what annual leave is for the purposes of the NES or section 90 of the Act in terms of the payment of annual leave, and that would be a substantive change. And in deleting that that would reduce the entitlement for employees. Even though that would be moved to the second section, we argue that that's a substantive change because clause (b) of that doesn't define annual leave for the purposes of the NES.

PN99

JUSTICE ROSS: Anyone want to say anything further about this?

PN100

MS BHATT: For my part I'm not sure that I fully understand that concern. As I understand it, the NES, as your Honour well knows, requires payment for annual leave at the base rate of pay. The Act defines what the base rate of pay is. This award contains a term that is supplementary to the NES. It says that in fact if you're an employee covered by this award you are paid at a higher rate when you take annual leave, and it includes certain amounts that are described here.

PN101

JUSTICE ROSS: Leading hand, first aid, et cetera.

PN102

MS BHATT: Precisely, your Honour. Purely for the purposes of ensuring that we're not at cross-purposes, if I can just characterise what I understand to be the nub of the dispute. 24.3(a) of the exposure draft requires that when an employee takes leave they're paid penalty rates paid for shift work and penalty rates on a weekend.

PN103

JUSTICE ROSS: Yes.

PN104

MS BHATT: If we then go to subclause (b) it says that in addition to the amounts that you're paid under (a) you must be paid one of the following additional amounts: either the 17 and-a-half per cent annual leave loading, or, again, shift and weekend penalty rates. So our concern is that you might be paid shift and weekend penalty rates pursuant to both (a) and (b). That is what we have referred to as the double-dipping issue.

PN105

We accept that this is an issue that potentially arises under the current award, but, look, I think the truth of it is that the drafting in the current award is not clear.

PN106

JUSTICE ROSS: No.

PN107

MS BHATT: And we've approached this exercise with trying to address the root of the issue in the form that ‑ ‑ ‑

PN108

JUSTICE ROSS: But ultimately it does come down to the extent that if it can be said the current award permits it, it's then a question of merit. Why should an employee � why should their base rate of pay ‑ ‑ ‑

PN109

MS BHATT: Yes.

PN110

JUSTICE ROSS: ‑ ‑ ‑be characterised as including penalty rates, and then in addition to all of that, they may be paid penalty rates again.

PN111

MS BHATT: Precisely. Now, Ms Dabarera will correct me if I'm mistaken, but my understanding of the position between the parties is that in principle there is agreement as to the proposition that that double-dipping, that is, the payment of shift and weekend penalty rates should not occur twice under subclause (a) and (b).

PN112

JUSTICE ROSS: Yes.

PN113

MS BHATT: The difficulty we're encountering is how we give effect to that. I understand now that there's some concern that if it's removed � if the reference in (iii) is removed, or if that clause is removed, then that might have some implication for when an employer is found to be in breach of, that is, does this award term have the effect of defining what the base rate of pay is for the purposes of the NES, and if there's an underpayment pursuant to the award, is the employer not only in breach of the award but also in breach of the NES.

PN114

JUSTICE ROSS: I believe that if you're in breach of both there's the provision that doesn't allow you to have the double penalty.

PN115

MS BHATT: Precisely. Yes. So, I mean, I'm just trying to grapple with what the difficulty is because if we have in principle agreement we should be able to find a way to ‑ ‑ ‑

PN116

JUSTICE ROSS: Yes. Let's just touch on that for the moment. How else do you address it?

PN117

MS DABARERA: Your Honour, we would say that the current plain language draft is clear that when you're receiving � so you receive the payment for the annual leave, and ‑ ‑ ‑

PN118

JUSTICE ROSS: But the problem with the current draft is in (b) it talks about an additional payment, so it must be in addition to something, and presumably it's in addition to the payments made under (a).

PN119

MS DABARERA: And, your Honour, if there was a concern regarding (b) we wouldn't be opposed to looking at the wording in (b). We think that changing (a) does have quite a significant effect in terms of the definition of annual leave.

PN120

I mean, potentially, and this is just I'm cautious about making suggestions on the run, but potentially if "additional" was removed and you get paid those two amounts in terms of taking annual leave that might resolve that issue.

PN121

MS BHATT: No, I don't think it would, from our perspective. But I'm trying to ventilate the issue because, as your Honour knows, we've worked through similar issues in other awards, and it's one where ‑ ‑ ‑

PN122

JUSTICE ROSS: But there it's often the language of the (b) provision if you like that's created the difficulty.

PN123

MS BHATT: Yes.

PN124

JUSTICE ROSS: This is sort of � look, I can't recall another one quite like this. I agree that we have dealt with, in other awards, circumstances where it's not clear whether you get the 17 and-a-half per cent or the various penalties, or it might be suggested that you do get both.

PN125

MS BHATT: The both, yes.

PN126

JUSTICE ROSS: And we've resolved that issue.

PN127

MS BHATT: Yes.

PN128

JUSTICE ROSS: I think it might be worth proceeding with some caution in relation to this, to this extent, that both in relation to the payment of annual leave when it's taken and on termination. I'll raise with the other Members of the Bench that it might be appropriate to express provisional views as to how to resolve those issues, and then to provide a further opportunity to comment on it. We just need to work our way through.

PN129

On the face of it, Ms Dabarera, I'm just struggling to see what the concern is around the deletion of the words as proposed by Ai Group, and I don't really think removing the word "additional" is going to change. In fact, it might give rise to other construction problems. I think (b) is plainly intended to be an amount in addition to what is defined as the base rate of pay in (a), so the problem then becomes, well, if in (a) you get all your penalty rates for Saturday, et cetera, then (b)(ii) doesn't make a lot of sense. How do you make that comparison if you've already been compensated by the supplementary term in (a)?

PN130

MS DABARERA: And, your Honour, I think that's where we have an issue in regards to annual leave on termination, because we do argue that you do get the penalty rates, and then you get either the higher of the penalty rates or the 17.5 per cent. But nonetheless, in relation to (a) our concern is that (a) essentially defines the payment for annual leave and (b) is an additional amount.

PN131

JUSTICE ROSS: Yes.

PN132

MS DABARERA: So when you remove the penalty rates paid for shift work or rostered ordinary hours from (a) that's changing the definition of the employee's base rate of pay for the purposes of annual leave. That's essentially our concern with that amendment.

PN133

JUSTICE ROSS: We'll proceed as I've indicated, and we will have a close look at what the parties have said in relation to the issue, and we'll see if there's any relevant history that might help us understand the provision as well. But certainly my view would be that we'd be expressing a provisional view about it and giving you an opportunity to comment further.

PN134

MS BHATT: Can I just add one other thing?

PN135

JUSTICE ROSS: Sure.

PN136

MS BHATT: Just for the purposes of clarifying our written submissions when the Full Bench comes to considering them, we've put a proposal as to how the Commission might deal with the issue of payment on termination.

PN137

JUSTICE ROSS: Yes.

PN138

MS BHATT: But that is based on the proposal we have put as to how the Commission might amend the issue as to what one is paid whilst on leave.

PN139

JUSTICE ROSS: Yes. Yes.

PN140

MS BHATT: It's contingent on that variation being made.

PN141

JUSTICE ROSS: Yes.

PN142

MS BHATT: Which I just wasn't sure that that was sufficiently clear in the written submissions.

PN143

JUSTICE ROSS: No, no, I follow. Yes, yes, no, I see how there's a relationship between the two issues.

PN144

MS BHATT: There is, yes. Yes.

PN145

JUSTICE ROSS: That's one of the reasons why I think it's better to proceed provisionally.

PN146

MS BHATT: Sure.

PN147

JUSTICE ROSS: And just see if we can tease out the issue a little further.

PN148

MS DABARERA: Your Honour, sorry, can I make one more comment as well?

PN149

JUSTICE ROSS: Yes. No, that's all right. Yes.

PN150

MS DABARERA: Earlier Ai Group referred a position that was agreed between the parties, and I think we just want to make it clear that we don't characterise this as double-dipping, and we are also ‑ ‑ ‑

PN151

JUSTICE ROSS: No. Would you say it's the double payment? Or how would you characterise it?

PN152

MS DABARERA: We would characterise it as an entitlement that was � and we've made this further in our submissions, we've talked about what was in, particularly the New South Wales award, where an employee was entitled to receive the shift penalties and then the loading upon that. That was lost, we say, in award modernisation in relation to annual leave as taken, but it wasn't lost in this award in relation to annual leave on termination. So we've made submissions on that. We don't characterise it as double-dipping.

PN153

JUSTICE ROSS: No, no, that's fine.

PN154

MS DABARERA: Yes.

PN155

JUSTICE ROSS: In your submissions, do you refer to any arbitral history rather than what was in the awards before? Is there an arbitrated decision that deals with any of this?

PN156

MS DABARERA: I'm just going to have a look. I don't believe so, your Honour. I did have a look at some of the award history, but I don't think there was an arbitrated decision. But I can't guarantee that.

PN157

JUSTICE ROSS: Because it's ‑ ‑ ‑

PN158

MS WHISH: Your Honour, I believe in relation to annual leave paid on termination there's certainly some decisions we could look to. They might involve enterprise agreements and the wording of enterprise agreements, but I think you'll find that the wording in those enterprise agreements is remarkably similar to the wording in a number of awards.

PN159

JUSTICE ROSS: That'd be helpful. Because we're going to do it provisionally anyway, if you can provide that as soon as you can, and then we'll take that into account, and, as I say, we'll give you an opportunity to say what you want to say about this. It does seem slightly odd, I understand what you say about that's what the award might say.

PN160

MS DABARERA: Yes, your Honour. Yes.

PN161

JUSTICE ROSS: But it's a bit odd that you get more on termination than you would if you took the leave.

PN162

MS DABARERA: Your Honour, we say that it is different to some other award provisions, but that's the current award, and we would say that ‑ ‑ ‑

PN163

JUSTICE ROSS: No, no, no ‑ ‑ ‑

PN164

MS DABARERA: Yes.

PN165

JUSTICE ROSS: ‑ ‑ ‑I understand that. That's why I'm trying to find � I'm trying to discover why it might have got to that point.

PN166

MS DABARERA: Yes, your Honour.

PN167

JUSTICE ROSS: But we'll have a look at that, and have regard to any authorities you're able to draw our attention to, and then we'll grope forward in the fog and see how we go.

PN168

The last issue is temporary closedown, and here I think where the question is put is whether these items should be dealt with when the closedown clause generally is being looked at or do you want us to resolve them on the basis of what you've put, and then it will be reviewed as part of the closedown provisions?

PN169

MS BHATT: Your Honour, for our part we'd be content for the issues that we've raised to be resolved as part of this process.

PN170

JUSTICE ROSS: All right.

PN171

MS BHATT: Perhaps we've misunderstood. I think the submission we put was on the basis that we read an earlier statement that the Commission has referred to as stating that closedown provisions will be reviewed to the extent that there's an issue around continuity of service. It might be that a broader review is contemplated. But in any event we don't see a reason why the issues can't be dealt with here.

PN172

JUSTICE ROSS: All right. Has the expert provided a further draft? Because you all agree that the relevant � the existing award provisions haven't been reflected ‑ ‑ ‑

PN173

MS DABARERA: Yes, your Honour.

PN174

JUSTICE ROSS: ‑ ‑ ‑in the PLED. Has a further draft been provided to you?

PN175

MS DABARERA: As far as I am aware, your Honour, no, it hasn't been updated.

PN176

JUSTICE ROSS: Then the first step in relation to that might be providing a proposed � having the drafter take into account the various comments with which I agree, and you agree amongst yourselves that certain things are omitted, have a redraft then put to you, and you're given an opportunity to comment about that, and that may well resolve most, if not all, of the issues between you. Nothing further?

PN177

MS DABARERA: Your Honour, can I briefly just make a submission ‑ ‑ ‑

PN178

JUSTICE ROSS: Yes, sure.

PN179

MS DABARERA: ‑ ‑ ‑in relation to item 32, which is the call back for non-cleaning purposes.

PN180

JUSTICE ROSS: Yes.

PN181

MS DABARERA: I just wanted to state on record that we don't withdraw the previous submission that we've made in relation to the correct payment for that, but we do accept that the drafter's proposed amendment resolves it for the purposes of the plain language redrafting.

PN182

JUSTICE ROSS: All right. Not quite sure what to make of that, Ms Dabarera.

PN183

MS DABARERA: Essentially, I just wanted to put on the record in the similar fashion that Ai Group did in relation to the ‑ ‑ ‑

PN184

JUSTICE ROSS: Yes, I see.

PN185

MS DABARERA: ‑ ‑ ‑ordinary hours of work, that it's not an interpretation agreement, but it's in relation to the wording.

PN186

JUSTICE ROSS: It's more of a pragmatic outcome in the circumstances.

PN187

MS DABARERA: Yes, your Honour. Yes.

PN188

JUSTICE ROSS: All right. Nothing further?

PN189

MS BHATT: No, your Honour.

PN190

MS WHISH: No, your Honour.

PN191

JUSTICE ROSS: Thanks very much.

PN192

MS BHATT: Thank you.

PN193

JUSTICE ROSS: I'll adjourn.

SHORT ADJOURNMENT�� [10.00 AM]

PN194

JUSTICE ROSS: Can I have the appearances, please?

PN195

MR G MILLER: If it please, Miller, initial G, appearing for the AMWU.

PN196

JUSTICE ROSS: Thanks, Mr Miller. Yes, Ms Bhatt?

PN197

MS R BHATT: If it pleases, Bhatt, initial R, appearing for the Australian Industry Group.

PN198

JUSTICE ROSS: Thank you. The MBA had asked for a video link to Canberra, but it doesn't seem that anybody is there. We've received correspondence from Mr Maxwell from the CFMMEU indicating he's unable to attend because he's chairing the construction industry reference committee which is responsible for determining the construction industry training package, and he has prepared a brief submission which he attaches. I'll go to that in due course.

PN199

We have on the phone?

PN200

MS L REGAN: Your Honour, if it pleases, Regan, initial L for the Housing Industry Association.

PN201

JUSTICE ROSS: Thanks, Ms Regan. It might be convenient to deal with the CFMMEU written submission. The short version seems to be that not much progress has been made. I think on the last occasion it was generally agreed that the Building Onsite Award we wouldn't be proceeding to look at that until the construction industry Full Bench had determined the issue relating to clause 28, and I think that's still our position.

PN202

So if we take Building Onsite, Mobile Crane and Joinery for a moment, is there anything anyone else wishes to say about those three awards at this stage?

PN203

MS BHATT: I should probably respond to the submission filed by Mr Maxwell yesterday which makes reference to the fact that he hadn't heard from Ai Group at the time of filing the submission. We've since indicated to Mr Maxwell that our position remains as it was in our submission of 8 September which addresses some of the specific issues that arise from the proposals previously put.

PN204

JUSTICE ROSS: Ms Regan, did you want to say anything?

PN205

MS REGAN: Your Honour, our position continues to remain as per our submissions of 17 March 2017. We can see no substantive reason as to why the award specific schedules were required.

PN206

JUSTICE ROSS: All right.

PN207

MS REGAN: And for this reason we purport to incorporate the training wage schedule by reference to the Miscellaneous Award.

PN208

JUSTICE ROSS: I'll circulate the submissions of each of the organisations who have an interest in the three constructions awards to the other Members of the Full Bench, and we'll give some consideration about how we resolve those matters.

PN209

The remaining matters relate to the Surveying Award, Airline Operations, Airport Employees Award, Food Beverage and Tobacco Manufacturing, the Manufacturing Award and the Sugar Award, and the AMWU is the moving party in each of those, and we had some discussion about the scope of what was proposed in each of those on the last occasion on 7 September.

PN210

For example, in relation to the Surveying Award I think the claim was to retain the national training wage schedule when, in fact, there's no schedule in the current award, and in relation to some of the other of the AMWU proposals, as was pointed out in the various employer submissions, some of those in fact seek substantive changes to the existing national training wage schedules in those awards. And the AMWU was going to give some thought to all of that and decide what it was going to do.

PN211

MR MILLER: Yes, your Honour. Thank you. Apologies, if I could go back to the Construction Awards for a moment.

PN212

JUSTICE ROSS: Sure.

PN213

MR MILLER: Mr Maxwell has actually just asked me to mention that he's on leave from 15 October to 26 October just in case you and the other Members of the Full Bench were minded to set directions, he asked me to mention that fact.

PN214

JUSTICE ROSS: All right. Thanks.

PN215

MR MILLER: Your Honour, in relation to the Surveying Award firstly, my instructions are to drop that particular matter and we won't be seeking a variation to include a training wage schedule in that award at this time.

PN216

JUSTICE ROSS: Yes.

PN217

MR MILLER: In relation to the remaining awards where we have asked to retain award specific schedules we have been involved in constructive discussions with the Australian Industry Group. We have put a proposal to them on a without prejudice basis. I understand this proposal is still being considered by the Australian Industry Group. We were hoping, if it please, if we could a further period. It shouldn't be much longer than a week. We would probably be in a position to report back with a final position by, say, next Friday, which I believe is 5 October.

PN218

JUSTICE ROSS: I can actually give you a bit more than that, because I'm on leave, so no point in rushing you. Can you do it by 4 pm on Friday, 12 October?

PN219

MS BHATT: If it pleases, your Honour.

PN220

MR MILLER: Yes, that's convenient.

PN221

JUSTICE ROSS: Will that give you enough time, Ms Bhatt, to get back and sort it out or ‑ ‑ ‑

PN222

MS BHATT: Thanks. And t will, your Honour. There's, as you will appreciate, some detail to work through.

PN223

JUSTICE ROSS: Yes.

PN224

MS BHATT: And I'm hopeful that to the extent that any concerns might arise from what's been put to us, which they may or may not, that'll give us some time to have some discussions with the AMWU.

PN225

JUSTICE ROSS: Yes.

PN226

MS BHATT: So I thank your Honour for that indulgence.

PN227

JUSTICE ROSS: In fact, once you've filed the report if you think that further discussions would be productive then let me know about that. I'm not inclined to rush the determination of the matter if at least there's some progress being made in the discussions between you.

PN228

Having regard to what you've said about Mr Maxwell's availability and when your report is due, I'll list the matter for further mention towards the end of October. I'll give you an exact date later on today. Anything else? No?

PN229

MR MILLER: Thank you, your Honour, that's it.

PN230

JUSTICE ROSS: Anything from you, Ms Regan.

PN231

MS REGAN: No. Thank you, your Honour.

PN232

JUSTICE ROSS: Can I encourage you, Ms Regan, to have some discussions with Mr Maxwell and see � it seemed that the issues between you were � well, which parts of a national training wage schedule, which packages, were relevant to the three construction awards, and my recollection is you were putting the view that well, they all were potentially relevant. Having since read those packages I'm struggling to accept that as a proposition. I don't think it could be said that all of the packages in the schedule are relevant given that some of them seem to apply to occupations that really � you know, hard to see how they would arise in onsite construction.

PN233

I readily accept there'll be some where there'll be a degree of � you know, they'll move into the grey area if you like, and I'd encourage the parties to consider retaining anything that's in that grey potential space, but have a further discussion in relation to it.

PN234

As I apprehended your position was that, well, all of them are potentially relevant, and that being the case what's the point of retaining an award specific schedule, while I'd simply cross-reference the Miscellaneous Award. And the CFMMEU was minded to continue to press for an award specific schedule. So I think it would be in the interests of everyone if the parties can get their heads together and work out, well, what of the training packages in the standard schedule are relevant or likely to be relevant in construction, because you're in a better position to collectively make that judgment than I am.

PN235

MS REGAN: Thank you, your Honour. We'll certainly convene and discuss further. Did you want us to report back on that prior to the next mention?

PN236

JUSTICE ROSS: No, that's fine. If you're just able to do that at the mention that'd be helpful.

PN237

MS REGAN: Thank you.

PN238

JUSTICE ROSS: Thanks, Ms Regan. Anything else?

PN239

MS REGAN: No. Thank you, your Honour.

PN240

MS R SOSTARKO: Your Honour, it's Rebecca Sostarko. My apologies for my tardiness, from Master Builders Australia. I'm not sure if you're aware but the registry has recently moved in Canberra.

PN241

JUSTICE ROSS: Yes. No, I'm aware of it.

PN242

MS SOSTARKO: So I went to the wrong location. Yes, so, my apologies for the ‑ ‑ ‑

PN243

JUSTICE ROSS: Yes. No, that's okay. I'm not sure if you've received a copy of Mr Maxwell's further submission.

PN244

MS SOSTARKO: Yes, I have.

PN245

JUSTICE ROSS: Yes. And, look, you will have heard the last comment I made to Ms Regan that I'd simply encourage the employer interests to continue to have discussions with the relevant unions in an effort to narrow the areas between you, and we'll relist the matter for further mention towards the end of October, and we'll see where you're up to then, and it'll be at that point that the Bench will start to make some decisions about how to resolve any outstanding matters. All right?

PN246

MS SOSTARKO: Thank you, your Honour.

PN247

JUSTICE ROSS: No problem. Anything further? No? Thanks very much. I'll adjourn.

ADJOURNED TO A DATE TO BE FIXED�� [1.14 PM]