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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
COMMISSIONER CIRKOVIC
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards
(AM2014/289)
Water Industry Award 2010
(ODN AM2008/92)
[MA000113 Print PR991080]]
Sydney
10.16 AM, THURSDAY, 30 MARCH 2017
PN1
THE COMMISSIONER: Good morning. I'll take appearances, please.
PN2
MR Z DUNCALF: May it please the Commission, Duncalf, initial Z, for the Australian Workers' Union.
PN3
THE COMMISSIONER: Thank you, Mr Duncalf.
PN4
MR H ARJONILLA: May it please, Arjonilla, initial H, for the AMWU.
PN5
THE COMMISSIONER: Thank you, Mr Arjonilla.
PN6
MR M RIZZO: Commissioner, Rizzo, M, on behalf of the ASU.
PN7
THE COMMISSIONER: Thank you, Mr Rizzo.
PN8
MR M ROBSON: May it please the Commission, Michael Robson, for United Voice.
PN9
THE COMMISSIONER: Thank you, Mr Robson
PN10
MS R BHATT: If it pleases the Commission, Bhatt, initial R, appearing for the Australian Industry Group.
PN11
THE COMMISSIONER: Thank you, Ms Bhatt. No issues as to permission to consider, given there are no paid agents. Just a couple of preliminary matters. This is a conference that is recorded. It is the first conference in relation to the Water Industry Award 2010 and the focus today will be on the summary of submissions that have been circulated to the parties by the AMOD team.
PN12
I intend to go through that summary item by item. First, to confirm its accuracy and/or any need for corrections, errors, misunderstandings or the like. It may be that on reflection some of the matters that are listed in the items are in fact not pressed. What I propose to do is do that item by item and hear from all the parties.
PN13
At the conclusion of the conference, this will be referred to the AMOD team and the summary will be updated, together with the exposure draft and then, if necessary, I would be convening another conference. It is technical and drafting only at this stage, and of course if there are any matters that are identified that should be on a substantive matters list, then that will arise, as well. Does anyone have anything they wish to raise at the outset before I proceed?
PN14
MS BHATT: If I may, I have had some brief discussions with most of my colleagues at the bar table. It seems to me at least, having worked through this summary document prepared by the Commission, that there are several instances in which I am at least optimistic that the parties will be able to reach some resolution if we have some further discussions.
PN15
What I had intended to propose to you, Commissioner, once we work through the process that you have outlined today, is if the parties begin in a period of time to have some discussions. I think we can do that by way of a teleconference amongst us.
PN16
THE COMMISSIONER: Yes.
PN17
MS BHATT: And then report back to you in, for instances, say, four weeks.
PN18
THE COMMISSIONER: Yes. I had anticipated that sort of process and my next series of conferences in these matters are in the next four weeks, in any event. I was looking at a date, should it be necessary - and I can tell you that now so you can think about that. I was looking at, say, the afternoon of 26 April, for example, at 2.30. I already have one conference at 1 o'clock that day that I don't anticipate will go too long; so if we listed this at 2.30, say, if the parties were happy with that as a date. I just raise that now. All right. Item 1.
PN19
MS BHATT: It seems that apart from a submission put by the AWU, the remaining parties do not appear to have any difficulty with the change proposed by the Commission in the exposure draft.
PN20
THE COMMISSIONER: All right. Just so I understand you, Ms Bhatt, you are submitting that aside from the AWU - which I'll hear from in a moment, Mr Duncalf - other parties do not oppose what has been proposed as the wording by the Commission?
PN21
MS BHATT: Yes.
PN22
THE COMMISSIONER: Thank you. One thing also I would ask, if the parties don't mind - it's tedious - every time you make a submission, would you mind identifying who you are first. It's only for the transcript. It makes it much easier later to record. Thank you.
PN23
MR DUNCALF: Zach Duncalf, AWU. Our opposition to the change really revolves around just ease of use and reading. For clause 20.2, the heading of it says "Shift workers for the purposes of the NES."
PN24
THE COMMISSIONER: 20.2 of the exposure draft?
PN25
MR DUNCALF: Yes, your Honour.
PN26
THE COMMISSIONER: "Shift workers for the purposes of the NES", yes.
PN27
MR DUNCALF: Then underneath it, it says, "For the purpose of section 87(1)(b) of the Act."
PN28
THE COMMISSIONER: Yes.
PN29
MR DUNCALF: So it introduces a new term for the same thing. We would prefer that says, "For the purposes - - -"
PN30
THE COMMISSIONER: So you're saying "For the purposes of" is in fact covered by the heading "Shift workers"?
PN31
MR DUNCALF: Yes, or that "For the purposes of" - instead of "section 87(1)(b) of the Act" that should just be "for the purposes of the NES", just because that's easier to understand for anyone reading the document. If the heading refers to the NES, but then the body of it refers to the Act which is substantially the same but a different word or a different term for that Act, we would prefer the NES replaces any references - or in this case, in 20.2, the reference to "section 87(1)(b) of the Act" should be "for the purposes of the NES".
PN32
THE COMMISSIONER: So you would propose a change to the first line of 20.2. Instead of "For the purposes of section 87(1)(b)", for that to read, "For the purposes of the NES, a shift worker is an employee", et cetera?
PN33
MR DUNCALF: Yes, your Honour.
PN34
THE COMMISSIONER: That is something that will be certainly reflected in the summary. Is this a major issue for anyone?
PN35
MR RIZZO: Rizzo, on behalf of the ASU, Commissioner.
PN36
THE COMMISSIONER: Yes.
PN37
MR RIZZO: As we have said in our submission, we are comfortable with either scenario; either the Commission's wording or what has been put by the AWU.
PN38
THE COMMISSIONER: Thank you.
PN39
MR ARJONILLA: Arjonilla. We are not troubled by either wording, Commissioner.
PN40
THE COMMISSIONER: Thank you. Mr Robson?
PN41
MR ROBSON: If the AWU feels strongly, we would support them, but otherwise - - -
PN42
THE COMMISSIONER: No issue?
PN43
MR ROBSON: Yes.
PN44
THE COMMISSIONER: Thank you. Ms Bhatt?
PN45
MS BHATT: I don't think we have any opposition to what has been put.
PN46
THE COMMISSIONER: All right. Thank you. Item 2?
PN47
MS BHATT: Item 2 is not agreed. If I can just explain our position. There is a submission that has been put by the unions that the definition of "default fund employee" should be reinserted in the exposure draft. We understand that that term is not used in the exposure draft and so the definition doesn't need to be included.
PN48
THE COMMISSIONER: So it's an issue of whether or not the "default fund employee" definition should be placed back into clause 2 of the definition section of the exposure draft?
PN49
MS BHATT: Yes.
PN50
THE COMMISSIONER: You suggest that there is no need to do that. That is your position?
PN51
MS BHATT: Yes.
PN52
THE COMMISSIONER: Thank you.
PN53
MR ARJONILLA: Arjonilla from AMWU. On consideration of item 2, we are not going to press that particular amendment, Commissioner.
PN54
THE COMMISSIONER: All right. Thank you, Mr Arjonilla. The other parties?
PN55
MR RIZZO: Rizzo, on behalf of the ASU, Commissioner. As we said, we supported the position of the AMWU.
PN56
THE COMMISSIONER: They're not pressing it any longer though.
PN57
MR RIZZO: No, but we would actually see it replaced. It's in the current award. The definition is in the current award and it has been taken out, and we can't see why it has been taken out.
PN58
THE COMMISSIONER: Yes. If I understand Ms Bhatt - I understand what you're putting - her position is it is not necessary.
PN59
MS BHATT: It's not necessary because the term isn't used anywhere in the instrument.
PN60
THE COMMISSIONER: Isn't used in the - - -
PN61
MS BHATT: There is no need for a definition if the term isn't used.
PN62
MR RIZZO: You're saying it's not referred elsewhere in the award?
PN63
MS BHATT: That's right.
PN64
THE COMMISSIONER: Would you like some time to consider that?
PN65
MR RIZZO: We will withdraw that, Commissioner.
PN66
THE COMMISSIONER: Thank you. Anyone else? Mr Robson?
PN67
MR ROBSON: I share the views of the other union parties.
PN68
THE COMMISSIONER: Thank you.
PN69
MR DUNCALF: Zach Duncalf. We are of the same view as the union parties.
PN70
THE COMMISSIONER: Thank you. Item 3?
PN71
MS BHATT: Ai Group's submission is withdrawn.
PN72
THE COMMISSIONER: Does that mean - just bear with me. I want to check that no other parties - do any of the parties have a view on this matter? It's withdrawn. No? Thank you. Item 4?
PN73
MS BHATT: It's Ms Bhatt, Ai Group. Items 4 and 5 both relate to clause 7.2. Perhaps this is a matter that I can discuss with my colleagues from the unions in the intervening period before we next appear before you, Commissioner.
PN74
THE COMMISSIONER: Certainly.
PN75
MS BHATT: There doesn't appear to be - - -
PN76
THE COMMISSIONER: It's in relation to 7.2, is it?
PN77
MS BHATT: Clause 7.2, yes.
PN78
THE COMMISSIONER: Thank you. Do any of the parties oppose that position - or the proposition that is being put. It's not actually a position, but it is a method of dealing with it.
PN79
MR ARJONILLA: Arjonilla, AWMU. We have no concern with dealing with that outside the conference.
PN80
THE COMMISSIONER: Thank you.
PN81
MR DUNCALF: Zach Duncalf, AWU. We take the same opinion.
PN82
MR RIZZO: ASU is the same.
PN83
MR ROBSON: Robson. United Voice agrees.
PN84
THE COMMISSIONER: Thank you. Item 6?
PN85
MR DUNCALF: Zach Duncalf, AWU. We are of the view that the word "not" should be removed from this clause as it suggests that there is an alternative to the three types of employment listed. We just think it's a drafting error.
PN86
THE COMMISSIONER: I will just confirm for the transcript, if you don't mind - apologies, Mr Duncalf, and I'll come back to it - that items 4 and 5 were dealt with in the same manner as proposed by Ms Bhatt. That is that the parties will have discussions outside this conference and then report back at the next conference date. Item 6, so 8.2 you're saying, Mr Duncalf - how should that read? Would you read that out, what you're proposing.
PN87
MR DUNCALF: I propose that 8.2 reads without the "or not" after the word "whether" on the second line.
PN88
THE COMMISSIONER: I see. Thank you.
PN89
MR DUNCALF: It suggests that there is another type of employment other than full‑time, part‑time or casual. I think it's just a typographical error. I don't think it's anything more than that.
PN90
THE COMMISSIONER: You don't think it's controversial?
PN91
MS BHATT: Ms Bhatt for Ai Group. We have no opposition to the proposal.
PN92
MR ARJONILLA: The AMWU does not oppose that.
PN93
MR DUNCALF: The ASU supports that position from the AWU.
PN94
MR ROBSON: United Voice doesn't oppose it.
PN95
THE COMMISSIONER: Thank you. Item 7?
PN96
MR DUNCALF: Zach Duncalf, AWU. Our submission revolves around the wording of clause 10.4. Again the wording as it is, is fine, but we think that it could be improved upon with our proposed amendment, which would be - I've got to get it out. I'm sorry.
PN97
THE COMMISSIONER: Is it, "Any variation to the hours of work in clause 10.3 must be by agreement between the employer and the part‑time employee and recorded in writing?" Is that the - - -
PN98
MR DUNCALF: Yes, your Honour. That's correct.
PN99
MS BHATT: Ms Bhatt for Ai Group. Based on what we have seen put by the AWU in writing, we are not convinced that the amendment proposed is necessary, but we're happy to talk about it whenever we have some further discussions.
PN100
THE COMMISSIONER: From your perspective, Ms Bhatt, why don't I record that as I did with items 4 and 5; it's a matter that can be discussed by the parties outside this conference with a view to reporting back at the next conference.
PN101
MS BHATT: Thank you, Commissioner, yes.
PN102
MR ARJONILLA: The AMWU has no opposition to that.
PN103
THE COMMISSIONER: That process?
PN104
MR ARJONILLA: That process.
PN105
MR RIZZO: The ASU supports that process, Commissioner.
PN106
MR ROBSON: We agree, as well; United Voice.
PN107
THE COMMISSIONER: Thank you. Item 8?
PN108
MS BHATT: Ms Bhatt for Ai Group. Items 8 and 9 appear to relate to similar issues. That is, the manner in which the obligation to pay casual loading is expressed in the exposure draft and more specifically how casual rates are to be calculated.
PN109
THE COMMISSIONER: Is this about whether or not it's the ordinary rate, minimum rate and whether there is an all‑purpose allowance? Is it that type of argument?
PN110
MS BHATT: I think that argument doesn't arise in this exposure draft.
PN111
THE COMMISSIONER: I see.
PN112
MS BHATT: Because I don't think there are any all‑purpose allowances payable under this award.
PN113
THE COMMISSIONER: Okay.
PN114
MS BHATT: The issue I think relates to the circumstances in which casual loading is payable and, where it is payable, whether other penalties and loadings are compounded on the casual loading or they're calculated separately.
PN115
THE COMMISSIONER: I see.
PN116
MS BHATT: I think it might be appropriate that these also be dealt with by way of further discussions.
PN117
THE COMMISSIONER: Yes. Thank you.
PN118
MR DUNCALF: Zach Duncalf, AWU.
PN119
THE COMMISSIONER: Mr Duncalf, if you could perhaps just confirm that that is your understanding of the actual issue, to the extent that you can, that it in fact is an issue of whether or not the allowances that are referred to are actually compound in terms of the calculation of the casual rate and then we can go to the process that has been put forward by Ms Bhatt.
PN120
MR DUNCALF: I believe that's part of the issue. I have been approaching this merely from a drafting perspective, in that in the current award clause 10.5(b) is one body of text that provides for all the loadings and penalties and how a casual is to be paid, against clause 11.2 in the exposure draft - is just that exact paragraph broken up into three easier to understand pieces.
PN121
THE COMMISSIONER: Given what has been put by Ms Bhatt then, perhaps if I could suggest that that be put in the table of matters to be discussed by the parties outside this conference. You can report back, because it seems to me there is a difference at least on first blush in terms of how you are viewing these clauses.
PN122
MR DUNCALF: We would agree with that, your Honour.
PN123
THE COMMISSIONER: Unless you would like to continue the discussion in this conference at this stage.
PN124
MR DUNCALF: It just seems to me that we're here - - -
PN125
MR RIZZO: Commissioner, the ASU simply prefers the wording in the current award. I know that the exposure draft says a similar thing in different words, but our view is that the current award expresses what needs to be said well and it doesn't need to be rephrased.
PN126
MR ROBSON: Robson, for United Voice. I think in light of the dispute that we're having here, it may be easier simply to return to the original wording of the clause.
PN127
THE COMMISSIONER: In the award?
PN128
MR ROBSON: In the current award. Essentially we have got a dispute over the meaning of the clause. If we leave the clause as it is in the technical drafting phase as it is in the current award, we don't have to have that fight now. It preserves any of the existing authority on the interpretation of the clause. It allows us to proceed through to the substantive phase of these proceedings without too much disputation and it doesn't change anyone's existing legal rights.
PN129
If there is a genuine uncertainty to be corrected there, it can be pursued as a substantive claim or through the dispute resolution mechanism of the award.
PN130
MR DUNCALF: Zach Duncalf, AWU. We are not against retaining the current award provision. We were just merely expressing an opinion that we think the layout of the exposure draft is superior, but, as has been said by United Voice, restoring and using the current award clause will obviously obviate any need to argue on the penalty.
PN131
MR ARJONILLA: Arjonilla, AMWU. We are in support of the positions put by the other unions. If it is that the matter is to be dealt with outside of this conference by discussions, then we're willing to engage in that, but if the other three unions present are content to sit with the current wording, then we will support that position.
PN132
THE COMMISSIONER: All right. Thank you.
PN133
MS BHATT: Ai Group has no difficulty with the proposition that we return to the wording in the current award. If we can just briefly have a look at what that looks like though.
PN134
THE COMMISSIONER: Yes.
PN135
MS BHATT: I think that would mean that clauses 11.2 and 11.3 in the exposure draft are replaced with the current clauses 10.5(b) and 10.5(c).
PN136
THE COMMISSIONER: Of the award?
PN137
MS BHATT: Of the current award. It would appear to me, however, that at least one amendment would need to be made and that is this: both of those clauses refer to the "ordinary hourly rate", which is not a term that is used in the exposure draft, and we would say that that should be replaced with the term "minimum hourly rate" consistent with the terminology used in the exposure draft.
PN138
THE COMMISSIONER: Yes.
PN139
MS BHATT: I appreciate that is something that my friends might want to think about.
PN140
THE COMMISSIONER: Yes. I think given what you raised, what I'll do is table this as a matter that - the various positions of the parties will be reflected in an updated summary, but I think it's a matter that requires further discussion outside this conference between the parties. You can report back at the next conference.
PN141
MR RIZZO: Rizzo, from the ASU, Commissioner. We would agree with that. I think we would have an issue about the minimum rate versus the ordinary rate.
PN142
THE COMMISSIONER: Which is why I suggested there is some discussion between you. If that is a matter that is pressed ultimately, then that will be a matter that falls - there are a number of issues that are being pressed by parties and picked up with by either a single member or a Full Bench somewhere along the way, but it's not a question for today. For current purposes, I think the best course would be that the discussions between the parties outside the conference take place. You can report back at the next conference and then we can take it from there.
PN143
MR RIZZO: Yes.
PN144
THE COMMISSIONER: No one is being tied to any particular position today. All right. Ms Bhatt, I think I understood you initially to say that that submission applied, in essence, to items 8 and 9.
PN145
MS BHATT: Yes, Commissioner.
PN146
MR ROBSON: Although I think United Voice has something further to say on item 9 which relates to our submission.
PN147
THE COMMISSIONER: Yes.
PN148
MR ROBSON: It seems that we have misunderstood the operation of the current clause and we would like to withdraw that submission, and say that we support the position of the AMWU and AWU in opposing the AiG's submission on this point.
PN149
THE COMMISSIONER: All right. Thank you. That will be noted, but in terms of process it's going to form part of the discussions that are taking place.
PN150
MR ROBSON: Of course.
PN151
THE COMMISSIONER: Item 10?
PN152
MS BHATT: Ms Bhatt for Ai Group. There are two matters that have been raised by the AMWU. Can I just indicate that the first of those, Ai Group agrees that that amendment should be made. It's my understanding that the AWU has raised the very same issue. The second issue raised by the AMWU is not agreed by Ai Group.
PN153
THE COMMISSIONER: Which one is that?
PN154
MS BHATT: It's referred to in the summary of submissions as follows: "After first bullet point, delete 'and' and
PN155
replace with 'or'", in clause 16.3(c)(v) of the exposure draft.
PN156
THE COMMISSIONER: 16.3(c)(v)?
PN157
MS BHATT: Yes.
PN158
THE COMMISSIONER: After bullet point, delete - is this in the exposure draft?
PN159
MS BHATT: Yes, Commissioner. 16.3(c)(v), end of the first bullet point. It's my understanding that the AMWU is submitting that the word "and" should be replaced with "or". Our position is that if that change were made, it would likely amount to a substantive change to the current entitlement, but we're quite happy to have a discussion about that. It might be that there is some underlying rationale that we haven't yet comprehended.
PN160
THE COMMISSIONER: Yes, all right.
PN161
MR ARJONILLA: Arjonilla, AMWU. We're confident that is a matter that can be dealt with in discussions.
PN162
THE COMMISSIONER: Okay. The first part of that has been agreed, as I understood you, Ms Bhatt. The second part of item 10 is going to be the subject of further discussions between the parties.
PN163
MS BHATT: Yes.
PN164
THE COMMISSIONER: Item 11?
PN165
MR DUNCALF: Zach Duncalf, from the AWU. It's our view that the consultation that must take place at clause 26 of the exposure draft applies to all instances - "Where an employer proposes to change an employee's regular roster or ordinary hours of work" - and therefore it does apply to clause 18, and it must be satisfied before the processes of clause 18 take place. We, as a result, support the AMWU's amended proposed clause in their reply submission.
PN166
MS BHATT: Is Ms Bhatt for Ai Group. We have considered what has been put by the AMWU and we do not agree with that proposal, but again we're happy to have a discussion to explain the basis for that. I understand that the origins of this is a question that has been put by the Commission.
PN167
THE COMMISSIONER: Are you suggesting that that take place outside - is that another matter you would like to pursue outside - - -
PN168
MS BHATT: We can discuss it in the intervening period, yes.
PN169
MR ARJONILLA: Arjonilla. We have got no opposition to discussing that matter outside the conference, as long as it is that our position is clear. It's clear what our position is?
PN170
MS BHATT: I understand the variation that you're seeking, yes.
PN171
MR DUNCALF: Zach Duncalf, AWU. I don't think the amendment itself changes the operation of clause 18 or how it interacts with clause 26. I think it's merely a clarification.
PN172
MR RIZZO: Commissioner, Rizzo, on behalf of the ASU. We support the AMWU's submission. We're not opposed to it going to a teleconference outside of this conference. Just for all our benefits, Commissioner, I found this confusing. On page 22 of the draft award - - -
PN173
THE COMMISSIONER: Yes.
PN174
MR RIZZO: - - - which is at the bottom of 18.5, in the box supplied by the registry it talks about "18.5 interacts with clause 16". That should be clause 26, which is the consultation clause.
PN175
THE COMMISSIONER: That is a typo, I take it.
PN176
MR RIZZO: Yes. It's just confusing, so - - -
PN177
THE COMMISSIONER: Thank you for pointing that out. Yes, that certainly appears to be the case. That will be amended. I'm not sure that there is much scope for agreement on this issue at this point, Mr Duncalf, notwithstanding what you say. I think Ms Bhatt quite clearly has a different view, so I think it's another matter that you might benefit from further discussion about outside this conference, unless there is something further you would like to hear from Ms Bhatt as to how she frames her position.
PN178
MR DUNCALF: I would appreciate hearing that.
PN179
THE COMMISSIONER: All right. Thank you.
PN180
MS BHATT: I can speak to it briefly. Firstly, we say that the obligation under clause 26, the consultation clause, may not necessarily arise in all circumstances. That is, the obligation to consult arises only where a change to a regular roster will impact on a particular employee and the obligation to consult is with that employee.
PN181
THE COMMISSIONER: May not always arise, is what you're saying, the obligation to consult?
PN182
MS BHATT: Yes. So if you're implementing a roster change pursuant to clause 18, the obligation to consult under clause 26, we say, will not necessarily arise in every circumstance in respect of every employee on that roster. It only arises if it will have an impact for that employee's regular roster. That's what clause 26 says.
PN183
THE COMMISSIONER: You're saying, in essence, also that a clause 18 roster change doesn't automatically trigger clause 26.
PN184
MS BHATT: It does not automatically trigger.
PN185
THE COMMISSIONER: Is that the point?
PN186
MS BHATT: That's correct. The provisions should be read together and there may be circumstances where clause 18 applies in which the obligation to consult under 26 also arises.
PN187
THE COMMISSIONER: Arises.
PN188
MS BHATT: But that will not always be the case.
PN189
THE COMMISSIONER: Sure.
PN190
MS BHATT: It's also our view that where it does arise, the process set out at clause 18.5 may to some degree subsume the obligation to consult under clause 26. That is, if the employer goes through the requisite process that is required by clause 18.5, to some degree they have probably satisfied their obligation under clause 26, but that's a matter that you would have to give consideration to, based on the circumstances.
PN191
THE COMMISSIONER: On a case by case basis.
PN192
MS BHATT: Precisely.
PN193
THE COMMISSIONER: I take it that's your submission.
PN194
MS BHATT: Precisely. The insertion of a reference to another clause of the award that may or may not apply, we don't think that that makes the instrument easier to understand. The provisions stand as they are. They should be read together and consideration should be given based on the circumstances at hand as to whether or not an obligation under 26 in fact arises.
PN195
MR RIZZO: Commissioner, the ASU would disagree with that position.
PN196
THE COMMISSIONER: Mr Rizzo.
PN197
MR RIZZO: Yes, Rizzo. The interaction between 18.5 and 26 for us is obvious and it's augmented by the fact that in 2013 the parliament, as you know, introduced specific requirements about shift work consultation and roster consultation and the like with employees. So apart from the awards insisting on consultation on rosters and shifts, the parliament also amended the Act to ensure that the consultation on rosters and shifts was prevalent and not just implied. We would say that there is an obvious nexus between the two clauses and that consultation would have to occur.
PN198
THE COMMISSIONER: In all cases, you're saying, so you don't accept any proposition as has been put by Ms Bhatt that there may be cases where a clause 18 situation doesn't automatically trigger a clause 26 situation. Even if it did, that the process might have been dealt with efficiently under clause 18.5 which doesn't require 26 at all, but that's to be decided on a case by case basis. You don't see that as a - - -
PN199
MR RIZZO: No. For example, Ms Bhatt has put it in the singular - about a singular employee being impacted upon - but in clause 26 it talks about "employee or employees". It doesn't talk about just a single - it uses "employees" in a plural sense. Given that this is such an important part of work and, as I said, augmented by the 2013 amendment to the Act, yes, I just see an obvious nexus between the two clauses and you just can't pick and choose when you need to consult and when you don't.
PN200
MS BHATT: We're not proposing that we pick and choose. The proposition is simply this: clause 26 should be read on its face. The determination should be made as to whether or not it applies in the specific circumstances and, if it does, then the words say what they say. The provision applies. If you look at what clause 18.5 actually does, it provides for the circumstances in which an employer can or either cannot change the structure of a roster or implement a new roster.
PN201
Now, if an employer proceeds to do that, if an employer proceeds to change the structure of a roster or to implement a new roster, it does not necessarily follow that a particular employee's regular roster will necessarily change. It may, it may not. Now, if it does, then probably clause 26 applies, but, if it doesn't, then clause 26 has no work to do. Any variation to clause 18 that extends the obligation to consult under clause 26 to all such circumstances would be a substantive change.
PN202
THE COMMISSIONER: I've just been looking at the submission again. In essence, would it be your position, Ms Bhatt, that the word "and" in the AMWU's submission as to clause 26 - in the submission dated 18 January 2017, if you go to that. The word "and" there - in 18.5 it says, "All affected employees agree and the requirements of clause 26 are met."
PN203
MS BHATT: Yes.
PN204
THE COMMISSIONER: You have a problem with that word "and" there because your position is that it changes the operation of the clause substantively.
PN205
MS BHATT: Yes.
PN206
THE COMMISSIONER: Potentially.
PN207
MS BHATT: I'm not sure even if the word "and" were removed and the proposed subclause (c) remained, that that would necessarily resolve the concern. I mean, the way this proposal reads, an employer would be prohibited from changing the structure of a roster or implementing a new roster until the obligation under clause 26 has been satisfied.
PN208
THE COMMISSIONER: Well, certainly on first reading you would have to satisfy that in addition to everything else.
PN209
MS BHATT: In addition to everything else.
PN210
THE COMMISSIONER: Yes.
PN211
MS BHATT: Yes.
PN212
THE COMMISSIONER: It seems.
PN213
MR ARJONILLA: Arjonilla, AMWU, if I may.
PN214
THE COMMISSIONER: Yes.
PN215
MR ARJONILLA: Leaving aside the wording of that clause for a moment, may I ask Ms Bhatt a question briefly?
PN216
THE COMMISSIONER: Of course. This is what it's about.
PN217
MR ARJONILLA: Thank you. What is your position in relation to - and I'm not trying to bind you to a position here. I just want to understand where AiG sits on this. In your preliminary view, when is it that the obligation under 26 is triggered?
PN218
MS BHATT: When the circumstances that it describes arise where an employer proposes to change an employee's regular roster.
PN219
MR ARJONILLA: Okay. The obligation to consult would run parallel or in conjunction with the obligations in clause 18 or would they have to be satisfied prior? The reason I say this is because if we can settle on matters of principle, then the wording of any alteration that may or may not be necessary will flow.
PN220
THE COMMISSIONER: Why don't we - and I don't mean to cut you off here, but given what I sense is happening, might it be preferable, and given that we're on the record at the moment, that this level of discussion takes place at this stage outside of this conference along the lines of some of the other matters that have been raised, because it's requiring really a little bit of on‑the‑run‑type admission or answers; but I think it's very clear where you're coming from.
PN221
Ms Bhatt, I presume it's pretty clear what is being suggested, so if you could take that on board perhaps and have discussions with the other parties along the lines of what has been discussed.
PN222
MS BHATT: And I will give consideration to precisely what you have just asked me.
PN223
THE COMMISSIONER: Precisely what has been put.
PN224
MS BHATT: Yes.
PN225
THE COMMISSIONER: Then perhaps this could be a matter that is reported back at the next conference, if the parties are happy to proceed on that basis. All right. Item 12?
PN226
MR ARJONILLA: Arjonilla, AMWU. This is a matter that goes to the question as to which rate is payable. Under the previous award, there was a reference to double time in relation to the rest period after overtime. In the exposure draft, that reference has been replaced by a defined term being "minimum hourly rate". Our immediate concern with that was that it altered the manner of payment under the award. That is to say that our understanding of the award was that the allowances were all paid for all purposes.
PN227
Now, to that end the AMWU is willing to have some discussions with the other unions to clarify their view on that matter. If it is that we press it, it's obviously a considerable matter and perhaps it could be best dealt with within the confines of the teleconference between the parties if others are happy with that course of action.
PN228
MS BHATT: Ai Group is quite content with that course of action. Just based on what has been put, if I can just raise this for your consideration between now and then: it's my understanding that there are no all‑purpose allowances payable under this award. If the position is pressed, if you can identify for us the next time we discuss this what other amounts you consider are payable.
PN229
MR ARJONILLA: Certainly.
PN230
MS BHATT: That might assist in progressing the matter.
PN231
MR ARJONILLA: That is understood.
PN232
THE COMMISSIONER: Are the other parties happy to proceed on that basis?
PN233
MR DUNCALF: Zack Duncalf, AWU. Yes, your Honour, we are.
PN234
THE COMMISSIONER: Thank you. Mr Robson?
PN235
MR ROBSON: We have no opposition to that.
PN236
THE COMMISSIONER: Thank you. Mr Rizzo?
PN237
MR RIZZO: Commissioner, we have a view that we should simply retain the current award clause. We see that the current award clause does not disadvantage anyone.
PN238
THE COMMISSIONER: That will be noted and form part of the submissions. All right. Thank you. Item 13?
PN239
MR ARJONILLA: That would be dealt with in the exact same process.
PN240
THE COMMISSIONER: I see. Of course.
PN241
MR ARJONILLA: If you're content with that, Commissioner.
PN242
THE COMMISSIONER: Yes. Ms Bhatt, are you content to do that?
PN243
MS BHATT: Yes, Commissioner.
PN244
THE COMMISSIONER: Thank you. Are the other parties - - -
PN245
MR RIZZO: Yes, ASU.
PN246
MR ROBSON: United Voice agrees.
PN247
MR DUNCALF: AWU. Yes, your Honour.
PN248
THE COMMISSIONER: Thank you. Item 14?
PN249
MR ARJONILLA: Arjonilla. That is a typographical matter. It, I would imagine, could also be dealt with in the course of discussions between the parties, unless there is a particularly ardent objection to that change.
PN250
MR DUNCALF: Zach Duncalf, AWU. We support the restoration of "calculating" instead of "computing". It's just a preferable term.
PN251
THE COMMISSIONER: You believe that is just a typo? Is that, in essence, what - - -
PN252
MR DUNCALF: In the sense that certainly I would imagine that those that drafted the exposure draft did so intentionally so it's not a typographical error per se, but it's just simply a matter of wording that we prefer.
PN253
MS BHATT: Ai Group has no opposition.
PN254
MR ROBSON: United Voice agrees with the AWU and AMWU.
PN255
THE COMMISSIONER: Thank you. Mr Rizzo?
PN256
MR RIZZO: The ASU also agrees with the AMWU, Commissioner.
PN257
THE COMMISSIONER: All right. Thank you.
PN258
MR RIZZO: So that is the agreed outcome then?
PN259
THE COMMISSIONER: Yes. Item 15?
PN260
MS BHATT: Ai Group withdraws its submission.
PN261
THE COMMISSIONER: That being said then, there is nothing else left in item 15. All right. Thank you. Unless there is anything further the parties need to raise, what then I suggest will happen is discussions take place between the parties between now and the next conference. The summary submissions, technical and drafting, will be amended to reflect what has been put today and will be circulated to the parties along with an exposure draft with some changes. I probably will see you on 26 April. Have you agreed - my apologies - to 26 April?
PN262
MR RIZZO: We were going to confirm that, I think, Commissioner.
PN263
THE COMMISSIONER: All right. I'm happy to confirm it.
PN264
MR RIZZO: The ASU can confirm that, Commissioner.
PN265
MR DUNCALF: AWU confirm that.
PN266
MS BHATT: That's fine, Commissioner. Thank you.
PN267
MR ROBSON: That's fine for United Voice, too, if it pleases.
PN268
MR ARJONILLA: And suitable for the AMWU. Thank you.
PN269
THE COMMISSIONER: Thank you.
PN270
MR RIZZO: Is that in the afternoon, Commissioner? 2 pm?
PN271
THE COMMISSIONER: I have a 1 clock that I don't think will go long, so I was thinking 2.30 and we can sit longer if the parties need to.
PN272
MR RIZZO: You're conscious, Commissioner, it's the day after Anzac Day, if that makes any difference.
PN273
THE COMMISSIONER: Not to me.
PN274
MR RIZZO: Okay.
PN275
THE COMMISSIONER: Should it?
PN276
MR RIZZO: No, it's just a public holiday and people - - -
PN277
THE COMMISSIONER: Which is why I ask you if you - - -
PN278
MR RIZZO: No, it's not a problem for me.
PN279
THE COMMISSIONER: All right. Thank you. I will adjourn then until the 26th.
ADJOURNED UNTIL WEDNESDAY, 26 APRIL 2017 [10.58 AM]