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Fair Work Act 2009                                       1056206






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Silviculture Award 2010




10.32 AM, MONDAY, 30 JULY 2018


JUSTICE ROSS:  I have Mr Crawford in Sydney for the AWU and Mr Rogers from the NFF in Canberra.  The purpose for listing this matter is to work out how we're going to deal with the outstanding substantive issues in relation to the Silviculture Award.  The outstanding issues are two claims by the AWU in relation to piece work rates.  Both rates are opposed by the NFF.  The claims were made some time ago in April 2016, I think, and as has been the experience with quite a few of these matters, perceptions change over the course of time and what might have been an issue turns out not to be one that a party wants to pursue through to finality.  The first question is whether the AWU still wishes to pursue these matters?  There were items 10 and 17. They're dealt with in the group 3 decision at - I think at or around paragraph 367 to 374.  If you want some time to consider whether you want to pursue them or not, or if you're able to answer now, whichever suits you.


MR CRAWFORD:  Your Honour, I think it's fair to say that these issues are not substantial concerns for the AWU given the nature of the industry and I guess the nature of the outstanding issues.  I think it's fair to say that we're not - we wouldn't be proposing to run a significant merit case in support of substantive variations.  The issues we would say were more raised in the context of maybe clarifying issues with the current award that arose during the exposure draft process.  At the time we perhaps didn't think they would be all that controversial, particularly the first claim which relates to a piecework agreement being in writing, which we would say probably has we would have thought merit for both parties given that it affords protection to both parties potentially if a dispute arises.


The second issue is I guess more complicated in that involves leave entitlements for permanent pieceworkers.  We haven't actually encountered any practical issues on the ground.  I guess that's why I say we're not really - we don't really have the appetite for a significant case.  It does appear certainly arguable that current provisions are ambiguous and if the Commission formed the view that they should be clarified as part of this process, we would certainly participate but I think fundamentally we're not - yes.


JUSTICE ROSS:  Well, can I take from that the following; that you want to pursue the first item that an agreement should be in writing.  You're not envisaging an evidentiary case in support, rather the proposition is that you think it'd be common sense so parties can understand their rights and obligations.


In respect of the second matter, and I agree it has a degree of complexity about it, there isn't - you haven't encountered a particular problem at the moment.  Can I suggest this course, that - I'll come back to the first change in a moment in writing, but with the second matter of course you can seek to vary an award at any stage to clarify an uncertainty or ambiguity.  So in the event once we're through the review process and the new awards are made, if those provisions are causing a practical problem then you can of course bring them back, highlight the practical problem and then we can examine it in more detail at that stage.


I think absent some material around a practical problem, it's quite an involved issue and I'm not sure the Commission sort of would be minded to add it to its list of things of inquire into without some factual context.  So that's the second time.  You can give some consideration to that and let me know what you think.


MR CRAWFORD:  I think that all makes sense, your Honour.


JUSTICE ROSS:  Right.  In relation to the first, it seems like it can be a relatively short written submission process and we can determine it on the papers.


MR CRAWFORD:  Yes, we'd agree with that.  If it is still opposed - - -


JUSTICE ROSS:  Well, certainly, I'll go to Mr Jones in a moment and find out if the second matter's not pursue is the NFF opposing the proposition that a piecework agreement should be in writing.  I'll come back to that.  If the NFF is opposed then we can deal with it by the course that I've outlined.


MR CRAWFORD:  Yes, thank you, your Honour.


JUSTICE ROSS:  Thanks, Mr Crawford.  So Mr Jones you've heard - sorry, Mr Rogers.  I don't know why - I had a Mr Jones earlier, so - so Mr Rogers, what's being put is that the second matter which I understood the NFF to have more significant concerns about won't be pursued at this stage.  In the event that a practical matter arises and we have some factual context in which we can deal with that matter then a party can bring that on and it can be dealt with as an ambiguity or uncertainty.


The AWU is proposing an amendment to clause 10.4(a) of the exposure draft to require that the agreement to work piecework rates be in writing.  What's the NFF's position in relation to that proposition?


MR ROGERS:  Your Honour, do you need me to stand or is it easier to be seated?


JUSTICE ROSS:  No, not at all.  No, no, it's fine.  In fact if you stand I can't hear you so - - -


MR ROGERS:  I thought that might be the case.




MR ROGERS:  So obviously we're comfortable with the approach to the second issue.  In relation to the first issue the honest truth is that I haven't been able to get clear instructions and this is a matter that's obviously - was first raised as your Honour said a couple of years ago.




MR ROGERS:  From my own point, I can see the merit in having it in writing so I'm not quite clear why we opposed that position two years ago, but that's obviously - I can't speak on behalf of the industry because I haven't been able to get those instructions.


JUSTICE ROSS:  No, that's fine.  Look, I think if it helps you, I think the time and wages record regulations require it to be recorded if someone's being paid by piecework.  That's my recollection anyway.  I've not looked at it for a while.  Do you want an opportunity to confirm what your position is.  I could deal with it this way, for example. Ask the AWU to file by the end of next week their short submission in support of their proposition and that should give you enough time to give some thought to and to consult with your constituency.  Then perhaps a week after that if you can put a submission in reply.


MR ROGERS:  I'm certainly comfortable with that way forward, your Honour.


JUSTICE ROSS:  Right, so let me just give - - -


MR ROGERS:  Can I just - - -


JUSTICE ROSS:  Yes, certainly, yes.


MR ROGERS:  Sorry, your Honour.


JUSTICE ROSS:  No, that's all right.


MR ROGERS:  There just seems to be another aspect to that, just having read through some of the submissions there did seem to be another aspect to that issue.  I think we proposed or the NFF had proposed some different language in respect of how the - if I can call it the flaw on the amount that the pieceworker can earn is expressed.




MR ROGERS:  I think the AWU had a different view, so it just seems to me that there are actually two issues there, there's not simply the issue of whether the agreement should be in writing.  It's also how that flaw is expressed  in the award.


JUSTICE ROSS:  Well, if - - -


MR ROGERS:  I guess I'm just asking if that's still a live issue as well?


JUSTICE ROSS:  Yes, certainly.  Well, the current clause in the exposure draft reflects that the provision in the current award and yes, I'm not clear really what - other than in writing, the agreement in writing, I think you wanted the agreement to also specify the applicable piecework rate.  That was the AWU's proposition, I think.


MR ROGERS:  That wasn't the issue that I was getting at, your Honour, but I might be mistaken.


JUSTICE ROSS:  No, no, you're right, there's a difference in language. I'm just not sure - - -


MR ROGERS:  The exposure draft I think says provided that:


Where an employee works on piecework rates the employee must be paid at least the ordinary hourly rate.




MR ROGERS:  In our submission, we substituted the words "ordinarily hourly rate" at the end there with:


The amount the employee would have received for time work at the ordinary hourly rate for the relevant classification.


And I think the AWU has some different language there as well but I - - -


JUSTICE ROSS:  Yes, well look on the face of that I think the NFF's language is clearer.


MR ROGERS:  That was my view, yes.


JUSTICE ROSS:  They make it clear that it's, you know, it's at least the amount the employee would have received for time worked at the ordinary hourly rate of pay for the relevant classification, so it makes it clear that it's their classification rate, hourly rate that's the one you benchmark it against.  Whereas that's not clear - you would assume that would be the case but it's not clear from either the current award or the exposure draft.


Well perhaps I'd encourage the AWU to reflect on the NFF's proposed wording and I'd encourage the NFF to reflect on the proposition that there be an agreement in writing and if you can give some attention to that, Mr Crawford, in your submissions which would be filed by 4 pm, Friday 10 August and then Mr Rogers, yours in reply by 4 pm, Friday 17 August.  I'd also encourage you each to discuss it between yourselves and see if you can sort something out.  The Full Bench will determine that matter on the papers.  Was there anything else you had, Mr Rogers?


MR ROGERS:  No, thank you, your Honour.


JUSTICE ROSS:  Anything from you, Mr Crawford?


MR CRAWFORD:  No, thank you, your Honour.


JUSTICE ROSS:  Thank you both, I'll await your submissions.  I'll adjourn.


MR ROGERS:  Thank you, your Honour.

ADJOURNED INDEFINITELY                                                        [10.43 AM]