PN1971

VICE PRESIDENT HATCHER: Yes, I'll take the appearances. Mr Crawford, do you appear for the AWU?

PN1972

MR S CRAWFORD: Yes, your Honour.

PN1973

VICE PRESIDENT HATCHER: Mr Harmer, you appear for the Australian Ski Areas Association?

PN1974

MR M HARMER: Yes, thank you, your Honour.

PN1975

VICE PRESIDENT HATCHER: Now, there was a witness statement filed by your side, Mr Harmer of Mr Girling. Is he required for cross-examination?

PN1976

MR HARMER: He is, as we understand it.

PN1977

VICE PRESIDENT HATCHER: Well, should we start off by taking his evidence? Is that appropriate?

PN1978

MR HARMER: That would be convenient.

PN1979

VICE PRESIDENT HATCHER: Is that appropriate, Mr Crawford?

PN1980

MR CRAWFORD: Yes.

PN1981

VICE PRESIDENT HATCHER: All right, Mr Girling, can you hear us in Canberra?

PN1982

MR GIRLING: Yes, I can, your Honour.

PN1983

VICE PRESIDENT HATCHER: Can I ask you to step into the witness box and take your statement of evidence with you. We'll try to zoom in and then when you're ready, I'll ask you to stand and we'll administer the affirmation.

PN1984

We'll get you to stand Mr Girling and we'll just do the affirmation. Just give us a second, we just needed to fix the camera a bit. Now we got it, okay.

PN1985

THE ASSOCIATE: Mr Girling could you please state your full name and address for the record?

PN1986

MR GIRLING: Gavin Alfred Girling, (address supplied).

<GAVIN ALFRED GIRLING, SWORN [9.39 AM]

EXAMINATION-IN-CHIEF BY MR HARMER [9.39 AM]

PN1987

VICE PRESIDENT HATCHER: Right, Mr Harmer.

PN1988

MR HARMER: Yes, your Honour. Mr Girling could you state please your current role?‑‑‑I'm currently a HR Director at Perisher Ski Resort.

PN1989

Could you also state your role in relation to the Australian Ski Areas Association?‑‑‑I've been asked on behalf of the Australian Ski Areas Association to provide I guess, witness statements and evidence. As a somewhat expert, I've been in the industry for 25 years, 20 of those in a senior role within HR.

PN1990

Pursuant to that role with the Association, have you completed a statement for the purposes of these proceedings?‑‑‑I have.

PN1991

Do you have a copy of that statement with you?‑‑‑I do.

PN1992

Is it true and correct in every respect?‑‑‑Yes, it is.

PN1993

Do you seek to change it in any way? Do you have any alterations to make to it at all?‑‑‑No, I do not.

PN1994

Thank you. I seek to tender the witness statement of Mr Girling.

PN1995

VICE PRESIDENT HATCHER: I'm sorry, what's the date of the statement, Mr Harmer?

PN1996

MR HARMER: I'm sorry, it's 5 July 2019.

*** GAVIN ALFRED GIRLING XN MR HARMER

PN1997

VICE PRESIDENT HATCHER: The statement if Gavin Girling dated 5 July 2019 will be marked exhibit A.

EXHIBIT #A WITNESS STATEMENT OF GAVIN GIRLING DATED 05/07/2019

PN1998

MR HARMER: If it please the Commission, no further questions.

PN1999

VICE PRESIDENT HATCHER: Mr Crawford.

CROSS-EXAMINATION BY MR CRAWFORD [9.41 AM]

PN2000

MR CRAWFORD: Thank you, your Honour.

PN2001

Mr Girling, attached to your statement and marked A, is a previous statement you provided in award review proceedings. Do you have that?‑‑‑I do.

PN2002

I think that statement is dated 21 December 2016?‑‑‑Yes, that's correct.

PN2003

Can you please turn to paragraph 2.4 of that previous statement? Do you have that?‑‑‑Yes, I do.

PN2004

In that paragraph you list the associations, members in terms of Alpine Lifting Companies. Are you able to explain from that list which are the biggest operators in terms of employee numbers?‑‑‑That would be in New South Wales, it would be Perisher and Thredbo. In Victoria, that would be Mt Hotham, Falls Creek and Mt Buller.

PN2005

Thank you. Right, can I now take you to paragraph 26 of your 5 July 2019 statement. Do you have that?‑‑‑I do.

PN2006

In the second sentence, you say "At Perisher this season, approximately 36 per cent of staff are engaged casually", is that correct?‑‑‑That's correct.

PN2007

And of that 36 per cent of casual staff, how many of those staff are ski instructors?‑‑‑The vast majority of that group would be ski instructors.

PN2008

The issue that we're discussing in these proceedings in terms of casual overtime entitlements won't affect those ski instructors, will it?‑‑‑That's correct.

*** GAVIN ALFRED GIRLING XXN MR CRAWFORD

PN2009

You also refer in that paragraph to Mt Hotham and Falls Creek and you say the rate of casualisation is higher, approximately 85 per cent. Is that correct?‑‑‑That's correct.

PN2010

In terms of that 85 per cent, are you aware of how many of those employees would be ski instructors?‑‑‑It's approximately 40 to 50 per cent, varied on each resort. But yes, around those numbers.

PN2011

But it's a higher proportion for Perisher, is that correct?‑‑‑A higher proportion of the casuals that we have, yes that's correct. We don't have as many casuals and the majority of them are ski instructors.

PN2012

In terms of the casual employees that are not ski instructors, what type of roles are they generally doing?‑‑‑It's quite a large cross-section of roles. It's not specific to any one area. Quite often casuals at Perisher are supplementary workforce, so they're people that work only for short periods or for weekends or as a second job. So, they're not a predominant group clustered in one location.

PN2013

In terms of the actual roles, are we talking about lift operators, or cleaning or hospitality? What are they actually doing?‑‑‑As I say, it would be across the resort, so it could be ticket sellers, could be ski patrollers, could be groomer operators. There's a wide variety of roles that are covered by casual engagements. But as I say, they're not a large number, proportionately.

PN2014

It's correct, isn't it, that employees covered by this award don't have to pay any weekend penalty rates at all. Is that correct?‑‑‑Yes, that's been the nature of the award, yes correct.

PN2015

And they don't have to pay any shift loadings for work performed in the afternoon or at night. Is that correct?‑‑‑There's nothing under the award, no.

PN2016

Is it also correct that during the award review proceedings, there was an attempt made by employees who are not currently covered by the award to become covered to try and access the conditions in the award?‑‑‑Yes, there were proceedings to that effect, correct.

PN2017

In terms of the business you work for at Perisher, I think you indicate you're employed by Perisher Blue Pty Ltd. Is that correct?‑‑‑That's correct.

PN2018

Is that company the trustee of the Snow Trust?‑‑‑It is.

*** GAVIN ALFRED GIRLING XXN MR CRAWFORD

PN2019

Is the beneficial owner of the Snow Trust VR Australia Holdings Pty Ltd?‑‑‑That's my understanding, yes.

PN2020

Do you have a copy with you of a financial report for VR Australia Holdings Pty Ltd that the AWU has filed in these proceedings?‑‑‑I do.

PN2021

Can you please turn to page 4 of that financial report?‑‑‑Yes, I have it.

PN2022

Do you see the heading Corporate Structure?‑‑‑I do.

PN2023

It reads:

PN2024

The entity is a company limited by shares that is incorporated and domiciled in Australia. Its ultimate parent entity is Vale Resorts Incorporated US.

PN2025

Is that correct?‑‑‑To my knowledge, yes.

PN2026

Can you please turn to page 7 of that report?‑‑‑Yes, I have that up.

PN2027

Do you see on that page, there are profit for the year figures for 2017 and 2018?‑‑‑I do.

PN2028

For 2017, the annual profit was $13 406 910?‑‑‑That's what the report says, yes.

PN2029

Then the figure for 2018 is $19 671 961?‑‑‑Yes, that's what the report says.

PN2030

Do you accept that those financial figures demonstrate that the business is quite profitable?‑‑‑I guess profitability is always comparable, but I'm not a financial person. I don't know what that compares to the asset or what the expectation on return is. I couldn't answer that.

PN2031

Then can you please finally turn to page 8?‑‑‑Yes, I have it up.

PN2032

Do you see towards the bottom, there's a net asset row?‑‑‑Yes, I do.

*** GAVIN ALFRED GIRLING XXN MR CRAWFORD

PN2033

For 2018 that reads $224 941 618. That's correct, isn't it?‑‑‑That's total equity, yes.

PN2034

Their figure for total equity is the same, yes that's correct. Mr Girling, you're aware that the Merlin Group recently sold its ownership of Mr Hotham and Falls Creek Ski Resorts to Vale Resorts Incorporated?‑‑‑Yes, I am.

PN2035

That was, I believe, for $174 million Australian dollars?‑‑‑So, I understand. I wasn't party to those processes.

PN2036

Does that mean that the ultimate owner of Mt Hotham and Falls Creek Ski Resorts and also Perisher is now the same US controlled company?‑‑‑That's correct.

PN2037

Is it correct that Kosciuszko Thredbo Ski Resort is owned by the Greater Union organization, which also owns Events Cinemas?‑‑‑Part of the Ridges Group, that's my understanding, yes.

PN2038

In terms of the ski resorts you've indicated earlier, are generally the largest operating in this industry. It's correct that in terms of ultimate parent ownership, they're all owned by large multinational companies, aren't they?‑‑‑The larger of those resorts, as you articulated in terms of Perisher, Falls Creek and Hotham are owned by Vale Resorts, that's correct. Thredbo is owned by - my understanding - I don't understand their corporate structure, but my understanding is through the Ridges Group, that's correct.

PN2039

Thank you. Can you please turn to paragraph 31 of your 5 July statement?‑‑‑Yes, I have that in front of me.

PN2040

Particularly, subclause (b) where you say in relation to the AWU's attempt to have casual loading paid on overtime, you say that the Association's members would be forced to further restrict the amount of overtime hours worked by their casual employees. Is that correct?‑‑‑I say that's a likely consequence that's correct.

PN2041

But ultimately, that's a business decision for the employers, isn't it?‑‑‑It is.

PN2042

In terms of Perisher where you work, have you assessed the cost to the business if casual loading was paid on overtime hours worked by casuals?‑‑‑No, we haven't modelled that at this stage.

*** GAVIN ALFRED GIRLING XXN MR CRAWFORD

PN2043

Are you aware of any of the association's other members doing that modelling to work out the cost of - the likely cost if the casual loading was paid on overtime hours?‑‑‑I don't have any modelling before me, no, from those other resorts.

PN2044

Thank you Mr Girling, nothing further.

PN2045

MR HARMER: Just briefly then, your Honour.

PN2046

VICE PRESIDENT HATCHER: Sorry, before you do. Mr Girling, from your involvement with the ASAA, is it your understanding that ski resort operators have been paying casuals overtime, if they've been paying it at all, on the basis that the casual loading is included in the penalty rate?‑‑‑That's my understanding, your Honour, yes.

PN2047

Yes, thank you. Mr Harmer.

RE-EXAMINATION BY MR HARMER [9.53 AM]

PN2048

MR HARMER: Thank you. Mr Girling, you were taken to annexure A to your statement, which is the statement you gave earlier in the award modernisation proceedings. You were taken to page one; that's your statement of 21 December 2016 at paragraph 2.4. Do you have that?‑‑‑I do.

PN2049

You were asked to identify the larger players in the industry. But I just ask you in relation to the resorts from subparagraphs (f) through to (k), can you just describe for the Commission where they stand in the scheme of sites?‑‑‑They are significantly smaller than Perisher or any of the other entities that we spoke to from (a) to (e). In some cases, they'd be nearly a tenth of the size in terms of workforce.

PN2050

Would many of them be small to medium enterprises with less than say, 200 employees?‑‑‑They'd be characterised as such, yes.

PN2051

That would be all of those resorts?‑‑‑From (f) to (k), that's correct.

PN2052

So there's a bit of a dichotomy between the large resorts at (a) to (e) and then the actual majority are the smaller resorts within the industry. Is that correct?‑‑‑On numbers, yes.

*** GAVIN ALFRED GIRLING RXN MR HARMER

PN2053

Thank you. You were asked some questions about the returns in profitability of Perisher Resort, do you recall that?‑‑‑I do.

PN2054

Are you able to give the Commission any indication of the potential impact of weather conditions on the liability of any of the resorts in the industry from year to year?‑‑‑It makes a massive difference. I mean, in any given year it can shift quite significantly. And that can shift within a season. I mean, we've seen that within this current season. We had a great start, followed by rain, followed by further snow. So, it's an up and down season and you've got to shift gears to modify your operations to suit that.

PN2055

Are you able to inform the Commission as to the ability of the smaller resorts to make those shifts?‑‑‑The smaller resorts the more difficult that becomes on the basis that they don't have the diversity to move staff between operations and so forth, such as an operation like Perisher.

PN2056

Are you able to tell the Commission anything about the concentration of casual employees within the smaller resorts?‑‑‑The smaller resorts tend to have a higher proportion of casuals, so that they can, as I said, shift gears to be able to align with operational demands.

PN2057

You mentioned in your evidence that Hotham, Falls Creek have as high as 85 per cent casualisation. Are you saying that at some of the smaller resorts the percentage would be even higher?‑‑‑It would be on or around those figures, perhaps even higher.

PN2058

Are you able to give the Commission any indication of apprehensions the industry has concerning climate change and viability?‑‑‑On climate change is a significant thing for a ski industry; we're the canary in the cage for that aspect, because we would be impacted significantly. Hence the significant investment in things like snow making.

PN2059

And again, the ability of the smaller resorts to make those sorts of investments. Are you able to comment on that?‑‑‑The scale of snow making becomes more difficult the smaller the resort and the costs are still there as a capital investment.

PN2060

You were asked some questions about the ownership of Kosciuszko Thredbo; do you recall that?‑‑‑I do.

*** GAVIN ALFRED GIRLING RXN MR HARMER

PN2061

You referred to the Ridges Group. Are you able to clarify, is that an Australian family group of companies?‑‑‑That's my understanding. I don't fully appreciate their full corporate structure.

PN2062

Thank you. Then you were asked some questions about casual loading and paragraph 31(b) of your statement of July 2019. If you can just go back to that, where you refer to the resorts being forced to further restrict the amount of overtime worked by their casual employees. You see that?‑‑‑I do.

PN2063

Are you able to inform the Commission as to the ease or otherwise that the smaller resorts would deal with that issue?‑‑‑That would be far more difficult to - they don't have the scope of staff to be able to adjust.

PN2064

Thank you. No further questions.

PN2065

VICE PRESIDENT HATCHER: Right, thank you for your evidence Mr Girling, you can leave the witness box and resume your seat.

<THE WITNESS WITHDREW [9.59 AM]

PN2066

All right, Mr Crawford.

PN2067

MR CRAWFORD: Thank you, your Honour. I can be relatively brief. This matter's got I guess a bit of an unusual, somewhat awkward from our perspective history. We initially - before the award review proceedings, the award didn't prescribe casual overtime entitlements for any casual employees. The AWU made a claim to insert casual overtime entitlements as part of the award review process. That was - we filed a draft determination in July 2015.

PN2068

The effect of that in our view, clearly would have allowed the payment of the casual loading in addition to overtime penalty rates. We fully accept there's been some indication we're walking away from a consent position. But I've stated previously, I reiterate today that we did strike a consent position with the association and part of that consent position was that casual overtime entitlements would go into the award, not for ski instructors, and that the casual loading would not be payable in addition to overtime penalty rates. That happened; we don't say that didn't happen.

PN2069

VICE PRESIDENT HATCHER: But it's a bit more than that. The parties effectively jointly submitted to the Commission that a variation of that nature would result in the award meeting the modern award's objective. That's correct, isn't it?

*** GAVIN ALFRED GIRLING RXN MR HARMER

PN2070

MR CRAWFORD: Generally speaking, I think that's right, yes. That was the effect of the consent package.

PN2071

VICE PRESIDENT HATCHER: Then we made amendments drafted by the parties to give effect to their agreement.

PN2072

MR CRAWFORD: That is correct. It was a process where, I think initially, the association filed a draft determination and then the Commission asked for feedback on it. The AWU did provide feedback. I do want to point out in that feedback, the AWU did flag the point that in its view the general decision issue by the casual employment Full Bench impacted on the consent position and that the Commission may want to consider the implications in terms of the consent position. That did occur before the award was varied.

PN2073

But then, I think the Commission circulated a draft determination. There were further discussions between the parties and agreed terms were struck. Then the award was varied effective 1 January 2018, in basically terms agreed between the AWU and the Association.

PN2074

VICE PRESIDENT HATCHER: What do you now say? The terms of the variation did not give effect to the substantive underlying agreement between the parties?

PN2075

MR CRAWFORD: Effectively, we don't read the award as varied as excluding the payment of casual loading on overtime. We see no provisions to that effect. So we would say that one way or another, the award probably should be varied as a result of these proceedings, just to clarify what is intended to occur, whichever way the Full Bench goes. Because I think, on the face of it, the casual employment clause simply refers to "That a casual employee must be paid a casual loading of 25 per cent". That's clause 10.5(a).

PN2076

Then the overtime provisions - - -

PN2077

VICE PRESIDENT HATCHER: Well, if you go to clause 25.3, it sets out the overtime rates.

PN2078

MR CRAWFORD: Yes.

PN2079

VICE PRESIDENT HATCHER: To ensure that we give - we've given effect to the standing agreement between the parties which we accepted would result in the award meeting the modern award's objective, why wouldn't it be appropriate to add the words at the end of that clause as follows:

PN2080

In the case of casual employees, the above penalty rates include the casual loading of 25 per cent.

PN2081

And then make that operative from 1 January 2018.

PN2082

MR CRAWFORD: That would be certainly clearer than the current provisions, yes. There is also obviously the exposure draft process going on as part of the award review which I think will ultimately end up with casual overtime rates prescribed in the table, which I guess will provide further helpful clarity of the issue.

PN2083

VICE PRESIDENT HATCHER: Well, can you think of a reason why we should not make the variation I've just described?

PN2084

MR CRAWFORD: The only - I mean, provided written submissions which address the modern award's objective, I guess at its highest, what we're saying is that yes, we did agree to that consent position. Then a significant Full Bench case was handed down. That had implications for the consent position. We may have approached - - -

PN2085

VICE PRESIDENT HATCHER: Which case was that?

PN2086

MR CRAWFORD: The casual employment Full Bench decision.

PN2087

VICE PRESIDENT HATCHER: But how does that impact one way or the other upon this award? As what was said in that case which establishes something that you hang your hat on?

PN2088

MR CRAWFORD: I guess, the findings that were made in terms of the modern award's objective and casual employees being entitled to overtime would be part of it. We read certain aspects of that decision as indicating that the standard approach should be the casual loading paid on a cumulative basis when casual employees work overtime.

PN2089

VICE PRESIDENT HATCHER: With respect, it doesn't say that. Because, with respect to the hospitality awards, overtime was awarded inclusive of the casual loading, that is, it was absorbed and then there was a different outcome in the retail awards. But that general principle I don't think was established in the part time casual case at all.

PN2090

MR CRAWFORD: Yes, I mean I think it was in reference to the Rail Award that I did notice reference to a principle that I mean, obviously, if that's not the case - - -

PN2091

VICE PRESIDENT HATCHER: Well, it was only by reference to whether it should be compounding or cumulative. It wasn't - that is the method of calculation where it applies. I don't think it established a principle beyond that.

PN2092

MR CRAWFORD: All right, I accept that. I mean, I guess I was saying is we - with reference to that decision, probably would have reconsidered the consent position. It is what it is. We say the conditions in this award are quite generous to employers already, obviously given there are no weekend penalty rates, or additional rates for working at night. We say that in addition a lot of the employees working under this award are ski instructors who are excluded from overtime in any event.

PN2093

DEPUTY PRESIDENT KOVACIC: These would have all existed at the same time as the consent position, Mr Crawford.

PN2094

MR CRAWFORD: Yes, your Honour, that is correct.

PN2095

VICE PRESIDENT HATCHER: So no doubt, the AWU took all those matters into account when it reached the agreement it did and made a judgment call as to what was in the best interests of employees under the award.

PN2096

MR CRAWFORD: Yes, that's correct. I guess the only thing that changed after the consent position was around two years later, there was that general Full Bench decision. But if the Bench is indicating that there's effectively no general principle that emerges from that, well, I don't think I've really got anything to add to my written submissions.

PN2097

VICE PRESIDENT HATCHER: All right. Well, Mr Harmer, perhaps to cut this short, is there any reason why we shouldn't make the variation I've just identified?

PN2098

MR HARMER: That would be of assistance, your Honour. There is, in the exposure draft an additional variation at 6.5(b) which makes it clear that the loading applies - the casual loading only to ordinary time. But the clarification your Honour has pointed out would be of assistance. That doesn't step away from the fact that we contend that the variation made, as clarified as we understand it by the May 2019 statement by the Full Bench dealing with this award, that that was giving fulfilment to the consent position. But clarification would assist, your Honour.

PN2099

VICE PRESIDENT HATCHER: It seems to me that if the union and the industry is contending that the award - as the terms of the award actually provide for the casual loading to be paid in addition, there's a risk of employers being exposed to back-pay claims and if we can rectify that situation, we should, given that there's no dispute about what the parties actually agreed and asked the Commission to do.

PN2100

MR HARMER: Yes, your Honour. We would certainly contend that's consistent with 134(1)(g) of the Act in terms of clarity around the safety net. If the Commission pleases.

PN2101

VICE PRESIDENT HATCHER: All right.

PN2102

MR HARMER: We're happy otherwise to provide our written submissions. We did have other things to say given the tenor of the submissions to date. We might just close at that, if the Commission pleases. Unless there is any questions that the Bench has.

PN2103

VICE PRESIDENT HATCHER: No, we don't want to ask anything further. All right, well I thank the parties for their submissions. I think the next step may be that we'll issue a short decision together with a draft determination and then after a short period of comment, the variation may be made, unless there's some further issue raised.

PN2104

MR HARMER: May it please.

PN2105

VICE PRESIDENT HATCHER: All right, we'll now adjourn.

SHORT ADJOURNMENT [10.08 AM]

RESUMED [2.02 AM]

PN2106

VICE PRESIDENT HATCHER: I'll take the appearances. Ms Davis, you appear for the RTBU?

PN2107

MS M DAVIS: Yes, that's correct.

PN2108

VICE PRESIDENT HATCHER: Mr Battagello, you appear for the Rail employers.

PN2109

MR A BATTAGELLO: That's correct, your Honour.

PN2110

VICE PRESIDENT HATCHER: I understand the parties have reached an agreement amongst themselves as to what the outcome they want us to affect. So, Ms Davis, can you just explain to us by reference to the award, what it is that you want us to do?

PN2111

MS DAVIS: Yes, your Honour. The ambiguity arises in clause 20 of the award.

PN2112

VICE PRESIDENT HATCHER: Yes.

PN2113

MS DAVIS: Are you there, your Honours?

PN2114

VICE PRESIDENT HATCHER: Just give me a second.

PN2115

MS DAVIS: No worries.

PN2116

VICE PRESIDENT HATCHER: Yes.

PN2117

MS DAVIS: Clause 20 discusses ordinary hours of work, but it does not explicitly mention casuals. Although it's not in dispute between the parties that clause 20 is intended to be read to include casuals, the RTBU seeks a variation to clarify this entitlement as our members have voiced concerns that they do not understand this entitlement to overtime.

PN2118

The definition - now, your Honours, I'll take you to clause 23.5 where it's the definition of overtime in the Rail Award.

PN2119

VICE PRESIDENT HATCHER: Yes.

PN2120

MS DAVIS: In 23.5(c), where it mentions the definition for overtime for casuals, it doesn't give any indication that one can look to clause 20 when determining a casual's ordinary hours. While, if I take you to clause 23.5(a), it quite clearly says for full time employees, one may look at clause 20.

PN2121

This could be clarified as it is a commonly understood entitlement to overtime. The RTB submits that it could be clarified by simply adding the words "see clause 20" in 23.5(c) as per may draft variation.

PN2122

VICE PRESIDENT HATCHER: Yes, all right. But I'm just looking at - I mean obviously, 23.5(c) is meant to give casual employees an entitlement to overtime, but the actual entitlements as expressed in 23.2, 23.3 and 23.4 doesn't include casuals?

PN2123

MS DAVIS: Sorry, where were you referring to that, your Honour?

PN2124

VICE PRESIDENT HATCHER: I'm just looking for an example at 23.2, 23.3 and 23.4 and also 23.7. Each clause refers only to full time and part time employees.

PN2125

MS DAVIS: In that sense, your Honour, merely simply adding "see clause - whether the crux of the argument is about ensuring that our members understand their entitlements that are found in 20.4 and 20.5 of the rail award, it's a commonly known entitlement that they should be read to include casuals, but it could be made more clear. Therefore, if you see that it's not all - it doesn't all consist of, you know, there's some things that for full time employees and some for casuals, if we simply add to 23.5(c) see only the two sections 20.4 and 20.5, I think that would resolve the issue.

PN2126

DEPUTY PRESIDENT KOVACIC: Can I ask Ms Davis, what's the understanding of the parties in respect to the casual loading when overtime is worked?

PN2127

MS DAVIS: That issue was resolved I think in 2017 against a Full Bench. The loading has been effectively added in to the different - into the award to allow overtime to be accrued separately and then a 25 per cent loading added on top.

PN2128

VICE PRESIDENT HATCHER: Sorry, the Deputy President to my right has drawn my attention to 10.3(d) which sets out the penalty rates for casuals, I see.

PN2129

MS DAVIS: Yes, your Honours, the only issue that I was here today to discuss was merely clarifying the position that casuals are entitled to overtime once working past the maximum hours of the day and also outside a span of hours that can be seen in 20.4 and 20.5.

PN2130

MR BATTAGELLO: If I might assist, your Honour.

PN2131

VICE PRESIDENT HATCHER: Yes.

PN2132

MR BATTAGELLO: Rather than treading over old ground, 10.3(d) was - what the overtime provisions encompassed in 10.3(d) those changes were made by the Commission effective 1 January 2018 to clarify the position with respect to casuals. Those provisions were previously set out in the old 23.2 I believe it was. So they were specifically set out to apply to casuals.

PN2133

VICE PRESIDENT HATCHER: It's starting to ring a bell. All right. Anything further?

PN2134

MS DAVIS: No, that's all, your Honours.

PN2135

VICE PRESIDENT HATCHER: Do you want to add anything Mr Battagello?

PN2136

MR BATTAGELLO: No, your Honour. The original dispute raised by my clients was solely from the lack of particularisation I believe, as to what change was deposed, particularly where there was no dispute as to a lack of clarity. But suffice it to say in circumstances where the amendment is minor and merely clarifies the understood position, we consider it simply meets the aim of making the award clearer.

PN2137

VICE PRESIDENT HATCHER: All right. Well, if there's nothing further, we'll reserve our decision on the matter and we'll now adjourn.

ADJOURNED INDEFINITELY [2.09 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

GAVIN ALFRED GIRLING, SWORN........................................................... PN1986

EXAMINATION-IN-CHIEF BY MR HARMER........................................... PN1986

EXHIBIT #A WITNESS STATEMENT OF GAVIN GIRLING DATED 05/07/2019............................................................................................................................... PN1997

CROSS-EXAMINATION BY MR CRAWFORD.......................................... PN1999

RE-EXAMINATION BY MR HARMER........................................................ PN2047

THE WITNESS WITHDREW.......................................................................... PN2065