PN1418

VICE PRESIDENT HATCHER: Mr Delaney, I think you're the only new appearance today for ASIAL?

PN1419

MR C DELANEY: Yes. Thank you, your Honour.

PN1420

VICE PRESIDENT HATCHER: How do we wish to proceed? Mr Bull, is it convenient that you open and address the remaining United Voice submissions to the extent you haven't already?

PN1421

MR S BULL: That might be a convenient way to proceed.

PN1422

VICE PRESIDENT HATCHER: Then parties can respond seriatim to your submissions, starting with parties who support your application and then parties who oppose it. But just putting that to one side, then there's the separate issue with respect to the Educational Services (Schools) General Staff Award, is that right?

PN1423

MR A ODGERS: Yes, that's right, your Honour, and we would intend to make submissions supporting our written submissions in the matter of no more than five to 10 minutes.

PN1424

VICE PRESIDENT HATCHER: All right, and Ms Bailey?

PN1425

MS BAILEY: It will be a short submission.

PN1426

VICE PRESIDENT HATCHER: All right.

PN1427

MR BULL: We also have a small claim in relation to that award concerning the early childhood education people.

PN1428

VICE PRESIDENT HATCHER: Yes, all right. I think what we'll do is we'll start off with you, Mr Bull, and then we'll see how we go.

PN1429

MR BULL: We've got a number of claims. They are in relation to the Ambulance and Patient Transport Industry Award, the Claiming Services Award, the Corrections and Detention (Private Sector) Award, Dry Cleaning And Laundry Services, Educational (Schools) General Staff, Education (Schools) Teachers, the Miscellaneous Award and the Security Award. These remaining claims are on a spectrum where some are clarification, some are in substance more substantive, but they're perhaps less substantive than what was dealt with by the Full Bench yesterday. They deal with perhaps to varying degrees the fact that in a number of modern awards the actuality of overtime is not properly reflected in the text of the instrument in a number of the ones which I'm going to take you today. There are general statements that casuals receive overtime, but then there is no concrete way in which you can actually construct the entitlement. That varies. There are some where we say that you just need to place in a clear entitlement.

PN1430

A number of these awards can also be distinguished from yesterday on the basis that they're by and large areas where they're not - they don't cover sectors with significant award reliance, and that perhaps can be given as the historical explanation why this place and its predecessors took a relatively cursory approach to the construction of the entitlement, because it wasn't of it a pressing industrial necessity. Perhaps the best example is the Corrections and Detention Award, which is a relatively small sector. It covers private prisons, and it was traditionally an area which was agreement‑covered, and agreements tended to pay a significant tariff above the safety net. It tends to continue to be agreement‑covered, but through to the mechanism of contracting and so forth, there are now agreements that are not significantly above the award. So this is a sector where the safety net has unfortunately become more relevant than it was at the time of award modernisation. And similar general sort of structural principles apply, or structural realities apply in some other areas. security services is perhaps a special case and I'll deal with that later.

PN1431

We are suggesting that in relation to how you approach these remaining variations and the review of these remaining modern awards, in the context of this common issue, that it is you sort of look at some general principles, and we are putting to you that the notion of cost equivalence is a useful way to construct the overtime entitlement of a casual employee, namely, these modern awards as safety net instruments shouldn't make a casual in terms of cost a more desirable type of employee to engage than a permanent employee. So where possible we have sought to clarify or construct, and as I say, I don't think there's a logically defensible distinction. Sometimes we're adding, but often we'd say we're clarifying. We've attempted to construct in a clear sense the overtime entitlement, which broadly reflects the entitlement of the permanent employee, and in some of these awards it does actually become a quite complex task. Dry cleaning is a good example where there are distinct entitlements for laundry workplaces and dry cleaning workplaces and so forth. So the desirability of cost equivalence also - underlying that assumption is the broad I suppose proposition which Professor Muurlink's evidence went to - is that long durations of work are physiologically undesirable for the individual. There should be a clear signpost for employers that beyond a certain point there's an increased cost in relation to engaging an employee beyond certain durations.

PN1432

I do in the submissions which we filed earlier go into sort of what I call general principles. I won't necessarily go over that in detail. There are matters that we say you're able to take as findings from the earlier proceedings in the part‑time and casual common issue concerning some general propositions about overtime and so forth. There's a feature of - overtime is related to section 62 of the Act, which does seem to demand signposts in relation to ordinary hours and then what would be termed additional hours. The manner in which section 62 works is that it asks for or suggests that it's a capacity to refuse. There are some difficulties strictly applying the notion of ordinary hours to a casual employee, because inherently a casual employee's ordinary hours are going to be at the whim to a certain extent of what the employer offers that particular employee, but we're still stuck to a certain extent with a typology where we're trying to set for casual employees ordinary hours, and we say that the sensible way to do that is for intra‑week hours - 38 is a statutory imperative; that's what the parliament says ordinary hours for a full‑time employee are per week, and that is, we say, an appropriate benchmark to take.

PN1433

It's not inconsistent with the evidence of Professor Muurlink. His evidence is that disutility - and this is a summary of it - it starts to arise around 38. There's definite disutility for the employee after 40, and it gets worse thereafter. So 38 is - the task is relevantly easy, because the parliament has set that number and that should be worked off. In relation to intra‑day durations, the appropriate way, we say, to find the duration is to look at what the modern award currently says should apply in relation to permanent workers, and then try and align up intra‑day durations for a casual employee.

PN1434

We do make some general comments about averaging. One of the features of modern awards' treatments of the problem posed by section 62 of the need for hours is that overtime is not the only way you can do it. There are various other ways that you can theoretically - a modern award can comply with section 62. The Ambulance and Patient Transport Award is a good example. It has rostered days off. Many modern awards have time off in lieu. The Ambulance and Patient Transport Award has a provision where if you work 40 hours a week you get additional leave and so forth. That does solve the problem. The problem with almost all other mechanisms is that we say they can't apply with any particular - they can't apply to a casual because they're all premised on the employee having permanent work. So you can't give a casual a rostered day off; you can't give a casual time in lieu, because there's no sense in which they can be relieved of paid hours, which they have a right to have. So you're left with overtime as probably the main vehicle in relation to attempting to demarcate ordinary hours for a casual employee.

PN1435

I was just going to go to some of the specific variations we're urging on the Commission.

PN1436

VICE PRESIDENT HATCHER: What I think we would like to do is just take us through every single one. So we've got your amended draft determinations of 26 July, so if you could kindly take us to each one and explain in each case - - -

PN1437

MR BULL: The first one, I'll go to the Ambulance and Patient Transport.

PN1438

VICE PRESIDENT HATCHER: Yes.

PN1439

MR BULL: So this one is relatively simple. All we're seeking is that there's clear provision in this particular award for intra‑week overtime, and this is another sector which is by and large agreement‑covered. The award is of no - there are small pockets of employees who are award‑reliant, but it tends to be - it's unusual work, so it's freelance ambulance work, people who have attended festivals and so forth. The bulk of this work is in government or government‑sponsored ambulance services, and they by and large tend to be - they're highly specialised (?), and they tend to have agreements, and the agreements tend to be a reasonable increment above the award. We're not seeking an intra‑day provision, and this is obviously on instructions from our ambulance members, and the reason for that is that there isn't - it's the industrial custom for ambulance officers to work often long intra‑day shifts, so a 14‑hour shift is not uncommon, and they work a few of those and then have a significant period off. So in consultation, the - and it's also highly structured work in that it tends to be - they're quite rigid and complex rosters; you don't tend to get sort of called in to do an extra few hours as an ambulance officer, because they're essentially providing a vital service. There are roster patterns that are relevantly rigid, so there wasn't seen as a need to set an intra‑day limit, because the intra‑day limit will industrially be determined by the roster which reflects the provision to provide service.

PN1440

VICE PRESIDENT HATCHER: So if St John's Ambulance provides a service, say, to a football match, is that covered by this award?

PN1441

MR BULL: It would be I believe, and that would be the small - well they would probably have an agreement. I don't know whether there's a lot of award‑reliant ambulance officers. St John's would be the main one that provides that more ad hoc service to events and so forth. In relation to this particular award we're only seeking a variation, which in effect clarifies that for a casual employee it's the intra‑day duration set by the roster, and that's going to be what the roster says, but this was the strong message we got from our ambulance members. They didn't want restrictions on intra‑day overtime durations because there is this pattern of long shifts, which they're happy with.

PN1442

VICE PRESIDENT HATCHER: Clause 24.1(a) is the provision which establishes the intra‑day overtime criterion, and it doesn't exclude casuals. I mean, what are you seeking that that provision doesn't already do?

PN1443

MR BULL: Well we're seeking clarity, that's all. So it's a clarification and - - -

PN1444

VICE PRESIDENT HATCHER: What's clarifying? What's the - - -?

PN1445

MR BULL: I beg your pardon?

PN1446

VICE PRESIDENT HATCHER: What are we clarifying?

PN1447

MR BULL: Well we are getting an intra‑week criteria for overtime for casuals.

PN1448

VICE PRESIDENT HATCHER: I'm asking you why isn't that already existing in clause 24.1(a).

PN1449

MR BULL: Because you could fix in a week - you could fix 40 hours for a casual, and they wouldn't get overtime.

PN1450

VICE PRESIDENT HATCHER: But we're talking about days, aren't we? I mean, there's no doubt - - -

PN1451

MR BULL: Well in that sense, I can agree with you.

PN1452

VICE PRESIDENT HATCHER: I see. So it's the emphasis on 38 hours per week?

PN1453

MR BULL: Yes, that's the substantive claim.

PN1454

VICE PRESIDENT HATCHER: I see.

PN1455

MR BULL: The other one is just a clarification - - -

PN1456

VICE PRESIDENT HATCHER: I see.

PN1457

MR BULL: - - - of the industrial practice, which is, you know, we want overtime per day determined by the roster. So you could have a fixed duration of work in a day, which is 14 hours, which isn't uncommon. But the problem with (a) for a casual is that you have a number of hours fixed in a fortnight that are, you know, 90, and that wouldn't allow the casual who is engaged to do that work pattern any premium, whereas a permanent gets a day off and so forth, and various other entitlements accrue in lieu of a money premium for the hours. So I don't know whether (a) - and (a) is - this is an amendment which is - it has been drafted with the persons who do the work; that's what they wanted.

PN1458

VICE PRESIDENT HATCHER: All right.

PN1459

MR BULL: And the substantive variation is in relation to the intra‑week routine. So that's the Ambulance Services.

PN1460

VICE PRESIDENT HATCHER: So Cleaning Services Award?

PN1461

MR BULL: Cleaning Services, so this is also clarification. Cleaning is an area which is award‑reliant. Probably the biggest cohort in cleaning is part‑timers. There's flexible part‑time work where the part‑timers get a 15 per cent loading for flexibility, and likely in an industrial sense, the part‑timers fill the position that casuals fill in other awards. Once again, this is for clarification. There is a provision in the Cleaning Award at 24.2 that does seem to provide to casual employees overtime. What we're seeking, and it's partly because of the nature of the sector covered and the fact that the award is currently complex, just a provision in 28.7, which is the overtime clause, and if you look at 28 - there's 28.5 currently, and there's 28.6 - those respectively deal with full‑time and part‑time work. There's some duplication arguably, but we just seek the provision - - -

PN1462

VICE PRESIDENT HATCHER: Duplication with what?

PN1463

MR BULL: Well if you look at 24 - and my friend, Mr Ferguson, pointed this out helpfully - 24.2(a), so it talks about ordinary hours; casuals have ordinary hours, and they're in the same clause as part‑timers.

PN1464

VICE PRESIDENT HATCHER: Yes.

PN1465

MR BULL: We say there would be some utility in then having an equivalent clause in the overtime provision just highlighting that casuals, like their colleagues who are full‑time and permanent, have that entitlement.

PN1466

VICE PRESIDENT HATCHER: So casuals already get overtime unless - - -

PN1467

MR BULL: They appear to, but I'm just - - -

PN1468

VICE PRESIDENT HATCHER: But isn't it clear from clause 12.5(a) of the award that the loading applies to overtime worked?

PN1469

MR BULL: I agree.

PN1470

VICE PRESIDENT HATCHER: They're paid overtime?

PN1471

MR BULL: Yes, and this is a pure clarification.

PN1472

VICE PRESIDENT HATCHER: As to when they become eligible for it?

PN1473

MR BULL: This isn't adding anything. This is just, we say, making the award a clearer instrument and assisting employers and employees being able to clearly identify the entitlement, because - it's partly a matter of convenience. If you go to the overtime clause and you try and see who gets overtime, on the face of it the only people who get overtime are full‑timers and part‑timers. They're mentioned explicitly. To find the casual entitlement to overtime, you have to then look at the span of hours clause, and it would be appropriate, we say, just to have a provision on parity with permanent employees in the overtime clause simply highlighting that they get the same entitlement.

PN1474

VICE PRESIDENT HATCHER: So in your proposed view, what function does the words "five days per week" - what function does that serve?

PN1475

MR BULL: Because they've got intra‑day, and then they've got a sequential entitlement where you can't work more than five days a week. That's simply aping the sort of somewhat inelegant language of the award.

PN1476

VICE PRESIDENT HATCHER: But I don't know why it's necessary, that is, if you work five days, presumably you're going to hit 38 anyway, aren't you?

PN1477

MR BULL: Something like that, and it's just purely reflecting the equivalent provisions in relation to, well, part‑timers, because under this award, casuals - that's the closest comparison at 28.6. It's just reflecting the drafting which has been applied to part‑time employees.

PN1478

VICE PRESIDENT HATCHER: I'm not even sure what it does with part‑time employees.

PN1479

MR BULL: Neither am I, but I thought, you know, if you're going to be confused, you may as well be confused in the same way in relation to a particular problem.

PN1480

DEPUTY PRESIDENT KOVACIC: I'm not clear about that.

PN1481

MR BULL: We don't want to completely redraft the Cleaning Award.

PN1482

VICE PRESIDENT HATCHER: Who is the main employer interest in that award?

PN1483

MR BULL: There's a cleaning industry association. There tends to be a number of large - - -

PN1484

SPEAKER: We have very significant (indistinct). We have members as well.

PN1485

MR BULL: Yes, I was going to say there's some very large cleaning companies, and then there's not so large cleaning companies, but there is a cleaning industry association. This variation is a clarification. It's not adding anything.

PN1486

VICE PRESIDENT HATCHER: All right. So Corrections and Detention?

PN1487

MR BULL: Corrections, this as I said is an award which tends to cover an area which traditionally was full of agreements, and agreements were often significantly above the award, and the award was a reference instrument. It has become unfortunately more relevant as the tariff has reduced. This is one where we say there doesn't seem to be any clear provision that entitles casual employees to overtime, and from sort of our knowledge, casual work is not uncommon in this sector. You typically have a correctional employee who will have a permanent job and then work casually sort of at some other facility. In most capital cities there are sort of belts where there's the correctional facility, the immigration detention facility and so forth, and from my observation, it's not uncommon for an employee engaged as a permanent at one of those places to work elsewhere.

PN1488

VICE PRESIDENT HATCHER: I'm just looking at 10.5(c), which obviously presumes that casuals do have an entitlement to overtime.

PN1489

MR BULL: Yes, this is one of the ones where there's, you know, to be a bit facetious, there's a throw‑away line in the definition or the category of employment clause, and then when you look for what should be the equivalent sort of machinery provisions that they don't seem to exist.

PN1490

VICE PRESIDENT HATCHER: Yes, all right.

PN1491

MR BULL: And once again, what we have sought to do within the context of a fairly complex award, because it's an award where there's shift work - these facilities tend to operate with rigid roster and so forth - we've sought to align the casual entitlement to that provided to a permanent and it does appear that casual loading is paid with penalties.

PN1492

VICE PRESIDENT HATCHER: Yes, so where does - your proposed 10.5(d), I mean maybe that probably belongs in the hours clause?

PN1493

MR BULL: Maybe. Well it's six of one, half a dozen of the other. There's' - - -

PN1494

VICE PRESIDENT HATCHER: Where does the 10 hours - is that what applies to permanents?

PN1495

MR BULL: That's a non-shift worker. Most of them are ‑ most people are going to 12 hours but shift work is the norm.

PN1496

VICE PRESIDENT HATCHER: Yes, all right.

PN1497

MR BULL: That's the intention of that variation. The next one is the Dry Cleaning and Laundry Industry Award and this is another one where in the definition of a category of a casual it says that a casual will get overtime and then when you try and sort of find within the structure of the award you actually work out what that entitlement is, it doesn't make a great deal of sense.

PN1498

VICE PRESIDENT HATCHER: What's the purpose of the 10.5(a) variation, which is a little bit controversial? I'm sorry that doesn't - the existing 10.5(a) makes it clear that overtime in excess of 38 - sorry, work in excess of 38 ordinary hours is overtime, so what's the ambiguity?

PN1499

MR BULL: Once again, it doesn't seem to be ambiguous in relation to the intra-week duration. What's ambiguous is principally - because this award has these quite complex distinctions between if you're in a dry cleaning workplace or a laundry workplace and all we've sought to do is align the entitlement to what a permanent gets in those particular workplaces. Insofar as we repeat what's in the category clause later, it's just we say there's some use in having, when you turn to the overtime clause or the ordinary hours clause, having a clear statement that a casual gets 38 hours a week.

PN1500

VICE PRESIDENT HATCHER: Well what I'm trying to work out is is the daily criterion for overtime which you seek to introduce is that a substantive change? That is, on one view in this award minds had been turned to overtime for a casual specifically and they determined there was only a weekly overtime.

PN1501

MR BULL: Well if that's the case, it's a substantive change, and if you look at the current overtime clause it does talk about all work performed by an employee outside or in excess of their ordinary hours will be paid for at the rate of overtime and, once again, this is - the variation we're seeking is, in part, you can say that the entitlement's already there but because of the complexity of the way it's constructed there's utility, we say, in just having a clear provision setting out when a casual employee in different workplaces is entitled to overtime. Because an entitlement which you can't understand has no particular utility and - - -

PN1502

VICE PRESIDENT HATCHER: No, but where does this - where do we find the 7.6 for laundry workplaces? Where's that?

PN1503

MR BULL: It's in - it's 21.2 and 21.1 deals with dry cleaning workplaces.

PN1504

VICE PRESIDENT HATCHER: No, that's not confined to 7.6, it allows averaging.

PN1505

MR BULL: Correct.

PN1506

VICE PRESIDENT HATCHER: You could have a 10 hour day.

PN1507

MR BULL: You could.

PN1508

VICE PRESIDENT HATCHER: Or 10 hour day say if that was the case you wouldn't get overtime until 10 hours.

PN1509

MR BULL: Well these variations are premised on the fact that we don't think averaging works for casuals.

PN1510

VICE PRESIDENT HATCHER: Sorry?

PN1511

MR BULL: These variations are premised on the assumption that we don't believe averaging over periods more than a week works for casuals because we essentially defeat - well defeat intra-day overtime quite quickly and you also defeat intra-week overtime, and that is a merit matter, but we say it's not something which in a safety net instrument is appropriate and perhaps not in this particular sector but we've got unfortunately grim experience elsewhere where averaging facilities and roster wizardry, for want of a better term, has been ruthlessly applied and that's unfortunately our experience so these variations are premised on having a more rigid rostering pattern for - - -

PN1512

VICE PRESIDENT HATCHER: How does that line up with what we did in the Hospitality Award?

PN1513

MR BULL: Well in relation to that particular award, there was averaging placed with the variations and we were grateful for the variations when they were made but we say that it's still a reasonable merit argument to not apply averaging, and you may be against us on that point, but we think it's an appropriate matter to bring to the attention of the Commission in this review and it does - going back to some of the arguments we made about substitution, if an employer is rostering a casual employee essentially like a permanent employee, there should be some incentive to make that person permanent and the point about - - -

PN1514

VICE PRESIDENT HATCHER: Well, for example, the situation might arise where you've got a permanent who's on a roster and the roster has a 10 hour day and the permanent is sick and you call in a casual, whether the casual should be able to work the day that the person they are replacing was rostered without incurring an overtime expense.

PN1515

MR BULL: Well I don't know whether there's a clear answer to that. There's arguments to the effect that the casual should perhaps get some premium for working a long duration because that's all they're going to work and the point about - and this does relate to the control issue to a certain extent, the permanent at least knows what they're up for so they've signed up to the roster, they know that they're going to work this particular pattern, they know when their break's going to be.

PN1516

The casual who's called in at short notice doesn't have necessarily control. They haven't necessarily signed up to the pattern so we say, as a merit matter, it's appropriate that they aren't caught within roster facilities for the reasons that we've outlined and we understand there may be issues with that but that's a position which we think is an appropriate one to put in relation to these instruments and theoretically there's a point at which if it's just a day here and there, I don't see how that can be a huge detriment and it's appropriate that that casual will then either be disengaged when the permanent comes back to fill their slot on their roster, so it does seem to us unfair that they get the detriment without any of the benefit of averaging and the benefit of averaging is you get a pattern over a period where you do, on some levels, get the anticipated breaks and so forth but if you just drag a casual in and dump them into a roster, if they're placed into a roster at certain periods, all they're getting is the detriment - - -

PN1517

VICE PRESIDENT HATCHER: Well no one's dragged in, they're casuals.

PN1518

MR BULL: Correct.

PN1519

VICE PRESIDENT HATCHER: They get a 25 per cent loading for these type of detriments if they choose to come in.

PN1520

MR BULL: Well that is all correct but we say there's some ‑ the notion of choice isn't quite as clear cut as it might seem and these are conscious matters that we're putting to you in terms of what we say is the desirable point to get at in relation to the construction of this award as a safety net instrument.

PN1521

VICE PRESIDENT HATCHER: All right. Educational services. General Staff Award.

PN1522

MR BULL: This is the general one. This seems to be one where it's just - this is one of the ones where, when you look at it, it seems that it contemplates casuals getting overtime but there's no clear criteria. So 22 is the ordinary hours clause. The main problem we say for a casual employee covered by this award is that there's no clear provision mandating 38 hours a week as ordinary hours.

PN1523

VICE PRESIDENT HATCHER: 22.1 currently says casual employee has ordinary hours and it refers you back to clause 10 and then if you go to clause 10 it doesn't appear to say anything about it.

PN1524

MR BULL: That's what we say the problem is. The intra‑day limits are set by 22.3 which has a span of hours provision which seems to apply to all employees and they're quite complex. It's if you're in a classroom support position, 7 am to 6 pm, and wellbeing services are the same.

PN1525

VICE PRESIDENT HATCHER: In your 22.2 where do you get the 10 hours from?

PN1526

MR BULL: Beg your pardon?

PN1527

VICE PRESIDENT HATCHER: The 10 hour - the daily 10 hour limit, where's that for non-casual employees?

PN1528

MR BULL: We don't have - this one we don't have any intra‑day. It's just 38 hours.

PN1529

VICE PRESIDENT HATCHER: No, no, for - but I thought you were aligning it with something for full-time employees. Do they have a 10 hour limit?

PN1530

MR BULL: No, no. We're just saying for this one, there's a span of hours provision, so it's before and after, and if you work outside that it's overtime. That applies to casuals. The problem is that there's no intra-week provision which is expressly said to apply to casuals so all we're saying in relation to this one is that the Commission should put in a clear provision saying that the maximum weekly hours for a casual covered by this award is 38 per week.

PN1531

VICE PRESIDENT HATCHER: Well I understand that but I'm just trying to work out where you get the 10 hours per day from.

PN1532

MR BULL: Where do I say that, sorry?

PN1533

VICE PRESIDENT HATCHER: Your proposed 22.2.

PN1534

MR BULL: I think you might - I apologise about that. That shouldn't be there so delete that. Should be a maximum of 38 hours per week, I apologise.

PN1535

VICE PRESIDENT HATCHER: All right. The Teachers Award.

PN1536

MR BULL: Teachers is a fairly small one and Mr Odgers and Ms Bailey have more to do with this than we do and that just deals with - there's a schedule that deals with teachers employed in early childhood services and this is a similar problem with the last one. There's fairly clear span of hours provisions but there's no provision in relation to intra-week overtime. We say there should just be a provision inserted saying a casual employee's maximum ordinary hours will be 38 hours per week.

PN1537

VICE PRESIDENT HATCHER: Well where was the overtime entitlement?

PN1538

MR BULL: Well the intra-day is B.1.3, current B.1.3, and that's got a span of hours provision from 6 am to 6.30, five days between Monday and Friday.

PN1539

VICE PRESIDENT HATCHER: But is there an - I mean, I'm just looking at clause 14.5 which provides for daily, half daily and quarterly day rates. It doesn't actually provide for an hourly rate which suggests that there is no entitlement to overtime.

PN1540

MR BULL: Mr Odgers might be able to help you. We did try and limit ourselves to the schedule because that's the only area - - -

PN1541

VICE PRESIDENT HATCHER: I see, so I'm looking at B.4.1.

PN1542

MR BULL: That's the only area where we have any turf, so to speak.

PN1543

VICE PRESIDENT HATCHER: What's unclear about that?

PN1544

MR BULL: Beg your pardon?

PN1545

VICE PRESIDENT HATCHER: You just want to establish a weekly limit?

PN1546

MR BULL: Yes, for the teachers employed in the early childhood services. Perhaps Mr Odgers might want to - - -

PN1547

VICE PRESIDENT HATCHER: All right, I'll come back to that.

PN1548

MR BULL: We'll come back, all right. It's only a ‑ we're now up to the Miscellaneous Award. This is an award that has a span of hours. Ordinary hours for intra‑day overtime which says ordinary hours can't exceed 10 hours, which if you're a shift worker you can have 12, so that seems to set the intra-day limit. There's no provision, or no clear provision, in relation to intra-week overtime which, once again, we say should be 38.

PN1549

VICE PRESIDENT HATCHER: Just starting off, I'm looking at 22.1. On one view that means there is no entitlement?

PN1550

MR BULL: If I - sorry?

PN1551

VICE PRESIDENT HATCHER: 22.1 of the Miscellaneous Award.

PN1552

MR BULL: Yes, but we're seeking to vary that just to have employees.

PN1553

VICE PRESIDENT HATCHER: Well I'm just trying to work out is there an existing entitlement for casuals to have overtime?

PN1554

MR BULL: Well this is one of the mysteries.

PN1555

VICE PRESIDENT HATCHER: I mean 22.3(c) implies there's an overtime entitlement and so does (d).

PN1556

MR BULL: That's the problem in that there's - it looks like they do but when you sort of dig down it's not there.

PN1557

VICE PRESIDENT HATCHER: 22.2 appears to cover - to set out a standard entitlement to 10 hours a day. Sorry, I withdraw that. It seems to establish a general entitlement to 10 ordinary hours a day.

PN1558

MR BULL: I'd agree with that.

PN1559

VICE PRESIDENT HATCHER: But there's no provision which says beyond that is overtime. 22.3(c) and (d), Mr Bull.

PN1560

MR BULL: Yes, 22.3(c) - - -

PN1561

VICE PRESIDENT HATCHER: No, I apologise I misread it, Mr Bull.

PN1562

MR BULL: Your Honour, easy to do. Well we actually are proposing an amended 22.1. One of the things about these awards you can stare at them for as long as you like and you do have to just come to the realisation that it maybe doesn't make sense and I assume that was the purpose of this review, to - - -

PN1563

VICE PRESIDENT HATCHER: Yes, all right.

PN1564

MR BULL: - - - try and make these things make sense.

PN1565

VICE PRESIDENT HATCHER: Can you identify any group this award actually covers apart from helicopter aircrew?

PN1566

MR BULL: Beg your pardon?

PN1567

VICE PRESIDENT HATCHER: Can you identify any group this award actually covers apart from helicopter aircrew?

PN1568

MR BULL: The Miscellaneous?

PN1569

VICE PRESIDENT HATCHER: Yes.

PN1570

MR BULL: Well there's the burgeoning area of pet resource.

PN1571

VICE PRESIDENT HATCHER: Right.

PN1572

MR BULL: The Miscellaneous Award?

PN1573

VICE PRESIDENT HATCHER: Sorry, yes, you're right.

PN1574

MR BULL: Well we think it should cover anyone who's not covered by another award.

PN1575

VICE PRESIDENT HATCHER: I think, am I right in saying that directly employed security guards who are not in the Contract Security Award might be covered this award?

PN1576

MR BULL: Well we think - yes, because cleaning and security are both contract awards so your coverage of - the coverage is related to the fact that the employer provides a type of service to somebody else so if an enterprise decides to directly engage their security guard or their cleaner - - -

PN1577

VICE PRESIDENT HATCHER: And there's no classification in the General Award then the Miscellaneous Award will apply.

PN1578

MR BULL: Correct, and we say that should be the case and it's tolerably arguable that it's not clear.

PN1579

VICE PRESIDENT HATCHER: All right, yes.

PN1580

MR BULL: Security Services. This is one where the whole issue of averaging is an issue. I was going to hand up, it's not directly relevant to the remaining claim we have, but probably have it - we did - we withdraw - this was one where we did seek to have the casual loading paid with the overtime penalty. We've withdrawn that so we're not progressing that claim. This is a difficult one for an industrial tribunal. What seems to occur in the industry has perhaps departed from what might be considered the intention of the people who drafted the award some time ago.

PN1581

The case I've handed up is, you may be familiar with it, it concerns what we say is an abuse of averaging. The Federal Court and the Full Federal Court didn't agree with us. We're shortly going to make an award variation and it's going to be an award variation. It's not going to be part of this review so rest assured we're not intending to make any more claims in the four yearly review, and hopefully that award variation, if it's agreed to, may cure the problem identified by the Full Federal Court and certainly Tracey J, as he then was, did recommend that - he was the judge who first dealt with the matter.

PN1582

At the end of the judgment he suggested that the problem should be dealt with by an award variation. In relation to security, this is a award which, in the definition of a casual, if you look at 10.5(b) - I withdraw that. We're seeking a clear clause in the definition that a casual is paid the overtime rate. One of the issues with this award is that it's unclear as to whether a casual gets overtime. There's provisions that seem to suggest they do but there's nothing clear, so we're seeking a clear provision that they get overtime and we also are progressing the view that the casuals shouldn't be part of a rostering arrangement.

PN1583

This is the one where it's probably the most difficult. If that view is accepted, you also need to probably change the rostering clause which, on its face, has casuals as relieving officers but then it's got a provision saying that essentially at the employer's discretion they can just be inserted into the roster at any time. We say that that should allow that for relieving officers and relieving officer can be a casual.

PN1584

It becomes a bit of a moot point but if you are just a casual and you're not actually a relieving officer, the employer shouldn't have that discretion to just insert somebody into a roster.

PN1585

VICE PRESIDENT HATCHER: What's that to do with this case?

PN1586

MR BULL: Well it's clarifying the overtime entitlement.

PN1587

VICE PRESIDENT HATCHER: How is that clarifying it? It's about a requirement that an employee can - - -

PN1588

MR BULL: We say - - -

PN1589

VICE PRESIDENT HATCHER: - - - require a casual employee to work in accordance with a roster.

PN1590

MR BULL: I beg your pardon?

PN1591

VICE PRESIDENT HATCHER: This is about - 21.11 is about a right conferred on the employer to require a casual to work in accordance with a roster. What has that got to do with this matter?

PN1592

MR BULL: Well a casual can be a relieving officer. You've still notionally got the ability - I suppose it's clarifying that when you're just inserting someone in a roster, they need to be relieving.

PN1593

VICE PRESIDENT HATCHER: Why?

PN1594

MR BULL: We say because averaging doesn't work for casual employees, especially when you have eight‑week roster cycles. You can theoretically put a casual in for the first two weeks, work very long durations of work, then they don't get any work with the remaining six weeks. The issue is probably the edgiest one in relation to this award.

PN1595

VICE PRESIDENT HATCHER: I'm just looking at clause 23. It's very hard to work out what constitutes overtime in this award at all for anybody.

PN1596

MR BULL: According to the Federal Court, they get it on Sunday.

PN1597

VICE PRESIDENT HATCHER: So just going back to the averaging, what's the - I haven't read this decision - what's the averaging problem? I mean, if there's a requirement that casuals get overtime over 38 hours a week and you can average it over four weeks, if they work two weeks on a roster and they're the two long weeks, the average will still be in excess of 38 and they'll get the overtime.

PN1598

MR BULL: The decision I handed up doesn't have anything to do with casuals. It has got to do with permanents - - -

PN1599

DEPUTY PRESIDENT KOVACIC: It's when overtime is rostered, isn't it?

PN1600

MR BULL: Yes, rostered overtime.

PN1601

DEPUTY PRESIDENT KOVACIC: The company was rostering it on Sundays to - - -

PN1602

MR BULL: Correct, and it dealt with the problem with Wilson's; it happens elsewhere, where you've got eight‑week rosters, the rosters have 12 weeks of overtime built into the eight‑week period, and what happened was that Wilson's was basically allocating - because you have absorption - so overtime is absorbed into Sunday penalty, and they were the allocating the overtime generally the last Sunday before the end of the roster. So there would be still some ordinary hours, and that would be worked during the week, which is to the employer's advantage, and the overtime penalty was completely absorbed. So the employer got the benefit of rostering 12 hours of overtime, but effectively paid nothing. We complained about it - - -

PN1603

VICE PRESIDENT HATCHER: So that's that case, but what's the problem with casuals and rostering?

PN1604

MR BULL: Well it's a general point where we say there's problems inserting a casual, particularly when there's a history of what I've termed sort of roster manipulation into this sector, and it does tend to be - permanent work tends to be more the norm, but it's a contracting area; it's highly cost‑sensitive. Those who do comply, there are significant incentives to achieve the most desirable outcome in relation to labour costs, and the way that that historically has occurred has been through manipulation of rosters and the timing of overtime hours and so forth with weekend penalties. Because it tends to be - it's shift work, their manning facilities - they're the people in the sort of box in large buildings and so forth, so there's a contract to perform that work; it's cost‑sensitive, and there is, we say, inappropriate manipulation of rostering. We don't have any particular evidence that the casuals the subject of roster manipulation, but we say it's an appropriate thing to have a provision so that the next big thing doesn't become a sort of abuse of casuals in this particular sector.

PN1605

VICE PRESIDENT HATCHER: All right.

PN1606

MR BULL: That's all I wished to say.

PN1607

VICE PRESIDENT HATCHER: So I think we'll hear submissions from parties who support any of the variations proposed by United Voice. Is that you, Ms Wiles? Do you support - your interest is the Dry Cleaning Award?

PN1608

MS V WILES: That's correct, your Honour, yes. My submissions will be brief. Essentially the CFMMEU Manufacturing Division does support the claim on the proposed amended draft variation filed by United Voice. We say it is a modest and appropriate variation, taking into account the current provisions of the Dry Cleaning Award. And specifically in relation to the draft variation, or the amended draft variation that was filed by United Voice, when you go through the elements of that I think it is evident that it is a modest and appropriate variation. Draft clause 10.5(a) of the draft variation is identical to the first sentence of the current clause 10.5(a) of the current award. Draft clause 10.5(b)(i) reflects the effect of the current 22.1 of the Dry Cleaning Award. Draft clause 10.5(b)(ii) is identical to the second sentence of the current clause 10.5(a) of the Dry Cleaning Award. Draft clause 10.5(b)(iii) reflects the maximum ordinary daily hours for casual employees in a laundry workplace under the current 21.2, putting aside the issue of averaging for a moment, which Mr Bull has addressed you on, and then draft clause 10.5(b)(iv) we say would appropriately clarify the daily maximum hours for casual employees in dry cleaning workplaces.

PN1609

So in that respect, we say that it's unlike ABI and the Chamber's submission that it's essentially a claim to introduce a new period of overtime, and we say that it more accurately reflects the current status quo under the award. Currently, a casual employee is expressly entitled to overtime when they work in excess of 38 hours per week, and that's clause 10.5(a), and also by way of general application when they work outside of or in excess of the ordinary hours of work, and that's in clause 22.1, and that also includes when they work on a daily basis, as clause 22.1 provides, that in computing overtime each day's work will stand alone. So we say that it is a modest proposed variation, and on that basis we do support the claim of United Voice, if the Commission pleases.

PN1610

VICE PRESIDENT HATCHER: Thank you. Mr Odgers, do you want to go next?

PN1611

MR ODGERS: Yes, your Honour. I want to make a submission and solely in respect of the General Staff Award, the Education Services General Staff Award. We support the submissions that have been made by United Voice, and in particular the variation that Mr Bull suggested to the draft determination that they had submitted, in that overtime would be payable to casuals after 38 hours had been worked in a week.

PN1612

As a result of discussions between ourselves and the Association of Independent Schools, the industry parties have reached a consent position in respect of the determination that we seek. That position is reflected in the draft determination that has been filed by the AIS with their latest submissions on 5 July.

PN1613

VICE PRESIDENT HATCHER: I see. So - - -

PN1614

MR ODGERS: And that is a proposition that overtime would be payable to casuals after 38 ordinary hours work in any week. I'll come back to that. All I want to say about that at this stage is that's the basis on which we're able to determine the payment is currently made in the field, albeit on a very at the margins, as it were, and I'll also come back to that. We have also agreed on the method of calculating the overtime payment. I know the last time I was in this court, your Honour used a turn of phrase which escapes me, but for these purposes I'll say by addition, that is to say, cumulative as opposed to compounding. It's a method, as best we can see from the records, we maintain that it's used by employers currently, and our common position in relation to using that method to calculate the entitlement is reflected in paragraph 4 of our most recent submission, and graphically in paragraph 8 of the employer's submission. If it's convenient to the Commission, I want to say - - -

PN1615

VICE PRESIDENT HATCHER: Just hold on. So what are you consenting to? Whose variation are you consenting to?

PN1616

MR ODGERS: The variation that is suggested by the Association of Independent Schools.

PN1617

VICE PRESIDENT HATCHER: What date was that?

PN1618

MR ODGERS: On their submissions filed on 5 July. And obviously, your Honour, only if the Commission agrees that the overtime - - -

PN1619

VICE PRESIDENT HATCHER: That's the same as United Voice's variation?

PN1620

MR ODGERS: Yes. I had thought I had said that. Possibly I was too prolix earlier on. Only if the Commission agrees that overtime should be payable to casuals will the question of the method of calculation then become relevant. The two matters that I want to address - I don't want to go over our submissions, and I don't want to be in the position of producing a lot of new material from the Bar table obviously at this stage, but I just want to say something about the basis on which the Commission should give weight to the agreement that has been reached between ourselves and the Association of Independent Schools. Then I want to say a little more about the cost impact, or likely cost impact of the Commission agreeing to make the determination in the form that we've sought it, and as I referred to earlier, I won't be more than about five minutes.

PN1621

This award covers non‑teaching employees and non‑government schools, that is, Catholic and independent schools. The first award that was made by the Commission was the product of two years of negotiation between the AIS, who represented all schools who were dependent on the award, and ourselves, some matters on behalf of employees; some matters were arbitrated by the primary Full Bench. Similarly, the exposure draft process, which has spanned more than two years to date, has been with very limited exceptions, a process of negotiation between the AIS and ourselves, then with the assistance of the Commission conferences and dozens of agreed changes. There was an appearance by AFEI on the day the variations were finalised. On a day‑to‑day basis, industrial representation in respect of this award and its predecessor awards rests solely with the AIS, on one hand, and in respect of Catholic schools, the various state‑based Catholic education officers. To the best of our knowledge, the peak employer bodies have no non‑government schools as members; none at all, and in 22 years of working for the union I've never dealt with them previously in relation to any industrial matter. They haven't appeared in these proceedings in any dispute or matter before the Commission in relation to the modern award.

PN1622

In respect of all Catholic schools and the majority of independent schools are covered by agreements prescribing terms and conditions considerably superior to the underpinning award, to this award. We have submitted in paragraph 10 of our submissions that the impact of giving effect to the agreement is negligible. We had great difficulty costing what that would be, and I'm basically referencing the requirement under section 134(1)(f) here, but I just want to say that employers pay overtime to casuals. We were only able to determine this by searching our records of classification disputes since 2010, and we were only able to find a handful of examples where the overtime had been paid, and each instance it had been paid on the basis that we suggest. Moreover, we don't understand that employers have, as I said earlier, an objection to paying overtime to casuals. But the intersection in this industry between very low rates of casualisation and the infrequency of overtime means that the cost to many employers will be nil; for example, in the Catholic sector, notwithstanding the fact that they are covered by agreements, many dioceses will have a policy of simply not employing casuals at all. Payments, as I said, are so infrequent that the parties face hurdles in quantifying them.

PN1623

And if the Commission just looks in a very common-sense way at the way work is performed in schools, it easy to see why there are so few casual employees. The ordinary school day takes place completely within the span of hours for permanent employees, and for everyone. The exceptions are known to every parent: there are a handful of parent consultations every year; there are occasional open days on weekends; there are sporting commitments. None of those occasions mandate the payment of overtime. In respect of our records, and if necessary, if this matter drags on as it seems it might, and the Commission wants to be informed about this, we can look at the frequency that overtime is paid at all, let alone to casuals. In primary schools, for example, the predominant classification is the classification of classroom support. Predominantly those employees, because of the way in which teachers work and the need for relief, will work on a part‑time basis. An employer will almost always find in respect of any primary school of, say, more than 250 students that relief can be provided without the necessity to resort to casual employment for day absences in respect of classroom support from the existing part‑time staff of the school.

PN1624

VICE PRESIDENT HATCHER: Presumably if you're doing maintenance tasks or grounds‑keeping tasks you're not particularly bound by the school hours, are you?

PN1625

MR ODGERS: Yes, and in our industry much of that work is contracted out for large employers, and for diocese (?) and Catholic primary schools, for example, with contractors, and the award doesn't cover that work. It's only in predominantly secondary schools and amongst sporting coaches owing to the irregular and seasonal nature of the work that there's any regular incidence that we can discover of casual employment at all, and our records of overtime payments being made to casuals almost exclusively concern sporting coaches. The predominance of the employment of sporting coaches, as a matter of common-sense, their numbers are related to an employer's capacity to pay. In other words, it's high‑fee schools. In respect of this award, there are only, and subject to anything that my colleague from the AIS might say, about 25 or 30 employers we can regularly identify as being dependent on the award as well. So if necessary, we could - and they are mostly very small country, Christian and Islamic schools. The union has as members some 850 principals. If necessary, we could call principals to look at the occasion on which overtime was worked and the incidence of casual employment, but I don't want to do anything more here than say that I don't think anyone would seriously suggest that there is a large cost involved in this context.

PN1626

VICE PRESIDENT HATCHER: Just going to the issue of the loading, assuming we made this variation, is the provision about the loading sufficiently clear to support what you said, that is, the cumulative not the compounding approach?

PN1627

MR ODGERS: Possibly not on reflection - - -

PN1628

VICE PRESIDENT HATCHER: That is, does there need to be some consequential variation to make it clear how the loading is payable on overtime?

PN1629

MR ODGERS: I could undertake to provide another determination that makes that quite clear to the Commission, so over the next few days.

PN1630

VICE PRESIDENT HATCHER: Yes, because I'm just looking at 10.5(b) that simply says the hourly rate plus 25, and doesn't say anything about how it might or might not apply under some other form of payment.

PN1631

MR ODGERS: I'll undertake to provide another determination that makes the manner in which payment is made clear. In conclusion, I just want to say something about the submissions that have been made by ABI. As I understand it, they say as a matter of principle the Commission shouldn't allow the payment of overtime to casuals.

PN1632

VICE PRESIDENT HATCHER: Perhaps we'll save that till we hear what ABI actually says about this award before I call on your reply.

PN1633

MR ODGERS: Certainly, your Honour. In that case, I just want to conclude by saying that the parties - I neglected to mention that the parties agree with the characterisation of the existing provisions that's given in the issues paper that it simply isn't clear.

PN1634

VICE PRESIDENT HATCHER: All right. Do you want to address the Teachers Award now?

PN1635

MR ODGERS: Well our submission as to the Teachers Award only went to the body of the award, that is, in relation to schools, where it's very clear that there's no existing entitlement to overtime. As far as the appendix is concerned, we're happy to support the submissions that have been made by the UV, but we didn't make submissions ourselves.

PN1636

VICE PRESIDENT HATCHER: All right. Thank you. So can we hear from you now, Ms Bailey?

PN1637

MR K BARLOW: Sorry, your Honour. I'd like to mention the Miscellaneous Award briefly.

PN1638

VICE PRESIDENT HATCHER: But can we just - I just want to hear from Ms Bailey now so we can get rid of the General Staff Award.

PN1639

MR BARLOW: Yes, of course, your Honour. Ms Bailey?

PN1640

MS BAILEY: Thank you, your Honour. We rely obviously upon our submissions made on 5 July. We note that United Voice in their oral submissions this morning have moved away from their restriction to 10 hours as a trigger for overtime in one day, and also note the IEU's agreement with our draft determination that we filed on 5 July. In terms of our view, just to be absolutely clear about the payment of casual loading and overtime, we don't believe it is clear within the current awards, both Teachers and with General Staff, though we have only made submissions in relation to General Staff on this particular matter. It isn't clear, and certainly there would be a mix of practices amongst schools that are out there using this particular award, and certainly how it would affect the making of enterprise agreements and multi‑enterprise agreements in terms of better off overall and ensuring that that occurs.

PN1641

In terms of cost impacts, there is certainly a great degree of sports coaches being covered by the modern award, the General Staff Award, that is, they are cut out of our multi‑enterprise agreements and much of our enterprise agreements that cover such general staff employees, which is a largely historical point, but nonetheless that is how that is reflected in our instruments as they are at the moment. They do do a lot of Saturday and Sunday work, of course. They have ordinary hours on Saturdays, which is of course helpful to their engagement; however, Sundays, overtime would be payable for any work on that particular basis. So certainly the issue of how the casual loading and overtime were to be applied is very relevant to the employment of sports coaches.

PN1642

Boarding staff would be the other area, though there would not be many, if any, boarding schools who are directly under the terms of the General Staff Award. However, nonetheless, of course enterprise agreements are made based on those particular provisions, and certainly under our enterprise agreements there is a use of casuals within our boarding houses with our schools and this does incur overtime on and off due to the nature of that particular work, given that they're working through the night. Whilst there's sleepover allowance and other such things, it's still more likely to trigger overtime in that particular manner. So certainly, you know, as the IEU said, if they wanted to go into cost impact, we could provide further evidence on that basis.

PN1643

However, just in closing, just to reiterate, we do still put forward the draft determination as agreed with the IEU. We believe that it deals with that particular issue in terms of when overtime is triggered, but we are still of the position that it is unclear as to how overtime should be applied in regards to the casual loading.

PN1644

VICE PRESIDENT HATCHER: Would you be in a position to confer with the union parties about the form of provision which might clarify that if we were to grant the consent position?

PN1645

MS BAILEY: We certainly - we're always happy to have a talk with the IEU. There's no issues around that. Whether we find agreement, I'm not 100 per cent sure on that point, your Honour, but certainly we can have discussions about that to see if agreement can be reached.

PN1646

VICE PRESIDENT HATCHER: And then if there's no agreement, parties can put in determinations which reflect their respective positions.

PN1647

MS BAILEY: Yes, your Honour.

PN1648

VICE PRESIDENT HATCHER: How long might that all take, Mr Odgers?

PN1649

MR ODGERS: I would hope not more than a couple of days, your Honour.

PN1650

VICE PRESIDENT HATCHER: All right. So if we allow seven days for that, is that sufficient?

PN1651

MR ODGERS: Yes, certainly.

PN1652

MS BAILEY: Thank you, your Honour.

PN1653

SPEAKER: Your Honour, may we be heard in relation to these awards?

PN1654

VICE PRESIDENT HATCHER: Well you will be heard generally soon. Mr Barlow is next. So Miscellaneous Award, Mr Barlow?

PN1655

MR BARLOW: Thank you, your Honour. I don't intend to be too long, and I note your previous indication to my colleague from the IEU that you didn't want to be heard in relation to some in‑principle arguments that Mr Izzo raised yesterday, but if he raises them again I do seek your leave to address them if necessary, your Honour.

PN1656

VICE PRESIDENT HATCHER: All right.

PN1657

MR BARLOW: Your Honour, the CPSU filed submissions in support of the United Voice's application to appear in the Miscellaneous Award on 5 May this year, and we generally support their submissions and applications that they have made. Those submissions I won't go to, other than to say they address obviously the criteria in section 134 and so on and so forth. What I thought I would do for the next five minutes or so is just address a couple of the more salient points that have been raised regarding this award, and I might just preface that with it's our view that the award does not currently provide the entitlement to overtime, and it's on that basis that the draft variation that the United Voice have provided establishes an entitlement to overtime and also would establish an entitlement to the cumulative as opposed to the compounding method of payment of that overtime on top of the casual loading, your Honour, so the base rate plus 50 per cent overtime, plus the 25 per cent casual loading for the purpose of many of the discussions previously to these proceedings.

PN1658

Your Honour, the submissions of the AiG of 5 July this year take you to a statement issued as part of the award modernisation process regarding the making of this award, and that is (2009) AIRCFB 945, which is the 4 December statement, your Honour. And here they discuss in very brief terms various submissions that have been made by the parties, and I'll just - obviously these are excerpted in the AiG's submissions at 134 - I'll take you to the last part of that provision where the Full Bench say:

PN1659

We do not think it is appropriate to exempt casual employees from weekend and other penalties applicable to full-time employees.

PN1660

Whatever the statement was made by the Full ‑ ‑ ‑

PN1661

VICE PRESIDENT HATCHER: Sorry, what was the paragraph number?

PN1662

MR BARLOW: Sorry, your Honour, it's 134 of the AiG submissions of 5 July or if you want the reference, it is paragraph 154 of the 4 December 2009 statement. The AiG have usefully excerpted it in their submissions, your Honour.

PN1663

VICE PRESIDENT HATCHER: Yes.

PN1664

MR BARLOW: The AiG then go on to say well you've got to look at that statement in terms of a bare basic award to cover those not otherwise covered and the statutory context at the time. I think what that statement shows, either through inadvertence or other issues, that that statement hasn't been carried through in one way for one reason or another into the terms of the award as published and now before you. It doesn't provide an equivalence to overtime for casuals, your Honour, and if we do take the point about the AiG's submission about the statutory context at the time, obviously there is now section 134(1)(d)(A) dealing with obviously the need for additional remuneration, your Honour, which we have already put materials to you about.

PN1665

It's on that basis, your Honour, when you address the modern award objective, we say it is appropriate here for this award to contain an entitlement to overtime, proper overtime, payments for casuals and the variations as sought by the United Voice should be followed. To that end, I just might address one more point, your Honour, and that's the evidence we dealt with yesterday. Obviously, there is no specific evidence about the Miscellaneous Award.

PN1666

There is general evidence put on by the United Voice and obviously the general evidence that we heard yesterday, not unsurprisingly, said that extra work or additional work has deleterious health impacts, both direct and indirect. In cross-examination Mr Muurlink did accept that the reports or studies didn't compare the casual - the practices of overtime for casuals contrary to the practices for overtime for full-time or permanent employees and Mr Izzo's point was that casuals, due to the nature of their engagement he says, have a greater control over their hours.

PN1667

Mr Muurlink in re-examination said - he clarified that and said it's the sense of control over those hours that is crucial to the impact of long working hours and the adverse health impacts of those long hours and it's the sense of control in terms of the reality of the person's ability to control those hours. Your Honour, it could be added that there's very little physiological difference between casual and full-time or part-time employees regarding the performance of overtime but I might just say that the submission that both ABI and the AiG raise is that the nature of casual engagement means they have an enhanced opportunity and ability to refuse overtime and this mitigates the disutility of them performing overtime and I think the reference for that is paragraph 38 of the AiG's submissions of 5 July, your Honour.

PN1668

We say the evidence of Mr Muurlink about the effectiveness of control in some senses accords with comments made by the Full Bench in the Casuals decision in 2017 regarding exactly this issue and I'll refer you to paragraph 674, your Honour, and at 674 the Full Bench, in one short line, basically addressed the issue of section 62 and doubted whether any right to refuse overtime would have any practical benefit for such casual employees, your Honour.

PN1669

The evidence of Mr Muurlink would seem to accord with the Full Bench's conclusion on those issues, your Honour. My concluding comments would be, your Honour, this award does not currently provide overtime for casuals. It is appropriate in the circumstances, in accordance with the modern award objective and also, one might say, the pronouncements of the Full Bench at the time they made this award, for such an entitlement to be granted for whichever groups of employees are covered by this award, your Honour, and that way it fulfils its role as an appropriate safety net.

PN1670

VICE PRESIDENT HATCHER: Well I mean I'm looking at clause 20.2 of the award - - -

PN1671

MR BARLOW: Yes, your Honour.

PN1672

VICE PRESIDENT HATCHER: - - - which has general application. If casuals don't get overtime under this award, I'm not sure why you would apply a 10 hour ordinary time provision for them on a daily basis. That is - - -

PN1673

MR BARLOW: Well, your Honour, I think the 10 hour limit ‑ ‑ ‑

PN1674

VICE PRESIDENT HATCHER: Because you look at 20.1 they specifically exclude casuals so that where there was an intention to exclude them from the operation of this provision says so, 22.1 doesn't exclude them and it says there's 10 hours a day. It's hard to make sense that provision for casuals unless there's an overtime.

PN1675

MR BARLOW: I know but 20.2 then goes on to say 'Ordinary hours of work are not to exceed 10 hours on any day or shift', so - and this is the slight uncertainty or ambiguity that my colleague, Mr Bull, was referring to insofar as you could probably say a casual should not work more than 10 hours there but then when you turn to clause 22 about overtime there, that overtime clearly only applies in this award to full-time and part-time employees, so the - - -

PN1676

VICE PRESIDENT HATCHER: Well I mean if you look at 22.3(d), for example - - -

PN1677

MR BARLOW: Yes, dealing with penalty rates though, your Honour.

PN1678

VICE PRESIDENT HATCHER: It gives a penalty rate of 175 per cent for work on a Sunday which is not overtime, so if there's no entitlement that would lead to the situation where you might work ordinary hours on Sunday you get 175 per cent and then you work - but if you work overtime on Sunday you get nothing.

PN1679

MR BARLOW: Yes, well this is the - and the uncertainty that my colleague referred to about how these clauses interact. I think the issue would seem to be in that circumstance, your Honour, if you are required to do overtime hours you don't get any of your overtime penalty because of it under 22.1 which would be an anomalous - - -

PN1680

VICE PRESIDENT HATCHER: Yes, so for example if you worked ‑ on one view if you worked in excess of 10 hours on a Sunday your rate goes from 175 per cent to 100 per cent.

PN1681

MR BARLOW: Yes, which would obviously clearly be an entirely anomalous result which brings me back to the earlier submission I made that I think it can be accepted there's no paid overtime rate here, your Honour. Whether or not that's a drafting error arising from when the award's published, given the comments made by made by the previous Full Bench in their 4 December statement, I don't know, but I think it is appropriate, especially in the context of section 134(1)(d)(A), your Honour, for this award to be reviewed in light of not just potential anomalies and disadvantages in the terms of the award but in terms of setting an appropriate safety net.

PN1682

VICE PRESIDENT HATCHER: In terms of the CPSU's interest, is there some identifiable group covered by this award which you would cover?

PN1683

MR BARLOW: Always the difficult question, your Honour. We've certainly taken the view that employees who say lost the benefit of a pre-reform or a pre-reform enterprise award but aren't otherwise covered by a modern industry award would fall into this award, your Honour, because of the nature of their work being traditionally award covered.

PN1684

VICE PRESIDENT HATCHER: What's an example of that?

PN1685

MR BARLOW: The example of that that I usually use, your Honour, is there used to be a pre-reform award covering the Royal Flying Doctor Service, your Honour, and obviously they're covered by certain other industry awards but they wouldn't be covered for the type of work performed by our members, albeit they do have enterprise agreements in place, your Honour, and there may be other examples but none spring directly to mind and I will note in that context, your Honour, there is - I think you have constituted a further Full Bench later in September to deal with coverage issues in this award. Those are my submissions, your Honour.

PN1686

VICE PRESIDENT HATCHER: Who'd like to go next? Mr Izzo?

PN1687

MR IZZO: If I could go first, your Honour. It might be convenient to deal with the Educational Services General Staff Award.

PN1688

VICE PRESIDENT HATCHER: What's your organisation's interest in that?

PN1689

MR IZZO: We have members covered by the Educational Services General Staff Award and the Teachers Award. I'm willing to concede the level of - - -

PN1690

MR ODGERS: Who are they?

PN1691

MR IZZO: Who are they?

PN1692

MR ODGERS: Yes.

PN1693

MR IZZO: Well obviously I don't have the list of individual members but I can confirm that we did a search as late as this morning. We have members. We have members in both awards.

PN1694

MR ODGERS: Rubbish.

PN1695

MR IZZO: Obviously, it's not as extensive as say the Independent Schools Association but there is membership, and when I say members in the awards, that is members who are covered by the awards. In relation to that award, if I could say this, we have reviewed the drafted variation that's been agreed between the parties and we have absolutely no issue with the draft variation and we're happy to support that variation.

PN1696

What that variation does not do is it does not address how the casual loading applies to overtime at all and the reason for that, I suspect, is because, in particular, when you look at the submissions of the Independent Schools Association, they say it's unclear, they do not concede that a loading applies to overtime at all. They say if the Commissions forms a view that the loading applies then it should be cumulative not compounding but they don't concede that the loading applies.

PN1697

Our position, looking at the drafting of that provision of the award, is that the loading, the casual loading, should not apply - sorry, does not apply and should not apply to the overtime provisions, so the situation the Commission is in is that the Commission could grant the variation as currently proposed in which case the variation's made, we have no difficulty with that, but you effectively have competing positions of the parties about how the loading applies to that.

PN1698

VICE PRESIDENT HATCHER: But you've got a draft determination in for this award. It's in your list, isn't it?

PN1699

MR IZZO: We don't have a draft determination. We are ‑ our case in this award is simply responsive to what has been filed and effectively our position is we don't oppose it but - - -

PN1700

VICE PRESIDENT HATCHER: All right. Well can we solve this by adding you in the seven day proposal - - -

PN1701

MR IZZO: Yes, yes.

PN1702

VICE PRESIDENT HATCHER: - - - and conferral so that you can either agree upon something or if you don't agree, put in a draft determination which identifies your position.

PN1703

MR IZZO: Certainly, so that's how we could deal with that, with the General Staff Award. If I then just perhaps go through a list, as was done initially by the union parties. We do not have a interest and did not propose to make any submissions in relation to the Ambulance Award save this, your Honour, you made a comment about St Johns(sic) Ambulance providing services to football matches. As it turns out they are a member of ours. They're not covered, in our view, well certainly the activity you cited is not covered by that award.

PN1704

That award relates to ambulance transportation services. The services, if I might characterise them as predominantly first aid services, supplied by St John Ambulance would either be covered by, depending on the employees, Health Professionals Award, Nurses Award or perhaps even Miscellaneous Award but it would not be covered by the Ambulance Award.

PN1705

VICE PRESIDENT HATCHER: Right, so no interest in Ambulance Award?

PN1706

MR IZZO: That's correct. The next award is the Cleaning Award. If you bear with me - - -

PN1707

VICE PRESIDENT HATCHER: Well perhaps can you tell us the ones which you don't have an interest in so we can - can we get those out of the way?

PN1708

MR IZZO: Just Ambulance.

PN1709

VICE PRESIDENT HATCHER: That's the only one, okay.

PN1710

MR IZZO: Yes.

PN1711

VICE PRESIDENT HATCHER: Right, so Cleaning Award.

PN1712

MR IZZO: In relation to the Cleaning Award, there's two issues effectively regarding that award, as we said. One is whether the overtime provision sought by the United Voice should be granted and the second is in relation to the casual loading. In relation to that can I say this, the Cleaning Award is very clear that currently a casual loading is paid on overtime. We say it's clear because the clause in the Cleaning Award that deals with casual loading is clause 10.5.

PN1713

Sorry, that clause reference is wrong. It's 12.5(a) and it says that the loading is payable in addition to shift work, weekend work and overtime work, so that constitutes a scenario, if I can refer back to my comments at the directions hearing at 10 am yesterday, where the loading is clear how it operates on overtime, we're willing to accept that there must be industry specific circumstances that give rise to that and we do not seek to disturb the way the loading overtime operates where it is clear and has been determined that way.

PN1714

That addresses the operation of the casual loading. In relation to whether the United Voice submission or proposed variation should be granted or not, we don't ‑ there's two things we would say. (1) We don't specifically oppose it. It does appear that there is some level of entitlement existing to overtime in any event. I understand Mr Ferguson from AiG is intending on addressing the way the overtime provision works in relation to cleaning and I think our position will broadly align with his in relation to that. So, that's our position in relation to the Cleaning Award.

PN1715

In relation to the Corrections Award, we say that currently the way the Corrections Award operates is that casuals are not entitled to overtime in the circumstances currently sought in the United Voice's determination. So that is, there is an actual change to the entitlement being sought by the United Voice. So, what we say about that is that the usual authorities would apply which talk about NEEP requiring a merit case, a substantive case, if you're going to change a substantive entitlement. That is the onus that the United Voice must discharge.

PN1716

In relation to whether the application should be granted we don't say much further than that, other than to say they really do need to satisfy that onus; it doesn't appear that anything particularly substantive has been filed in these proceedings with respect to that industry award and so there may be difficulties in them discharging their onus.

PN1717

VICE PRESIDENT HATCHER: You don't oppose it?

PN1718

MR IZZO: I haven't expressed a - we don't oppose it; we don't agree to it. We say this is the test they must meet and it's for the Commission to be satisfied about that test. But what I would say about the Corrections Award as well, it is very clear in the drafting of that award, that the casual loading applies to overtime. That is clear; it has the same language I think as the Cleaning Award does.

PN1719

Clause 10.5(b) says that the employees are entitled to an additional loading of 25 per cent in addition to shift and weekend work and then it goes on.

PN1720

VICE PRESIDENT HATCHER: The express reference is 10.5(c), isn't it?

PN1721

MR IZZO: Sorry, I've misstated. It is not payable in relation to overtime, but my understanding is the United Voice is not seeking to change that position. So, I withdraw what I said earlier. The position in this award is that the casual loading is not payable on overtime, but the variations south by the United Voice does not disturb that state of affairs.

PN1722

VICE PRESIDENT HATCHER: Why do you say 10.5(c) says that?

PN1723

MR IZZO: 10.05(c) identifies - so well 10.5(b) says that you get a loading of 25 per cent and it says that it is paid instead of leave et cetera. It says that it's in addition to the ordinary hourly rate and rates payable for shift and weekend work. So, it's specifies where the 25 per cent extra applies and it calls out ordinary hourly rate payable for shift and then penalties for shift and weekend work. No reference to overtime.

PN1724

Then you get to 10.5(c) and it says that the penalties and overtime for casual employees are calculated based on the ordinary hourly rate excluding the casual loading. So, on the one hand, we know the penalties are calculated based on the ordinary rate and on the other hand where we look at the loading provision, it doesn't say the 25 per cent is added to overtime. So, reading those two clauses together, we say it's quite clear there is no intention that the loading is applicable on overtime.

PN1725

VICE PRESIDENT HATCHER: So, what are penalties - aren't weekend rates penalties?

PN1726

MR IZZO: Weekend rates, yes they would be - penalties would refer to weekend penalty rates and public holiday penalties, but not overtime. Overtime is separately referred to.

PN1727

VICE PRESIDENT HATCHER: I hear what you say about (b), but (c) is the provision which says it's not cumulative, isn't it?

PN1728

MR IZZO: That's right, your Honour, but what (c) does, (c) is expressly calling out the fact that when you determine the way you pay penalties, it's exclusive of the casual loading.

PN1729

VICE PRESIDENT HATCHER: Yes, so it's not cumulative.

PN1730

MR IZZO: As in - well, it doesn't compound.

PN1731

VICE PRESIDENT HATCHER: Yes, I say it's not compounding, so you're right.

PN1732

MR IZZO: Yes, it doesn't compound. But nowhere does it say that the loading applies to overtime and indeed, when you read (b), it's expressly not referred to. I mean, if the drafters of the award saw it fit to refer to overtime in 10.5(c), you would assume they would have saw it fit to refer to overtime in 10.5(b), should they have intended the loading to be applied on top of it.

PN1733

VICE PRESIDENT HATCHER: Can we just pause there? Mr Bull, do you agree with that submission?

PN1734

MR BULL: I'm looking at it. This is one where we say it's easier to get confused. But look, I suppose I've - we've taken the view that when it talks about the additional loading of 25 per cent, it does look like that the loading is probably absorbed. But it's unclear, but it's the bottom end of unclear.

PN1735

VICE PRESIDENT HATCHER: I'm trying to work out, but I mean no party has sought a variation to 10.5(b)(v), so I just want to make it clear, that if we make the variation thought, that it doesn't give rise to some ambiguity that misunderstood the loading is not applicable.

PN1736

MR BULL: We weren't trying to change status-quo.

PN1737

VICE PRESIDENT HATCHER: Right, thank you. Right, back to you Mr Izzo. So, dry cleaning.

PN1738

MR IZZO: So, dry cleaning, just let me find my notes on dry cleaning.

PN1739

MR BULL: I might interrupt briefly, the only thing which is confusing is the use of the word 'exclusive' because there's one sense that that could be in addition to the penalty because it would be inclusive - - -

PN1740

VICE PRESIDENT HATCHER: Well exclusive says it's non-compounding, but there's some penalties that you do get the loading because the weekend penalties are covered by (b) and (c).

PN1741

MR BULL: As I said, we are not seeking to vary that. There is a bit of lack of clarity.

PN1742

MR IZZO: And so, just the reference. We concede that the loading is payable on weekend work, but we say it's not payable during overtime work. That's our understanding of how the award currently operates. So, if the variation is made, the variation we say would not disturb that state of affairs.

PN1743

In relation to dry cleaning, this is second award where we say it is very clear on the fact of the award that the loading does apply to overtime work and that is because clause 10.5(c) says that a loading of 25 per cent applies for all hours worked. So, we see that language as relatively unambiguous. A loading does apply to overtime hours and again, for the reason we stated yesterday, we're not seeking to disturb the loading where, for industry reasons, a specific circumstance is arrived at.

PN1744

We do have a view that the United Voice claim in relation to intra-day overtime for dry cleaners is the seeking of a new entitlement. Again, I rely on my submissions that well, if they're make that claim, they will need to have evidence to support a probative merit case. They don't appear to have that, so therefore we would oppose it on that basis.

PN1745

VICE PRESIDENT HATCHER: You do oppose it.

PN1746

MR IZZO: Yes, in dry cleaning.

PN1747

VICE PRESIDENT HATCHER: But this expression intra-day, I'm not sure what that means.

PN1748

MR IZZO: So mine is intra-day more than - - -

PN1749

VICE PRESIDENT HATCHER: There's weekly overtime and daily overtime; which are you saying the new one is?

PN1750

MR IZZO: Daily.

PN1751

VICE PRESIDENT HATCHER: Daily overtime.

PN1752

MR IZZO: Let me just confirm, but I think that's the case - yes.

PN1753

Educational services general staff we've dealt with. In relation to the teacher's award, again, there's a similar scenario arises about the casual loading. We say that in this award, there's no terms that specify whether the casual loading applies to overtime work. We say, having regard to the drafting of the award, as well as the matters we outlined before the Bench yesterday afternoon, in relation to the hospitality awards, that the award should be interpreted as not applying a casual loading to overtime work.

PN1754

And accordingly, if the variation is granted, we say that should not disturb the existing state of affairs which is that the loading is not payable on overtime. Again, this is a variation that doesn't actually seek to change the loading treatment either way. So, you end up in a scenario with whatever the parties believed to be the state before the variation is made will likely continue to be the state after the variation is made.

PN1755

The Commission, there's two ways in which you can deal with it. You can either just make the variation and I'll talk about the merits of the variation in a moment. It can make the variation in which case, we say the status-quo remains that the loading is not payable on overtime, or the Commission can endeavour to clarify.

PN1756

VICE PRESIDENT HATCHER: I'm just trying to work this out, so schedule B employees are they paid the same rates as employees generally under the award?

PN1757

MR IZZO: The same for overtime? The same overtime rate, is that the question?

PN1758

VICE PRESIDENT HATCHER: Well, the same pay rates. Because I'm looking at 14.5 which talks about full, half and quarter day rates. Is there an overtime entitlement at all?

PN1759

MR IZZO: For casual employees?

PN1760

VICE PRESIDENT HATCHER: Yes, but it seems to contemplate that you will work a day of a standard length and you'll get a full day rate. Because I can't see an hourly rate upon which an overtime rate would operate. Am I missing something?

PN1761

MR IZZO: Bear with me, your Honour.

PN1762

VICE PRESIDENT HATCHER: And if you look at 19.3 for example, it seems to contemplate that there's no specific daily hours; you just work variable hours and you get the holidays off.

PN1763

MR IZZO: Then when it comes to early childhood services.

PN1764

VICE PRESIDENT HATCHER: Yes.

PN1765

MR IZZO: There does appear to be a payment of overtime for employees at large where they work outside ordinary or in excess of the ordinary rostered hours.

PN1766

VICE PRESIDENT HATCHER: What's that calculated on?

PN1767

MR IZZO: Because they identify time and a half for the first three hours, double time thereafter.

PN1768

VICE PRESIDENT HATCHER: What clause is this?

PN1769

MR IZZO: This is clause B.4.1 of the award.

PN1770

VICE PRESIDENT HATCHER: So where do we find the hourly rate?

PN1771

MR BULL: For the B schedule employees there. I think they're just classified as - under the main body of the award classification. It's not clear.

PN1772

VICE PRESIDENT HATCHER: Again, where do we find an hourly rate for anybody?

PN1773

MR BULL: B18 which is the minimum wages.

PN1774

MR IZZO: No, I think it's 14. You go back to 14.5 your Honour, which is the question you've raised about full days, half days and quarter days. I mean I suspect what is applied in practice is someone looks at - someone would likely look at the - well to be honest your Honour, in terms of how it's applied in practice, I don't specifically know, but I suspect that there would be a variety of ways, one on which is someone looks at the calculations in 14.5 and discerns an hourly rate. But - - -

PN1775

VICE PRESIDENT HATCHER: At any rate, unless someone tells me something, there appears to be a lacuna as to how these penalty rates would be calculated.

PN1776

MR IZZO: Well, it's certainly unclear on the face of the language of clause 14.5 which appears to be the clause that gives rise to the pay rate. Because where we land on the United Voice's variation is we don't - and we've consulted with the Independent School's Association coming to this. We don't specifically oppose the variation. Our interest solely relates to how the casual loading is applied or if it is to be applied to the overtime rate, the variation doesn't touch on that. Given the drafting of the Award and the matters that we raised yesterday, we say the casual loading does not and should not apply.

PN1777

But I accept, your Honour, and this is not uncommon in the Education Awards, that because a lot of them, even in the post-secondary education space, they determine the casual rate as a fraction of the permanents. In this case it doesn't seem to refer to hours.

PN1778

VICE PRESIDENT HATCHER: All right.

PN1779

MR IZZO: The next award is the miscellaneous award. We've heard the exchange that your Honour's has had with Mr Bull and Mr Barlow in relation to that. Our view is that the Miscellaneous Award does not currently contain an overtime rate for casuals. In relation to the exchanges that your Honour had with the union representatives, we've identified - or that the reason we hold that view is primarily because the overtime clause at clause 22.1 specifically provides for an overtime penalty rate, if I can call it that for full timers and part timers.

PN1780

If you then go to clause 22.3, in terms of the drafting, if you go to 22.3(c), we don't see that clause is in any way interfering with our primary interpretation because what we say that it's doing is simply saying that where a casual works certain unsocial hours, if I can call it that, outside the seven to seven, Monday to Friday, on a Saturday, they're going to get a penalty, but not during overtime.

PN1781

So, we say that seems to be consistent with the theme of the award which is saying there's an overtime penalty rate for full timers and part timers. There is however, ordinary hours of work on weekends, ordinary hours of work at late nights. That attracts a particular penalty, but that penalty only applies to ordinary hours. We see that is what clause 22.3 is saying. That seems to be consistent with clause 22.1. It is also consistent with - - -

PN1782

VICE PRESIDENT HATCHER: But that means on a Sunday your rate drops after 10 hours.

PN1783

MR IZZO: It leads to that outcome, which your Honour has pointed out, the Bench may have some difficulty with.

PN1784

VICE PRESIDENT HATCHER: Well, that's ridiculous.

PN1785

MR IZZO: But that is what we say how the drafting of the award works. It's actually consistent with the award modernisation decision, we say. So the paragraph you've referred to, which is paragraph 154 of that decision, it actually talks about and it's in the authorities we provided yesterday this decision, as well as the AiG submissions. That sentence that was read out to you, we do not think - - -

PN1786

VICE PRESIDENT HATCHER: Which tab is it?

PN1787

MR IZZO: It's paragraph 154.

PN1788

VICE PRESIDENT HATCHER: Tab 7.

PN1789

MR IZZO: Yes, it's in our list of authorities and its tab 7, is that right? You're correct; tab 7, paragraph 154. It's page 24 of the judgment. So, at 153 they start to talk about conditions of employment. At 154 they say we decided not to make any alteration in part time provisions or casual loadings, despite suggestions from employers we should do so. Part time provision permits alteration in agreed hours.

PN1790

But then the critical sense is the last one:

PN1791

We do not think it is appropriate to exempt casual employees from weekend and other penalties applicable to full time employees.

PN1792

Now, we say that sentence is really saying well, no they should get your shift penalties, your weekend - I don't' know if that - or what has shift penalties actually, but your weekend penalties that the others get during ordinary time. But it doesn't specifically deal with overtime. And again, then you get to the actual award drafting. Overtime only applies to full timers and part times and 22.3 appears to specifically call out the penalty only applies during ordinary time.

PN1793

Now, your Honour has pointed out well, that means on a Sunday you landed a particularly unique scenario.

PN1794

VICE PRESIDENT HATCHER: It also, on that approach, would suggest that the purpose of having a 10 hour daily maximum for casuals, would be to determine when their rate drops on weekends. Otherwise, why else would you have a 10 hour ordinary day applying to a casual?

PN1795

MR IZZO: Well, the first thing I'd say about that clause, your Honour, so 20.1 is obviously applicable only to full timers and part timers or permanents, I should say. 20.2 doesn't expressly identify it's applying to casuals, but you're right, it seems to operate at large. I'm not sure the extent to which it specifically results in a different - I see, because if you work the 10 hours on the Saturday, the first 10 hours is at 145 per cent and then it will drop.

PN1796

VICE PRESIDENT HATCHER: And it also suggests that that is the function of the clause to determine - - -

PN1797

MR IZZO: I'm not sure if that's the purpose of the clause.

PN1798

VICE PRESIDENT HATCHER: Well at least so far as it applies to casuals.

PN1799

MR IZZO: I think that might be part of its effect, but I'm not sure if that's the purpose. I think the purpose was to set maximum ordinary hours that applies to employees at large and its effect is different on the permanents, as it is on the casuals. I think your Honour is quite right in saying that it leads to an outcome that is different to what you'd see in most awards. Maybe that's because of the very unique scenario - very unique circumstances about the Miscellaneous Award's application. The Bench didn't necessarily have a clear idea of where it would apply. The Bench commented that it would have ultimately very narrow coverage, but that is how we say the award provision currently operates.

PN1800

In relation to the casual loading and how it interacts with overtime, because of our interpretation of how the overtime provisions operate, we say well, there is no overtime for casuals, therefore there is no loading applicable to any overtime rate. If this Bench was minded to grant the variations sought, we would oppose any casual loading being applied on the overtime rate and we would oppose that on two grounds. The first is that there would need to be a merit basis for that. We say no merit basis has been advanced.

PN1801

The evidence of Mr Professor Muurlink, it goes to - as Mr Barlow pointed out, it goes to the fact that if you work long hours, you suffer a level of disability. The part time casual employees' Full Bench, that Full Bench found that the level of disability or level of deleterious impact suffered by casuals is likely to be the same as permanents. That is all supportive of a casual being paid the same during overtime as the permanent, not more.

PN1802

So, we say no merit case has been advanced to have the loading applied during overtime. We also advance the submissions that were advanced yesterday afternoon in relation to the Hospitality Awards that there are also general matters of principle that would militate against granting the casual loading on overtime hours. That is what we would say about the Miscellaneous Award.

PN1803

VICE PRESIDENT HATCHER: All right.

PN1804

MR IZZO: In relation to the Security Award, there was initially a claim to make the casual loading payable on overtime and that was quite clearly part of the United Voice's variations. That claim has been withdrawn. My understanding of the amended variations is that in terms of when overtime is payable, that element in the United Voice's case is no longer being pressed. For the sake of completeness, I do wish to identify that our view is that in this award, the casual loading does not apply to overtime rates. In support of that submission, we rely on the drafting of clause 10.4(a) which talks about the loading of 25 per cent being paid in addition to the relevant minimum wage.

PN1805

VICE PRESIDENT HATCHER: 10.5(b).

PN1806

MR IZZO: Sorry, apologies. I was looking at the wrong award. 10.5(b) which says that the 25 per cent is paid on the ordinary hourly rate. I don't think I need to take that submission too much further, because there is no claim now on foot to vary how the loading operates or how the overtime operates. In relation to the claims that are pursued, the first that I'd like to deal with is this notice of rosters.

PN1807

As best as I understand, this claim - we found out about this yesterday. So, it wasn't in their initial variation. I had not seen this, admittedly till today, but I think the first time we received this was yesterday. I think Mr Bull emailed through the variations a day or two before that, but needless to say, it is very late in the peace. Not only does it fall, we say, outside the scope of these proceedings, but none of the employer parties have really had the opportunity to consider or respond to it.

PN1808

The reality is, Mr Bull is clearly agitated by a decision of the Federal Court in United Voice v Wilson Security. The roster changes are in response to that. Mr Bull's already foreshadowed he's going to file a section 157 application to vary the award in response to that Federal Court judgment. The proper course of action, when one considers a procedurally fair approach, would really be not to consider this 21.11 variation as part of these proceedings and to inform Mr Bull that if he wishes to pursue that matter, he should pursue it as part of his section 157 application.

PN1809

He can then file the merit case; he can file the evidence he wishes and we can all have a proper opportunity to respond. That would appear to be the most sensible course of action for dealing with this claim.

PN1810

VICE PRESIDENT HATCHER: Did you oppose the first variation?

PN1811

MR IZZO: In relation to the first variation - bear with me one further moment, your Honour. Your Honour, as far as I understand, it wasn't part of their initial variation. Again, it's come very late. We don't have a specific view on 10.5(c). My understanding I sense is that ASIAL does have a view on it. So, we're willing to not express a view, just simply because we're not in a position to, given the late filing. But I don't think we need further time to be heard on that.

PN1812

There's just one final generally comment then that I would make, your Honour. That is in response to the CPSU's submissions about the evidence. The CPSU has sought to respond to our submissions about the level of control casuals may or may not have overtime in our cross-examination of Professor Muurlink. The purpose of that cross-examination and our submissions in relation to that evidence are as follows:

PN1813

One, casual employees do have the ability to refuse overtime and that ability is one that permanents do not have, to the same extent. All that we are saying when one has regard to that, as well as when one has regard to the fact that none of the evidence put before you actually compares disutility or experience of casuals between permanents in overtime hours.

PN1814

None of the evidence goes to that. All we would say is you could not be satisfied that casuals are in a worse position when working overtime, than permanents. The most you could be satisfied of is that the disability is about the same. If the disability is about the same, the payments they receive should be the same. And if that is the case, then there's no need for a casual loading to be paid on the overtime hours. That's what we take from the evidence.

PN1815

Those are our submissions on those awards.

PN1816

VICE PRESIDENT HATCHER: We might just take a short 10 minute break and then we'll hear the rest of the submissions to completion.

SHORT ADJOURNMENT [12.14 PM]

RESUMED [12.30 PM]

PN1817

VICE PRESIDENT HATCHER: Mr Ferguson.

PN1818

MR FERGUSON: Thank you, your Honour. Ai Group is advancing submissions in relation to Cleaning Services which we didn't address in our written submissions but I'll just take you to one point. The Corrections and Detention (Private Sector) Award, the Miscellaneous Award and the Security Industry Award which Mr Harrington will address. Just in relation to cleaning services, just take you to a couple of provisions in the award. The submission is simple.

PN1819

In essence, we say that the proposed variation is simply not necessary because the award works as it is, so not necessarily in the sense contemplated by section 138. I'll take you to it very quickly. Clause 12.5(a) deals with when you get the casual loading and it's in addition to the ordinary hourly rates and additional loading 25 per cent. Then clause 24.2(a) defines what the ordinary hours of work are for part-time and casual employees and effectively it captures all of the circumstances contemplated by 28.7 or proposed 28.7.

PN1820

There has been periods of not more 7.6 hours per day, not more than five days Monday to Sunday inclusive. I don't think there's any clarification needed then about overtime being after 38 hours because you can't work more than 38 ordinary hours under this provision. 12.5(a) says that the rates that you'll get paid will be the overtime rates plus the 25 per cent loading. 24.2 defines what are the ordinary hours and then 28.1, which is the overtime clause, says 'The employer may require an employee to work reasonable overtime at overtime rates' and then 28.2 and 28.3 set the overtime rates.

PN1821

It already sort of comprehensively sets out what the ordinary hours are, all other hours are overtime and says you can require people to work overtime at overtime rates and then 28.2 says these are the overtime rates for everyone. I think all the - - -

PN1822

VICE PRESIDENT HATCHER: Well it doesn't actually say what overtime is but - - -

PN1823

MR FERGUSON: No, but that's not unusual in the award system in that awards often just define the ordinary hours and set rates for that and then they have an overtime provision which sets overtime rates because all time worked outside the ordinary hours is overtime by definition. That's not an unusual approach at all across the system. Then I think that all United Voice are trying to do is sort of - - -

PN1824

VICE PRESIDENT HATCHER: What's the minimum engagement for casuals?

PN1825

MR FERGUSON: Not sure.

PN1826

VICE PRESIDENT HATCHER: Is there one?

PN1827

MR FERGUSON: I'm not sure there is one. I'm just - - -

PN1828

DEPUTY PRESIDENT KOVACIC: They're in 24.2, I think.

PN1829

MR FERGUSON: Sorry?

PN1830

DEPUTY PRESIDENT KOVACIC: They're in 24.2 and they vary depending on size.

PN1831

MR FERGUSON: Yes, sorry. There's this quite sophisticated arrangement based on the size of the area which you're cleaning and so forth.

PN1832

VICE PRESIDENT HATCHER: Yes, all right. But what it means on that reading is that if you operate under say 24.2(d) that means you could be rostered two hours a week for six days in the week and the sixth day it'll be overtime. Is that the way it works?

PN1833

MR FERGUSON: Yes. Well only five of the days could be ordinary hours.

PN1834

VICE PRESIDENT HATCHER: Yes.

PN1835

MR FERGUSON: I'm not sure which day would necessarily be ‑ ‑ ‑

PN1836

VICE PRESIDENT HATCHER: Well it doesn't and perhaps doesn't matter but it means that you're getting overtime after 10 hours work in effect.

PN1837

MR FERGUSON: Yes.

PN1838

VICE PRESIDENT HATCHER: Right.

PN1839

MR FERGUSON: Yes, but the range of ordinary hours is confined to five, however you want to arrange it, but look I think it was only - the proposed variation was only put as a further clarification and I think United Voice itself described it as somewhat involving a degree of duplication and we just say that duplication's not necessary in the sense contemplated by section 138. I think United Voice did take you to 28.5 which talks about providing that time outside of rostered hours is overtime and it might be that 28.5 does some substantive work there in finding another category of time that is actually overtime in that it's hours that aren't just outside the ordinary hours but hours outside the rostered hours.

PN1840

But in any event, that just arguably justifies the retention of that provision. Doesn't really speak to the necessity for including another provision dealing with casuals in this course. I don't take that any further unless there's any questions.

PN1841

VICE PRESIDENT HATCHER: Right.

PN1842

MR FERGUSON: The next issue is the Corrections and Detention (Private Sector) Award. I think the only live issue here really is the attempt by United Voice to restrict the circumstances in which casuals can work ordinary hours of work and in a sense the meaningful thing they're doing is trying to restrict it to 38 ordinary hours per week which we oppose. There are some - and I'll take you to clause 20.10 of that award. Sorry, 20.1 of that award is where they start to put the ordinary hours.

PN1843

It commences with a statement the fact that the industry operate 24 hours a day, seven days per week, include weekends and public holidays and both the award and the AIRC decisions, which we've referenced in our submissions, speak to the need for flexibility in this industry and so there were very flexible provisions in the predecessor instruments as well which we've set out in our submissions, I won't you take you to. The point here is they do already ‑ the award does constrain ordinary hours of work for casuals, can't be more than 10 ordinary hours and for shift workers it's up to a maximum of 12.

PN1844

We say that's sufficient. There's certainly no need to adopt a more restrictive approach to the structure of ordinary hours for casuals than there is for full-time and permanent employees and for 20.2, day workers who are working full-time can have their ordinary hours averaged over 28 days. We just can't see any merit based justification for adopting a more restrictive approach in relation to casuals. I mean, the obvious point that I think fell from your Honour is you might want to use a casual to cover absences from permanent staff and you should be able to implement an arrangement for ordinary hours of work which, at least, lets them do that.

PN1845

VICE PRESIDENT HATCHER: What about work in excess of 38 a week, where is that covered?

PN1846

MR FERGUSON: It's not covered in the award so casuals aren't restricted to only 38 hours a week. The only restrictions here is in 20.1(b) and then 20.4 there's a specific restriction in relation to shift duration but then I'll say if you read on there are fairly unusual restrictions around ordinary hours of work that are undoubtedly tailored to this industry, so at 20.6 there are provisions I haven't seen in any other instrument dealing with rostering arrangements and long breaks and so forth and then at 20.7 there's specific arrangements for fly in and fly out and drive in drive out operations which are very unique and I don't think appear to, in any way, exclude application to casual employees.

PN1847

I think the Full Bench should be very cautious about implementing any variation to this clause which would disrupt these obviously tailored provisions absent some sort of evidence about how it all works in practice and, of course, that's in a merit case. We're actually adopting a more restrictive approach and we simply say you shouldn't alter these provisions, and in relation to the 38 hour proposition, I don't know that there is inherently any sort of imperative to necessarily restrict a casual ordinary hours to 38 hours per week.

PN1848

Certainly the Act doesn't operate that way, as Mr Bull put. Section 62 talks about maximum weekly hours. It doesn't define the maximum ordinary hours of work as such. It just defines the maximum weekly hours by reference in some instances to an employee's ordinary hours of work and, indeed, if you look at section 62(1), for employees not a full-time employee, the lesser of 38 hours or the employee's ordinary hours of work that are restricted but it does contemplate that the ordinary hours of work might, indeed, be more than 38 hours per week.

PN1849

Apart from suggesting that there's a statutory assumption that there are only 38 or a maximum of 38, it can be more but there are still restrictions under this award, as I'm saying, for casuals because they're not uncapped but in any event, there are no case has seriously been advanced for changing this. They've just a view that we should restrict it because purportedly it's open to abuse but there's no evidence of any of that and we don't accept those were the factual propositions.

PN1850

They can give assertions from the bar table, they can be given no weight. Look and they're the specific issues in relation to this award I wanted to raise. Our submissions raise broader merit based argument so I won't repeat all of them. Unless there are any questions, that then takes me to the Miscellaneous Award. I'm just trying to find the draft determination but essentially there are two issues. One is a rates issue and look we accept that the award itself doesn't define or doesn't prescribe any higher overtime rates for casual employees. It simply doesn't.

PN1851

It's not clear to us that that's necessarily an error. We've obviously extracted the relevant provisions from one of the decisions concerning the making of it and the Full Bench does talk about a view that it would apply penalty ‑ weekend and other penalty rates that apply to full‑time employees. It's not clear whether they envisage that including overtime rates. Obviously the clause that you've already gone through in relation to that award, which I'll just take you to if you bear with me.

PN1852

Clause 22.3 deals with penalty rates and specifically deals with arrangements other than rates for overtime. We must be mindful that what the Full Bench of the AIRC had in its mind was it was taking a cautious approach out of concern about the potential cost implications of making this award especially in circumstances where it was hard to identify what employers would actually be covered by the instrument. It is that same concern that drives us to a position of saying that you should not alter the award to now include additional overtime rates for casuals that have been absent for almost a decade in this instrument.

PN1853

It is a significant change, however you look at it, and one that we say out of caution this Full Bench ought not make. Certainly not where there is no evidence that's been brought by the party calling for the change about what impact that would have, who it would apply to and so forth. In that approach, we say you should continue to take a conservative approach. I heard your Honour's comments about the oddness of the outcome where a rate drops. I will say this, and I can't take you to any specifics, my recollection is that this outcome is not unknown in the award system.

PN1854

Certainly not in predecessor instruments. I suspect that there are other situations where certain penalty rates and so forth apply on a weekend drop when someone gets down to overtime rates. I can't speak to the justification for that. It may be that it's a distinction about an issue raised about whether overtime is something that employees can refuse to work or not. Truthfully I can't tell you what the rationale for that was but it's not an unknown situation and in that sense, we would say it's one that necessarily needs to be rectified.

PN1855

But look, that's our position, our primary position. If the Full Bench were minded to introduce overtime rates, it then needs to look at how it would do that and the first issue that comes to play is the interplay between the casual loading and the overtime rates. I'll just turn to the relevant provisions.

PN1856

Clause 10.4 of the award sets out when the casual loading is payable. 10.4(a) prescribes that a casual employee, as one engaged and paid as such - also be one as engaged as such, "a casual employee must be paid a loading of 25 per cent in addition to the relevant minimum wage," in clause 14. Clause 14 then prescribes weekly and hourly rates. But there's nothing in that clause that talks about whether they're for ordinary hours or overtime hours or anything like that that I can see. It's just rates for time worked, which would mean that there's no anomaly in the sense that there is a rate prescribed for all hours worked by the casual at the moment. If you were therefore to insert an additional overtime allowance, our view would be that you would take the approach in the Hospitality Award of saying that it should be inclusive of any casual loading, or the other approach would be, as I think Mr Izzo put forward, that you just take away the casual loading as such.

PN1857

VICE PRESIDENT HATCHER: So how do we read 10.4(a)? How do we read it as applying to the weekend penalties?

PN1858

MR FERGUSON: If you look at the penalty rates, it appears that they're calculated for casuals. They're calculated at a higher rate based on the minimum wage, which appears to assume that they've subsumed or incorporated the casual loading, so a similar approach could be taken in relation to overtime. Perhaps, and this might be the issue for the Hospitality Award, it could be made clear through some sort of note that that's what has happened, so people don't read it as both applying. But again, we don't - our primary submission is not to introduce these new costs out of - - -

PN1859

VICE PRESIDENT HATCHER: Well I think a comparison of (a) and (b) with (c) and (d) is (indistinct) that is the difference in the loadings as a casual.

PN1860

MR FERGUSON: It seems logical that that's what has happened, but there's no note to say that, or there's no indication in the text. And I might say, I confess, I think on reflection that might be the same in the Hospitality Award that there's no indication. Just in relation to one other question that came, I think there was a question as to well why is there a general restriction on ordinary hours, perhaps on ordinary hours for casual employees, under the award at all if there's no overtime rates that apply, and I think the answer for that is simple in that section 147 of the Act requires that the award provide for - either set or provide for the determination of the ordinary hours of each type of employment, and that includes casual employment. So you need to, pursuant to the Act, set the ordinary hours of employment for casual employees or provide for their determination. They can agree to the workplace and so forth, and that's because they then serve various functions. Obviously in permanent employment it serves a function in relation to the NES accruals and crediting and so forth, but more broadly, superannuation entitlements and so forth take their cues from the award system's definition of ordinary hours of work, and for that reason there has to be some parameters around it. It doesn't sort of follow that it's a nonsense that there's that, even though there are no overtime rates. There are other awards that set ordinary hours without setting overtime rates. They're the submissions I intend to put, unless there are any questions about any of that. Our submissions are more comprehensive than that. Mr Harrington is going to deal with the Security Industry Award.

PN1861

VICE PRESIDENT HATCHER: Mr Harrington?

PN1862

MR HARRINGTON: Thank you, your Honours. Harrington, initial H of the Ai Group. Just in respect of the Security Services Industry Award, it has already been said United Voice's proposed variations were initially rather broad. They've been narrowed quite dramatically. As United Voice has withdrawn its submissions relating to its claim in respect of disaggregation, we would not seek to press our associated reply on this point. We also withdraw paragraph 151 of our submissions of 5 July 2019 where we assert that it is unclear whether an overtime penalty is intended to apply. Those submissions are no longer pressed.

PN1863

Relating to United Voice's remaining submission supporting reference to such a penalty without provision for aggregating ordinary hours, so averaging out ordinary hours, Ai Group continues to oppose this variation. Ordinary time shifts are limited in this award to a maximum of 10 hours with scope for agreement to extend this to 12, provided the matters listed in 21.1(b) are satisfied. United Voice has submitted that it's commonplace for such agreements to be made and that 12 hours is a typical shift length. No evidence has been provided supporting this contention. An averaging arrangement is provided for in this award at clause 21.1(a) where the employer chooses to operate a roster. United Voice contend that rostering is not a facility that can be applied with fairness to a casual employee. There is no legal requirement that a casual employee working within a roster longer than a week will work the entire roster, and that averaging can result in the employee experiencing unreasonable delay in the payment of overtime. The award already envisages casual employees working according to a roster as is clear in 21.11 of the award.

PN1864

In additional submissions filed on 26 July, United Voice proposed an additional draft variation removing reference to casuals in clause 21.11 of the award. Ai Group has opposed its amendment. The benefits which arise from rostering employees are not limited to permanent staff. Rostering is merely an organisational tool enabling employers to set hours beforehand and plan their operations accordingly. Casual employment is supposed to provide flexibility, or at least greater flexibility, than that associated with permanent employees. Imposing greater restrictions on how casual employees' hours may be arranged could have the odd effect of it imposing further restraints on how casuals may be engaged when compared with their permanent counterparts. United Voice are criticised for what it terms "roster manipulation," and no evidence has been provided on this point, and we have no knowledge of this occurring in the industry.

PN1865

Participants in the security industry have a particular need for averaging arrangements. This need doesn't diminish where the particular employee is engaged as a casual employee. The security industry is a seven‑day‑a‑week, 24‑hour‑a‑day industry, and this has been recognised by the Australian Industrial Relations Commission in the Part 10A award modernisation proceedings. More recently, Gregory C acknowledged that it's clearly a highly competitive industry with wage costs typically representing a significant proportion of business expenditure in his decision on the IFS headed franchise agreement. The relevant clauses in the award relating to hours of work and rostering were drawn from the Security Industry NSW Award in 1999, which itself provide for rostering arrangements applicable to casual employees. So that's in 147 of our submissions.

PN1866

United Voice's additional submissions of 26 July include a new draft determination. The submissions add little to those provided back in May of this year. They state additionally that work in this industry often requires continuous provision of service. Ai Group recognises that the Commission has acknowledged that the security services industry is a seven‑day‑per‑week industry, but this shouldn't be used as a justification for adding costs. United Voice also contend that there is an entrenched practice of designing rosters to defeat overtime entitlements and that casual employees are particular vulnerable to working long durations of work without appropriate compensation. No evidence has been provided in support of this point. So we urge the Commission to refrain from making the variations as proposed by United Voice. We believe the application of the averaging arrangements to casual employees are appropriate and they have been longstanding in the industry. If there are no other questions, those are our submissions.

PN1867

VICE PRESIDENT HATCHER: Thank you. Mr Delaney?

PN1868

MR DELANEY: It seems like it has all been said, doesn't it, your Honour. Just a couple of points of clarification, if I may. You asked a question earlier in relation to the Miscellaneous Award. There are 22 awards that contain a clause that allows an employer to engage a security officer. So the likelihood of one being engaged under the Miscellaneous Award, quite frankly, is very remote. There was also a statement made about relieving officers.

PN1869

VICE PRESIDENT HATCHER: What about the mining industry, does the mining industry have a - - -?

PN1870

MR DELANEY: Sorry?

PN1871

VICE PRESIDENT HATCHER: The mining industry, does that have one?

PN1872

MR DELANEY: I believe the mining industry does have one, yes, your Honour. I could stand corrected on that, but there are at least 22 awards that do - Hospitality Awards, the Registered Clubs Awards and so on. I'm pretty sure the Mining Industry Award does have one. I can check that.

PN1873

VICE PRESIDENT HATCHER: All right.

PN1874

MR DELANEY: In fact, when the modern award was being made, we sought that the modern award would be an occupational award rather than industry‑based award. I think that was opposed amongst the group of people, including some of those in front of me, and we were unsuccessful on that. I think we tried again in 2012, and we were again unsuccessful. Maybe we learned from that. We haven't tried again, so we won't.

PN1875

VICE PRESIDENT HATCHER: It seems like a good idea to me.

PN1876

MR DELANEY: Well it seemed a good idea to us too, but apparently not to a lot of other people. In terms of relieving officers, relieving officers in our industry are ordinarily engaged as full‑time employees. You will notice under the allowances clause of the award, I think it's clause 15, that there is a weekly allowance for relieving officers, and it adds up to around about $35 a week, and that's for the disability of being called on at short notice. There's a 24‑hour notice period for them, and they're not engaged on a particular roster, so they fill in. Likewise, casuals fill in from time‑to‑time on a full roster when somebody might be on an extended period of leave, so sick leave, annual leave, or long service leave, and we believe that the application made by the union, United Voice in this instance, for variation to 21.11 would interfere with the ability for an employer to allocate a casual employee to a roster. We think it's contrary to what the intent of the award was and is, and we oppose it.

PN1877

Likewise, we oppose the application for 10.5(c), and we say that that's entirely unnecessary. The award deals with ordinary hours of work for employees, and we say that's all employees, permanent, part‑time and casual, at 21.1, and at 21.2 goes on to talk about the various ways in which that could apply for a shift duration for a casual employee, a permanent part‑time employee and a permanent employee allowing employees to work up to a maximum of 12 hours under certain circumstances, 12 ordinary hours in a day.

PN1878

VICE PRESIDENT HATCHER: But 21.1 is about full‑time employees, isn't it?

PN1879

MR DELANEY: Where does it say full‑time, your Honour?

PN1880

VICE PRESIDENT HATCHER: Because it says their ordinary hours are 38 per week.

PN1881

MR DELANEY: It doesn't say for full-time employees. That's qualified in 21.2 where it talks about the number of ordinary hours that can be worked in a day for each of those categories. 21.1 says that there's a maximum - - -

PN1882

VICE PRESIDENT HATCHER: How does 21.1 apply to part‑time employees then?

PN1883

MR DELANEY: 21.1 says ordinary hours are 38 per week or where the employer chooses to operate a roster. It goes on to say how that roster can apply, 76, 114, et cetera, up to a maximum of 304, which is an eight‑week roster cycle. Ordinarily in an eight‑week roster cycle, there are 12‑hour shifts. The general way of doing - - -

PN1884

VICE PRESIDENT HATCHER: Yes, but how does that apply to a part‑time employee?

PN1885

MR DELANEY: A part-time employee, I doubt that we would ever have a part‑time employee on a roster like that.

PN1886

VICE PRESIDENT HATCHER: How does 21.1 as a whole operate with a part‑time employee?

PN1887

MR DELANEY: Well, it could apply to part-timer. It doesn't say it can't, but practically it probably wouldn't. A permanent part-time employee usually has fixed hours and fixed days, but they can work a roster.

PN1888

VICE PRESIDENT HATCHER: What does it mean to say a part-time employee's ordinary hours are 38 per week?

PN1889

MR DELANEY: Where does it say that?

PN1890

VICE PRESIDENT HATCHER: Well, you are saying 21.1(a) applies to everybody.

PN1891

MR DELANEY: I'm saying 21.1(a) applies to all employers.

PN1892

VICE PRESIDENT HATCHER: Yes. So what does it mean to say that a part-time employee has 38 ordinary hours a week? What does it actually mean?

PN1893

MR DELANEY: A permanent part-time employee, if we go - it's qualified by 21.2, shift duration, where it says that for a permanent part-time employee there's a minimum of one-fifth of the employee's agreed weekly hours or a four-hour minimum, whichever is the greater. So for instance, if a permanent part-time employee worked 35 hours a week, their minimum number of hours per day would be seven. But they may not work five days a week. A permanent part time employee might work less than that.

PN1894

In that context if the permanent part-time employee worked less than that, then they'd be able to work up to 10 ordinary hours in the day. They might work three days a week for 10 hours.

PN1895

VICE PRESIDENT HATCHER: So can a casual do two seven hours, but then you do some additional days, you don't get overtime until you hit 38?

PN1896

MR DELANEY: No. If you were a permanent - I thought we were talking about casuals today, but - - -

PN1897

VICE PRESIDENT HATCHER: No. I'm just trying to test your proposition that 21.1(a) applies to casuals and permanents, as well as - - -

PN1898

MR DELANEY: If you were a permanent part-time employee, you could have a roster over an eight-week roster cycle.

PN1899

VICE PRESIDENT HATCHER: Yes, but I'm trying to make clear, if you're a part-time, say you were engaged for two seven-hour shifts a week, if you work additional hours it's ordinary time until you hit 38.

PN1900

MR DELANEY: No. We would say that if you work additional hours beyond what you've agreed with your employer it would be overtime.

PN1901

VICE PRESIDENT HATCHER: Well, what does it mean to say that part-time employee has ordinary hours of 38 then? What does that actually mean?

PN1902

MR DELANEY: You wouldn't be part-time employee if you had 38 hours. You would be a full-time employee.

PN1903

VICE PRESIDENT HATCHER: That's what I'm putting to you, that 21.1(a) by implication only applies to full-time employees.

PN1904

MR DELANEY: I'm sorry, I can't hear you, your Honour.

PN1905

VICE PRESIDENT HATCHER: That's why I'm putting to you that by implication 21.1(a) only applies to full-time employees.

PN1906

MR DELANEY: I don't agree. I don't think it makes a distinction between any employees. If a casual works 38 hours in a week, outside of the rostered system that is allowed under 21.1(b), if they worked outside of a roster I would say that if they worked in excess of 38 they would get overtime.

PN1907

VICE PRESIDENT HATCHER: So Mr Delaney, in terms of United Voice's first variation, I understand you say it is unnecessary, but I understand from what you are saying that it doesn't represent any change to the status quo? That's the first variation, not the second one.

PN1908

MR DELANEY: Well, I think what it does is it confuses the issue with respect to working a roster. And it doesn't stand alone. It needs 21.1(1) to be successful. And that's why 21.1(1) has been changed. So we oppose both on the basis that they are unnecessary, in order to determine when a capsule is entitled to overtime.

PN1909

If for instance, your Honour, the casual worked a roster to cover somebody on a four-week roster cycle, they may work 12 hours a day, four on, four off for a period of that roster cycle. Now, if they worked four days in the first week of 48 hours, according to this application by the union, then 10 hours would be overtime. But without it, 21.1(b) allows them to work that roster and aggregate it over the four-week period. Now, if they work more than - - -

PN1910

VICE PRESIDENT HATCHER: So what happens if they are rostered just for the week in which you work the four 12s?

PN1911

MR DELANEY: Sorry, what happens if?

PN1912

VICE PRESIDENT HATCHER: What if the permanent is away just on the week where you do you the four 12s (indistinct) doesn't like the long week, and you call it a casual - - -

PN1913

MR DELANEY: Well, I think if that were the case and they only worked one week, they didn't work the full cycle, then there would be overtime involved. We are talking about periods of more than one week in a roster cycle. If the casual was brought in for one week which was part of a roster cycle and they worked more than 38 hours, I would expect that they would get paid overtime. But if they worked the entire roster cycle, then remember the award talks about the cycle in terms of 76, 114, 152, 304. It would have to be the cycle that the employee worked to entitle the employer to average over that cycle.

PN1914

So if they only worked one week of the cycle and they worked 48 hours, I'd give them 10 hours overtime.

PN1915

VICE PRESIDENT HATCHER: I'm sure you would. It's the others I'm concerned about.

PN1916

MR DELANEY: Well, I would expect our members to give them 10 hours overtime and that's the advice that I would give them.

PN1917

VICE PRESIDENT HATCHER: All right.

PN1918

MR DELANEY: We've previously provided written submissions about other parts of the application and I rest on those unless you've got any more questions.

PN1919

VICE PRESIDENT HATCHER: Thank you.

PN1920

MR DELANEY: Thank you.

PN1921

MR FERGUSON: If I may, your Honour, I think you asked me one question that I answered on the run.

PN1922

VICE PRESIDENT HATCHER: Yes.

PN1923

MR FERGUSON: But perhaps inaccurately in relation to the Miscellaneous Award and the casual loading.

PN1924

VICE PRESIDENT HATCHER: Yes.

PN1925

MR FERGUSON: Clause 10.4(a) prescribes when the casual loading is payable and so the casual employees are paid a loading of 25 per cent in addition to the relevant minimum wage in - - -

PN1926

VICE PRESIDENT HATCHER: Can you please hold on, while I pull it up again?

PN1927

MR FERGUSON: Yes. Perhaps it's a fine point, but - - -

PN1928

VICE PRESIDENT HATCHER: Yes.

PN1929

MR FERGUSON: So 25 per cent in addition to the relevant minimum wage in clause 14, I think then when we are talking about how that applied in relation to penalty rates, I thought in effect that it was sort of subsumed within the rates prescribed in (c), (d) and (e) or (c) and (d), sorry. I think in truth what happens is clause 22.3 just prescribes the rate you get paid in the specific circumstances contemplated by that clause and you don't get the casual loading as such in those instances, rather than the casual loading still being payable but somehow inclusive of that rate. I think what's (indistinct) but it's just that the quantum has been set at a higher level.

PN1930

VICE PRESIDENT HATCHER: I think that's what I put to you, but it does mean that when you turn to 10.4(a), and it says, "Casual employees must be paid a loading of 25 per cent in addition to the relevant minimum wage in clause 14 that that must be talking about ordinary hours and not penalty rates hours.

PN1931

MR FERGUSON: Well, the only difficulty there is that clause 14 - - -

PN1932

VICE PRESIDENT HATCHER: That you don't get an addition, it's part of the penalty rate.

PN1933

MR FERGUSON: Well, I think firstly the penalty rates are applying in some instances in relation to (indistinct) I think all that falls from 10.4(a) is that it applies when the minimum rates are applying.

PN1934

VICE PRESIDENT HATCHER: Yes.

PN1935

MR FERGUSON: And the position we were trying to advance was in relation to casuals the minimum rates might apply.

PN1936

VICE PRESIDENT HATCHER: On overtime.

PN1937

MR FERGUSON: On overtime. Except for where the specific circumstances arise that it's got to be regulated in relation to penalty rates provisions and we'd say that more specific provision applies then and sets their pay.

PN1938

MR IZZO: And if I could just confirm, that is the position of ABI as was put by your Honour. That is the language of the award is quite clear that the 25 per cent is only applied to the relevant minimum wage and the penalty rates clause supports that contention, because you see they've dealt with casual payments separately in a different way in the 22.3 clause. So 10.4(a) is only applying a casual loading to the minimum wage for ordinary hours. That is our position as well.

PN1939

VICE PRESIDENT HATCHER: Any submissions in reply, Mr Bull?

PN1940

MR BULL: Not many. I might just - in terms of averaging, the problem with any variation concerning averaging, particularly in the security award is that it's an entrenched and fairly critical part of the way the industry conducts itself.

PN1941

VICE PRESIDENT HATCHER: Mr Delaney was putting as a general proposition that the rostering - the averaging in the rostering would only apply if you worked the whole of the roster.

PN1942

MR BULL: No. That's not the case. That's what I was just going to address you on just briefly and that is our problem with averaging applied to a casual, because there's a missing bit of that argument in that there is some inherent protection for a full-timer with an averaging facility, because you've got to squeeze your 38 hours into a certain number of weeks ordinary hours, but for a casual there's no guarantee of hours. So you could say you are working the roster and you are getting a couple of 14-hour shifts in the first two weeks or something, and then you get nothing for the remaining four weeks.

PN1943

VICE PRESIDENT HATCHER: No. I'm just thinking of variation. Could we add something to this effect "or an average of 38 hours where the casual employee works the whole of a roster cycle."

PN1944

MR BULL: That would be fine.

PN1945

VICE PRESIDENT HATCHER: Is that consistent with what you said?

PN1946

MR DELANEY: Yes.

PN1947

VICE PRESIDENT HATCHER: Yes. All right.

PN1948

MR BULL: And that could apply elsewhere potentially. Just in relation to the Cleaning Award, I do agree with Mr Ferguson that there is a (indistinct) overtime which is derived from the span of hours provisions but the problem is it is just not clear. You can't expect cleaning companies to work things out that we find difficult to work out. It is appropriate to have a clear provision in the overtime clause, because that is what they are going to look at, as to whether they need to pay people overtime.

PN1949

The idea that - which you have identified in the Miscellaneous Award where on a Sunday your rate drops after 10 hours, well it may exist elsewhere, but these are modern awards. They are safety net instruments. They are supposed to be set according to objective criteria and I think it's - you can't defend essentially the rate dropping on a Sunday when the work on any reasonable analysis becomes more arduous because of its duration. So that we would say - and you don't need bucket loads of evidence from miscellaneous workers working on a Sunday for 12 hours being short-changed.

PN1950

VICE PRESIDENT HATCHER: Barking dogs - - -

PN1951

MR BULL: I beg your pardon?

PN1952

VICE PRESIDENT HATCHER: With barking dogs - - -

PN1953

MR BULL: Barking dogs. Well, there are pet hotels. Cats. Other domesticated animals. We apparently have one on the Gold Coast. So I don't - look, that's just perverse. It's an outcome which you can't actually - look, this is a general submission I was going to make. Yes, we haven't got lever arch folders full of statements from witnesses who are giving evidence in relation to every nook and cranny of any argument that I might put to you and, you know, with all the time in the world, frankly it would be inappropriate to do that.

PN1954

The whole point of a specialist Industrial Tribunal which has been conducting a review for some time is there are some things that can be, you know, dealt with in a more shorthand fashion. They are, frankly, conflicted and unhelpful arguments. They are not argument saying that it's not a good idea, but just simply saying, "There's not enough evidence", when you are not prepared to say that there's - you're going to oppose it is, I would say, problematic in this process. By all means say it shouldn't happen for particular merit reasons, but simply saying you haven't reached some undescribed point of an onus being charged is problematic and that's a matter for you to decide.

PN1955

Some of the matters I say are, just on their face, require correction and they're not things that necessarily a copious, you know, evidence in the more conventional sense needs to be found. And corrections, there was a submission by AiG that there's no evidence of abuse in relation to casuals. Well, frankly, it's not a matter where you need to say that something is being abused, it's either a fair and relevant safety net or it isn't, and there's obviously cogent reasons. Even if casuals are not particularly utilised in this particular sector, to at least have the notional - to have in place what is a fair and relevant safety net.

PN1956

And this is not a made up or paranoid thing, it's certainly been my experience whilst I've been doing this work with United Voice, where we do have a significant coverage in contracting areas where often in relation to obtaining a contract the main variable that the labour hire or facility management company competes against is the cost of labour. So holes, so to speak, in the safety net become opportunities and it is quite appropriate that this tribunal ensure that there are not unforeseen holes. That's all I wish to say, thank you.

PN1957

VICE PRESIDENT HATCHER: All right. Mr Barlow?

PN1958

MR BARLOW: Thank you, your Honour. I will be very very brief. I'd just like to add two comments to what my colleague Mr Bull was dealing with regarding the Miscellaneous Award. We've heard submissions again and again from ABI here about compensating equally for the disutility of performing overtime, but in the Miscellaneous Award as it is being explored here that's clearly not the case. Irrespective of this cumulative compounding or other issue where you take one out or absorb it or add it together, your Honours.

PN1959

And I would also just suggest regarding that award and 10.4A, that casual employees must be paid the 25 per cent loading the relevant minimum wage in clause 14, and then the references to clause 22 and overtime. Where we - I agree that it may very well be a more logical way to approach it, that clause 22 excludes, essentially, 10.4A and you don't add the loadings then on to the other one. But that's not really what the award says, in some senses, your Honour. It just says you've got to pay the casual loading on their minimum wage. So how that interacts is not entirely clear with clause 22, your Honour. But those are our submissions, if it please the Commission.

PN1960

VICE PRESIDENT HATCHER: All right. Is there any further submissions? Mr Bull, since he was acting as your junior yesterday, can you contact Mr Clarke and enquire whether it's satisfactory if he, once we produce the transcript for today which we'll try to do in short order, if he wants to say anything in response he can do so in writing within seven days?

PN1961

MR BULL: We were equal parties, your Honour.

PN1962

VICE PRESIDENT HATCHER: I saw him pouring you a glass of water, that's why.

PN1963

MR BULL: Beg pardon?

PN1964

VICE PRESIDENT HATCHER: I saw him pouring you a glass of water.

PN1965

MR BULL: Well, I was speaking, I can't - you know, and I had a bit of paper in my hand, you know, I'm not an octopus. Well, I'm happy to do something. You want me to, what, send him the transcript?

PN1966

VICE PRESIDENT HATCHER: Well, he wants to reserve his position to respond. So once we send him a transcript, whether it would be satisfactory for him if he wishes to make any further response having regard to his procedural point to do so in writing within seven days.

PN1967

MR BULL: I'll do that.

PN1968

VICE PRESIDENT HATCHER: Yes.

PN1969

MR BULL: Thank you.

PN1970

VICE PRESIDENT HATCHER: All right. Otherwise, we thank the parties for their submissions, and we'll now adjourn.

ADJOURNED UNTIL WEDNESDAY, 31 JULY 2019 [1.19 PM]